Tag Archives: ADA

EEOC Settles Its First GINA Case

Last month, the EEOC announced that it had settled the first lawsuit it had ever filed alleging violation of the Genetic Information Nondiscrimination Act (GINA). The employer in the case (Fabricut, a distributor of decorative fabrics) agreed to pay $50,000, post a notice regarding discrimination, and provide anti-discrimination policies and training. Not a lot of clams, but it’s still important: Not only was this the agency’s first GINA case, but it also involved employer conduct that seemed inadvertent, at least as regards GINA. The employee might have had a nice little ADA claim, on the other hand.

The employee, Rhonda Jones, had a temporary job as a memo clerk. When that job ended, she applied for a regular position in the same job. As part of its usual hiring practices, the company sent her to its contract medical examiner for a post-offer physical exam. That’s when the GINA violation happened: The examiner asked her to fill out a health questionnaire, which asked a bunch of questions about her family medical history. That alone violates the law. Employers (or their contract medical examiners) may not request or require genetic information from applicants or employees. That the employer apparently never acted on the basis of this information doesn’t matter. Requesting it violated GINA. This part of the case is a good reminder to employers that all of this information is now off-limits, period.

But back to the ADA claim: The medical examiner’s actual exam revealed that further evaluation was necessary to find out whether Jones had carpal tunnel syndrome. The examiner told Fabricut of this finding, and Fabricut told Jones to go to her personal physician for testing. Her physician gave her a number of tests and concluded that she didn’t have carpal tunnel. She provided this result to Fabricut, but it didn’t hire her anyway, on the basis of the examiner’s original finding. And it ignored Jones’s request for reconsideration of the decision.

So to review: The employer regarded her as having a disability, although her own physician said she did not. She had already been performing the job for which she applied, and one presumes she was doing fine, as they offered her the position. And, at least based on the facts in the EEOC’s release, the employer made the decision based solely on her disability, without any consideration of reasonable accommodation. Of course, if she had no disability, she wouldn’t be entitled to accommodation. But Fabricut thought she did have a disability — and rejected her on that basis — so it had an obligation to consider possible accommodations. All in all, a pretty strong argument that the employer violated the ADA.

Depressing Statistics on Employment of People With Disabilities

An Associated Press story yesterday included some lousy news for those with disabilities (and their advocates): The percentage of people with disabilities who are in the work force has declined in the last four years, and hasn’t changed appreciably since the Americans with Disabilities Act (ADA) was passed 23 years ago. According to the story (here is the Washington Post’s version), only 18% of working age Americans with disabilities are, in fact, working, compared to 63% for those without disabilities. Not reported in the article, but just as depressing, is the disability wage gap: Full-time employees with disabilities earn $6,100 less per year, on average, than full-time employees who don’t have disabilities. (You can find this figure, along with piles of other disability statistics, in the Disability Status Report.)

Conjectures about what’s still holding back employees with disabilities range from employer prejudice and outdated attitudes to compliance costs. Here’s the thing, though: Studies show that compliance with the ADA — at least in the form of providing reasonable accommodations to allow those with disabilities to perform their jobs — is not that expensive after all. In 2009, the Equal Employment Opportunity Commission pulled together various statistics and studies on the cost of reasonable accommodations, as part of the process of drafting regulations to implement the Americans with Disabilities Act Amendments Act (ADAAA). Those studies show significant variations in the reported mean cost of an accommodation, ranging from $462 up to more than $1,400. Where the studies agree, however, is that many accommodations — the majority, in some studies — are free.

In response to reader questions and search popularity, we recently added a Reasonable Accommodations page, with articles on the right to accommodation and specific accommodations for a variety of disabilities. For detailed information on accommodations for dozens of disabilities, along with compliance assistance, check out the website of the Job Accommodation Network.

Caring for an Adult Child Under the FMLA

This week, the Department of Labor’s Wage and Hour Division issued its first Administrator’s Interpretation of the new year. The Interpretation clarifies who qualifies as an adult “son or daughter” for whom an employee may take time off under the Family and Medical Leave Act (FMLA).

The FMLA allows employees to take time off to care for a son or daughter with a serious health condition. If the child is 18 or older, however, additional requirements apply. The child must not only have a serious health condition for which he or she is in need of care, but must also have a disability (as defined by the Americans with Disabilities Act) that renders the child incapable of caring for him- or herself.

These requirements were already in place, set out in the law and regulations. The Interpretation makes these additional points:

  • The adult child’s disability may begin after the child turns 18. Previously, there was some confusion about a parent could take FMLA leave to care for a child who became disabled as an adult or only for a child who was under the age of 18 at the onset of the disability. The Interpretation makes clear that the age of onset isn’t a factor. For example, an employee may take FMLA leave to care for a 30-year-old child who becomes disabled as the result of a car accident or cancer diagnosis.¬†
  • The more lenient standards adopted in the ADA Amendments Act (ADAAA) apply to the FMLA. The ADAAA eased the requirements for proving a disability in order to ensure coverage for more people. For example, a disease that would be disabling when active counts as a disability, even when it is in remission. (For more on the ADAAA, see Nolo’s article ADA Amendments: ¬†More Protections Against Disability Discrimination.) This broader standard is to be used when determining whether an adult child has a disability.
  • Not every disability will qualify under the FMLA, however. The adult child must also be incapable of self-care, which will not be the case for every disability. Someone is incapable of self-care only if that person requires “active assistance or supervision” in at least three activities of daily living. These include basic activities such as grooming and hygiene, bathing, dressing, and eating. They also include things like cooking, shopping, maintaining a home, using public transportation, and so on. An adult child whose disability is in remission or controlled by medication may be fully capable of self-care; therefore, the child’s parent would not be entitled to time off under the FMLA.
  • Employees may be able to use regular FMLA leave to care for an adult child who is injured in military service. Currently, the FMLA gives employees whose children suffer a serious illness or injury while serving in the military the right to take 26 weeks of leave in a single 12-month period. However, this leave entitlement doesn’t renew every year, like the other types of FMLA leave (for which an employee may take only 12 weeks off per year). Unless the adult child suffers a new injury, or another of the employee’s children is also injured, the employee’s right to take 26 weeks off is a one-time-only entitlement. The Interpretation clarifies that an employee who has used up this leave may, in the following year, be entitled to take regular FMLA leave if the adult child’s serious injury qualifies as a disability and renders the child incapable of self-care. This will be a significant relief to parents of wounded service members, whose injuries often require extended or even life-long assistance.

You can find detailed information on every aspect of the FMLA, including how it dovetails with the requirements of the ADA, in The Essential Guide to Family and Medical Leave.

EEOC Guidance for Wounded Veterans

Last week, the Equal Employment Opportunity Commission (EEOC) issued revised versions of two of its publications interpreting the Americans with Disabilities Act for veterans with disabilities. The EEOC’s press release announcing the revisions include a forceful statistic: About 25% of recent veterans report having a service-connected disability. This is roughly twice the rate reported by all veterans. This change, along with the expansion of the ADA in the ADA Amendments Act, add up to a significant increase in the number of veterans who are protected by the ADA.

The broader definition of “disability” in the ADA Amendments Act to include impairments that limit major bodily functions (such as the proper working of the brain and neurological functioning) and to include episodic impairments that are disabling when active are particularly relevant to veterans. These changes mean that service-related injuries such as trauma to the brain and post-traumatic stress disorder will almost certainly qualify as disabilities.

The guidelines also provide detailed examples of reasonable accommodations for veterans with disabilities, such as:

  • providing a glare guard for the computer screen of an employee with a traumatic brain injury
  • providing a job coach or modifying supervisory methods for an employee who has difficulty with concentration and memory, and
  • modifying equipment and work space for an employee who uses a wheelchair.

In addition to the ADA, the guidelines provide information on the Uniformed Services Employment and Reemployment Rights Act (USERRA), affirmative action programs for veterans, and more.