REASONABLE ACCOMMODATION FOR DISABLED EMPLOYEES

The federal Equal Employment Opportunity Commission (EEOC) has issued an "Enforcement Guidance" that will help clarify the rights and responsibilities of employers and individuals with disabilities concerning reasonable accommodation and undue hardship. As it has done in issuing guidances on other subjects, the EEOC has used frequent examples based on a hypothetical set of facts in a question and answer format. An EEOC Guidance does not have the force of law, but courts often defer to such documents as they resolve employment discrimination issues.

The EEOC elaborates on what "reasonable accommodation" means and who is entitled to receive it. For example, the right to reasonable accommodation is available even to part-time or probationary employees. The Guidance covers the form and substance of a request for accommodation and an employer's ability to ask questions and seek documentation after a request has been made.

Generally, the disabled individual, or someone on his or her behalf, must inform the employer that an accommodation is needed, but the request can be made in plain English, without having to mention the Americans with Disabilities Act (ADA) or use the correct legal buzzwords. The request should begin an informal dialogue to identify the person's needs and a suitable accommodation. If the disability or the need for accommodation is not obvious, the employer may ask for reasonable documentation to establish the disability and the resulting functional limitations.

There are three categories of reasonable accommodations. They include modifications or adjustments to (1) the job application process; (2) the work environment or the circumstances in which a job is customarily performed; and (3) policies that set out the benefits and privileges of employment.

The Guidance emphasizes that an employer should assess the need for accommodations for the job application process separately from those that may be needed to perform the job. For example, an employer must avoid any tendency to exclude a qualified individual from the application process because of speculation by the employer that it will not be able to provide reasonable accommodations necessary for satisfactory job performance.

The Guidance goes into detail about some of the forms of reasonable accommodation, especially regarding the work environment and how a job is performed. A partial list of accommodations includes: making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; and reassignment to a vacant position. The Guidance says that an employer is required to give a vacant position to a disabled employee who requests reassignment to that position and has the minimum qualifications for it, even if other more qualified individuals have applied.

There are limits to what the ADA requires of an employer that receives an accommodation request. For example, an employer cannot be forced to eliminate an essential function of a position, such as one of its fundamental duties. Nor does an employer have to lower qualitative or quantitative production standards that are applied uniformly to employees with or without disabilities. The employer may choose among several reasonable accommodations as long as the selected method is effective in allowing the individual to perform the essential functions of the position.

The most significant exception to the duty of accommodation is undue hardship on the employer. The undue hardship issue concerns quantitative, financial, or other limitations on an employer's ability to provide reasonable accommodation. The focus is on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation, but the required considerations go beyond a rigid cost-benefit analysis. Excessive costs can lead to a finding of undue hardship, but so can the fact that a requested accommodation is unduly extensive, substantial, or disruptive, or the fact that it would fundamentally alter the nature or operation of the business.

You can read the Guidance on the EEOC's website at:

www.eeoc.gov/docs/accommodation.html.


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LEFT OUT FOR TAKING LEAVE

When an accident left Mark with a punctured lung and broken ribs, it was 52 days before he was able to return to his job. A few months later, Mark volunteered for a layoff, at which time one of his former supervisors made a notation in Mark's file that his attendance had been "poor." The basis for this rating was Mark's medical leave, to which he had been entitled under the federal Family and Medical Leave Act (FMLA).

When Mark applied to be rehired almost two years later, the "poor" attendance rating came back to haunt him. When he did not get the job, he sued, contending that the employer had discriminated against him for having exercised his right to take medical leave. A federal trial court dismissed the claim, agreeing with the employer that the FMLA only protects "employees," not job applicants.

Unlike the Americans with Disabilities Act, for example, the FMLA does not explicitly say that it covers applicants as well as employees. A Labor Department regulation does state, however, that it is a violation of the FMLA to discriminate against job applicants who have taken FMLA leave. Moreover, although the FMLA section allowing lawsuits refers only to "employees," the specific antiretaliation provision on which Mark relied protects "any individual" engaged in protected activity.

A federal appellate court overturned the lower court and reinstated Mark's case. The language in the FMLA was ambiguous, as "employees" could mean prospective or former employees, not just current employees. It also helped Mark's case that the Supreme Court has interpreted the term "employees" in another federal employment discrimination statute to include former employees. The Labor Department's interpretation was reasonable and in keeping with the broad overriding goal of the FMLA: to help working men and women balance conflicting demands of work and personal life.

Preventing Mark and others in his situation from suing under the FMLA allows employers to evade the Act by blacklisting employees who have used leave in the past or by refusing to hire individuals if the employers suspect they might take advantage of the law.

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TECHNOLOGY AND THE WORKPLACE

Internet Use on the Job

Widespread access to the Internet in the workplace has opened up worlds of information for employees and the companies for which they work. The downside is that it is also possible for online employees to create new legal headaches for employers.

Numerous variations on this theme have already occurred. A supervisor accesses sexually explicit websites and then harasses a subordinate by passing on inappropriate material. An employee takes text or images from the Internet and puts them into his e-mail, unaware that federal copyright law prohibits alteration of copyrighted material, such as by removing the author's name or manipulating images. Someone with too much time on his hands becomes a chat room regular and one day the "chat" turns defamatory. A worker without much sense of his company's privacy puts sensitive information about his employer, or worse, trade secrets, into cyberspace.

To minimize the inappropriate use of the Internet, to lay the groundwork for disciplinary action when an employee acts improperly, and to minimize exposure to liability, businesses should adopt clearly written policies on Internet access on company time. The details of such an Internet "acceptable use policy" should be tailored to the specific business, and care should be taken that legal requirements are met. A few ingredients are indispensable to any policy: (1) descriptions of what is acceptable and unacceptable use of the Internet; (2) a statement that the computer system belongs to the company and that employees have no privacy interest in the information passing through it; and (3) notice to employees that their e-mails and Internet use may be monitored.

In short, there is a middle ground between the extremes of placing no restraints on employees and imposing a complete ban on all personal use of the Internet. An acceptable use policy can allow personal use within "reasonable limits," but specific limits will make enforcement easier and provide more protection for the employer. For example, the employer might prohibit chain e-mails because of the space they take up in the company's computer system.

Warning employees about monitoring is especially important since people tend to assume that the activities on their computers are private. Also, since federal law prohibits interception of wire communications unless one party consents, any monitoring should be preceded by having the employee give written consent to it, or by having a message to the same effect appear on computer screens when employees log on. Technological advances that created the potential for problems may also help with the monitoring. Unusually large files could suggest inappropriate employee use of the Internet, as files containing graphics, video, or audio are often sizable. Filtering software can be used to screen or block access to websites with profanity or other language that is inappropriate to the workplace.

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NONCOMPETITION AGREEMENTS

The desire of employers to keep their employees from competing with them has been a source of much litigation. In a typical arrangement, the employer requires the employee to sign an agreement that prevents the employee from engaging in specified forms of competition with the employer for a certain time period and in a specific geographic area. Courts usually will enforce the noncompetition agreement if it strikes a reasonable balance between protecting the interests of the employer and allowing the employee enough leeway to earn a living.


Validity and Enforcement

A challenge to the validity and enforcement of an agreement often focuses on the reasonableness of the geographic scope and the duration of the restrictions. Another factor considered is the nature of the former employee's duties and whether those duties increase or diminish the possibility of competitive harm to the employer. An extensively trained employee who has access to trade secrets or who has developed substantial contacts with customers poses a greater competitive threat than a worker who has few connections to the company's place in competitive markets.


Blue Pencil Rule

If it is determined that a noncompetition agreement is too restrictive, some courts may take a flexible approach. Under the "blue pencil" rule, a court can preserve acceptable parts of the agreement and enforce offending provisions with appropriate modifications. For example, a five-year ban on competition may be enforced for only three years. Or, a five-state, no-competition area may be reduced to the state where the employee worked.


At-Will Employees

Sometimes the legality of a noncompetition agreement is before a court not because the employer is enforcing it but because it fired an employee who refused to sign the agreement. In that setting, the law generally favors the employer's right to discharge an "at-will" employee for any reason or for no reason at all. An at-will employee is one hired for an indefinite term and not protected by contractual or statutory provisions requiring that there be a good reason for termination. An employee who balks at signing a noncompetition agreement may argue that termination for that reason goes against a public policy that prohibits unreasonable restraints on trade. On a case-by-case basis, many states have carved out specific public policy exceptions to the at-will rule, but the exceptions tend to be created in piecemeal fashion and based on policies derived from state law.

Be sure to seek the advice of legal counsel whenever drafting or signing a noncompetition agreement.

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