Category Archives: ADA

September 11, 2013

Family Medical History Request Results in First EEOC GINA Lawsuit

Employers may not request a family medical history from employees or applicants, even as part of a post-offer medical examination. In its first lawsuit alleging a violation of the Genetic Information Nondiscrimination Act (GINA), the Equal Employment Opportunity Commission (EEOC) sued an employer whose contracted medical examiner required applicants to complete a family medical history questionnaire. EEOC v. Fabricut, Inc., No. 13-cv-248 (N.D. Okla. filed May 7, 2013). Review of this case offers a timely opportunity for employers to review their employment practices for compliance with GINA.

Investigation of ADA Claim Finds Illegal Family Medical History

Temporary employee, Rhonda Jones, worked for Fabricut, a distributor of decorative fabrics, as a memo clerk for 90 days. She then applied to work in the same position as a regular employee. Fabricut made her an offer of employment, contingent on the results of a pre-employment drug test and physical. Fabricut sent Jones to Knox Laboratory, a medical examining facility that provided examination services to Fabricut on a contract basis. As part of the process, Knox Laboratory instructed Jones to complete a questionnaire that asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and mental disorders in her family.

The examiner conducting Jones’ pre-employment physical concluded that Jones may be predisposed to or already suffer from carpal tunnel syndrome and recommended further evaluation. Although Jones’ personal physician conducted a battery of tests and concluded that she did not have carpal tunnel syndrome, Fabricut withdrew its offer of employment. Jones filed a discrimination charge with the EEOC alleging a violation of the Americans with Disabilities Act (ADA) on grounds that she was denied employment because Fabricut regarded her as having a disability, carpal tunnel syndrome.

As part of its investigation of Jones’ ADA claim, the EEOC obtained from Fabricut copies of Jones’ post-offer, pre-employment medical examination. The records revealed the family medical history questionnaire that Jones had been instructed to complete at the start of her pre-employment physical. Finding that the questionnaire included unlawful inquiries into genetic information, the EEOC notified Fabricut that its investigation would look into its compliance with GINA regarding its solicitation of family medical histories of applicants.

EEOC Pursues GINA Lawsuit

The EEOC filed suit against Fabricut in federal court alleging violations of both the ADA and GINA. GINA, which took effect in 2009, makes it illegal for employers to discriminate against employees or applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information, among other things. The lawsuit alleges that Fabricut violated GINA by requesting and requiring Jones and other applicants to indicate whether or not they had a family medical history for a variety of diseases and disorders as part of its post-offer, pre-employment medical examination as conducted for Fabricut by its agent, Knox Laboratory, who then provided the information to Fabricut for its use in hiring and employment decisions.

Lawsuit Settled for $50,000 and Additional Relief

Without admitting any violation of law, Fabricut agreed to settle the case for payment of $50,000 to Jones as compensatory damages. The settlement also requires Fabricut to post notices in its workplace stating that Fabricut will comply with all federal employment laws, including the ADA and GINA, conduct two hours of live training for all management and human resources personnel, create or revise personnel policies prohibiting discrimination and be subject to monitoring and reporting requirements for two years.

Review Practices for GINA Compliance

Although GINA has been in effect since 2009, many employers may not be familiar with its requirements and prohibitions. What may have been routine employment practices in past years, such as collecting a family medical history from employees or applicants, may now be unlawful under GINA. Employers should review their job applications, interview questions and any employment medical testing practices to ensure that no family medical history is requested. The regulations implementing GINA specifically state that a covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination used to determine an individual’s ability to perform a job. 29 C.F.R. § 1635.8(d). In addition, if an employer finds out that family medical histories are being collected, it must take reasonable measures, including not using the health care provider, to prevent the information from being collected in the future.

Under certain circumstances, employers may receive genetic information that it did not request. Such inadvertent acquisition of genetic information is not a violation of GINA. To help establish that genetic information was acquired inadvertently, employers should take advantage of a safe harbor provision in the GINA regulations. When an employer needs to request health-related information, such as to support a request for sick leave or a reasonable accommodation under the ADA, the employer should warn the employee and the health care provider not to provide genetic information. The regulations suggest the following language to accompany the request for health-related information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

When employers provide this warning, any resulting acquisition of genetic information will generally be considered inadvertent and therefore, not in violation of GINA.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

May 28, 2013

Addressing ADA Concerns When Employee is Physically Able But Psychologically Impaired

By Jude Biggs

The Tenth Circuit's decision in Koessel v. Sublette County Sheriff's Dep't, No. 11-8099 (10th Cir. May 14, 2013) raises an interesting issue: if an employee’s doctor says he can physically perform the essential functions of his job, but another doctor says psychological issues may interfere with his ability to perform his job, must an employer keep him on the job? The good news? Koessel says , “No.”

Kevin Koessel worked as a patrol officer with the Sublette County Sheriff's Office when he suffered a stroke. After he recovered, he worked part-time until he was cleared to work full-time. Co-workers reported concerns about his behavior, so a neurologist examined him. The neurologist found him physically able to work from a neurological standpoint, but recommended Koessel be examined by a psychologist due to cognitive issues. The psychologist found some of Koessel's symptoms (for instance, fatigue, episodes of lightheadedness, and weeping) could interfere with the performance of the high-stress parts of his job. Koessel returned to a temporary position, but was terminated after funds were cut from the Sheriff’s budget. Koessel sued for, among other things, disability discrimination under the ADA.

Koessel’s employer argued it properly let him go, as he was unable to do essential functions of his job. The psychologist had recommended Koessel be placed in a low-stress position that did not require frequent contact with the public; hence, he could not preserve the peace at public gatherings, neighborhood disputes and family quarrels; testify in court; or apprehend suspects. Koessel agreed those were essential job functions, but argued he could do them because his own doctor cleared him to return to work full time and he had performed 35 traffic stops without incident after returning from work.

The Tenth Circuit concluded Koessel’s examples only showed he could do the job physically, not that he could handled his job psychologically in high-stress situations. In so ruling, the Tenth Circuit disagreed that a jury should decide the issue of whether Koessel was qualified for his job, because there was no indication the psychologist's report was unreliable; there was no question Koessel remained impaired cognitively and psychologically; and there was no evidence Koessel had encountered high-stress situations after returning to work.

Employers will deal more and more with Koessel-like situations as baby boomers age and suffer strokes, heart attacks, or other medical issues that can have an impact on cognitive abilities. It shows the importance of getting an expert/specialist’s opinion before making a termination decision, as a specialist’s opinion is more likely to “trump” a general practitioner’s opinion. Still, given the risk of disability and age related discrimination issues, and the sympathy a jury is likely to feel for a former employee who has health issues, it also shows the importance of proceeding with great care (and with the advice of counsel) before making such termination decisions.

January 14, 2013

ADA Reasonable Accommodations Require an Interactive Proces

by Mark B. Wiletsky

Although some say talk is cheap, that saying does not apply when evaluating an employee’s request for a job accommodation under the Americans with Disabilities Act (“ADA”). Instead, it is important to engage in an open discussion with the disabled employee; failing to do so can easily land your organization in court. A Texas school district recently learned that lesson when a federal judge ruled that discharging a disabled classroom aide without engaging in a good faith interactive process regarding reasonable accommodations could result in liability for the district for a violation of the ADA. Nelson v. Hitchcock Indep. Sch. Dist., No. 3:11-CV-00311 (S.D. Tex. Dec. 21, 2012).

Disabled employee needed accommodation after exhausting FMLA leave. Iris Nelson had worked for the Hitchcock Independent School District (“District”) as a teacher’s aide for the Head Start program since 1996. In February 2009, Nelson learned she needed to have knee replacement surgery on both knees due to severe bilateral knee arthritis. Nelson soon took leave covered by the Family and Medical Leave Act (“FMLA”) for surgery on her right knee. In August 2009, shortly before the new school year was to begin, Nelson met with the District’s payroll and benefits supervisor, Theresa Fails, to request another two-and-one-half months off for surgery on her left knee. Fails informed her that she had exhausted her FMLA leave and would not be eligible for additional leave until the following year.

Nelson claims that she told Fails that she would work using a cane or a walker until she became eligible for more leave but Fails allegedly responded that she could not use walking aids. Nelson also stated that she would just have to take pain pills, a suggestion Fails supposedly refused as well. After the meeting, Fails notified the District’s interim Head Start director and the school superintendent of the conversation and recommended that until a doctor’s note could be obtained and a decision made, Nelson should not be allowed to return to work.

Without hearing anything more on her accommodation request, Nelson returned to work on August 17, 2009 and filed a form requesting leave which would begin on August 20, 2009. Nelson did not receive a response to her leave request and unilaterally took off to have her surgery on August 23, 2009. On August 25, 2009, the District’s superintendent sent Nelson a letter denying her leave request, noting that she had exhausted her FMLA entitlement. Six days later, the superintendent sent Nelson a notice of termination, informing her that her “employment with Hitchcock ISD has been terminated for being unable to perform the essential functions of your job.” Not surprisingly, Nelson sued, claiming that the District violated the ADA when it terminated her instead of accommodating her disability.

Court finds evidence that District failed to engage in ADA-required interactive process. The Court concluded that Nelson’s ADA claim could proceed to trial as Nelson presented sufficient evidence that the District never engaged in the communication and good faith interactive process regarding her accommodation requests that is required under the ADA. The Court noted that Nelson offered to postpone her surgery had she been allowed the accommodation of using a cane, walker or pain pills. Although the District argued that it would have been unreasonable to allow Nelson to supervise children while using a walking aid or while under the influence of pain medications, the Court ruled that it need not reach a reasonableness determination because the District had failed to engage in the required interactive process that would have allowed the District to assess the alternate accommodations. The Court pointed out that had the District discussed the alternatives with Nelson, it could have clarified whether she needed a walking aid or pain pills or both, whether any over-the-counter medications would have been sufficient and what the side effects of any required dosage would be. Only by engaging in that dialog could the District determine whether Nelson’s requested accommodations would impose an undue hardship on the District.

Lessons learned. When faced with an accommodation request, employers should not jump to deciding whether the proposed solution places an undue burden on the company, without first actually talking to the employee and seeking further input from the employee if the proposed solution seems unreasonable or unworkable. Employers must engage the employee in an interactive dialog to discuss what would allow the employee to perform the essential functions of their job. Remember, when it comes to reasonable accommodations under the ADA, there is often more than one way to skin a cat. The first accommodation requested may not be the only, or even the best accommodation for a particular disabled employee. By including the affected employee in the accommodation process, employers meet their ADA obligation while exploring the options that could allow the employee to stay on the job. You may not always reach a solution that works for both parties, but as long as you try in good faith—and appropriately document your efforts—it is much harder for the employee to attack your process and actions in a lawsuit down the road.