|
January 2001
Vol. 14, Issue 1
(Get a printer-friendly
version)
|
This edition of the Employment
Law Brief has been authored by members of
the BDB Employment Law Practice Group located
in Columbus, Ohio. The Columbus practice group
consists of:
 Jan
E. Hensel. Jan is a
shareholder in the Columbus office. Her practice
is limited to representation of employers
in all aspects of employment law matters,
including state and federal court litigation,
before administrative agencies, drafting employee
handbooks, policies and procedures, and providing
day-to-day consultation.
E-mail: JHensel@bdblaw.com
Direct Dial Phone: 614.227.4267
Craig
B. Paynter. Craig joined the firm
as a shareholder in 1999 and is resident in
the Columbus office. He practices in the commercial
law and litigation areas with an emphasis
on public sector trial and appellate employment
issues.
E-mail: CPaynter@bdblaw.com
Direct Dial Phone: 614.227.4263
 Anna
M. Seidensticker. Anna is an associate
in the Columbus office whose practice focuses
solely on representation of employers in matters
involving labor and employment law. Her labor
and employment practice includes representing
both public and private employers before state
and federal courts and administrative agencies
as well as advising employers regarding a
wide variety of employment issues including
employment policies and disciplinary matters.
E-mail: ASeidensticker@bdblaw.com
Direct Dial Phone: 614.227.4297
 Julie
Young. Julie is an associate member
of the Firm's Columbus office. She joined
the Firm in 1999. Her practice focuses on
the representation of employers in matters
related to discrimination, sexual harassment
and other employment-related litigation. Julie
is also a part of the Firm's commercial litigation
group.
E-mail: JYoung@bdblaw.com
Direct Dial Phone: 614.227.4268
|
EEOC
Guidance Addresses Disability-Related Inquiries
And Medical Examinations Of Employees Under The
ADA.
By: Jan
E. Hensel, Esq.
The
Americans With Disabilities Act ("ADA")
limits an employer's ability to make disability-
related inquiries or require medical examinations
at three stages: pre-offer of employment, post-
conditional offer of employment, and during employment.
The EEOC previously issued a guidance on pre-employment
disability-related inquiries and medical examinations,
in which it addressed the ADA's restrictions on
disability-related inquiries and medical examinations
at the pre- and post-offer stages. In its July 27
guidance, the EEOC focused on the ADA's limitations
on disability-related inquiries and medical examinations
of current employees. Such inquiries are
limited by the ADA to those that are job-related
and consistent with business necessity.
Other provisions of the ADA are limited to protecting
qualified individuals with disabilities, but in
this instance the EEOC states that the restrictions
on inquiries and examinations apply to all
employees. Thus, any employee, whether or not disabled,
has the right to challenge a disability- related
inquiry or medical examination that is not job-related
and consistent with business necessity.
Job-Related Inquiries
A disability-related inquiry or medical examination
of an employee is job-related and consistent with
business necessity when an employer has a reasonable
belief, based on objective evidence, that:
(1) an employee's ability to perform an essential
job function will be impaired by a medical condition;
or (2) an employee will pose a direct threat due
to a medical condition. Disability- related inquires
and medical examinations that follow up on a request
for reasonable accommodation when the disability
or need for accommodation is not known or obvious
also may be job-related and consistent with business
necessity.
According to the EEOC, only in limited situations
involving public safety jobs may employers require
employees to take periodic medical exams or to report
the use of prescription medications that may affect
job performance. Likewise, only in limited circumstances
may an employer require an employee who has been
away from work attending an alcohol rehabilitation
program to be subjected to periodic alcohol testing.
Applying Discipline Uniformly
Furthermore, the EEOC provides that if an employee
fails to respond to a disability-related inquiry
or fails to submit to a medical examination that
is job-related and consistent with a business necessity,
the action the employer may take in response must
be tied to its reason for making the inquiry or
requiring the examination. Under such circumstances,
the employer may discipline the employee for past
and future performance problems in accordance with
a uniformly applied policy. The employer cannot,
however, discipline the employee for refusing to
take the medical examination or respond to the inquiry.
It may be that what this EEOC guidance illustrates
best is that navigating the murky waters of ADA
compliance can be tricky. When in doubt, the best
course of action may be to consult with your employment
law attorney.
FMLA
And The "12-Month Period"
By: Julie
M. Young, Esq.
The
Family and Medical Leave Act ("FMLA")
ostensibly provides a straightforward employee benefit.
However, for the uninformed employer, the "devil
is in the details" of FMLA rights.
The FMLA allows an eligible employee to take off
up to 12 weeks of unpaid medical leave in a 12-month
period. To be eligible, the employee must be employed
by his current employer for 12 months and have worked
at least 1,250 hours during the preceding 12 months.
An employee may use the leave for childbirth or
adoption and subsequent care, or to attend to his
own "serious health condition" or that
of a spouse, child or parent. A covered employer
(50+ employees) must provide an explanation of FMLA
rights in its written handbook. Failure to do so
prevents the employer from taking action against
an employee who fails to establish FMLA eligibility.
Additionally, the handbook is the most logical place
to clearly define discretionary FMLA procedure.
An employer, at its discretion, may require employees
to exhaust acquired leave time, such as vacation
or "sick" days, before taking unpaid FMLA
leave. This requirement, however, must be outlined
in writing prior to the commencement of the leave.
An employer may provide the notice at the time an
employee requests FMLA leave or preferably outline
the requirement in the employee handbook.
Calculating the 12-Month Period
A wise employer will define the method for calculating
the 12-month period. If the employer fails to do
so, the employee may define the period in any way
that is most advantageous to him.
There are four ways to calculate the leave period:
- the calendar year (the period is renewed on
January 1st of each year);
- any fixed 12-month "leave year" (the
fiscal year or anniversary of an employee's hire
date);
- a 12-month period measured forward from the
first day of FMLA leave; or
- the rolling year.
Under the first three options, an employer may
encounter the problem of "stacking." In
other words, an employee may stack two 12-week periods
of leave back–to–back for a total absence of 24
weeks. For example, under the calendar year, an
employee may use the last 12 weeks in one year and
the first 12 weeks of the following year.
To eliminate the stacking problem, an employer
may choose the "rolling year." Under this
option, the 12-month period is measured backwards
from the last day of FMLA leave. For example, if
an employee uses six weeks of leave commencing June
1 and an additional six weeks of leave in November
and December of the same year, on July 14 of the
following year, the employee will be eligible for
another six weeks of leave. In other words, when
looking backwards 12 months from July 14, the first
six weeks used will be outside the "lookback"
period.
Although the details of FMLA leave may seem tedious,
it is important for an employer to proactively define
in writing those FMLA procedures over which it has
discretion. Failure to do so may result in greater
protected leave rights for eligible employees.
Employers
Brace For "Ergonomic" Standard
By: Craig
B. Paynter, Esq.
Employers
of all types are bracing for the possible implementation
of final ergonomic standards published by the Occupational
Safety and Health Administration. Arising out of
a great deal of critical debate, the standards will
force employers to alter work stations, redesign
facilities, or change tools and equipment used by
workers in an effort to ward off possible disabling
effects of ergonomic-related injuries which would
otherwise result from repetitious movements of muscles,
bones, and joints. The rules would also allow employees
time off at 90% pay without an objectively measurable
standard defining which injuries might trigger the
employers' obligations to extend such leave benefits
to workers.
Proponents feel the standards will avoid hundreds
of thousands of injuries annually and result in
savings to employers in terms of reduced workers'
compensation claims and reduced lost man hours,
injuries, and turnovers. Critics argue that the
standards will be costly to implement and criticize
the relatively rushed progression through the financial
impact hearing process this past year. They also
feel the standards duplicate workers' compensation
remedies currently available. Some suspect that
OSHA accelerated the approval process to facilitate
passage before a change in administration.
The standards are scheduled to take effect in stages
beginning January 16, 2001. With court challenges
pending, there is a real possibility of an administrative
stay of implementation until the courts issue a
judicial determination of validity, which is expected
sometime late next fall. Proponents also fear that
the new Republican administration may simply refuse
to fund the program and thereby defeat its implementation.
Additional information can be obtained through
the web site of the Occupational Safety and Health
Administration, U.S. Department of Labor, at http://www.dol.gov/
.
February 15, 2001 James
Kurek, John
McKenzie, Ashley
Stouffer and Vince
Tersigni will speak at the Lorman Education
Services Seminar. This is a one day seminar designed
for human resource and payroll professionals, business
owners and managers. To register, contact Lorman
on the internet at http://www.lorman.com
or by phone at 715.833.3940.
Kurek |
McKenzie |
Stouffer |
Tersigni |
On February 21, 2001 Vince Tersigni will speak
to the New Philadelphia/Dover, Ohio chapter of the
Society of Human Resource Managers (SHRM). To register,
contact Rod Neuenschwander at SHRM via e-mail rneuenschwander@reacpa.com
or phone at 330.339.6651.
If you are interested in having a speaker from BDB
make a presentation to your organization, please
contact: Cheryl Warren, Director of Client Relations
and Marketing 800.686.2825 ext. 546 or cwarren@bdblaw.com.
|
