ADA

AM I REQUIRED TO CREATE A LIGHT DUTY POSITION FOR AN EMPLOYEE INJURED ON THE JOB?

Robert C. Lockwood
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I frequently receive telephone calls from clients asking if they are required to create a light duty position for an employee who is injured on the job.  The well-reasoned response to that question is:  “It depends on your definition of ‘create.'”

While the question seems simple, this is an extremely complex area of the law that involves the intersection of the Alabama Workers’ Compensation Act, the Americans with Disabilities Act and the Family and Medical Leave Act.  Alabama law is clear:  the Alabama Workers’ Compensation Act does not require an employer to create a light-duty position for an employee injured on-the-job.  Bleier v. Wellington Sears Co., 757 So.2d 1163, 1172 (Ala. 2000).

But, Alabama law is not the final authority for injured employees, because the Americans with Disabilities Act potentially applies.  If an employee is a “qualified individual with a disability” (a topic which could occupy several pages of discussion) an employer may be required to supply the employee with a reasonable accommodation.  Here’s where the confusion can occur.  An employer is not required to create a light duty position.  Nevertheless, if a light duty position is available, the employer may be required to transfer the employee to that position as a reasonable accommodation.  Moreover, if the employer has previously created positions for injured employees, there may be a requirement to create a position again.

In addition to the ADA, the Family and Medical Leave Act adds to the complexity of this question.  While the FMLA does not impose any accommodation requirements on employers, it does provide protection for employees suffering from a “serious health condition.”  Employees on FMLA leave are entitled to reinstatement after exhaustion of their leave.  The Eleventh Circuit Court of Appeals (which reviews FMLA cases in Alabama) has imposed a heavy burden on employers who fail to return employees to work.  Even if you don’t have to create a light duty position for the employee, you may have an obligation to allow the employee to try to return to work, or give them additional time to return.

Every case is different.  When making employment decisions about injured employees, talk to your attorney before taking final action.

EEOC Releases Guidance Expanding Scope of Retaliation.

Robert C. Lockwood
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On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims.  The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998.  While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority.  Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly.  The EEOC’s draft guidance can be found here:  EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief.  Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.”  If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired.  In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis.  Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016.  Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

Robert C. Lockwood
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Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints.  In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability.  When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination.  As a result of that uncertainty, employers are often sued under multiple federal statutes:  Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice.  In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated.  Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation.  Instead, he is making employees commit to one discrimination claim.  If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis.  Under Title VII, an employee can recover if his employer had “mixed motives” for termination.  As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win.  I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car:  LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals.  Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

HAVE YOU REVIEWED YOUR EMPLOYMENT APPLICATIONS FOR ADA COMPLIANCE?

Robert C. Lockwood
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Many employers either forget or are unaware that the Americans with Disabilities Act restricts disability-related questions on employment applications.  In particular, the ADA prohibits discrimination “in regard to job application procedures.”  As a result, employers cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer.

The EEOC has provided enforcement guidance on this issue:

At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. Of course, this includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability.

Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as, “What impairments do you have?”

Many employers also want to know about an employee’s history of drug use.  This can be a thorny issue because the ADA provides protection for past drug addiction.  Current use and addiction are not protected, but past addiction is.  The EEOC makes this issue clear as mud with its guidance:

May an employer ask applicants about their prior illegal drug use?

That depends on whether the particular question is likely to elicit information about a disability. It is important to remember that past illegal drug addiction is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, whether the question is likely to elicit information about a disability depends on whether it goes to past drug addiction.

It is safe to say that you can ask an applicant if they are currently using any illegal drugs.  You can also ask the general question of whether they have ever used illegal drugs.  But, if you ask for more detail beyond those general questions (like “Tell us the extent of your past drug use and whether you received treatment”) you may be close to violating the ADA.

It may be worthwhile to take a few minutes to see if your employment application asks questions that are in compliance with the ADA.