Accommodations May Be Needed for Hearing-Impaired Job Applicants and Employees

Q: I understand that employers may be required to offer reasonable accommodations to hearing-impaired applicants and employees. When are accommodations required?  What kind of accommodations must employers offer?

A: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. In the context of a job application, an accommodation is considered to be reasonable if it enables an applicant with a disability to have an equal opportunity to apply for and be considered for a job.  In the context of employment, an accommodation is considered to be reasonable if it enables an employee to perform the essential functions of the position.

Employers should be aware of the importance of being alert to the need for potential accommodations, and following through on such accommodations in the case of hearing-impaired applicants and employees. In the application stage, employers may become aware that an applicant has a disability through voluntary disclosure, or because it is obvious, such as when the applicant uses a service to respond to telephone inquiries, or requests a sign language interpreter for an interview.  Upon obtaining such knowledge, employers should engage in the interactive process to inquire whether the applicant needs a reasonable accommodation for the application process.

It is important to separate the accommodations needed for the application process from those that may be needed to perform the job. Employers should not assume that the accommodation needed for the application process will be the same as the accommodation needed for the job.  Conversely, an individual may not need an accommodation for the application process, but may need one for the job itself.

Possible accommodations for hearing-impaired applicants during the application process may include a sign language interpreter and providing information in written rather than oral form. The same alteration of the way information is provided during the application process can constitute an accommodation for the job itself.  Other potential accommodations could include captioned or text telephones and voice recognition software.  Some accommodations may be needed only occasionally – for example, a deaf employee who can lip-read may be able to rely on lip-reading in his day-to-day communications, but may require a sign language interpreter for group meetings.

Employers are not required to provide a reasonable accommodation if the employee is not a qualified individual with a disability, if the employer and employee are not able to identify a reasonable accommodation that would enable the employee to perform the essential functions of the job, or if the accommodation would impose an undue hardship on the company.

The Equal Employment Opportunity Commission (EEOC) has recently focused its attention on alleged failures to accommodate hearing-impaired individuals, particularly during the employment application process. Whether the ability to hear is an essential function of a job (and thus, whether applicant or employee could perform the job with a reasonable accommodation) is a fact-specific inquiry.  For example, courts have held that the ability to hear audible alarms is an essential function under certain circumstances.  Courts have also held that strong verbal communication is an essential function of some jobs, and that an employee’s use of non-verbal modes of communication is not a reasonable accommodation of that function.

Employers should ensure that managers and human resources personnel are properly trained to identify situations where potential accommodations for deaf applicants or employees may be needed, and that such personnel understand how the accommodation process works.

Jessica Rothenberg

FLSA Implications When Telecommuting Due to Illness

Q: I received an email from an employee stating that he is sick, but will be working from home.  Should I allow my employee to work remotely while sick?  What are the FLSA implications of allowing an employee to work from home while sick?

A: The practice of working remotely or telecommunicating has become increasingly popular given technological advancements like smart phones, videoconferencing, and instant messaging services.  While telecommuting provides several benefits for employers and employees, it can also create new challenges such as when employees opt to work from home while sick.

The Fair Labor Standards Act (FLSA), requires employers to pay employees for all time spent completing productive work, regardless if the employer knew that the work was being performed. Although this rule applies to both exempt and non-exempt employees, an employee’s exempt status determines how one’s payment will be calculated when he or she is working from home while sick.

If an exempt employee works remotely while sick, then the employer must pay the employee for a whole day of work, even if the employee only works for an hour or two. However, if a non-exempt employee works from home while sick, then the employer is only required to pay the employee for the actual amount of time worked.  Thus, under the FLSA, even if an employer prohibits employees from working from home while sick, employees must be paid for any productive work they complete.

Whether a company should allow its employees to work remotely while sick depends on a number of factors, including but not limited to the extent of the employee’s sickness and the nature of the employee’s work. For example, working from home with a sprained ankle is different from working with the flu.  Moreover, certain jobs do not lend themselves to working from home, such as face-to-face customer service, working a cash register, working at a food establishment or a construction site.

If an employer decides to allow employees to work from home when they are sick, it is recommended that the employer create and implement a remote work sick policy. This policy should discuss when a sick employee can work from home, which positions the policy applies to, the types of assignments that can be worked on (i.e. responding to emails, or participating in conference calls), and how employees should track their time.  It is also recommended that the employer include language in the policy that gives it the discretion to limit an employee’s ability to work from home if the employee submits subpar work.  If an illness turns into a qualified disability under the ADA, the employer would need to engage in the interactive process to determine whether a telecommuting arrangement would be a reasonable accommodation.  For more information on telecommuting as a reasonable accommodation, see our blog post here.

For assistance drafting a remote work sick policy, contact a labor and employment attorney.

– Renee C. Manson

 

New York City Employers will be Subject to a New Accommodation Law Effective October 2018

Q: I am a New York City employer.  What do I need to know about the amendments to the law regarding accommodations?

A: Effective October 15, 2018, employers in New York City will be required to engage in a “cooperative dialogue” with a person who has requested accommodation or who the employer has notice may require an accommodation.  This new requirement stems from an amendment to the New York City Human Rights Law (“NYCHRL”).

While most employers are under an existing duty under the Americans with Disabilities Act (“ADA”) to engage in an interactive process with employees about accommodations, the expansion of the NYCHRL affects NYC employers in two key ways. First, the ADA applies to employers with 15 or more employees.  The NYCHRL has broader coverage, applying to employers with 4 or more employees.  Second, the NYCHRL amendments greatly expand the duty to engage in a cooperative dialogue beyond disability-related accommodations.

Employers will be required to engage in a cooperative dialogue for accommodations relating to: (1) disability; (2) religious needs; (3) pregnancy, childbirth, or a related medical condition; and (4) a person’s status as a victim of domestic violence, sex offenses, or stalking.

“Cooperative dialogue” is defined as a good faith written or oral dialogue concerning the person’s accommodation needs, potential accommodations (including alternatives to a requested accommodation), and the difficulties that potential accommodations may pose for the employer. This is similar to the interactive process under the ADA, which generally requires employers to request information about limitations, identity the barriers to job performance, and explore types of accommodation.  However, unlike the ADA, the NYCHRL requires that once a final determination is reached, employers must document it in writing, regardless of whether or not the accommodation is approved.

To prepare for the new law, NYC employers should ensure that all managers and other employees who may deal with accommodations are aware of the new requirements. In particular, employers should emphasize that the requirement to engage in cooperative dialogue extends beyond disability-related accommodations.  Employers should also develop internal processes for accommodation requests, dialogues, and determinations, so that all requests are addressed in a timely manner and properly documented.

Jessica X.Y. Rothenberg

Interplay of FMLA and ADA Precludes Employers from Automatically Terminating Employees at End of FMLA Leave

Q: Can my company fire an employee once the person has exhausted his or her FMLA leave entitlement?

A: Many employers are surprised to learn that they may not necessarily terminate an employee if he or she does not return to work at the end of FMLA leave.  Under the Family Medical Leave Act (FMLA), an employee is eligible for up to 12 weeks of unpaid job-protected leave.  Upon returning from FMLA leave, except in a few limited situations, an employee is guaranteed the right to return to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment that the employee held before the leave commenced.  Under FMLA regulations, however, an employee does not have a right to return to work if he or she is unable to perform the essential duties of the position.

But what if the employee asks for more time off after the FMLA leave period has expired?

Once an employee has exhausted his or her FMLA leave, the Americans With Disabilities Act (ADA) requires employers to consider whether an extension of leave is warranted as a reasonable accommodation of a disability. An extended leave may be a reasonable accommodation if it is for a finite period of time to receive treatment or to recover from a disability.  Employers must consider each situation on a case-by-case basis, engaging in the interactive process with the employee to determine whether the employee has a disability within the meaning of the ADA, and whether an extended leave would be a reasonable accommodation to enable the employee to perform the essential functions of the job once he or she returns to work.  Employers also must determine whether there are any applicable state laws or worker’s compensation laws that are implicated.

In addition to considering the application of the ADA to each employee’s situation, employers should ensure that their employee handbooks do not contain return to work policies that violate the law. Language that calls for automatic termination after the employee has been absent for a certain period of time may give rise to liability for failure to consider the impact of the ADA.

–Renee C. Manson

 

Employer May Require Employee to Undergo Mental Fitness for Duty Exam if Employee Exhibits Concerning Behavior

Q: One of our employees has been exhibiting strange, erratic behavior at work. Can we require the employee to submit to a mental health examination?

A: Possibly. The ADA prohibits employers from requiring their workers to undergo medical exams unless the exam is “shown to be job-related and consistent with business necessity.”  However, an employer may require an employee to undergo a mental health examination if the employee’s behavior raises questions about the employee’s ability to perform essential job-related functions or raises a safety concern.

The Seventh Circuit (which has federal jurisdiction over the States of Illinois, Wisconsin and Indiana) recently affirmed a district court’s decision rejecting a plaintiff’s claim for disability discrimination when her employer required her to undergo several mental health examinations in response to her behavior. In Painter v. Illinois Department of Transportation, No. 16-3187 (7th Cir. Dec. 6, 2017), the company placed the plaintiff on administrative leave and required her to undergo a fitness for duty exam after she had several outbursts aimed at coworkers and habitually walked around the office talking to herself.  Many employees expressed fear that the plaintiff would become physically violent, did not want to be alone with the plaintiff in the office, and believed that the plaintiff was spying on them at work.  After two exams by a doctor and one exam by a psychologist, the plaintiff returned to work and was transferred to another division.

In her new division, the employer continued to receive reports from co-workers complaining of incidents with the plaintiff.  The plaintiff kept a detailed written log of her co-workers’ actions and conversations, purportedly in order to determine why she was put on leave.  The plaintiff also sent her supervisor numerous nonsensical emails, often during the evening and in the middle of the night.  The plaintiff was again placed on administrative leave and underwent two additional fitness for duty exams.  The doctor found that the plaintiff exhibited signs of a personality disorder, but deemed her fit to return to work.  This pattern repeated a few additional times until the plaintiff ultimately was found by a psychiatrist to be unfit for duty.  She then sued.

The Seventh Circuit noted that employers bear a high burden of establishing that compelled medical examinations are consistent with business necessity. Nonetheless, in this case, the court held that the employer had established it had a reasonable belief based on objective evidence that the plaintiff may have had a medical condition that impaired her ability to perform essential job functions, and that the medical condition could cause the plaintiff to pose a safety threat.  The court noted that, prior to each leave and exam, multiple employees raised concerns about the plaintiff’s behavior in the workplace, and a number of employees felt unsafe around the plaintiff.  Each leave and exam was based on new incidents of behavior, and in general, on more than person’s complaints.  The court therefore concluded that inquiries—even multiple inquiries—concerning a worker’s psychiatric health may be permissible if they reflect concern for the safety of other employees and the public at large.

The Seventh Circuit’s decision is consistent with EEOC guidance, which states that an employer may require an employee to undergo a medical examination if the employer has a reasonable belief, based on objective evidence, that a medical condition will impair the employee’s ability to perform essential job functions, or that the employee will pose a threat due to a medical condition.

When assessing whether to have an employee undergo a fitness for duty exam based on unusual behaviors, it is important for employers to keep in mind that there must be a genuine reason to doubt whether the employee can perform job-related functions, or there must be a genuine safety concern. Behavior that simply is annoying or inefficient does not rise to that level.

Jessica X.Y. Rothenberg