Delaware Employment Law Blog

HR Summer School's Back-to-Basics Series is back, after a brief vacation.  This segment, ADA 104, covers the certification issues that commonly arise when an employee with a disability requests a reasonable accommodation.  As always, Course Materials are provided for your reference.

I. When May Certification Be Required?

The issue of certification arises most often when the individual first requests an accommodation. On a broad level, employers may ask employees for documentation to support the reasonableness of the request. The EEOC has explained that an employer may require documentation “to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation.” In short, when the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about the claimed disability and functional limitations.

A. What Is “Reasonable Documentation”?

“Reasonable documentation” means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. This means that an employer may not ask for documentation that is unrelated to determining the existence of a disability and the need for an accommodation.

In most situations, an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

B. Who Is an “Appropriate Professional”?

The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

C. What Types of Information Should Be Requested?

In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care professional. The employee may be asked to sign a limited release allowing the employer to submit a list of specific questions to the employee’s health-care professional.

D. What If the Employee Refuses to Provide Documentation?

An employee who refuses to provide the reasonable documentation requested by the employer will not be entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. The employee’s desire to retain a level of privacy concerning his disability does not trump an employer’s need for sufficient information. The failure of an employee to provide this information releases the employer from responsibility for knowing information about the disability and providing a reasonable accommodation.

An employer will not be liable where it attempts to interact and the employee refuses to participate or withholds essential information. The employee’s failure to respond to his employer’s repeated requests for documentation concerning his ability to return to work will obviate the employer’s duty to consider the requested accommodation.

Similarly, the employer will not be liable where the employee fails to update his medical records. This may require the employee to return to his health-care provider for an updated evaluation.

But, employers should proceed with caution in requesting documentation. The employer should explain why the documentation is insufficient, allow the employee to provide the information that is missing, and pay all costs associated with any mandated visits.

II. Who Chooses the Health-Care Provider?

The ADA does not prevent an employer from requiring an individual to go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his treating physician (or other health care professional) to substantiate that he has an ADA disability and needs a reasonable accommodation. If the documentation provided is insufficient, the employer should explain deficiency and allow the individual an opportunity to provide the missing information in a timely manner. Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.

Any medical examination conducted by the employer’s health professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health professional of the employer’s choice, the employer must pay all costs associated with the visit(s).

III. When May Certification Not Be Required?

An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that he has an ADA disability and needs the reasonable accommodation requested.

Prior Summer School Sessions:

ADA 101:  Who Is Covered?

ADA 102: What Does the ADA Require?

ADA 103: Reasonable Accommodation (part I)

ADA 103: Reasonable Accommodation (part II)

The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against Philadelphia-employer, Verizon, alleging unlawful retaliation.  The complaint was filed on behalf of former service technician, Theresa Allen, who worked at the company's Bryn Mawr facility until last year.  Allen, who is in her 50s, was the only female employee at that location until October 2006. 

According to the EEOC's complaint, Allen was sexually harassed during the 21 years of her employment by being exposed to pornographic magazines, which were commonly left out in the open in the workplace.  She was also subjected to inappropriate physical contact.

Philly.com reports that, in August 2006, Allen began to complain to management about the various offenses.  In September, Allen claims, after the conduct had not ceased despite her complaints, a plastic rat was hung in the service technician's garage.  She removed the rat but it reappeared several times.  Phrases like "Ratteri" and "Stop telling on everybody" were written in various places around the garage.  Allen was fired in February 2007, allegedly for taking home two cups of rock salt, which she claims to have later replaced with a 10-pound bag. 

Minimizing retaliation claims
There are a number of ways you can reduce your likelihood of being faced with a retaliation claim, including the following:

1. Ensure that you have a policy prohibiting retaliation included in your harassment and discrimination policies.
2. Make sure your policies clearly state that suspected retaliation must be reported, and provide employees several avenues through which they can do that.
3. Train all supervisors and managers so they know that it's unlawful to retaliate against employees for protected activity. That includes formal charges of discrimination as well as internal complaints about harassment or discrimination.
4. When you receive a complaint about unlawful activity or are charged with discrimination, protect the source of the complaint as much as possible. One of the best defenses to a retaliation claim is to be able to show that the person who supposedly retaliated wasn't even aware of the charge or complaint in the first place. Of course in many situations, the employee's immediate supervisor must be told about a complaint so that an adequate investigation can be conducted.
5. Treat the complaining employee like nothing has changed.  Of course, filing a charge or internal complaint doesn't insulate the employee from future disciplinary action.

America's workforce cares very deeply about the work-life positions of political candidates.  Shortly after Delaware's incumbent senator was named Democratic VP-nominee, I posted on Joe Biden’s track record on work-life issues affecting employers. And now that the Republican candidate has been announced, what does Sarah Palin, Biden’s republican counterpart, have to say?

We know that, like Biden, her personal life has forced her to experience first-hand work-life balance struggles. Some might say she’s managed the ultimate juggler, rising to governor, and potential Vice President, all while simultaneously raising a family of five, including an infant with Downs’ Syndrome. The Wall Street Journal noted that she’s “been portrayed as the very model of a working mother: She answers her BlackBerry while pumping breast milk for her infant; keeps a playpen by her desk; and manages a state while cooking caribou hot dogs for her family.”

But not all reports have portrayed her in such a positive light. Many have questioned her choices for returning back to work 3 days’ after the birth of her youngest. That scrutiny has only intensified following the reports that Palin’s 17-year old daughter is 5 months’ pregnant. There has been much questioning of whether she’s balancing her government and family duties well, in light of the recent news she’s soon to be a grandmother. Interestingly, Biden has been widely hailed as the ultimate family man for making some very similar choices: to continue his political career in spite of family struggles and tragedies.

Beyond her personal life, however, little can be found on her position on relevant issues or pending legislation. As reported by the Wall Street Journal blog, “The Juggle,”  Palin's official Web site offers little information on her position on work-life balance issues, nor did an issues statement compiled during her gubernatorial campaign by the Anchorage Daily News.

An Associated Press article noted Democratic presidential candidate Sen. Barack Obama’s statement that Ms. Palin, like Mr. McCain, opposes the Fair Pay Restoration Act (Senate version of the House Bill known as Ledbetter Fair Pay Act).  That failed Senate bill would have reversed a Supreme Court ruling that a woman had only 180 days to file a formal complaint of gender-based wage discrimination. The McCain campaign told the AP that Mr. McCain and Ms. Palin support equal pay for women but want the 180-day filing period to remain in place.

As her role in the campaign evolves, I’ll be listening carefully to hear her position on other work-life issues such as: extended and/or paid FMLA leave, the EEOC’s Guidance on Caregiver Discrimination, and flexible leave polices, for starters.

In a recent survey by CareerBuilder.com, workers and managers were asked about the reasons offered by employees who arrived late their job.  We reported earlier in the week about the standard excuses for tardiness, including traffic and oversleeping. But what is really interesting are the not-so-standard excuses.

The 2008 Late to Work Survey gives the 10 most unusual excuses employees gave for arriving late to work. In comparison, I bet your excuses are pretty darn boring. Maybe these employees should be given at least some credit for their creativity. And, for the record, I can personally attest to the veracity of Excuse #8, which actually has caused me to be late for a relative’s birthday party recently.

1. While rowing across the river to work, I got lost in the fog.

2. Someone stole all my daffodils.

3. I had to go audition for American Idol.

4. My ex-husband stole my car so I couldn't drive to work.

5. My route to work was shut down by a Presidential motorcade.

6. I wasn't thinking and accidentally went to my old job.

7. I was indicted for securities fraud this morning.

8. The line was too long at Starbucks.

9. I was trying to get my gun back from the police.

I didn't have money for gas because all of the pawn shops were closed.

Three female attorneys filed suit against the New Jersey State Office of Attorney Ethics (“OAE”), alleging gender discrimination. The plaintiffs claimed that women were assigned to lower-grade positions than their male counterparts. According to the article on Law.com, males without law degrees, some without college degrees, were awarded higher ranked jobs than females with law degrees.

The suit was filed in March 2005 under the Equal Pay Act, Title VII of the Civil Rights Act and its state equivalent, the New Jersey Law Against Discrimination. The case settled in June and each of the three plaintiffs received $5,000 in back pay and a total of $135,000 in emotional-distress damages. This is a relatively small sum, especially given the number of plaintiffs and the involvement of a government defendant.

But what makes this settlement even more interesting are its conditions. The settlement agreement makes an express denial of wrongdoing by the defendants, which is not uncommon. Unlike suits settled with the Equal Employment Opportunity Commission, no remedial measures were required by the agreement, nor were the defendants required to implement any training programs or make any workplace postings.

Most significantly, though, are the provisions whereby the two plaintiffs who had resigned from their jobs during the lawsuit agree to never seek employment with the OAE. Last year, there was a bit of murmuring that the EEOC was going to take a formal position against such “banishment” clauses, also known as “no reapplication” or “no re-employment” provisions.

These provisions are of the highest importance to employers when settling a lawsuit brought by a former employee. If employers were prohibited from including this type of clause in settlement agreements, there would be a greatly decreased incentive to settle at all. Employers would risk the very real possibility that they’d pay a significant sum of money only to be taken “hostage” by an employee determined to inflict permanent suffering on his employer.

Last month, the Department of Transportation (DOT), announced that changes to its drug and alcohol testing regulations would go into effect on August 25, 2008. The new regulations amended and added to 49 C.F.R. Part 40, relating to adulterated, substituted, diluted, or invalid urine specimens. After complaints from the AFL-CIO’s Transportation Trades Department (TTD), though, the DOT has delayed the implementation of the new rules. The regulations will be open for comment submission for one month and are scheduled for their official debut in November—in whatever form they take at that point.

So what caused the sudden change of heart? The TTD, along with the Association of American Railroads, the American Short Line and Regional Railroad Association; the Teamsters, and the Air Transport Association, joined by the Regional Airline Association, asked the DOT to reconsider the portion of the new regulations that would make specimen validity testing (SVT) mandatory. The DOT considers mandatory SVT to be an important way to combat cheating on drug tests.

The objections related to the portions of the new regulations that expanded the use of direct observation (DO). In short, employees who previously received a positive test result for prohibited drug would now be required to provide urine specimens under DO. The DOT explains the proposed changes and the background of 

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15% of workers say they are late to work at least once a week and nearly 25% lie about the reasons why.  According to a new CareerBuilder.com survey, 2008 Late to Work Survey, 43% of managers say they don't mind if employees are late as long as their work is finished on time and done well.  Other managers, though, reported that they would consider terminating an employee who arrived late several times a year. 

When asked about the reasons for their tardiness, traffic was far and away the most common excuse, reported by more than 32% of employees surveyed.   17% reported that they had fallen back asleep and 7% pointed to a long commute.  27% of managers didn't buy it, saying they were skeptical of the excuses.

In light of these statistics, is there a case to be made for flexible-hour initiatives?  Obviously, certain jobs require adherence to a specific schedule and do not allow for employees to come and go as they please.  Customer satisfaction, for example, would not benefit from a customer-service department where the phones went unmanned because employees decided to arrive later in the morning.  But other jobs can be performed successfully with flexible hours.  As the saying goes, "If you can't beat 'em, join 'em!"  Is there some validity to that phrase in this context?

Why are the best employees also the hardest employees to retain? In short, because they care the most and, in turn, are the most easily disappointed and frustrated. All-star employees have high standards. They demand a great deal from themselves and from others—including their employers. The details that the average employee may not even notice can become major sticking points for the best employee. 

In a survey of 1,200 U.S. Army rangers, Thomas Britt of Clemson University found that the obstacles to high performance such as work overload resulted in lower levels of morale and job satisfaction. These effects were greatest for the most highly engaged soldiers. “The most committed and personally invested rangers, the ones who ranked work-relevant values as the most important, ranked morale and job satisfaction lower in the face of insurmountable impediments.” In other words, the rangers who cared most about their work were the most demoralized when they were prevented from doing their best.

One of the most common source of frustration for high performers is insufficient resources, such as time, technology, and support staff. Unless they are given the tools that they need to do their work at an optimum level of quality, top performers will feel stymied and frustrated, causing them to leave the organization if not resolved quickly.

Another source of frustration is found in the type of work assigned. Everyone wants to do work that utilizes their strongest skills. But for top performers, this is critical. Top performers quickly become disengaged if assigned to work that someone else could do more effectively and efficiently. To prevent this, employers must assign the right type of work to their best employees. And this can be done only if you understand what the “right” type of work is. How is this accomplished? Only with frequent interaction, monitoring, and feedback. The employee may be able to tell you what he or she is best suited to do. But he may not. It may be that he needs some coaching and one-on-one guidance from his manager to be able to articulate the areas where his talents lie.

The Action Plan

Goal: Retention of the organization’s best performers.

Obstacle: Deeply rooted disengagement

Cause: Inability to perform work that utilizes the employee’s specific skill set.

Solution: Regular interactions with the employee to determine what aspects of his current workload give him the most satisfaction and what institutional roadblocks are preventing him from performing at his maximum level.

A lot of employees are big fans of the 4-day workweek. Four, ten-hour days to replace the normal 9-to-5 schedule we’ve all come know as “standard.” It’s a popular idea and it’s catching on like crazy, especially in the public sector. But there are two sides to every story, right? Earlier this week I discussed the pros, so now it’s time to look at the cons. Some of the ideas below were sent to me by readers who feel strongly that a four-day week is a bad thing. And just to show that they’re not alone, even Forbes recently ran an article called, Why the Four Day Work Week Doesn’t Work.

So, what’s not to love about a 4/10 compressed schedule?

Where should I start?

1. Decreased Productivity. Many people find it difficult to stay focused for eight hours. Adding two more hours may not result in any more work at all. Or, the work that is performed may be performed inefficiently or with errors.

2. Wrong Perspective. Author Cali Ressler says that this is the wrong approach to work. Instead of continuing to focus on the amount of time we spend doing work, she advocates that employers start to look at the results of the time we spend doing work. In a results-oriented approach, like the one she helped implement at Best Buy, how long employees is irrelevant as long as they get the work completed.

3. No Fuel Savings. Employees will still be driving on the fifth day—just not to work. Although they won’t be spending gas money on the commute, they will still have to fill the tank to run errands and make other trips that they didn’t do after their long workday.

4. Access to Child Care. Because the four-day workweek is new to many, childcare providers are not likely to change their business hours. Extended time at daycare means extended costs—often at a premium. This additional cost offsets the purported fuel savings.

5. Decreased Family Time. In reality, after a ten-hour work day, many people find that they are too tired for a family game night, or to attend a sports event. Remember, it’s not just 10 hours of work, by the time you figure in wake-up time and day-care drop-off in the morning and pick-up at night, employees will have been going strong for more than 13 hours, and that’s before anyone eats dinner. The result is a Friday packed with the errands and activities that were not accomplished after work and not much additional family time at all.

6. Decreased Morale. Long hours lead to fatigue, which leads to decreased morale. Long days spent in the office with colleagues with whom they may or may not get along can cause additional tension.

7. Day 5. When the nature of work requires employees to be accountable to clients or customers who do not work a four-day week, it may be unrealistic to think that their demands will not require attention on Fridays. Instead of a compressed schedule, employees may find that they’re working an extended schedule.

8. More Micro-Management. In order to reap the benefits of a compressed schedule, the typical workday slacking must be eliminated. Down-time for internet browsing and extra breaks have a greater impact and will require managers to become more involved on the ground level to ensure these time-wasters do not occur.

Employers who may be considering offering flexible work arrangements to employees should do their homework before selecting which type of program (or programs) to offer. We’ve previously discussed the various types of flex-time options.  

But once you know what’s out there, you should be sure you also understand how each option may or may not maximize your return on investment. Look to the benefits of each type to determine whether those are results that satisfy some need in your organization. Although each one provides benefits in one form or another, they simply may not be benefits from where you’re standing.

Here are a few benefits for each of the major types of flexible work arrangements. Use these as the starting point to determine whether each one may be of interest to your company.

Flextime

· Improve efficiency if schedules are linked directly to correspond with employees’ most productive times.

· Gives employees more control over scheduling personal responsibilities at either the beginning or end of the workday

· Avoid rush-hour commuting—a quality-of-life and an environmental benefit.

Compressed Workweek

· Improves productivity if some work can be accomplished during quieter times of the day

· Provides more days off

· Decreases the number of days employees commute, including the time and costs inherent to the commute.

· Avoid rush-hour commuting.

Part-Time Work

· Retains employees who need time off for personal or family reasons.

· Expands the labor pool to include retirees, students, and persons with disabilities.

· Gives employees time for education purposes, such as working towards a degree, or other similar, personal-improvement objectives.

· Provides for an option for the gradual return to work after maternity leave or other absences.

· Allows gradual entry into retirement, and, in turn, improved transfer of knowledge through succession planning.

Job Sharing

· The same benefits as those experienced as a result of part-time schedules.

· Brings broader range of knowledge and skills t a position.

· Provides cross-training and skill-enhancement, and facilitates knowledge sharing.

· Enables continuity of coverage when one partner is sick or otherwise unavailable.

· Continuous implementation of team-based efforts fosters a sense of unity and cooperation

Telecommuting

· Offers alternative to relocation

· Expands recruitment pool geographically

· Reduces office space and associated overhead costs
Can accommodate persons with disabilities.

· Decreases or eliminates commuting time.

· Increases productivity by enabling employees to work at their most productive time.

· Decreases the number of days employees commute, including the time and costs inherent to the commute

· Decreases other employee expenses, such as meals and clothing.