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Monthly Archives: September 2014

Does an Employee Have to Prove A Disability for an Employer to Accommodate It?

By | Civil Rights, Disability, Employment Law | One Comment

According to the Americans With Disabilities Act (ADA), an employer is supposed to make reasonable accommodations for an employee who asks for them, in order to deal with or work with a disability.

For example, if a person is required to take medication at specific times of the day, the employer must allow that person to take breaks in order to take their medication. If a person needs a wheelchair ramp into the building, the employer is required to build it.

Wheelchair Access SignHowever — and this is very important — the employer does not have to make those accommodations until the employee requests them. Even if the employer knows there is a need, he or she is not required to meet them, until the employee has made an official request.

Once the employee does so, that legally begins the interactive process. The employer is obligated to engage in the interactive process, find out the employee’s condition, determine whether or not it is a disability (based on ADA guidelines), then decide if they have to accommodate the employee.

Of course, if an employer offers to make an accommodation first, it can certainly be accepted. In fact, most places of employment already have certain features in place to accommodate disabilities, such as wheelchair ramps and elevators.

There are two rules when it comes to disability accommodation requests.

1. An employee is not entitled automatically to the accommodation they want.

An employer does not have to grant every single request. There may be times where the request is unreasonable, or goes against the reason the person was hired in the first place.

For example, Bob works first shift in the plant, but has requested to go on second shift, because he needs to go to dialysis in the mornings. However, the reason Bob was hired was because they needed the help with a task that is only done on first shift. Putting Bob on second shift would mean they need to hire another employee just to do Bob’s original job. In this case, they would not need to accommodate Bob’s request.

But, if the company had three shifts, and each shift did the exact same work, it would be possible to move Bob from first to second just by moving a different employee from second to first. That’s a reasonable accommodation in that case, and the employer has to make it.

2 The employer only has to make reasonable accommodation.

Reasonable accommodation is defined as the burden on the employer, the cost to the employer, and any other factor that would be an issue for both parties. So, if an employee with a wheelchair wants a special express elevator built on the outside of the building that only she could use, with a total cost would be $750,000, that’s not a reasonable accommodation because there’s already an elevator in the building. Plus, it’s $750,000.

But if an employee asked for a wheelchair ramp, and one could be built for a few hundred dollars, that’s considered reasonable, and the employer is obligated to do it.

If you have any other questions about reasonable accommodation and the Americans With Disabilities Act, or believe you are not being treated fairly by an employer, please contact the Cassis Law Office at (502) 736-8100.

Photo credit: WELS (Flickr, Creative Commons)

Fantasy Football’s Impact on the Workplace

By | Employment Law | No Comments

What do 31 million employees have in common? They all participate in at least one (in many cases more than one) Fantasy Football league! For those of you who are unfamiliar with what has become a national obsession, Fantasy Football is an interactive online competition in which users compete against each other as general managers of virtual “fantasy” teams built from “drafting” real National Football League players. “Owners” are able to draft, trade, add/drop players, and change rosters every week.

Just like your employees’ devotion to filling out brackets each year when “March Madness” and the NCAA basketball tournament rolls around, Fantasy Football is a sports fan’s obsession. But unlike March Madness, which only requires an initial investment of time and a few days of non-stop basketball games, Fantasy Football lasts four MONTHS and requires its owners to check injury reports, keep up with statistics, and – in recent weeks – monitor arrest records and indictments (thank you, Ray Rice and Adrian Peterson).

Sounds pretty time-consuming, right? A recent study by Challenger, Gray & Christmas estimates that employers will suffer $13 billion in lost productivity due to employees’ participation in (obsession over?) Fantasy Football leagues. There was a time not so long ago when employers could control their employees’ Internet access and usage simply by placing a block on their access via desktop computer. That time is long past. Employees now have full access to the Internet through their smartphones and tablets, and the Fantasy Football “apps” have gotten better each season. (I’ve already dropped a QB and added a new WR while writing this article!)

This is not a new phenomenon. For years employees have been making travel plans, on-line shopping and paying personal bills through the Internet while on company time. I even know someone who met their spouse responding to on-line dating ads while at work. But when so many people engage in the same activity for so many hours over so long a time period, employers need to consider the impact.

But how accurate is this $13 billion number? Challenger’s estimate is actually a measure of wages paid to unproductive workers. For example, if a company is paying its employee $15 per hour, and one hour of his or her time is spent researching NFL players for Fantasy Football, then that is $15 in lost wages. Challenger calculated the total lost productivity amount using that basic formula and plugging in other numbers like the country’s average hourly earnings, total number of working age Americans who play Fantasy Football, and assuming that each participant conservatively spends just two hours per week managing their teams while on the job. Challenger admits it is a non-scientific study. But because it is such a massively popular distraction, employers must take notice.

So is Fantasy Football a bad thing for employers? Not really. It may have some overall, minor impact on workplace productivity, but historically there has been no measurable dip in GDP or productivity in the third or fourth quarters that is directly linked to Fantasy Football.

In fact, there are some positives that come from workplaces where Fantasy Football is part of the proverbial water cooler discussion. Many employers believe that Fantasy Football is a positive influence in the workplace because it increases staff morale and camaraderie among employees. For those employees who participate, it is also a great way to keep in close contact with their customers, clients, and business contacts who also participate in a Fantasy Football league.

Employers should be careful, however, that no employee feels excluded or discriminated against due to Fantasy Football being played in their workplace. Lawsuits have been filed in the past based on sex and religious discrimination stemming from exclusion from Fantasy Football leagues and other social events. Supervisors should be trained to watch for signs of discrimination in workplaces where Fantasy Football is played, and must take responsibility for their employees to ensure no one is excluded for an unlawful reason. And employees must take responsibility for themselves not to let owning their team interfere with their job duties in any way. Winning your Fantasy Football league is a great feeling – but not at the expense of losing your job!

Wells Fargo Settles EEOC Same-sex Sexual Harassment Lawsuit for $290,000

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Bank Will Pay Four Females Who Alleged Female Manager Sexualized Workplace

RENO, Nev. – Wells Fargo Bank, N.A. will pay $290,000 to four female bank tellers and furnish other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC lawsuit charged that a female manager and another female bank teller at a Wells Fargo branch in Reno, Nev., regularly subjected the four women to graphic sexual comments, gestures and images. The harassment included inappropriate touching and a suggestion that the bank tellers wear sexually provocative clothing to attract customers and to advance in the workplace. The civil rights agency found that although the offensive conduct was reported to management several times, Wells Fargo failed to act quickly to stop it, and one employee felt compelled to quit rather than endure the ongoing harassment.

“I am happy I stood up for my rights,” one of the harassment victims said. “I don’t want any other woman to think she has to put up with sexual harassment simply because it is done by another woman.”

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and requires employers to take prompt action to investigate and to stop the behavior after they receive complaints. After an investigation by EEOC Investigator Carlos Rocha and first attempting to reach a pre-litigation settlement through conciliation, the EEOC filed its lawsuit (EEOC v. Wells Fargo Bank, N.A., 13-CV-00528-RCJ (WGC)) in U.S. District Court for the District of Nevada.

In addition to the monetary relief for the four women, the two-year consent decree ordered today applies to all branch locations within the Sierra Mountains District. Under it, Wells Fargo agreed to take preventative steps, including annual anti-discrimination training; issuing a memo from the district head on procedures for reporting harassment complaints; reporting to EEOC concerning discrimination complaints; and, when deemed prudent, interviewing employees who have reported harassment to ensure their complaints have been resolved in a timely fashion after the completion of an internal investigation. Also, the company will place a disciplinary notice in the personnel record of the former branch manager concerning his failure to address the harassment.

EEOC San Francisco Regional Attorney William R. Tamayo said, “EEOC’s investigation showed that Wells Fargo could have immediately nipped this behavior in the bud. We are hopeful that the settlement terms will ensure a quicker response going forward.”

Michael Baldonado, EEOC San Francisco District Director, added, “Sexual harassment is illegal, regardless of whether the harasser is female or male, the same or opposite gender as the victim. When employees report a manager’s or co-worker’s inappropriate behavior, employers must immediately investigate the claims and take steps to rectify the situation.”

According to company information, Wells Fargo Bank, N.A., with main offices in Sioux Falls, S.D., is the primary U.S. operating subsidiary of Wells Fargo & Company, which is headquartered in San Francisco, and employs 264,900 people nationwide.

Preventing harassment through systemic enforcement and targeted outreach is one of six national priorities identified by the agency’s Strategic Enforcement Plan (SEP).

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

EEOC Sues Tiny’s Organic for Pregnancy Discrimination

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Company Fired Supervisor Expecting Twins, Federal Agency Charges

WENATCHEE, Wash. – Wenatchee fruit grower Tiny’s Organic violated federal law by firing a farm worker for becoming pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

The federal agency said that Tiny’s Organic took the illegal action against Maria Guillen nine days after she disclosed that she was pregnant with twins. Her employer cited fears for her safety and the company’s liability, even though Guillen’s doctor had cleared her to perform the job without medical restrictions.

“Not only did my doctor assure me that I was okay to perform my job duties, but thankfully she told me that is was illegal for the company to fire me for being pregnant,” said Guillen. “For about six years, I worked so successfully that Tiny’s promoted me to supervisor. During that time I experienced a successful pregnancy working without restrictions. It was shocking and confusing to be let go for something that did not impact my work performance!”

Terminating an employee because she is pregnant violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). After first attempting to reach a pre-litigation settlement through conciliation, the EEOC filed suit (EEOC v. Tiny’s Organics LLC., 2:14-CV-00303) in U.S. District Court for the Eastern District of Washington. The agency seeks monetary damages on behalf of Guillen, along with injunctive relief that typically would include training on anti-discrimination laws, posting notices, and compliance reporting.

Michael Baldonado, director of the EEOC’s San Francisco District Office, which covers Eastern Washington locations, said, “Employers be aware: You do not have the medical or legal authority to decide when and how your pregnant employee works. Leave this arena to your employees and their doctors.”

William R. Tamayo, regional attorney for the EEOC’s San Francisco District, which also includes Washington state, added, “The EEOC just issued its Enforcement Guidance on Pregnancy Discrimination, highlighting an issue of strategic importance to the agency. And this lawsuit follows other cases we have brought seeking relief for vulnerable farm worker populations in Eastern Washington.”

Tiny’s Organics is based in East Wenatchee, Wash., and produces cherries, plums, nectarines, peaches and tomatoes for wholesale and farmer’s markets.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

EEOC Sues Taprite Fassco for Sex and Disability Discrimination and Retaliation

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Quality Control Inspector Punished After Reporting Unequal Wages and Denied an Accommodation for Her Disability, Federal Agency Charged

SAN ANTONIO, Texas -Taprite Fassco Manufacturing, Inc., a San Antonio-based supplier of CO2 regulators in the soda and beer industries, violated several federal anti-discrimination laws in its treatment of one of its quality control inspectors, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. The EEOC said the company subjected the woman to gender and disability discrimination and unlawfully retaliated against her for complaining.

According to the EEOC’s lawsuit, after the quality control inspector, a longtime employee, raised questions to management concerning wage disparity between the sexes among workers at Taprite Fassco’s San Antonio plant, management disciplined and demoted her into a less favorable and lower paying assembler position. The employee was physically unable to perform the new job because of her diagnosed rheumatoid arthritis and carpal tunnel syndrome.

The EEOC also charged that Taprite Fassco denied requests for accommodations that would have permitted the employee to continue working, thus violating the Americans with Disabilities Act (ADA). The EEOC said that even after she filed a complaint of discrimination alleging sex discrimination under both Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, Taprite Fassco opted to pay her male replacement (whom she initially trained) substantially more than she was compensated for performing essentially the same work.

The EEOC’s San Antonio Field office filed suit (Civil Action No. 5:14-cv-00801) in U.S. District Court for the Western District of Texas, San Antonio Division, after first attempting to reach a pre-litigation settlement through the agency’s administrative conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages for the victim, as well as injunctive relief.

“Enforcing laws that require equal pay for men and women performing the same jobs is a priority for the EEOC,” said David Rivela, senior trial attorney in the EEOC’s San Antonio Field Office. “Our employment statutes also safeguard workers from reprisal when the employees address managers about potentially unlawful practices. The EEOC will vigorously prosecute employers who retaliate against employees for simply seeking answers about their opportunities and protections.”

Enforcement of equal pay laws and targeting compensation systems and practices that discriminate based on gender, as well as eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts, are among the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the agency is available on its web site at www.eeoc.gov.

Court Rejects Hospital’s ADA Argument That Proves Too Much

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Mae West memorably said, “Too much of a good thing can be . . . wonderful.” But last Thursday a federal court rejected a hospital’s ADA defense in part because it proves too much.

Dr. Robinson is an obstetrician at St. Francis Hospital. A diabetic, he underwent surgery for a broken foot and can’t always remain standing throughout deliveries. So he uses a rolling stool and practices from a seated position. Nurses hold the newborns when necessary.

The hospital medical staff suspended Dr. Robinson’s privileges and began an investigation to determine whether he’s still competent when he can’t always remain standing and therefore can’t always see the entire surgical field during procedures.

Dr. Robinson sued under Title III of the Americans with Disabilities Act. That’s the title that requires a “place of public accommodation” to reasonably accommodate a person with a disability. As he sees it, St. Francis is a “public accommodation”; he has a disability; and providing a rolling chair and nurses to hold the newborns is a “reasonable” accommodation.

Why didn’t Dr. Robinson sue under Title I rather than III? Because Title I is for employees, and his relationship with the hospital is the traditional one: nonemployee membership on the medical staff.

The hospital moved to dismiss, arguing that while a hospital is a place of public accommodation for patients, it isn’t for physicians. Patients are the public, but medical staff members aren’t. The federal magistrate agreed and recommended that the court grant the motion to dismiss.

The court rejected the recommendation. As the court saw it, the intent of the ADA is to protect as many people as possible. Title III isn’t limited to clients and customers. And the legislative history shows a particular concern for health facilities.

Besides, the court reasoned, the hospital’s argument would leave medical staff members totally unprotected by the ADA—not covered by Title I because they aren’t employees and not covered by Title III because they aren’t clients or customers. That’s an argument that proves too much.

The case is Robinson v. Carealliance Health, 2014 BL 245502, No. 2:13-cv-1916 (D.S.C. 2014).

New EEOC Enforcement Guidance Gives Broad Protection to Pregnant Employees

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The U.S. Equal Employment Opportunity Commission recently issued new Enforcement Guidance (the Guidance) on pregnancy discrimination in the work place, shedding light on how the EEOC interprets the federal Pregnancy Discrimination Act and the Americans with Disabilities Act as it applies to pregnant workers.

The Guidance states that a worker’s right to be free from pregnancy discrimination under the PDA covers all aspects of the reproductive process, including fertility treatments, contraception use, abortion and lactation. The Guidance also takes the stance that numerous conditions related to pregnancy – albeit not pregnancy itself – may qualify as “disabilities” under the ADA. For example, impairments that “substantially limit” (as compared to most people in the general population) one’s ability to stand, sit, lift and bend, or that affect major bodily functions, may qualify as disabilities, even if they last for a short period of time.

The Guidance suggests a number of potential “reasonable accommodations” an employer should consider in such circumstances, including:
◾ Altering how job duties are performed
◾ Modifying workplace policies
◾ Modifying work schedules
◾ Granting leave in addition to that which is otherwise provided
◾ Temporarily reassigning an employee to a light duty position

Employers should pay particular attention to an aspect of the Guidance that could potentially clash with a pending U.S. Supreme Court case. The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Under the new Guidance, a policy that provides light duty, leave, or some other accommodation to an employee based on their limitations in a way that excludes pregnant employees, may contradict the PDA. For example, the Guidance states that a policy affording light duty work assignments to an employee injured on the job violates the PDA because a pregnant employee will not qualify, even if she is similar in her ability or inability to work as a non-pregnant employee who does qualify.

The Supreme Court, however, is currently reviewing a Fourth Circuit case which ruled differently. In that matter, the lower court held that an employer’s policy of allowing light duty work for only certain categories of employees – including those injured on the job and those who lost their DOT certification due to certain medical events – was a facially neutral policy and did not violate the PDA. Employers should stay tuned for the outcome of that case, as a Supreme Court decision upholding the Fourth Circuit would trump the conflicting part of the EEOC Guidance.

Whenever employers are faced with situations involving pregnancy and reproductive issues, they should ensure their decisions comply with the PDA and ADA.

Reading the NLRB Signs at the Triple Play Sports Bar

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In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31. (August 22, 2014), the National Labor Relations Board ruled that an employee “liking” a status on Facebook is engaging in protected concerted activities under the NLRA. Employees were unlawfully terminated for ranting about the employer’s tax-withholding error, which resulted in the employees owing an unexpected sum of money to the state tax authorities.

Getting to First: Facebook “Like” as Protected Concerted Activity

In a heated discussion on Facebook, an employee “liked” another employee’s post, which included: “They [the employer] can’t even do the tax paperwork correctly!!!! Now I OWE money… Wtf!!!!” While the NLRB determined that the “like” constituted concerted conduct with the original poster, the Board also held that the “like” expressed agreement only with that particular post. If an employee agrees with the subsequent commentary, s/he would have to “like” them individually. The practical implication of this appears to be that unless an employee “likes” a specific post that was work related, it could not in the ordinary case constitute evidence of concerted conduct for purposes of the NLRA. Here, however, the post which was “liked” involved the employer’s purported handling of tax paperwork issues, and was thus a protected form of employee communication seeking mutual support to improve their terms and conditions of employment.

What’s on Second? Atlantic Steel v. Jefferson Standard

The Board considered whether the employee’s speech lost protection either under Atlantic Steel Co., 245 NLRB 814 (1979), or under the standards established in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). Declining to follow the ALJ’s approach of applying Atlantic Steel, the Board noted that where issues arise out of off-duty, off-site social media use to communicate with other employees or third parties, Atlantic Steel is inapplicable because the standard announced in that case is “tailored to workplace confrontations with the employer.” Here, because the underlying communications were outside the workplace, and were not directly with the employer, the Board applied Jefferson Standard to determine whether the employees’ speech was so disloyal, reckless or maliciously untrue as to lose protection under the Act. The Board distinguished the facts here from the disparaging facts in Jefferson Standard, finding that the Facebook discussion disclosed the existence of an ongoing employment related dispute; that the communications were not directed to the general public because they were posted on an individual’s personal page; and that the comments did not disparage the employer’s products or services. For those reasons, the employees speech did not lose the protection of the Act.

A Knuckle Ball: The Vagueness of “Inappropriate”

The NLRB reversed the ALJ’s decision to dismiss an alleged violation for the employer’s maintenance of an Internet/Blogging Policy. Instead, the Board found that the policy violated the law.

The policy stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company.

As the policy was lacking in illustrative examples, the majority found that the policy’s language forbidding “inappropriate” communications in the Internet/Blogging Policy was “sufficiently imprecise” as to be overly broad.

Member Miscimarra, dissenting in part, argued that the term “inappropriate,” albeit “susceptible to different meanings,” was in fact “using an understandable catchall phrase as a general statement of policy.” In the dissent’s view, the policy only deemed discussions “inappropriate” if they violate the law.

Three Up, Three Down! The Savings Clause that Couldn’t

In light of two discharges related to protected concerted activity, the NLRB found a savings clause in the Internet/Blogging policy was “ineffective.” The savings clause stated that: “In the event state or federal law precludes this policy, then it is of no force or effect.” Even though the policy was to have “no effect,” the NLRB still found that the Internet/Blogging Policy would be viewed by employees through the lens of the termination of two employees for engaging in protected concerted activity.

Switch Hitter: A Lone Dissent

The dissent criticized the majority’s decision as the sort of analysis which “contributes to the uncertainty employers confront in seeking to square their rules,” which now “consists of so many distinctions, qualifications, and factual variations as to preclude any reasonable ‘certainty beforehand’ for most parties ‘as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.’” We have previously noted the dissent’s point concerning the difficulty of employer compliance where the state of the law is unclear here, here and here.

Reading the Signs

The ruling in Triple Play Sports Bar illustrates the NLRB’s further reach into social media policies and work rules. An otherwise insignificant “like” can offer an employee protection under the Act, even in a non-union context, such as here. Further, the decision deals a blow to employer efforts to utilize a ”savings clause” which plainly stated that the policy would have “no effect or force” in the face of countervailing federal law. Employers are still searching for a savings clause that will find Board approval. It is likely that if a savings clause ever is approved by the Board, it will have to be a simply worded one, not written only for lawyers but also to be easily understood by workers.

South Carolina Supreme Court Finds Workers’ Compensation Covers Employee’s Injuries Suffered During Kickball Game

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Employers seeking to boost employee morale and encourage team building often encourage or require their employees to attend company outings ranging from annual company picnics to softball games. Although companies intend for such activities to be a fun way for employees to interact outside of the workplace, these types of events raise difficult Workers’ Compensation liability issues. A recent decision by the South Carolina Supreme Court demonstrates that forcing employees to have fun may not always be a good idea.

Whigham v. Jackson Dawson Communications involved a plaintiff who filed a claim for Workers’ Compensation benefits after he was injured during a kickball game that he organized for his employer. The single commissioner denied Whigham’s claim because she found that his injury did not arise out of or in the course of his employment. The full commission and the court of appeals affirmed the denial.

The South Carolina Supreme Court reversed the decision and found that Whigham’s kickball injury was compensable under the South Carolina Workers’ Compensation Act. In reaching its decision, the court relied heavily on the “Larson test” set forth in Larson’s Workers’ Compensation Law. The Larson test provides that recreational or social activities are within the course of employment and should be covered under Workers’ Compensation when: (1) they occur on the premises during a lunch or recreational period as a regular incident of employment; or, (2) the employer expressly or impliedly requires participation, or by making the activity part of the services of the employee, brings the activity within the orbit of the employment; or, (3) the employer derives substantial benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

Focusing on the second factor in the Larson test, the court found that Whigham’s employer impliedly made the kickball event a part of his services. Specifically, the Court reasoned that Whigham, who had suggested and organized the event to build company morale, felt that he was required to attend the event as part of his services to the company; thus, the kickball game was brought within the scope of his employment. The court explained that “when determining whether an employee is required to attend an event a directive is not necessary ‘if the employee is made to understand he is to take part in the affair’ . . . both Whigham and his superior plainly considered his presence vital to his job of executing the event.” (quoting Larson). The court further held that a specific act need not be designated in an employee’s job description to be compensable.

The take-away for employers is that Workers’ Compensation liability may extend to injuries that employees experience during recreational events like company picnics, sporting events, team-building exercises and retreats. Employers seeking to avoid Workers’ Compensation claims should be cautious when organizing and promoting company outings. Any implication that employees are required to attend may bring their participation in the event within the scope of their employment. Accordingly, injuries incurred at the event—whether it is food poisoning from a bad hot dog or a shoulder injury on the golf course—are likely to be compensable.

EEOC Expands Pregnancy Discrimination Protections for Employees

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The Equal Employment Opportunity Commission has issued guidance on pregnancy discrimination that provides, for the first time, that employers must offer light duty assignments to pregnant employees if they make light duty available to non-pregnant employees.

Under the Pregnancy Discrimination Act of 1978 (PDA), an employer engages in sex discrimination if it fires, refuses to hire, demotes, or takes any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action.

The PDA also requires employers to provide pregnant workers equal access to benefits of employment such as leave, light duty, and health benefits, according to the EEOC Guidance.

That means that an employer must provide a pregnant employee light duty ‒that is, temporary work that is less physically demanding than her normal duties‒ if the employer provides light duty for employees who are not pregnant but who are similar in their ability or inability to work.

For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries. By the same token, if an employer’s policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty, the employer may lawfully apply the same restrictions to pregnant workers as it applies to non-pregnant workers. If an employer does not provide light duty to employees who are not pregnant, it does not have to do so for pregnant workers.

Additionally, an employer may not force an employee to take leave because she is pregnant as long as she is able to perform the job. The PDA also requires employers to allow employees with physical limitations resulting from pregnancy to take leave on the same terms and conditions as non-pregnant employees, the EEOC said.

What’s more, the EEOC noted that employers can violate the Americans with Disabilities Act (ADA) if they fail to provide reasonable accommodations to employees with impairments related to pregnancy. While pregnancy itself is not a disability under the ADA, pregnancy-related impairments may be covered if they substantially limit one or more major life activities

Pregnancy-related impairments can include pelvic inflammation, which may substantially limit the ability to walk; pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks; pregnancy-related sciatica limiting musculoskeletal functions; gestational diabetes limiting endocrine function; and preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions.

If an employee seeks a reasonable accommodation because of a pregnancy-related impairment, the employer must attempt to provide one. An employer may only deny the request if it would result in an undue hardship, which is as requiring significant difficulty or expense.

Examples of reasonable accommodations include:
◾ Redistributing marginal or nonessential functions (for example, occasional lifting);
◾ Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation;
◾ Modifying a work schedule to accommodate severe morning sickness;
◾ Allowing a pregnant worker placed on bed rest to telework where feasible;
◾ Granting leave in addition to what an employer would normally provide under a sick leave policy;
◾ Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
◾ Temporarily reassigning an employee to a light duty position.
◾ The entire EEOC Enforcement Guidance on Pregnancy Discrimination, along with fact sheet for small business owners, may be found at http://www.eeoc.gov/.