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

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

When is Enough, Enough? Limiting Leave as a Reasonable Accommodation under the ADA

Q: How long does an employer have to accommodate an employee’s disability in the form of a leave of absence?

A: The law in most jurisdictions is unclear. In fact, in most jurisdictions, including Pennsylvania, New Jersey, and New York, there is no bright line rule as to the length of leave time that is reasonable under the ADA.  Typically courts look at the surrounding circumstances to determine whether the amount of time off is a “reasonable accommodation” and have held that leaves longer than three months were required in some circumstances as a reasonable accommodation.

Given this lack of certainty, employers are left with the daunting task of determining how much leave is “reasonable,” thus forcing many employers to typically extend leaves beyond what they may believe is proper.  To add to the uncertainty, the EEOC, which is the employee’s first pit stop in bringing an ADA claim, has taken the position that a two-to-three month leave, or longer may be reasonable.  Moreover, state laws protecting disabled individuals, such, for example, the New Jersey Law Against Discrimination, may provide for even greater protections to the employee.

A recent Seventh Circuit Court of Appeals case, however, has provided some concrete direction, at least to employers with employees located in Illinois, Wisconsin, or Indiana, regarding the amount of leave required as a reasonable accommodation under the ADA. In that case, the Court held that a multi-month leave likely was not required as a reasonable accommodation under the Americans with Disabilities Act.

In Severson v. Heartland Woodcraft, Inc. No. 15-3754 (7th Cir. Sept. 20, 2017), the employee brought a lawsuit after the employer terminated his employment rather than give him two to three months of additional leave to recuperate from back surgery after he had used up his Family and Medical Leave Act allotment.  The Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, stated that the ADA is “not a medical leave entitlement” and specifically held that “a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  In particular, the Court held that a such a multi-month leave cannot be a reasonable accommodation because a reasonable accommodation allows a disabled employee to work and perform the essential functions of the position, which the employee in this case could not do, thus disqualifying him from the protections of the ADA.  The Court noted however, that a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be a reasonable accommodation.  Although the Severson case provides support for the position that extended, multi-month leaves of absence may not be required under the ADA, employers should not take it as a green light to reject all requests for a leave of absence under the ADA.

The Severson case is binding law only in the Seventh Circuit.  It remains to be seen whether other courts will follow the Seventh Circuit’s lead in limiting the amount of leave that is considered to be “reasonable.” Until that occurs, however, employers should tread lightly when making these decisions and consider all of the risks and benefits associated with rejecting a leave request.

Kali T. Wellington-James

Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond

 

Employers and Election Day: Voting Leave

Q: Now that the election is finally here, am I required to give employees time off to vote?

The answer to that question depends on which state you are in. There is no federal law that requires employers to give time off to vote, but many states do have such laws.  While the laws vary by state, in general, these kinds of laws provide that employers must provide time off to vote if employees do not have sufficient time to vote outside of working hours.  State laws vary as to whether the time is paid or unpaid, how much time must be given, and how much time is “sufficient” to vote outside of working hours.  Many states provide that employees are only entitled to voting leave if they provide advance notice to the employer.

In New York, for example, employers are required to provide up to two hours of paid voting leave to employees who are registered voters and who do not have sufficient time outside of work hours to vote, so long as eligible employees notify their employer of the need for voting leave at least two workdays before election day. If employees have four consecutive hours between the opening of the polls and the start of their work shift, or between the end of their work shift and the closing of the polls, that is considered sufficient time to vote, and leave does not need to be provided.  Employers can require that the leave be taken at the beginning or end of a work shift.  New York is the only state that requires employers to post a notice of employees’ voting leave rights.  But employers in New York must get these notices posted now, as the rules require that the notice be posted at least 10 workdays before every election and remain posted until the polls close on election day.

Pennsylvania and New Jersey do not have voting leave laws, but both states have similar laws providing that employers may not interfere with an employee’s right to vote, or use threats or intimidation to influence an employee’s vote for a particular candidate.  New Jersey also provides that, within 90 days of an election, employers may not exhibit any notice in the workplace that contains any information that could be construed as a threat intended to influence employees’ political opinions or actions.

Finally, it is important to note that while this year’s Presidential election is receiving the most attention, state voting leave laws also apply to other types of elections (general, special and primary, and ballot proposals, among others, depending on the state).

Jessica Rothenberg