Virginia Employment Law Journal

Last month marked the one-year anniversary the final regulations to the Americans with Disabilities Act Amendments Act or the ADAAA took effect.  As we move into the second year of these new “employee friendly” regulations, it would serve to take a moment to review the prior and current state of the law. 

The Americans with Disabilities Act (ADA) 

In July 1990, the Americans with Disabilities Act became law.  The purpose of the ADA is to provide for the elimination of discrimination against individuals with disabilities.  Disputes under the original ADA focused on the definition of disability.  Impairments such as mental illness or mental disability were often disputed with some level of success.  Interpretation centered on whether an individual was disabled rather than the accommodation an employer could provide to assist that individual in performing his or her job.

The ADA Amendments Act (ADAAA)

In September 2008, the ADAAA was signed into law.  Final regulations became effective in March 2011.  Under the ADAAA, the focus shifted from a determination of whether an individual was disabled to a determination of the accommodation that could be provided to the disabled individual.    

The ADAAA defines a disability as an impairment that substantially limits one “major life activity.”  The original ADA regulations contained a list of nine major life activities that were considered centrally important to most people’s daily lives.  The ADAAA final regulations greatly expanded that definition.  Under the final regulations, the list was expanded to include 19 activities.  Now, limitations in activities such as working, thinking, communicating, learning and concentrating are considered major life activities under the ADAAA and result in an employee being classified as disabled when impaired in any one of those activities.

In addition to the list of major life activities, the ADAAA final regulations also provided a list of specific impairments now presumed to constitute a disability.  Individuals with impairments such as bipolar disorder, post-traumatic stress syndrome and obsessive compulsive disorder are now presumed disabled under the final regulations.  This resulted in a widening of the scope of possible disabilities under the Act.

The final regulations also eliminated consideration of mitigating measures in determining whether a disability exists.  Under the prior ADA, mitigating measures included assistance such as medication and medical equipment.  Determining whether an employee was limited in activities took into account the effect of these assistance measures.  As a result, the positive effects from these aides were a factor in the determination as to whether a person was disabled.  Under the ADAAA final regulations, the effects of the mitigating measures are largely ignored in the consideration.  Now, mitigating measures have been limited to eyeglasses and contact lenses.  Thus, even if an individual is taking medication, an accommodation may still be required. 

The Effect of the ADAAA Final Regulations

The ADAAA final regulations greatly expanded the population of employees and individuals considered disabled.  The focus has now shifted from one of a determination as to whether a person is disabled to a determination of the accommodation that can be provided and whether this imposes an undue hardship on the employer. 

The reasonable accommodation analysis begins after the employer is put on notice that a disability exists.  However, unless the disability and adverse impact on job performance is obvious, the burden of disclosing the disability still remains on the employee.  In other words, if the employee does not disclose, the employer is not under an obligation to consider an accommodation.

Those employers with employees who have identified disabilities are required to consider whether a reasonable accommodation is possible to assist the employee in performing his or her required duties.  Employers are expected to consult with employees regarding (1) potential accommodations, (2) the cost of the accommodations and (3) the employee’s preference.  Unless the accommodation will cause an undue hardship on the employer, employees who have identified disabilities are expected to be accommodated. 

The result of the shift from disability to accommodation is an increase in cost to the employer.  Employers have been placed in a position where the disability element is significantly easier to satisfy.  The expansion provides a significant opportunity for abuse by an employee, potentially causing the employer to expend significant time and resources in consulting with employees regarding accommodations to be made as well as implementation of agreed upon accommodations.

Practice Pointers

With the expansion of the number of employees who may be covered under the ADAAA, documentation plays an even more important role in the employer/employee relationship.  Employers, when presented with a claim of disability from employees, must fully evaluate the employee claim and discuss possible solutions with the impaired employee.  Employers are not required to provide the accommodation demanded by the employee.  Accommodations that place an undue hardship on the employer can be denied.  The optimal solution is for employers to collaborate with the employee to arrive at an accommodation that helps the employee overcome his impairment without resulting in a significant cost to the organization.  Accommodations, meetings and employee progress should be fully documented throughout this process. 

Written by Anthony E. Cooch

A new trend that has emerged in the employment arena is employers asking applicants to provide their Facebook username and password or other social media login information during the interview process.  Other employers are making compliance with this new policy a condition of employment.

Many Facebook users have increased the security settings on their accounts so that very little, iif any, of their profile is visible to the public.  In response, some employers seek social media login information in order to log in to applicants’ Facebook accounts in order to look at the applicant’s profile and other information that cannot be viewed by the general public.

So as an employer, should you consider adding this practice to your interview process? Should employers ask existing employees for their social media passwords or login information to personal email accounts?

Employers should not ask applicants or employees for any login information for Facebook, other social media sites or personal email accounts.   Doing so may actually increase the employer’s exposure to a discrimination claim and may constitute a violation of state privacy laws. 

For example, if an employer requests login information of an applicant and then the applicant is denied employment, the applicant may claim that the employer denied him or her employment due to the applicant’s membership of a protected class, which the employer learned about from information it obtained on Facebook.

And the legal implications do not stop there. Such requests or requirements of employees and/or applicants may also violate federal laws, such as the Computer Fraud and Abuse Act and the Stored Communications Act, even if the login information was not required by the employer but was simply requested.  A request for this private information could be considered to be obtained under duress (the employee or applicant felt that they had no other option other than to cooperate or risk losing their job), which triggers federal statutes that prohibit the “unauthorized access” of a computer or communications.

But what if employees are using Facebook to connect with customers? Does that create an exception that allows employers to require the sharing of social media passwords?

Until employers have additional guidance on this privacy issue from the courts or the legislature, employers should not request passwords for social networking sites from employees or applicants, even if the employee is using these sites to connect with customers.

This issue has gotten attention on Capitol Hill and House Democrats are pushing for the Federal Communications Commission to have the ability to adopt a rule to prohibit employers from requiring job applicants or employees to disclose passwords to social networking sites.

In our last two posts, we discussed terminating an employee and the importance of documentation. Earlier this week, in an opinion issued by the 4^th Circuit Court of Appeals in Richmond, Virginia, Employers were provided with another example of why documentation is so important in the employer/employee relationship.  

The Case

The facts of the case are fairly straightforward: (1) Employee was terminated due to poor performance; (2) At the time she was terminated she was also pregnant; (3) Employee filed a lawsuit claiming pregnancy discrimination under Title VII. 

Before she was terminated, employee was unable to work for a month due to complications with the pregnancy.  Upon her return to work she was terminated.  She was told that it was best for the company and her to part ways.  The employee speculated that based on the timing of the firing and based on her own belief, the termination had to be due to her pregnancy.

Employee’s case was dismissed by the trial court.  Employer provided internal emails which showed that the employee had performance issues that predated her pregnancy.  The employee did not dispute the employer’s claims.  These emails combined with affidavits from subordinates complaining about employee were enough for the trial court to dismiss the Title VII claim on summary judgment.

This case shows the importance of documentation, especially when it comes to employee performance and subsequent termination.  While the email documentation retained by the employer was not the optimal method of tracking performance, it was strong evidence that was enough to prevent the case from going to trial. 

Practice Pointers

It cannot be stressed enough, when an employee violates a company policy or is not meeting the minimum job requirements, the issue must be documented.  The extra time spent now will save a ton of headaches and legal fees later.

Do you have an employee whose performance isn't cutting it? If so, you will want to read this two part series on considerations and steps to take before terminating an employee.

Many employers terminate employees without following some basic procedures that take little effort on the part of the employer but can prevent major headaches later.   Following these rules prior to termination can help employers avoid problems post-employment and can provide a full defense to an employee’s claim of wrongful termination.

If you have an employment agreement with the employee, you will need to follow the provisions governing that agreement.  However, the majority of employees are employees at-will and therefore the following steps and procedures are highly recommended for employers.

First, are you following your own policies?  Make sure you follow your own policies and procedures regarding discipline and termination.  An employer that does not follow its own policies and procedures risks exposing itself to a discrimination claim.  Human resources should be very familiar with your company’s procedures and should regularly review the handbook to see if changes need to be made.  It is important to regularly update your social media policy in the handbook and provide a copy of the revised policy to all employees. You should also have each employee sign an acknowledgement of receipt of the handbook and a copy should be placed in the employee’s file.

Second, is there documentation to support the basis for termination of the employee?  Unless the employee has committed a clear violation of misconduct, employment disputes often become an issue of “he said she said” between the employer and the employee.  To avoid post-employment disputes that turn on each party’s recollections, employers should keep detailed records for each employee.  Even handwritten notes that are dated to the file each time there is a problem with an employee are sufficient to create a written record, should the employee file a claim against the employer.  An employer’s inability to produce sufficient records documenting a history of problems with an employee will often lead to the judge or jury concluding that the issues with the employee did not really exist or were not as serious as now alleged.

Third, is the decision to terminate based on performance? If so, you should have a well-documented employee file that indicates that the employee has been put on notice that his/her performance is not up to company standards and that failure to improve is grounds for termination.  Be honest with the employee about the problems with his or her performance instead of using another reason to avoid discussing the real reason for termination.  Since the United States Supreme Court decision in Reeves v. Sanderson Pluming Products, Inc. 530 U.S. 133 (2000), employers who do not disclose the real reason for termination may hurt their own case.  Disguising termination based on performance by telling the employee he or she was terminated for another reason may help an employee who is claiming discrimination’s case. The employee may claim the “fake reason” for termination was used to cover up the real reason, namely, discrimination.

Termination based on performance should only be done when you have provided notice to the employee of the problems, have attempted to counsel them and provide performance plans and have taken other logical disciplinary steps. Part II will be posted on Monday.

The Pregnancy Discrimination Act requires that employers treat pregnant employees the same as non-pregnant employees who suffer from some injury or sickness that occurred outside of work. 

In our last post, we reviewed the D.C. Fire Department’s change to their pregnancy policy.  In this post we take a look at what the Pregnancy Discrimination Act requires. 

The Pregnancy Discrimination Act:  A Brief History

In 1976, the U.S. Supreme Court found that under Title VII, discrimination based on pregnancy was not sex discrimination.  Unhappy with this interpretation, Congress passed the Pregnancy Discrimination Act (PDA) which became law in 1978.  The PDA amended Title VII and specified that sex discrimination does include discrimination on the basis of pregnancy.

Enforcement of the Pregnancy Discrimination Act 

Since 1978, a number of cases have applied the PDA.   This post reviewed cases with similar situations: 

1. Pregnant employee requested light duty due to pregnancy
2. Employer denied the request
3. Employee sued

Two cases are instructive:

• Airline employee who was required as a part of her job to lift loads in excess of twenty pounds requested light duty due to lower back discomfort as a result of her pregnancy.  Employer denied her request resulting in usage of sick days and extended medical leave.  Employer defended on the basis that all injuries or illnesses that were not work related were treated the same.  The Court found no PDA violation.

• Police Officer was pregnant and was involved in a physical altercation with a suspect.  Doctor ordered light duty.  Employer advised no light duty was available resulting in extended leave of absence by the employee.  The Court found no PDA violation.

In these cases, the key factor examined by the Court was whether the employer treated the pregnant employee the same as a non-pregnant employee who was injured off the job.

What Employers Need to Know

The Pregnancy Discrimination Act does not require preferential treatment for pregnant employees.  Courts interpret the PDA to require that a pregnant employee be treated the same as a non-pregnant employee who suffers from some injury or sickness that occurred outside of work. 

In other words, if light duty is available for an employee who can’t perform their job because of a non-work related injury, it must be available for the pregnant employee as well.  Employers should ensure that if a policy is created or if one currently exists, the policy and its application must not result in unequal treatment.  Doing so could result in a violation of the PDA.    

In our next post we will discuss how to create a policy that is in-line with the requirements of the PDA.  We will review the D.C. Fire Department policy change and look at some of the hurdles that could be encountered.