EEOC Updates Definition of ADA Disability

 The EEOC recently backed down from wide ranging expansion of the definition of disability in the workplace.

 

The federal agency took the unusual action of eliminating portions of the ADAAA regulations that were most troubling to employers. On March 24, 2011, the EEOC adopted the final rule implementing the ADAAA or Americans with Disabilities Act Amendments Act. However, the EEOC stepped back from designating a list of conditions that are always disabilities under ADAAA.

 

Under the new regulations, the EEOC still requires an expansive definition of disability in the workplace. It cautions employers that most employees will not require extensive analysis to determine if they have a disability. However, instead of providing a list of presumed disabilities, the new ADAAA regulations link certain conditions to the individual’s limitation to a major life activity.

 

The definition is important, because under ADA, the Americans with Disabilities Act, employers must grant reasonable accommodations to employees with a disability.

 

Some conditions that are still a disability if they limit a major life activity:

 

Drunk Employees Not Protected by ADA

A recent federal court decision upheld the fact that an employer can terminate an employee for being drunk at work, even when the employee is an alcoholic covered by ADA.

 

Alcoholism and drug addiction are often disabilities under ADA, the Americans with Disabilities Act. That law requires the employer to give workers time off for treatment. However, it does not require an employer to allow an employee be under the influence of illegal drugs or alcohol at work. Nor does it permit an employee to drink alcohol or use drugs at work.

 

In a recent case before the 7th Circuit Court of Appeals, Diane Ames worked for The Home Depot, a major home improvement retailer. After five years, Ames approached the employer and disclosed that she was an alcoholic. She requested aid from the Employee Assistance Program or EAP. Home Depot allowed Ames to take a month of paid leave for rehab.

 

Ames returned to work after signing an EAP agreement stating that she would not drink alcohol or be under the influence of alcohol at work. The agreement specified that the consequence for either behavior was Continue reading

Avoid Caregiver Discrimination

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.

 

Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.

 

Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.

 

Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.

 

Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.

 

Caregiver responsibilities can include Continue reading

Disability and Overtime Regulations

Overtime for disabled workers is in the news again. Just last week the EEOC announced a settlement with United Airlines regarding overtime for employees on light duty under ADA, the Americans with Disabilities Act.

 

Now another case underscores the fact that employers must not discriminate in awarding overtime to disabled employees, even those on light duty.

 

The most recent case involves the U.S. Postal Service. Patricia Grana sued the postmaster general under the Rehabilitation Act, which prohibits federal employers and those receiving federal funds from discriminating against disabled workers. Grana challenged the policy of choosing employees on light duty last for overtime. Again, as in the United claim, Grana argued that such a policy had a disparate impact on disabled workers, who are more likely to be on light duty.

 

In Grana’s case, she was frequently on light duty due to a disability affecting one knee.

 

The U. S. Postal Service noted that this policy ended in 2004. However, Grana’s claim, which the court found valid, contended that the policy lasted until January 2006. Under the system introduced in January 2003, employees volunteered for overtime by putting their name on a list at Continue reading

Disability Overtime Rules

Employees on light duty or with physical restrictions must be permitted to work overtime on the same basis as other employees. In a recent settlement between United Airlines and the EEOC, the agency questioned an employer limiting overtime for employees who are on medical restrictions or limited to light duty.

 

Many employers would think that when a worker is under physical limitations, or has a disability, it would be obvious that the employee should not work overtime. However, the EEOC disagrees.

 

Under the ADA, or Americans with Disabilities Act, employees on light duty are entitled to work overtime if they are physically able to do so, the EEOC ruled.

 

In the case against United Airlines, employees on light duty were not permitted to work overtime, even when there was plenty of overtime work and it was being offered to employees who were not on light duty. The court ruled that this was a form of discrimination based on the employee’s physical disability under ADA.

 

United Airlines, based in Chicago, is one of the largest U.S. air carriers with nearly 3,000 flights per day to more than 200 domestic and international destinations from hubs in Los Angeles, San Francisco, Denver, Chicago and Washington, D.C.

 

The United Airlines case involved Samuel Chetcuti, a “storekeeper” working for the airline in San Francisco. The EEOC argued that the airline’s policy of not offering overtime to workers who were on light duty had a disparate effect on the income of disabled workers, because they were more likely to be on light duty.

 

For example, Chetcuti had epilepsy, which prevented him from operating heavy machinery and working at heights. However, it did not restrict the number of hours that he could work. But because Chetcuti was on light duty for his regular work schedule, he was barred from working lucrative overtime offered to others in the same job. The EEOC ruled that this was illegal employment discrimination based on disability.  

 

EEOC San Francisco Regional Attorney William R. Tamayo said, Continue reading

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