The Equal Employment Opportunity Commissions vigorous zeal for employer compliance with the Americans with Disability Act is not showing any signs of letting up. As a result, legal advisers in the labor and employment field recommend that employers of all sizes conduct a thorough review of their policies and accommodations.
In 2013, according to the EEOC, it received nearly 94,000 private sector charges related to discrimination. The commission vowed last year to focus its actions on specific areas that can stop and remedy unlawful employment discrimination so that the nation can achieve our ultimate vision of justice and equality in the workplace. The commissions strategic plan for fiscal year 2012-2016 includes strategic law enforcement, education and outreach.
The ADA is one of the EEOCs six national priorities, according to the strategic plan. For instance, the total number of ADA charges that were resolved reached about 26,000 last year; employers paid out more than $109.2 million as a result.
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The EEOC sort of has two roles one is to provide guidance as to what the laws mean and the other is to enforce, says Matt Morris, vice president and licensed attorney at ComPsych, a provider of employee assistance programs. And their enforcement arm has certainly been extremely active and potent for that matter around suing employers with regard to the ADA.
But according to Heather A. Owen, a partner at Constangy, Brooks & Smith, the goal of the ADA is to assist people not to subject employers to excessive levels of enforcement.
The ADA, when it comes down to it, it is a very well-intentioned law, she said recently at the Society of Human Resource Managements annual conference in Orlando, Fla. Yes, its abused, but its a very well-intentioned law.
Hot topics in ADA compliance right now include transfer as an accommodation, leave as an accommodation, working from home as an accommodation, as well as engaging in an interactive process to resolve disputes with employees, said Owen. Employers who have exhausted the interactive process by asking all the right questions have tended to win their cases, she noted to SHRM attendees.
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Jeanne Goldberg, a senior attorney adviser in the EEOCs Office of Legal Counsel, says that it doesnt violate the law to simply fail to jawbone with the employee.
All the courts and the commission have observed [that] by engaging in an interactive process employers usually help both themselves and the employee by getting the information they need to reach the right result, the right decision, she says.
The Princeton HealthCare System, which includes the University Medical Center of Princeton at Plainsboro Township, N.J., recently settled with the EEOC for $1.35 million after the commission charged that the hospital fired employees who had taken 12 weeks of leave. The EEOC said Princeton HealthCare Systems fixed policy did not consider leave as a reasonable accommodation.
The hospital system with more 1,073 physicians, 3,100 employees and nearly 700 volunteers, agreed to modify its blanket leave policy, which will now include a thorough review through the interactive process. Also, it can no longer require employees who return from disability leave to have a fitness-for-duty certification, according to the settlement terms.
In a statement provided to EBN, Princeton HealthCare System says that the case involved an old HR policy that was changed in 2010. The EEOC has reviewed the hospital systems new procedure and training efforts, citing that it has no quarrel with the organizations new compliance efforts, the hospital explains.
In this lawsuit, the EEOC claimed that 23 employees were negatively impacted by the previous policy, the company says. Although the hospital disagrees that the prior policy violated the ADA and challenged the claims, the hospital has agreed to resolve those matters in order to avoid the very high cost and disruption of operations caused by the ongoing litigation. The hospital has always been and remains fully committed to a workplace free of any discrimination.
But, as Morris explains, the generosity of the policy is not as relevant as the structure of it with an automatic cutoff or what the EEOC is calling an inflexible leave.
ComPsych data show that ADA noncompliance is not at all surprising. Approximately 38% of organizations report they were still not satisfying the act, with many still having policies that foster an inflexible work arrangement.
The rules of the ADA are that the employer needs to be looking at each case, and making a case-by-case analysis for each one, Morris says. generally human resource departments like to make sure they are treating everyone the same, and thats not necessarily the way the ADA works.
ComPsych also finds that leave under the ADA and the Family and Medical Leave Act may go hand-in-hand. The company identifies that approximately 8.4% of FMLA cases may require a thorough ADA review. Because about half of these employees are asking for time off due to a serious health condition, ComPsych advises that an ADA investigation from EEOC may be on the horizon should these employers fail to appropriately evaluate their policies.
The percentage of FMLA cases that require an ADA review increases to 13.2% for those employers in the retail industry and 10.9% for health services, the EAP provider notes.
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Not all employees even with the same medical condition will have the same restrictions or needs with respect to the accommodation, Goldberg tells EBN. Its not one-size-fits-all and as with most issues under the ADA, doing that individualized determination about what this individual employee can and cannot do and what assistance they need, is really the hallmark of good compliance.
