News & Information

August 2002
Vol. 15, Issue 3

This issue of the Employment Law Brief addresses several issues of significance to employers. The U.S. Supreme Court has been unusually active recently in deciding employment law cases. In this issue, Jason Baasten and Ashley Manfull analyze two of these decisions involving interpretations of the Americans with Disabilities Act (“ADA”). As explained in the articles, the Supreme Court has expanded the defenses available to employers who are concerned about the safety of employees who work with physical restrictions, and the Court has further held that employers are generally not obligated to violate bona fide seniority systems in order to make ADA accommodations for employees.

We have noticed that many clients have an increased interest in workplace safety and monitoring of employee activities at work. There are many limitations on such practices, including significant legal restrictions on the use of polygraph testing of employees. In their article in this issue, Jerry Chattman and Mark Craig offer important guidance to employers on the lawful use of polygraph testing in the workplace.

Our goal in publishing the Employment Law Brief, as always, is to keep employers up-to-date with changes in the laws concerning the workplace. To discuss the application of the information contained in this issue to a specific situation, please call me, the author of the article, or one of the attorneys in our Employment Law Practice Group.

Finally, please mark your calendars now regarding our upcoming annual employment law seminars which will be held on October 9, 16, and 23, 2002 in Canton, Akron, and Cleveland, respectively. I look forward to hopefully seeing you soon at one of these seminars!

Vincent Tersigni is a Shareholder and the Practice Group Leader of the Employment Law Practice Group. He can be reached at vtersigni@bdblaw.com or 330.258.6552.

U.S. Supreme Court Upholds The Right Of Employers To Refuse To Hire Workers Who Pose A Health Risk On The Job
By Jason M. Baasten, Esq.

The Supreme Court of the United States recently issued an important decision regarding the duty of employers to hire persons who are deemed to have disabilities under the standards set forth in the Americans with Disabilities Act of 1990 (ADA). In this case, Chevron U.S.A., Inc. v. Echazabal, 122 S. Ct. 2045 (2002), the Supreme Court unanimously held that the ADA does not require employers to hire people whose own health or safety would be put at risk by performing the job duties. This opinion is significant because it provides guidance to employers who have been grappling with the vague and broadly worded requirements set forth by the ADA.

The case involved a refinery worker, Mario Echazabal, who had been diagnosed with chronic hepatitis C. Chevron refused to hire him because of this liver condition, which the doctors believed would be exacerbated by continued exposure to toxins at the refinery. Echazabal had been working for independent contractors at one of Chevron’s oil refineries, and Chevron also requested that he be reassigned to a job that did not involve exposure to toxins or be removed from the refinery altogether. Echazabal filed suit, claiming that Chevron’s actions violated the ADA. In its defense, Chevron argued that an Equal Employment Opportunity Commission (EEOC) regulation provided Chevron with a defense to the charge if Chevron could demonstrate that the worker’s disability on the job would pose a direct threat to his own health. The issue before the Supreme Court was whether the EEOC had the authority to promulgate such a regulation.

The language of the ADA permits employers to adopt hiring standards requiring that an individual not pose a direct threat to the health or safety of others in the workplace. The EEOC’s regulation expanded on this language by permitting employers to require that an individual not pose a direct threat to his or her own health or safety, as well as that of others. Echazabal argued that this expansion of the statute’s text was beyond the permissible scope of the EEOC’s rulemaking authority.

Echazabal argued that because Congress did not include in the act a “threat to one’s own safety” as an affirmative defense, but rather had only created a “threat to others” defense, the EEOC could not expand Congress’ intent. The Supreme Court found this argument to be flawed for three reasons.

First, the statute itself includes the “threat to others” provision as an example of legitimate qualifications that are “job related and consistent with business and necessity.” The Court found that the examples mentioned in the statute seemed to give the agency a good deal of discretion in setting the limits of permissible qualification standards. Moreover, the use of the phrase “may include” when describing what were legitimate qualifications indicated that the examples listed were not exhaustive.

Second, the Court refused to infer that it was Congress’ intent to exclude “threats to self” when it did not list this defense with the “threats to others” defense. At the very least, the exclusion of this defense could not be interpreted as an unequivocal implication of Congressional intent, because the two could not be viewed as inextricably linked in the past, such that the absence of the one can be viewed as an intended omission.

Third, the Court did not believe that it was reasonable to conclude that Congress intended to limit the types of persons whose safety could be considered in hiring decisions. The Court pointed out, by way of example, that Congress could not have meant that an employer could not refuse to hire a person when the worker’s disability would threaten others outside the workplace, even though the statute’s text referred only to health threats “in the workplace.”

Having refused to infer a Congressional intent to limit an employer’s defense to include only “threats to others,” the Court declared that the regulation would stand so long as it adhered to the ADA’s mandate that qualification standards must be “job related and consistent with business necessity.” Chevron successfully argued that the regulation was reasonable because it allowed Chevron to avoid the risk of violating the Occupational Safety and Health Act of 1970 (OSHA).

Echazabal argued that Congress’ purpose in enacting the ADA was to abolish the paternalism that limited the workplace opportunities for people with disabilities. While the Court agreed that one of the goals of the Act was to combat the argument made by employers claiming to be acting on the behalf of the disabled employees’ health and safety, the Court noted that under the EEOC regulations, employers must still base their judgments on specific medical findings demonstrating that the employees would pose a threat to themselves or others.

In conclusion, the Court’s expansion of the defenses available to employers when confronted with allegations of hiring violations under the ADA is a positive outcome for the business community because it further limits liability for employers under the Act.

Jason Baasten is an Associate attorney in our Employment Law Practice Group. He can be contacted at jbaasten@bdblaw.com or 330.491.5231.

ADA Accommodation Requests Should Not Violate Bona Fide Seniority Systems

By Ashley M. Manfull, Esq.

A recent decision by the United States Supreme Court addresses the conflicts that sometimes occur between a seniority system and a disabled employee’s request for “reasonable” accommodation under the Americans with Disabilities Act. The Court held that employers are entitled to a rebuttable presumption that an accommodation is unreasonable if it would violate the employer’s bona fide seniority system for job assignments.

In US Airways, Inc. v. Barnett, 122 S.Ct. 1516 (2002), the Supreme Court addressed the issue of accommodation requests that conflict with an employer’s seniority system. In this case, the plaintiff/employee Barnett injured his back while working for US Airways and was temporarily transferred to a light-duty position in the mailroom. The mailroom position later became open to seniority-based employee bidding under US Airways’ seniority system, which resulted in numerous more senior employees bidding on the position. Barnett requested that US Airways accommodate his disability by allowing him to remain in the mailroom despite his lesser seniority status. US Airways denied the accommodation request and Barnett lost his job.

The Court reasoned that bona fide seniority systems, whether stated in collective bargaining agreements or unilaterally implemented by an employer, provide important employee benefits by creating and fulfilling employee expectations of fair and uniform treatment. Therefore, an employer should not be required to show more than the existence of a seniority system as a basis for rejecting an accommodation request. However, the Supreme Court also left room for the possibility that an accommodation that violates a seniority system could be reasonable, provided that there are “special circumstances.” As an example, the Court noted that the employee may show that the employer maintains the right to change the seniority system unilaterally and does so on a frequent basis; thereby reducing the employees’ expectation that the system will be followed. An employee could also demonstrate that the system already contains numerous exceptions, so one further exception would not impact the system.

The Supreme Court’s decision in Barrett is consistent with a decision by the Sixth Circuit Court of Appeals issued just weeks before, that a trucking company need not reassign a driver to a more favorable shift as a reasonable accommodation for his religious beliefs where the reassignment would violate the seniority provisions of a collective bargaining agreement. See Virts v. Consolidated Freightways Corp., 285 F.3d 508 (6^th Cir. 2002).

The Supreme Court’s decision is a favorable result for employers who struggle with placing a disabled employee in a new position within the confines of a seniority system, yet employees retain the ability to show that an exception to the employer’s seniority system can constitute a reasonable accommodation.

Ashley Manfull is an Associate attorney in our Employment Law Practice Group. She can be contacted at amanfull@bdblaw.com or 330.258.6437.

The Employee Polygraph Protection Act of 1988 (the “EPPA”) is designed to protect the rights of employees regarding the use of polygraphs designed to make determinations of guilt in the workplace. However, from an employer’s point of view, the use of polygraph testing is fraught with hazards which may allow a suit for wrongful discharge to arise, as well as the creation of an entirely new cause of action and associated damages. It is thus extremely important for employers to be aware of the requirements, limits, and proper use of polygraph testing for its temporary employees or its own internal staff The EPPA sets forth the requirements and restrictions regarding use of a lie detector in an employment situation. Section 2002 provides the general principle that it is unlawful for any employer to require lie detector tests, use the results of any test, discharge or discipline an employee who refuses to take a lie detector test, or to take action against an employee who files a complaint regarding the employer’s attempt to force or use such a test.

A word of caution: the statutory definition of a lie detector includes any device used to render “a diagnostic opinion regarding the honesty or dishonesty of an individual.” Even so much as the use of a tape recorder to compare an employee’s voice with a threatening voicemail message has been held to qualify under the definition of a “lie detector” if the employer intended to use the recording in conjunction with some other device to directly assess whether the employee was speaking truthfully in denying responsibility for the threatening message. On the brighter side, “honesty” tests, known as “paper and pencil tests” or “integrity tests,” are permissible because they do not involve mechanical or electrical devices in their analysis.

Limited exemptions to this general rule exist for governmental employees, national security, FBI contractors, security services, drug security and ongoing investigations regarding economic loss or injury to the employer’s business. Regarding the ongoing investigation exemption, §2007 of the EPPA provides that the test may not be used as a basis for adverse employment action. Section 2006 provides that an employer may request an employee to submit to the test if:

1. The test is given in connection with an investigation involving such items as theft, embezzlement, misappropriation, or industrial espionage or sabotage;
2. The employee had access to the property in question;
3. The employer has a reasonable suspicion with regard to that employee; and
4. The employer executes a legally binding statement to the employee prior to the test that includes the reason for the test and the basis for testing the employee. This statement must be retained for at least three years.

1. An identification of the specific economic loss or injury to the business of the employer;
2. A statement indicating that the employee had access to the property that is the subject of the investigation; and
3. A statement describing the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation.

According to the Department of Labor (“DOL”) Regulations, “reasonable suspicion” may be satisfied through information from a co-worker, an employee’s behavior or demeanor, or inconsistencies between facts, claims, or statements that surface during an investigation. Simple access or opportunity does not constitute a basis for reasonable suspicion, but the “totality of the circumstances” surrounding the access may constitute a factor in determining whether reasonable suspicion exists.

The employee also has various rights associated with the test. The employee may terminate the test at any time and may not be asked degrading or unnecessarily intrusive questions. The employer may not ask questions regarding religious beliefs, racial matters, political beliefs, sexual behavior, unions or labor organizations. Additionally, the employer may not conduct the test if a physician provides sufficient written evidence that the employee suffers from a medical or psychological condition that may cause abnormal responses.

Notice must meet several criteria in order to be sufficient. Notice must be given to the employee at least 48 hours before the examination is scheduled, must include the time, date, and location of the exam, the right of the employee to obtain and consult with legal counsel or an employer representative before the test, and the nature and characteristic of the tests and instruments involved, such as whether a two-way mirror or recording device will be used. Also the notice must be read to and signed by the employee prior to commencement of the test.

Test results may only be disclosed by the employee or with the employee’s permission, unless requested of the examiner or employer by court order. The employer may disclose test results to a governmental agency but only if there is an admission of criminal conduct by the employee. The employer is not protected by the standard “legitimate business purpose” exception for disclosure of this information, as it would be in giving negative job references or in disclosing employment information in other related contexts. Thus, in addition to the standard claim for defamation, an employee may assert a violation of the EPPA.

Under §2005, a violation of any provision of the EPPA brings statutory civil penalties of up to $10,000. It also brings equitable remedies, including, but not limited to, employment, reinstatement, promotion, and the payment of lost wages and benefits. It also brings liability in private civil actions, providing that the employer “shall be liable to the employee or prospective employee affected by such violation.” The statute also allows costs and attorney fees to be awarded.

The rights and procedures of the EPPA may not be waived by contract or otherwise. The sole exception is “unless such waiver is part of a written settlement agreed to and signed by the parties to the pending action or complaint” that is brought under the EPPA. Thus, an employer may not obtain a waiver from the employee at the commencement of employment or as a condition of the employee’s job. The EPPA specifically does not preempt any state or local law, and is subject to any provisions of a collective bargaining agreement that prohibits such testing.

In summary, as noted in the cases cited above, it is imperative that an employer follow all of the EPPA guidelines if it plans to use or even discuss the use of a polygraph test with its employees. One may question whether the use of a polygraph test or even the mention of such a test has any purpose. The “additional supporting evidence” required to supplement the lie detector test as required by the EPPA to permit any adverse employment action is normally sufficient to protect an employer on the decision to terminate an employee under a business judgment analysis.

Gerald Chattman is Managing Partner of Buckingham Cleveland^SM. He is a Shareholder in the Employment Law Practice Group and he can be contacted at gchattman@bdblaw.com or 216.615.7354. Mark Craig is an Associate attorney in the Employment Law, Real Estate & Construction, Intellectual Property, and Litigation Practice Groups. He can be reached at mcraig@bdblaw.com or 216.615.7302.

Natalie F. Grubb
Employment Law Practice Group – Buckingham Cleveland^SM
Natalie joined the Firm in 2002 as an Associate attorney. Her primary focus is employment law with an emphasis in discrimination litigation, public policy, breach of employment contract, and non-compete issues at both federal and state level. In addition, her expertise includes corporate law, transactional law domestic relations, wills and trusts. She has considerable experience in public sector employment law and human resources. Also, she arbitrates union grievances and designs affirmative action programs. She can be contacted at ngrubb@bdblaw.com or 216.453.4289.

On August 8, 2002, Gerald B. Chattman, Douglas Paul and Jeffrey T. Royer (Buckingham Cleveland^SM) will be conducting a “Confidentiality Training Seminar” for the Western Reserve Area Agency on Aging.

On September 17, 2002, Vincent J. Tersigni (Buckingham Akron^SM) will be speaking on “HR & Legal Crossroads: Addressing Performance Problems in the Workplace,” in Fairlawn, Ohio at the Rosemont Country Club. Please contact Amy Stewart or Mark White at Moore, Stephens Apple at 1.866.MSAPPLE for registration and additional information.

Buckingham’s Employment Law Practice Group 14^thAnnual Seminar will be held as follows:

To register on line visit www.bdblaw.com/seminars.asp or contact Maria Denisiak at mdenisiak@bdblaw.com or 330.258.6478.

On December 10, 2002, Gerald B. Chattman and John P. Slagter (Buckingham Cleveland^SM) will be presenting on “Legal Issues Involving Ohio Local Governments” at a National Business Institute sponsored seminar. Please look for more information in our future newsletters or reference www.nbi-sems.com online.

Out and About – Recent Presentations:

Gerald B. Chattman (Buckingham Cleveland^SM) spoke at The Sensitivity Training Seminar sponsored by Old Republic Title. Also, he presented “Confidentiality: An Overall Viewpoint” as part of a series for the Western Reserve Area Agency on Aging.

Tod T. Morrow (Buckingham Canton^SM) presented “OSHA Compliance for Nursing Homes” at the Ohio Health Care Association Annual Convention.

Douglas Paul (Buckingham Cleveland^SM) presented on “Confidentiality: A State Perspective” as part of a series of Confidentiality Training Seminars for the Western Reserve Area Agency on Aging. In addition, he was a presenter at the National Business Institute Continuing Legal Education Seminar titled “Powerful Legal Negotiation in Ohio.”

Vincent J. Tersigni and Ashley M. Manfull (Buckingham Akron^SM) spoke at the Akron Chapter of the Society for Human Resource Management. Their topic was “Who Wants to be an FMLA Millionaire?”

If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs, LLP make a presentation to your organization, please contact: Cheryl Warren, Director of Client Relations and Marketing at cwarren@bdblaw.com or 800.686.2825 ext. 546.

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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