Southern California Employment Law Report : Los Angeles Employment Lawyer & Attorney : Diane Crumpacker : Crumpacker Law Group : Discrimination, Disability

Both state and federal laws prohibit discrimination on the basis of disability.  Those laws also preclude certain types of inquiries regarding disabilities. Under federal law, The Americans with Disabilities Act (“ADA”) makes it illegal for an employer to discriminate against disabled individuals. The ADA also provides that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”

A recent appellate division which does not control courts in California is nevertheless significant because it may serve as a frame of reference for our courts. The 11th U.S. Circuit Court of Appeals recently found that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.

In this case a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) was hired in 2005 to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee might be valuable as a regular or permanent employee, the supervisor would invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.

In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, and underwent the required drug screening and background check. At that point, Harrison was an employee in good standing as far as he knew. He had never been informed of any problems with his performance. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Harrison’s supervisor was contacted by the company’s Human Resources department and asked to send Harrison to the department.   Human Resources did not tell the supervisor about the positive drug test. However, the supervisor discovered the results of the test on his own and told Harrison that the test had come back positive for barbiturates. Harrison replied that he had a prescription for the drug. The supervisor then called Human Resources,  passed the phone to Harrison and remained in the room while Harrison answered a series of questions, Harrison explained that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.

Shortly afterward, Harrison was told that his drug test had cleared. However, the supervisor then told Human Resources not to give Harrison and offer letter. He also asked the temporary agency who had been sending Harrison to BEHI not to send him because Harrison and performance and attitude problems. Harrison was then fired by the agency.

Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. The issue before the court of appeal was whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA.  The Equal Employment Opportunity Commission (“EEOC”) had previously determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.

The ADA specifically permits pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.”

The moral of the story is that  while an employer may question an applicant with follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited. In addition, it is likely that the way in which the questioning of Harrison was handled by the supervisor was a factor in the court's determination of impropriety.  Careful handling of all disability issues is of critical importance to all California employers. 

Image:  www.havant.gov.uk/images/dis.jpg

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Recent statistics have shown that handling claims of disabilities and accommodations required for those disabilities is one of the most challenging problem faced by California employers. A recent lawsuit illustrates the difficulties faced when an employer attempts to understand the scope of an employee’s disability issues in order to effectively plan for the employee’s absence.

In an action against the Dillard’s Inc. retail chain, the federal discrimination agency, the Equal Employment Opportunity Commission argued that the California store required employees to reveal the specific nature of their illness in order to consider sick leave as an excused absence. EEOC vs. Dillard’s, No. 08-CV-1780 (S.D. Calif.)  In doing so, the company violated the federal Americans with Disabilities Act (“ADA”). This case illustrates the problem that surfaces when an employer asks too much information about an employee’s problem.

Similar cases are pending in other states so the resolution in this action will undoubtedly have repercussions for employees in other states.

Under state and federal disability discrimination laws, the general rule is that the employer must provide a reasonable accommodation for an employee who has a mental or physical disability. The definition of what constitutes a disability will differ depending on the law. Likewise what type of accommodation is “reasonable” will depend on a number of factors such as the size of the employer and the job done by the employee. Many California employers wrestle daily with employees requesting small increments of time off to attend to various disabilities. Scheduling work-flow becomes incredibly difficult when certain employers who are subject to the Family and Medical Leave Act (“FMLA”)www.dol.gov/esa must provide time off in increments of mere minutes based solely on a doctor’s note that this time is necessary. As a result, employers are starting to fight back. Instead of simply relying on an employee’s representation that he or she needs an hour off here or there, many employers are delving further into the need for the time off. Employers are also becoming more aggressive, especially with employees who they feel are abusing leave policies by requesting intermittent leave at times which are most problematic for the employer. Some employers have hired private detectives to follow a suspected malingerer while others adopt less intrusive means of ferreting out abuse. For example, employers may monitor employee email for signs the employee is socializing when they claim they are sick. All of these attempts are legal if properly implemented, which is a big IF.

While employers are entitled to a health care provider’s documentation stating that the time off from work is necessary, they are not entitled to ask what is ailing the employee. Many employers are unaware of this restriction and use forms that require the employee (or the employee’s doctor) to state the nature of the illness or the diagnosis. Such inquiries provide employees with right to privacy claims and claims that they have violated the mandates of the disability laws such as the Americans with Disabilities Act, http://www.ada.gov the California Fair Employment and Housing Act www.dfeh.ca.gov or the state of federal family leave laws, the California Family Rights Act and the Family and Medical Leave Act of 1993.www.dol.gov/esa/whd/fmla/ 

The morale of the story is that an employer is entitled to ask questions to determine whether an employee has a legitimate disability or illness. It may also, in some circumstances, seek additional  clarification from a medical provider as to the details of a requested intermittent leave. However, it is critical that employers delve into the area of communicating with providers for additional information only after they have sought the advice of employment counsel since what is appropriate and what is not is extremely fact-specific.

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Earlier this week, President Bush signed into law an amendment to the federal disability discrimination law, the Americans with Disabilities Act (“ADA”). This new law is known as the “ADA Amendments Act of 2008” (the “Act”). This change to the federal disability law which affects most employers with 15 or more employees will become effective on January 1, 2009. The Amendments Act broadens the scope of the protection given to disabled employees.

More employees will now be protected under the ADA than previously. Although the definition of disability remains the same – “a physical or mental impairment that substantially limits one or more major life activities” – the application of that language is changed. The major changes are:

• Under existing law, whether an individual is disabled is determined using any mitigating measures he or she uses. For example, a diabetic who uses insulin is only disabled if he is substantially limited in a major life activity even while using insulin. Under the Act, the courts may no longer consider the mitigating measures, such as medications or prosthetics, except for eyeglasses or contact lenses, in determining whether an individual’s impairment substantially limits a major life activity.
  
• Under current law, the list of “major life activities” was limited by the regulations and by some court interpretations. Under the Act, the definition of “major life activities” now includes items from the regulations and new items such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
• Current law generally requires that an impairment last for a significant period of time and that conditions of short duration are insufficient to constitute a disability. Under the Amendment, an impairment that is episodic or in remission is considered a disability if it substantially limits a major life activity when active
  

The meaning of this Amendment for most California employers is that, as a practical matter, they will now need to be concerned about many more requests for an accommodation as more employees will qualify for protection. As a result all employers should insure that their disability policies and procedures are in compliance with this new amendment. We are happy to help you with a review and update of your policies. Give us a call if we can help you.

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