OFCCP Develops a Reasonable Accommodation Pocket Card

OFCCP created a new “Requesting a Reasonable Accommodation” pocket card. The pocket card helps applicants, employees and other interested parties understand the process for requesting a reasonable accommodation. The card uses simple language and answers these four common questions about seeking a reasonable accommodation:

• What is a reasonable accommodation?
• How do I request a reasonable accommodation?
• What do I need to tell my employer?
• What happens after the request is made?

The pocket card is a part of OFCCP’s continuing outreach and education efforts to stakeholders regarding their rights under Section 503 of the Rehabilitation Act and is available on OFCCP’s Web site at (www.dol.gov/ofccp). Copies are available in English and Spanish and may be attained by contacting Customer Service Help Desk at 1-800-397-6251.

United Airlines to Pay over $1 Million To Settle EEOC Disability Lawsuit

Supreme Court Lets Stand 7th Circuit Ruling That Reassignment Is Reasonable Accommodation

 

In a case that garnered nationwide attention, air transportation giant United Airlines Inc. has agreed to pay more than $1 million and implement changes to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

The EEOC's lawsuit charged that United's competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. By requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company's practice frequently prevented employees with disabilities from continuing employment with United, the EEOC said.

The consent decree settling the suit, signed by Hon. Judge Harry Leinenweber and entered today, requires United to pay $1,000,040 to a small class of former United employees with disabilities and to make changes nationally. United will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process.

This resolution concludes a lengthy and complicated lawsuit. Although the EEOC originally filed the lawsuit on June 3, 2009 in U.S. District Court for the Northern District of California - San Francisco, United successfully moved for a change of venue to the Northern District of Illinois. Bound by an earlier precedent which held that a competitive transfer policy similar to United's policy did not violate the ADA, the lower court dismissed the EEOC's case in February 2011. However, in a decision reviewed by the full court, the Seventh Circuit agreed with the EEOC that EEOC v. Humiston Keeling, 227 F.3d 1024 (7th Cir. 2000) "did not survive" an intervening Supreme Court decision, U.S. Airways v. Barnett, 535 U.S. 391 (2002). The Seventh Circuit reversed the lower court's dismissal and found that "the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer." The Supreme Court refused United's subsequent request for review on May 28, 2013. EEOC Appellate Attorney Barbara Sloan handled the appeal and Supreme Court briefing for the agency.

"The appellate court's decision provided an important clarification regarding an employer's responsibility under the ADA to provide a reasonable accommodation so qualified employees may lead economically independent lives," said EEOC General Counsel David Lopez. "I am pleased this major decision also served as a springboard for the strong monetary and non-monetary remedies in today's resolution."

EEOC Regional Attorney William Tamayo said, "If a disability prevents an employee from returning to work in his or her current position, an employer must consider reassignment. As the Seventh Circuit's decision highlights, requiring the employee to compete for positions falls short of the ADA's requirements. Employers should take note: When all other accommodations fail, consider whether your employee can fill a vacant position for which he or she is qualified."

EEOC San Francisco Acting District Director Michael Connolly noted, "We commend United for agreeing to make these important companywide changes that will enable employees with disabilities to stay employed at jobs they are qualified to do, as was intended under the ADA's protections."

According to the company website, United Airlines has almost 84,000 employees in every U.S. state and in many countries around the world. The air carrier has the world's most comprehensive route network, including U.S. mainland hubs in Chicago, Denver, Houston, Los Angeles, New York / Newark, San Francisco and Washington, D.C. and operates an average of nearly 5,000 flights a day to 373 airports across six continents.

Disability Services Company Sued for Discriminating Against Disabled Employees

ValleyLife Failed to Provide Reasonable Accommodations to Disabled Employees, Federal Agency Charges

ValleyLife, a disability support services company, unlawfully discriminated against disabled employees by refusing to provide them with reasonable accommodations in violation of federal law, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today in the United States District Court for the District of Arizona. ValleyLife is an Arizona corporation which provides programs and support services for individuals with disabilities in the greater Phoenix metropolitan area.

According to the EEOC's suit, ValleyLife fired employees with disabilities rather than provide them with reasonable accommodations due to its inflexible leave policy. The policy compelled the termination of employees who had exhausted their paid time off and/or any unpaid leave to which they were eligible under the Family Medical Leave Act (FMLA).

For example, the Commission said that ValleyLife forced out one supervisor, Glenn Stephens, due to his need for further surgery when his FMLA leave was exhausted. ValleyLife did not engage in any interactive process to determine whether any accommodations (including additional leave) were possible, accord­ing to the suit. Stephens had worked for ValleyLife for over ten years at the time of his termination. The suit also alleges that ValleyLife commingled medical records in employee personnel files and failed to maintain these medical records confidential in violation of the Americans with Disabilities Act (ADA).

Such alleged conduct violates the ADA, which protects workers from discrimination based upon disability and requires employers to provide reasonable accommodations to the known physical or mental impairments of disabled employees unless doing so would cause an undue hardship. Moreover, the ADA requires employers to keep employees' medical documents confidential and separate from other personnel records. The EEOC filed suit, EEOC v. ValleyLife, Civil Action No. 2:15-cv-00340-GMS, in U.S. District Court for the District of Arizona, after first attempting to reach a settlement through its pre-litigation conciliation process. The lawsuit seeks lost wages and compensa­tory and punitive damages for the alleged victims, as well as appropriate injunctive relief to prevent discriminatory practices in the future.

"Individuals with disabilities are untapped resources that employers should value and utilize--indeed, this is the essence of ValleyLife's business," said EEOC Phoenix District Office Regional Attorney Mary Jo O'Neill. "It is critical that employers reach out to employees with disabilities to make an informed and accurate evaluation of their ability to work and to provide reasonable accommodations where necessary."

Rayford O. Irvin, district director of the EEOC's Phoenix District Office, added, "Employers have a legal obligation to provide reasonable accommodations unless there is an undue hardship. ValleyLife, of all employers, should understand that."

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Accommodations for workers can help retain institutional knowledge

US Labor Department briefs offer recommendations for responding to aging workforce
 
Providing accommodations to aging workers with disabilities, chronic health problems or reduced work capacity can help employers retain experienced staff who might otherwise leave the workforce prematurely, according to two briefs issued today by the U.S. Department of Labor.

The briefs provide recommendations for state and federal policymakers, employers and health care industry leaders on retaining critical talent. One identifies successful strategies, including supportive policies, for retaining aging health care professionals without sacrificing patient care. The other recommends that employers and policymakers adopt early interventions to prevent disability-related job loss by providing workers with assistive technology and other workplace accommodations.
 
The briefs summarize assessments and recommendations from two conferences sponsored by the department's Office of Disability Employment Policy that gathered experts on aging, disability and employment to discuss the impact of aging on the national workforce and health care systems. The U.S Census Bureau projects that, by 2020, many of the 25 million baby boomers that make up more than 40 percent of the current U.S. labor force will exit, leaving many jobs unfilled and taking decades of accumulated knowledge with them. In addition, as the population ages, the demand for health care services will increase just as many health care workers are facing retirement.

"A confluence of demographic, economic, and health factors have intersected to make the employment situation of older Americans a matter of urgent national importance," said Kathy Martinez, assistant secretary of labor for disability employment policy. "By promoting workforce flexibility, harnessing widespread advances in assistive technology, and using other types of workplace accommodations, we can slow the mass exodus of older workers in health care and other industries, and continue to benefit from the knowledge and skills they bring."

Source: DOL
 

This information is intended to be educational and should not be considered legal advice on any specific matter.

Is working from home a reasonable accommodation?

Source:  Lexology article by Tara A. Aschenbrand of Squire Sanders

. . .Employers are required to provide qualified individuals who have a disability with a reasonable accommodation absent an undue hardship.  Whether working from home is a reasonable accommodation is a fact intensive analysis that should be conducted for each circumstance.

Earlier this week, a Michigan federal court dismissed the EEOC’s case against Ford Motor Company concluding that the employee’s proposal to work from home for a majority of the week was not reasonable.  In EEOC v. Ford Motor Co. [pdf], the court found that the employee, Jane Harris, was not qualified for her position as a resale buyer.  Ms. Harris suffered from irritable bowel syndrome and requested to participate in the telecommuting program or another accommodation.  As one of seven resale buyers, Ms. Harris’s position required that she ensure that her assigned specific Ford suppliers have a steady supply of steel.  Thus, she was required to regularly interact with her coworkers and contacts.  Ford produced evidence that interaction with suppliers is most effective in face to face meetings and requires that the resale buyers often visit the supplier sites.  Consequently, Ford denied her request to telecommute for up to four days per week due to her required regular interaction and the fact that her work schedule would be unpredictable. 

Although Ford did not grant her requested accommodation, Ford offered Ms. Harris other possible alternatives (e.g., moving her desk closer to restroom and finding her another position which would allow for telecommuting), but Ms. Harris rejected the proposals.  When Ms. Harris’s performance declined, she filed a charge with the EEOC.  Ford subsequently put Ms. Harris on a performance enhancement plan.  However, when her performance failed to improve, Ford terminated her employment, and she filed another charge.  The EEOC then filed a lawsuit against Ford.

The court found that Ms. Harris could not perform the essential functions of her job as a resale buyer working from home.  Further, the court noted that her frequent and unpredictable absences required her coworkers to perform extra work.  Although Ford allowed other buyers to telecommute, the telecommuting was once a week and on a scheduled day. 

What does this mean for employers?  With technology, telecommuting can be a reasonable accommodation.  Many employers have instituted telecommuting policies.  Although such policies can be a factor in assessing whether telecommuting is a reasonable accommodation, this case highlights that not every position is a candidate for telecommuting.  Employers should analyze each position carefully.  Regardless of whether a requested accommodation of telecommuting is reasonable, employers cannot simply ignore an employee’s request for an accommodation.  Even if a request is not reasonable, employers must engage in the interactive process as Ford did in this case and offer other possible alternatives. 

What Will Your Comment Be?

As promised during Director Patricia Shiu's ILG keynote speech delivered on July 27, the "game-changer" revisions to Section 503 of the Rehabilitation Act of 1973 were published for public comment on December 9, 2011.

Comments are due on 2/7/2012

Included in the comments to date is a letter from SHRM (Society for Human Resource Management) Director of Government Affairs and Chief Government Relations Officer for CUPA (The College and University Professional Association for Human Resources) requesting an extension of the comment period. This request is made due to the significance, clearly recognized by the OFCCP, of the proposed rulemaking. The letter estimates a cost impact of $81 million dollars annually to Federal contractors if the rulemaking is implemented as proposed. Additionally the letter points out that the proposal was issued during some of the busiest months of the year for HR professionals.

As stated in a recent article by Ms. Sandra Scott Ziegler, Esq., recently retired OFCCP Midwest Region Director, comments are critical on the proposed rulemaking for a number of reasons, which include:

• OFCCP is not the only potential audience - the OMB (Office of Management and Budget) as well as elected officials may be influenced by the comments and by how much interest the rule has generated as measured by the volume of comments received.
• Comments become a part of the rulemaking record and may be important if the legality of the rule is challenged.

Read the full article by Ms. Zeigler, Esq

Related Links:

Reasonable Accommodation Procedure Requirements

Section 503 NPRM comments

Proposed Rule

Submit Comment

THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the OFCCP's increased enforcement and regulatory efforts. We offer pro-active and proven compliance tools and methods.

For more information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc. visit our wesite www.thomashouston.com or call (800) 330-9000.

Proposed Reasonable Accommodation Procedure Requirements

The Notice of Proposed Rulemaking (NPRM) to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, require the development and implementation of written procedures for processing requests for reasonable accommodation. While it is true that procedures may vary due to the size, structure, and resources of a company, there are specific elements put forth in the proposed regulations that must be included in all procedures:

1. Contact information for responsible official - This official may be the same official responsible for the implementation of the contractor's affirmative action program, and must have the authority, resources, support, and access to top management necessary to effectively implement the reasonable accommodation procedures.
2. Reasonable accommodation requests -
   • How - Clarification that reasonable accommodation requests may be made verbally or in writing, with no required verbiage, by an applicant, employee or third party;
   • When - Stipulation that a request may be made at any time and does not have to be repeatedly submitted for a recurring need (i.e. Sign Language Interpreter);
   • Who - Identification of whom a request should be submitted to: At a minimum, this should include someone in the employees chain of command AND the named official responsible for implementation, and;
   • Applicant notification - Process by which applicants will be notified of the company's reasonable accommodation obligation and the right of all applicants to request a reasonable accommodation to participate in the application process. Additionally, provisions for processing applicant requests within the application process timeframe.
3. Written Confirmation - Although a reasonable accommodation request can be made in different ways, it is required that all requests be confirmed in writing and include:
   • Date accommodation request was received (for oral requests this is the day the oral request was made); and
   • Signature by the authorized decision maker.
4. Processing Timeframes - A company may set its own timeframe for processing requests - however the proposed rule specifies a requirement of 5-10 business days without the need for supporting medical documentation and no more than 30 days where supporting medical documentation or special equipment is required. Procedures should explain any extenuating circumstances that may result in going beyond the stipulated time frames and the written notification used to advise the requestor of the delay.
5. Process Description - A description of the steps involved, specific information required, and the interactive process that may be initiated with the requestor.
6. Medical Documentation - Parameters must be defined for any required medical documentation and include the following:
   • Not open-ended;
   • Limited to the disability and functional limitations; and
   • Required only if disability and reasonable accommodation is not known or obvious.
7. Denial - Stipulation that denials must be in writing and include:
   • Reason with date and signature by the authorized decision maker;
   • Any relative information about an internal appeal process;
   • A statement advising requestor of their right to file a discrimination complaint.
8. Confidentiality - Indication that all requests for reasonable accommodation and related documentation will be treated as a confidential medical record and will be maintained in a separate medical file.

For more information on this proposed rule:

Read the complete highlight article, Fact Sheet, or Frequently Asked Questions from the OFCCP.

Click here to download the proposed rule

Click here to comment on the proposed rule

Comment period closes 2/7/2012  2/21/2012

THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the upcoming OFCCP's regulatory efforts. We offer pro-active and proven compliance tools and methods.

For more information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc. visit our website www.thomashouston.com, call (800) 330-9000 or click here to schedule a convenient time for a call from an Affirmative Action Consultant.

Highlights of the Proposed Rule for Individuals with Disabilities

On December 9, 2011 the OFCCP published a Notice of Proposed Rulemaking (NPRM) to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended.  The  revisions will increase Federal contractor affirmative action obligations to ensure equal employment opportunities for qualified workers with disabilities.

Highlights of the proposed rule: / comment requests include:

• Goal / Goal Range / Sub-Goal: Establish a hiring goal of 7 percent for individuals with disabilities in each job group. Also being proposed are: a utilization goal range rather than the fixed 7 percent goal, and a 2 percent sub-goal for individuals with certain particularly severe or targeted disabilities.
• Invitation to Self Identify:  a) Invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process; b) invite post-offer voluntary self-identification and conduct an annual survey of all employees.
• Record-Keeping: Maintain records on the number of individuals with disabilities referred to, applying for and hired to open positions for a period of 5 years.
• Accommodation Requests: Develop and implement written procedures for processing requests for reasonable accommodation.
• Outreach / Linkage Agreements: Engage in linkage agreements with a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities.
• Job Listings: List job openings with One-Stop Career Centers or other appropriate employment delivery systems.
• Annual Reviews: Require the previously recommended steps to review personnel processes, as well as physical and mental job qualifications.

Read the complete highlight article, Fact Sheet, or Frequently Asked Questions from the OFCCP

Click here to download the proposed rule
Click here to comment on the proposed rule. 
Comment period closes 2/7/2012  2/21/2012.

THOMAS HOUSTON associates, inc. can assist you in meeting the challenges that will arise as a result of the upcoming OFCCP's regulatory efforts. We offer pro-active and proven compliance tools and methods.

For more information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc. visit www.thomashouston.com, call (800) 330-9000 or click here to schedule a convenient time for a call from an Affirmative Action Consultant.

Good Faith Effort for Individuals with Disabilities

Post the "National Disability Employment Awareness" poster during the month of October:

For more information on the campaign click here.  To download the poster click here.

For information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc., call 1-800-330-9000 or click here to schedule a convenient time to receive a call from one of our Affirmative Action Consultants.

Are You Keeping Up With the Proposed Regulatory Changes?

Take our Quiz

 (answers below)

True or False? 

Proposed changes to the OFCCP Compliance Evaluation Scheduling Letter and Itemized Listing:

1.       The comment period for the proposed changes to the Scheduling Letter and Itemized Listing is closed. 

2.        Item 12 of the proposed itemized listing will require submission of more precise compensation data.

Notification of Employee Rights under the National Labor Relations Act

3.        All private sector employers, subject to the National Labor Relations Act (NLRA), are required to post notices informing their employees of their rights as employees under the NLRA as of November 14, 2011.

OFCCP proposed rule: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans

4.        The proposed rule will require contractors to maintain referral, applicant and hire data for protected veterans as well as job opening / job fill data for a period of five years.

Answers

 

1.        FALSE –The OFCCP comment period has closed, however The Office of Management and Budget is now requesting comments with regard to the OFCCP request for changes.  The OMB comment period closes 10/28. 

2.        TRUE - The more precise data is individual employee data rather than the aggregate data requested in the current Scheduling Letter.  Additionally, the data will be required “as it existed on the most recent February 1st date”.

3.        FALSE - A Federal contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s “Notice of Employee Rights”.  Additionally the National Labor Relations Board has extended the date from November 14 to January 31, 2012

4.        TRUE – The proposed regulation requires that contractors maintain several quantitative measurements and comparisons (including calculated ratios).  The OFCCP believes that these measurements will provide “important information that does not currently exist” with regard to the number of protected veterans who are referred to or apply for jobs with Federal Contractors.

For information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc., call 1-800-330-9000 or click here to schedule a convenient time to receive a call from one of our Affirmative Action Consultants. 

A Clear Message from the EEOC

Employers are obligated to provide Reasonable Accommodation

From September 2 to September 22, 2011, the EEOC has filed 19 disability discrimination lawsuits involving both employees and applicants.  A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. The majority of these lawsuits include the denial of a reasonable accommodation.

The EEOC website defines reasonable accommodation as any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation may include specialized equipment, facility modifications, and adjustments to work schedules or job duties, as well as a whole range of other creative solutions.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.

An abbreviated listing of disability discrimination lawsuits filed by the EEOC during September 2011:

• Refusing a Leave of Absence request and then terminating an employee with a knee injury
• Terminating an employee because of a perception of substantial limitation due to a disclosed medical condition
• Terminating an employee suffering from traumatic brain injury because of disability and/or need for reasonable accommodation
• Terminating an employee with diabetes instead of making a reasonable accommodation
• Failing to provide reasonable accommodation to an applicant for drug testing and denying an applicant employment due to their disability
• Demoting and forcing an employee to quit because of cerebral palsy
• Refusing reasonable accommodation to an employee with cerebral palsy; refusing to hire an applicant taking prescribed medication for epilepsy due to drug test results
• Demoting, harassing, retaliating against and firing a deaf employee
• Refusing to promote an employee regarded as disabled
• Laying off and refusing to rehire a disabled employee who requested a reasonable accommodation
• Refusing an applicant reasonable accommodation during assessment and denying employment

For further information on reasonable accommodations or other affirmative action related needs, call 1-800-330-9000 or click here to schedule a convenient time for your call.