Transcript LEGAL ISSUES ASSOCIATED WITH THE HIRING AND FIRING

LEGAL ISSUES ASSOCIATED WITH
THE HIRING AND FIRING
EMPLOYEES WITH DISABILITIES
Presented by:
Ellen M. Leibovitch,
Board Certified Labor & Employment Law Attorney
Shapiro, Blasi, Wasserman & Gora, PA
Boca Raton, Florida
A little about me & my firm…
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In practice since 1987
Specialize in labor & employment law
Represent employers mostly
Firm is headquartered in Boca Raton
Other areas of practice – commercial
litigation, estates & trusts, bankruptcy,
family law, real estate and corporate law
Americans with Disabilities Act
In regards to employment,
Title I of the ADA prohibits
discrimination against people with
disabilities in employment and
requires employers to provide
reasonable accommodations for
employees with disabilities
To whom does the law apply and
who does the law protect?
• Applies to employers who have 15 or more
employees (full and part-time employees
are included)
• Protects all qualified individuals with a
disability or persons with a relationship to
or who associate with an individual with a
disability
DEFINITIONS
UNDERSTANDING THE TERMS
USED IN THE ADA IS
REQUIRED TO KNOW HOW TO
COMPLY WITH THE LAW…
SO WE WILL BE REVIEWING
THOSE TERMS TODAY
Who is considered an “individual
with a disability”?
This is defined in the ADA as a person
(1) who has a physical or mental impairment
that substantially limits one or more major
life activities - “actual disability” OR
(2) who has a history or record of such
impairment - “record of” a disability OR
(3) who is perceived or regarded by others
as having such an impairment - “regarded
as” a having a disability
“Record of” having a disability
Refers to an individual who:
– does not currently have a substantially
limiting impairment but who had one in
the past OR
– was once misclassified as having a
substantially limiting impairment (i.e.,
someone erroneously deemed to have
had a disability but who did not)
“Regarded as” having a disability
An individual who has an actual
or perceived physical or mental
impairment, whether or not that
impairment substantially limits or
is perceived to substantially limit a
major life activity
“Physical or Mental Impairment”
• Any physiological disorder or condition, cosmetic
disfigurement or anatomical loss affecting one or more
body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin
and endocrine systems OR
• Any mental or psychological disorder, such as a
mental disability, organic brain syndrome, emotional or
mental illness and specific learning disabilities
Short-term impairments
• Include episodic impairments that substantially
limit a major life activity when active
• A short-term impairment lasting or expected to
last fewer than six months can be a disability if it
is “substantially limiting”
– Pregnancy - not an impairment, not a disability
– A pregnancy-related impairment (such as gestational
diabetes) may be a disability if it substantially limits a
major life activity
“Major life activities”
The regulations provide a non-exhaustive list of major life activities:
• caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, interacting with others and working
• the operation of a major bodily function, including functions of the
immune system, special sense organs and skin, normal cell growth,
digestive, genitourinary, bowel, bladder, neurological, brain,
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions (also includes the
operation of an individual organ within a body system)
“Substantially limits”
The newly-revised final regulations (which we
will get to shortly) adopt “rules of construction” to
be used when determining whether an individual
is substantially limited in performing a major life
activity:
– Construe the term broadly – the rules favor expansive
coverage
– Make individual assessments – the impairment need
only substantially limit the ability of an individual (not
the general population) to perform a major life activity
Specific impairments “virtually
always” recognized:
• deafness, blindness
• intellectual disability
• partially or completely missing limbs, mobility
impairments requiring use of a wheelchair
• autism
• cancer
• diabetes
• HIV infection
• cerebral palsy, multiple sclerosis, muscular dystrophy,
epilepsy
• major depressive disorder, bipolar disorder, posttraumatic stress disorder, obsessive-compulsive disorder
and schizophrenia
New ADAAA Regulations
• Americans with Disabilities Act
Amendments Act was recently amended effective May 24, 2011
• Not employer-friendly!
• The new regulations make it easier for
individuals with disabilities to be protected
• Court decisions over the past 20 years
made ADA claims difficult, if not
impossible, to prove
What did the new regs do?
• Made it easier for a person to prove the
existence of a covered disability and,
therefore, to be protected by the ADA
• Weakened prior court decisions which
allowed employers to avoid liability
• Lessened the significance of “mitigating
measures” in assessing the existence of a
disability
Mitigating Measures
• Measures designed to eliminate or reduce
the symptoms or impact of an impairment
• Include medication, medical equipment and
devices, prosthetic limbs, hearing aids,
mobility devices
• If a mitigating measure eliminates or reduces
the symptoms or impact of an impairment,
that fact cannot be used in determining if a
person is an individual with a disability (only
exceptions are eyeglasses & contact lenses)
What else did the new rules do?
• Made “regarded as disabled” claims easier
to prove – only need to allege a perceived
disability and an adverse action because
of that perception to state a claim
• Expanded the types of “major life
activities” that can be impacted – if there is
a disability, then virtually any activity will
suffice
So what CAN you do and
what CAN’T you do?
• CAN consider the negative effects of a
mitigating measure in determining if a
disability exists (e.g., side effects from
medication)
• CAN’T require an employee to use a
mitigating measure to avoid negative
effects of a disability
And what can you now expect?
• The cynic (“glass half empty” types) might
say – “More lawsuits!”
• The optimists (“glass half full”) might say –
“Less discrimination!”
• Only time will tell…
The ADA protects “qualified”
individuals with a disability…
An individual must have the skills,
experience, education and other jobrelated requirements needed for the
job AND be able to perform the
essential functions of the job
with or without reasonable
accommodation
What is a “reasonable
accommodation?”
A modification to a job, the work
environment or the way things are
usually done to enable a qualified
individual with a disability to perform
the essential functions of that job.
What’s reasonable?
• Case by case assessment
• What’s OK for one business may not work
for another
• The proposed accommodation will not be
reasonable if it poses an “undue hardship”
on the employer
What’s an undue hardship?
• May be financial, but not necessarily
• Still, in most cases, accommodations are
rejected because of financial reasons
• Remember that the accommodation
requested by the employee may not be the
accommodation required (and vice versa)
• Interactive process – more to follow…
ADA definitions are critical!
So once you know to whom the ADA
applies, who is protected and
understand, and what the terms
QUALIFIED, DISABILITY, MAJOR LIFE
ACTIVITY, SUBSTANTIALLY LIMITS
and REASONABLE ACCOMMODATION
mean, we can talk about hiring…
HIRING GUIDELINES
Step 1: Recruitment
• The ADA does not require private employers
covered by the act to hire persons with
disabilities - it is NOT an affirmative action
statute!
• However, expanding outreach to target qualified
candidates with disabilities is consistent with the
ADA’s goal and, for employers, can result in a
significant expansion of the labor pool
• Also, hiring the disabled promotes diversity – the
work force reflects the face of the community!
Recruitment - continued
Recruitment activities must include disabled candidates
and not screen out applicants with disabilities:
– On line applications - this may require simple modifications to
web page design to make the online system accessible to all
users
– Location - recruit at a location that’s accessible to someone in a
wheelchair
– Applications – make available in Braille or large print
– Job postings - provide a telephone and a TDD (telephone
device for the deaf) number; and make sure that information is
available by other sources to persons who cannot see/read
BUT!
THESE SUGGESTIONS AS TO
REASONABLE ACCOMMODATION FOR
DISABLED APPLICANTS ALL
PRESUPPOSE NO UNDUE HARDSHIP;
SO IF YOU FAIL TO PROVIDE AN
ACCOMMODATION, YOU SHOULD BE
PREPARED TO EXPLAIN WHY THE
ACCOMMODATION WOULD CAUSE AN
UNDUE HARDSHIP!
And of course…
Make certain to indicate in all
postings that you are an equal
opportunity employer and do not
discriminate on the basis of age,
sex, race, disability, etc.!
How to recruit the disabled?
• EMPLOYER ASSISTANCE RESOURCE
NETWORK - which is a service of the DOL’s
Office of Disability Employment Policy
• EARN is a FREE service that connects public
and private sector employers with local
resources to find skilled job candidates
• For more information, go to www.dol.gov
Recruitment – final thoughts…
• Make sure to advertise the essential functions of
the job to screen out unqualified candidates,
whether disabled or not
• If walking, lifting, standing, etc. are essential to
the job, state that in your advertisement
• BUT listing these requirements does not mean
that a disabled person cannot do the job, it just
means that an accommodation may be required
for a disabled applicant
HIRING GUIDELINES
Step 2: Interviews
• MOST IMPORTANT: you cannot ask disabilityrelated or other medical questions before an
offer of employment is made
• The purpose of the interview is to find out
whether candidate possesses the knowledge,
skills and qualifications for a particular position
• RULE OF THUMB - ask about the person’s
ABILITIES, not about their DISABILITIES
Interviews –
possible accommodations
• Sign language interpreter - for deaf
applicants
• Reader - for blind applicants
• Tests - inform applicant of any tests
required so that they can ask for an
accommodation if needed
HIRING GUIDELINES
Step 3: Job Offer
• Once a conditional job offer is made – which will
occur after all non-medical information has been
obtained and analyzed – the employer may ask
disability-related questions if related to the job
• Medical examinations may be required as long
as medical examinations are required for all
entering employees in the same job category
Can a job offer be withdrawn?
• Yes, if the reason for the rejection is jobrelated and consistent with business
necessity
• No, if the reason is related to the person’s
disability (or the person’s association with
a disabled person)
• Yes, if the individual poses a “direct threat”
to the safety of himself or others (and the
risk cannot be reasonably accommodated)
Job Accommodation Network
• This is another FREE service available to help
employers devise possible accommodations for
applicants or employees with disabilities - again go to
www.dol.gov
• The applicant’s or employee’s suggested
accommodation is not necessarily the one that is
required - may be too costly - the accommodation need
only be reasonable to allow the employee to perform the
essential functions of the job
• Engage in an interactive process to devise an
accommodation
POST-HIRING:
Evaluations, advancement, etc.
• Make sure career advancement
opportunities, including training, to
disabled employees
• Do not discriminate against persons who
have medical and disability-related leave
issues which may take them out of the
work place
Disability-related absences
• FMLA - only applies after one year and 1,250 hours of work AND to
employers with over 50 employees/75 mile radius
• Short term disability - may not have a policy; may not be available to
newly hired employees
• The ADA - may require intermittent absences and require giving
disabled employees more time off than allowed under your policies
• Return to work - watch for retaliation
• Excessive absenteeism - may lead to termination… which brings us
to our final topic
FIRING GUIDELINES
Whether firing a disabled or a
non-disabled employee, you
should follow the SAME
STEPS!
FIRING GUIDELINES
Step 1: Documentation
• Document the reasons for a
termination
• Maintain records of counseling and
warnings
• Employee should sign off on any
written disciplinary actions
FIRING GUIDELINES
Step 2: Consistency
• Apply all rules even-handedly; this works
both ways
– can’t favor disabled workers
– can’t abuse disabled workers
• During first 90 days, classify all employees
as probationary (helps with unemployment
as well)
FIRING GUIDELINES
Step 3: Confidence
• Just as you should not be afraid to hire a
disabled employee, do not be afraid to fire
that employee
• Never feel beholden to a non-performing
employee due to an employee’s disability
• You have a business to run and you need
to be able to do so with qualified personnel
BUT…
• Recognize that the termination
decision may be challenged as
discriminatory and that you cannot
stop anyone from filing a lawsuit
• Still, you can create a solid defense
with proper documentation (see Step
1!)
Lay-offs
For all terminations based on
reasons other than performance,
make certain that the termination
decisions apply evenly to all
classes of employees - not only the disabled ones
A few parting thoughts…
• The ADA was designed to give disabled
employees a level playing field
• There is a positive business case to be
made for employers who hire disabled
persons
– untapped and talented labor pool
– tax incentives
– diverse work force
– positive example for the business community
Questions?
THANK YOU FOR YOUR TIME!