Tag: reasonable accommodations

October 11, 2018

Mental Health Leave Under the ADA

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees with mental disabilities to enable them to perform the essential functions of their jobs. Leaves of absence often qualify as a reasonable accommodation. This includes allowing employees to use either accrued paid leave or unpaid mental health leave to treat or manage their conditions.

Mental Health “Disabilities”

Federal law prohibits employment discrimination based on mental disability. The ADA broadly defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” This definition also covers employees with a record of having a mental disability or a perception of having one.

Many state anti-discrimination statutes also prohibit discrimination based on mental health conditions. Definitions of “disability” may vary under state law, sometimes expanding on what conditions the ADA protects.

Mental health conditions that might qualify as disabilities under the ADA include depression, anxiety, and post-traumatic stress disorder (PTSD), among many others.

Click here to read more about “What Is a Disability Under the ADA?”

Employee Privacy

Under the ADA, employers cannot require applicants or employees to disclose a disability, with a few exceptions. Employees may need to disclose mental disabilities when they are requesting a reasonable accommodation. Then, employers can ask for medical records describing the disability and employee limitations. All information related to employee disabilities must be kept confidential.

Requesting Mental Health Leave

Employees can request an accommodation at any time during employment. The request can be in plain language and does not have to include the term “reasonable accommodation.” Requests need not be in writing. Employees typically provide notes from their doctors. Employers may also require employees to undergo evaluation from a health care provider of their choice as long as the employer covers the cost.

The U.S. Equal Employment Opportunity Commission (EEOC) oversees the enforcement of the ADA. In guidance documents, it gives an example of a situation where a secretarial employee requests time off “because of her medical condition.” This statement is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. But the employer can ask for medical documentation to learn the specifics of the employee’s condition and limitations.

Employers do not have to grant a leave of absence every time the employee requests one. But they must determine whether the employee has a disability, whether leave is a reasonable accommodation, and whether, even if reasonable, the leave would pose an undue hardship on the employer. All of these determinations depend on the circumstances.

Click here to read more about “Reasonable Accommodations of Disability in Employment.”

Return to Work

When returning from leave, employers can require employees to undergo a medical examination to determine fitness for duty. Employees often ask for extended leave or other accommodations upon return. Employers may honor these requests. But organizations are not required to provide accommodations that would create an undue hardship on the workplace. Nor must employers permit an employee to work if doing so would pose a direct threat to anyone’s health or safety.

The EEOC gives the example of an employee returning from a leave of absence after she underwent a hospital stay and adjusted her medication. The employer may request a fitness-for-duty evaluation to ensure the employee can still perform the essential functions of the position. But the medical examination must be limited to her mental condition.

What Do the Courts Say About Mental Health Leave?

Employers must evaluate every situation carefully to determine their obligations under the ADA.

Here are just some examples of what courts have said in specific cases:

In one case, a teacher with an anxiety disorder requested an extended leave of absence as an accommodation. The court upheld the employer’s refusal to grant the leave because there was no certainty that the teacher would be able to return to work at the end of the leave

In another case, a manufacturing employee returned from leave due to severe depression. Upon return, he requested the accommodation of having no contact with co-workers or supervisors. The court upheld the employer’s determination that this accommodation was unreasonable.

These are just two among numerous cases that have resulted in litigation. Obviously, employers would prefer to avoid litigation under the ADA, whether related to mental health leave or other employee disability issues.

No Retaliation

Employers (through supervisors and co-workers) may not retaliate against employees for requesting or taking mental health leave. This includes both taking tangible job actions (e.g., firing) or making the employee’s workday miserable (e.g., harassment).

Employer Takeaways

According to the National Institute of Mental Health, about 18.5% of the United States population report having a mental health condition during the past year. Thus, mental disabilities are among the most prevalent types of disability that the ADA covers.

Managers and supervisors must accept that mental health conditions qualify for the same general protections as physical impairments. As with many disability accommodation issues, mental health leave is often not a straightforward subject. Accordingly, employers should consult with an experienced employment attorney when these issues arise.

July 5, 2018

Employee Drug Addiction and Alcoholism in New York

There are rising costs associated with employee substance abuse across all organizations. It can lead to serious safety issues, disruption of operations, more leave time, and lower productivity. It can also lead to greater use of healthcare and management resources. Nonetheless, employers cannot take adverse employment action against employees based on drug addiction or alcoholism. But employers can discipline these employees for misconduct involving alcohol or drug use.

Americans with Disabilities Act

Alcoholism can be a disability under the Americans with Disabilities Act (ADA). Under the ADA, the burden is on the employee to prove they have a current or past addiction to alcohol and their addiction “substantially limits one or more major life activities.”

Drug addiction can also qualify as a disability. To receive ADA protection, an employee must prove they previously had a drug addiction and they are currently in treatment, have completed treatment, or have recovered without treatment. The employee must also demonstrate their addiction limits a major life activity or they are regarded as a drug addict. The ADA also protects employees who are incorrectly assumed to be drug addicts from discrimination upon that assumption.

Major life activities include working and caring for oneself. If the ADA applies to an employee, their employer must provide, upon the employee’s request, a reasonable accommodation to help the employee perform their work. Allowing an employee to take leave to attend a rehabilitation program may be a reasonable accommodation. However, drinking on the job is not. And these addictions do not excuse an inability to perform the essential functions of the job. Both alcoholics and employees with drug addictions must be able to perform the essential functions of their position with or without a reasonable accommodation.

New York State Human Rights Law

Drug addiction and alcoholism are also disabilities under the NYS Human Rights Law. The law is similar to the ADA in that recovering and recovered alcoholics and drug users receive protection. However, the Human Rights Law does not require that drug addiction or alcoholism “substantially limits a major life activity.” Like the ADA, employees qualifying as disabled under the Human Rights Law based on drug addiction or alcoholism may seek reasonable accommodations from their employers.

When an Employer Can Discipline

Under New York law, employers cannot discipline for employees’ legal use of consumable products (such as tobacco or alcohol) outside of work hours when the employee is not in the workplace and not using the employer’s equipment. Yet, employers can discipline employees when they arrive at work under the influence or use drugs or alcohol while working.

The ADA distinguishes between addictions and the conduct resulting from these addictions. Although an employer cannot discipline an employee for the status of being an addict, an employer can discipline for behavior arising from addiction. If an employer disciplines an employee for a result of their addiction, such as arriving late to work, the employer must discipline the employee at the same level as they would discipline other employees for the same offense.

Both the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights allow that employers may discipline employees for current illegal drug use, even while off duty. Although the term “current user” is not well defined, the EEOC defines it to mean that the employee used illegal drugs “recently enough” for an employer to reasonably believe that the drug use is an ongoing issue. Employers may drug test employees to determine recent use.

Although not required, the EEOC encourages employers to enter into “last chance” agreements with an employee whose addiction has deteriorated their job performance. Under these agreements, the employer might allow the employee to take leave for a rehabilitation program upon condition that the employee has an acceptable performance level and attendance rate upon their return. If the employee fails to meet their end of the agreement or refuses to sign the contract, the employer may terminate their employment.

Addressing Employee Drug Addiction and Alcoholism

As a general rule, employers should not ask employees about their past drug or alcohol use. Exceptions may apply if drug addiction or alcoholism create problems at work. However, employers must remember that drug addiction and alcoholism themselves are disabilities and may afford the employees some protections.

Current use of illegal drugs typically constitutes a valid basis for discipline. However, alcohol consumption, especially outside of work, is harder to regulate. But when alcoholism affects an employee’s attendance, productivity, or behavior at work, employers may take appropriate action.

April 25, 2018

10 Telecommuting Topics for Employers

Does your company allow employees to work from home? Telecommuting can be a great fit for many workers (and their employers). But organizations should consider various implications before going in this direction.

Here, I’ll share 10 potential legal issues related to telecommuting. This isn’t meant to deter any business from using this model. It’s just designed to help you make an informed decision and take appropriate precautions.

1. Timekeeping

Most employers are required under the FLSA or state laws to keep accurate time records of their employees. This is especially true for non-exempt employees who may be eligible for overtime pay when they work over 40 hours per week (or another applicable threshold). Employers must be able to trust their employees working at home to report their time accurately and provide a mechanism for doing so.

2. Meal Periods

Some state laws, such as New York’s, impose mandatory meal period breaks during the workday. These may apply to employees working from home as well as those on the employer’s premises. If so, employers must ensure that their telecommuting employees take the required time off during the day.

3. Overtime

Many companies restrict the amount of overtime their employees work–usually as a cost-containment measure. This may be more difficult to control for telecommuting employees who are out of sight. Nonetheless, if non-exempt employees working from home exceed the applicable threshold, the employer must pay the overtime compensation.

4. Time Off

It can be a challenge to monitor and handle time off for on-site workers. This can sometimes become even more difficult when the employees don’t physically report to work. First, supervisors may not know whether an employee is actually working, so some employees may not use leave time even though they are not doing work when they normally should be. And the opposite can also raise issues. A telecommuter who takes a day off may feel compelled to perform some work while they’re supposed to be on vacation or sick leave. This may raise complications in tracking benefit time and hours worked.

5. Confidentiality

Telecommuting employees often have remote access to company information that on-site workers may not need. Or, at least, they usually have less direct supervision in their use of company data and property. Employers should consider measures to prevent employees from intentionally or accidentally taking or transferring their proprietary information to unauthorized third parties.

6. Security

Even if your employees don’t misuse company information, other nefarious third-parties may seek to do so. Remote data transfer between telecommuting employees and the company’s electronic systems may not be as secure as on-site access. This could be especially true when employees may access company information from outside their homes, such as through public Wi-Fi connections.

7. Discrimination

As with most workplace issues, consistency is important in permitting employees to telecommute. Inconsistent treatment, even if inadvertent, can give the appearance of unfair treatment. This may even give rise to discrimination claims. For example, although well-intended, a company that only allows women with young children to work from home, might be discriminating against male employees. Likewise, an organization that discourages older workers from working from home, but permits younger employees to do so (on the theory that they’re more “tech savvy”) could be engaging in age discrimination.

8. Disability Accommodations

The Americans with Disabilities Act and similar state laws require employers to make reasonable accommodations to qualified employees with disabilities. This could extend to the home workplace. Thus, under some circumstances, employers may need to modify employees’ homes to enable them to work there. At present, however, most employers would probably not be required to allow employees to work from home to accommodate a disability if they do not normally allow telecommuting. This could mean that allowing telecommuting in the first place opens employers to greater disability accommodation responsibilities.

9. Safety

Under OSHA, employers must keep their employees’ workplace reasonably safe. In addition, companies may become responsible, through their workers’ compensation insurance, for telecommuting employees’ injuries occurring in their own homes. As a result, it may be prudent (though not always practical or desirable) for an employer to inspect employees’ home workspaces.

10. Unions

Employees who work from home can still be in represented bargaining units. And unions vary in their approach to whether this is a good idea. Some unions would object to an employer allowing some employees to telecommute. Others may push for the option.

Telecommuting on the Rise

Like unions, employers have different ideas about how effective telecommuting can be. Some embrace it completely, and others reject it altogether. Others are in-between. But, whatever your take, telecommuting is increasingly popular.

A 2017 State of Telecommuting in the U.S. Employee Workforce Report indicates that 3.9 million U.S. employees work from home for at least half of their work time. This is 2.9% of the overall U.S workforce and a 115% increase since 2005.

In this digital era, many employees place tremendous value in having the flexibility to work remotely. Companies that want to attract those workers may need to modify their past approach to telecommuting. But, there remain many industries, such as manufacturing, hospitality, and construction, where much of the workforce must be physically present. Remember that the above issues also apply to traditional work arrangements as well!