January 2001
Vol. 14, Issue 1
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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. 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. 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. 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.
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EEOC Guidance
Addresses Disability-Related Inquiries And Medical Examinations Of Employees
Under The ADA.
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
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.
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.
At BDB we are always improving our processes so that we operate efficiently
and effectively. Please let us know how you like our new broadcast format.
E-mail: bdb@bdblaw.com Phone: 330.258.6473
Fax: 330.252.5473.
Thank you.
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BDB also publishes Build on This, a newsletter for the Real Estate and Construction industries, Advisor, which is a general newsletter that addresses a variety of law practice areas, and several Special Alert publications that cover changes in laws which may affect our clients. The material appearing in future Employment Law Brief is meant to provide general information only and not as a substitute for legal advice. With regard to specific law issues, readers of this newsletter should seek specific advice from legal counsel of their choice. In some jurisdictions this newsletter may be considered advertising. The hiring of a lawyer is an important decision that should not be based solely upon written information about our qualifications and experience. Before you decide, ask us to send you free written information about our qualifications and experience. Buckingham, Doolittle & Burroughs, LLP has endeavored to comply with all known legal and ethical requirements in compiling this newsletter. Buckingham, Doolittle & Burroughs, LLP does not desire to represent clients based on their review of any portions of this newsletter that do not comply with legal or ethical requirements. This article may not be reprinted without the express permission of Buckingham, Doolittle & Burroughs, LLP © 2001.
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