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Disability management: The latest HR minefield

May 9, 2014

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

According to the Equal Employment Opportunity Commission (EEOC), disability is a focus in its Strategic Enforcement Plan.  Over the past four fiscal years, the number of ADA-related charges have averaged 25,811 per year. This is a 39% increase in the number of charges over the four-year period ending with FY 2009.

There are a number of reasons for increase; the most likely is the passage of Americans with Disability Act Amendments Act of 2008 (ADAAA), which essentially shifted the dialogue between employer and employee away from “What constitutes a disability?”  to “What kind of accommodation is needed?”

One area of concern is the interplay between disability issues and FMLA.  EEOC looks at “inflexible” leaves of absence policies as discrimination.  For example, an employer grants FMLA leave for an employee who needs additional time off.  At the end of the FMLA leave, the employee fails to return from the leave and is terminated.  The EEOC will jump on this type of case.

For example, Workers Compensation was turned upside down when the EEOC sued Sears for terminating employees on Workers Comp who could not return to work after a 12-month leave period.  Sears settled for $6.2 million in 2009. The EEOC argued that Sears should have reviewed and provided additional accommodations for these workers.

Another is the impact of ADA and employers’ no-fault attendance systems.  As you know, if FMLA plays a role in the absences, those absences cannot be used against the employee.  However, the EEOC also believes that if an absence may be disability-related, it should also not count against the attendance policy.  Verizon’s no-fault attendance policy assessed points for absences even in cases where they were due to ADA-covered disabilities. The EEOC sued, and in 2011 Verizon settle for $20 million.

“If an organization enforces a no-fault attendance policy, it should ensure that it does not charge, and then discipline, an employee for absences that are covered by the Family and Medical Leave Act (FMLA) or caused by conditions covered by the ADA,” says Linda Hollinshead, a partner at Duane Morris. “The important thing is that you have to carve out absences that are legally protected.”

Still another area that has been on the rise is failure-to-hire cases.  In a recent charge, McPhee Electric Ltd. and Bond Bros., Inc, refused to hire an applicant who had 15 years’ experience a carpenter, because his dyslexia raised their concerns about safety. The applicant told Bond and McPhee that he had a clean safety record and numerous safety training certifications.

In another case, a company used the applicant’s medical information as an excuse not to hire him.  Professional Freezing refused to hire William Harvel  because he had prostate cancer.  The owner of the company allegedly stated that he could not hire Harvel because he had cancer, and, “in a best-case scenario, would end up wearing diapers.”

And then there is the case of the “oops” hiring. Riviera Consulting & Management Consulting LLC hired, and less than a month later fired, Farhang Dahmubed because his retinitis pigmentosa meant he could not take on new duties related to driving. The EEOC sued the company for not first embarking on an interactive effort to find a reasonable accommodation for his disability.

The importance of making a reasonable effort to conduct an interactive discussion as to reasonable accommodation cannot be ignored.  The 6th Circuit Court of Appeals (which covers Michigan) ruled against Ford Motor Company after the company denied an employee’s request to work from home up to four days a week as an accommodation for her Irritable Bowel Syndrome.  The Court held that telecommuting may be a reasonable accommodation in this situation.

Finally, there are lines of cases where the employer acts without real understanding of how the employee’s condition may impact his or her work at the organization.  Strad Oilfield Services fired an employee shortly after it learned of his diabetes, ignoring the fact that he was still able to perform the job according to a fitness-for-duty test.

For employers and HR, when these situations arise, make sure that the interactive process between the employer and employee is conducted and documented.  If there is a concern regarding safety, make sure that is also documented and true.  Do not assume anything.  Finally, have legal counsel review all leave policies to ensure that potential actions under these policies will not violate the ADA. Then train managers how to respond when an potential ADA issue arises.

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