Recent EEOC guidance to employees under the ADA, PDA and Title VII provides useful information to employers, too!

The EEOC has recently issued guidance addressing a variety of issues under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and Title VII of the Civil Rights Act.

What is unique about this recent guidance is that the materials, entitled “Legal Rights for Pregnant Workers Under Federal Law,” “What You Should Know: Equal Pay and the EEOC’s Proposal to Collect Pay Data,” and “Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work,” are directed at employees and physicians rather than employers. However, this guidance certainly offers a trove of helpful information that employers may rely on when necessary.

For instance, in “Legal Rights for Pregnant Workers”, the EEOC provides guidance regarding the employee’s right to an accommodation of any restrictions that may result from a pregnancy, particularly in the nature of altered break and work schedules, permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions and/or permission to work from home. However, the guidance also notes instances in which accommodations would be unreasonable and therefore, unnecessary. Being primed to discuss some of those issues as part of the interactive process and referencing the guidance’s conclusion that “the ADA doesn’t require your employer to make changes that involve significant difficulty or expense” and that “if more than one accommodation would work (to address your restrictions), the employer can choose which one to give you” may help keep the employee engaged and effective in the workplace.

The materials directed at physicians are also helpful for employers, particularly because it can easily be attached to correspondence to the physician when requesting additional information about a potential employee accommodation issue. Employers often have to follow up with physicians because an initial request for accommodation comes in the form of a note scrawled on a prescription pad, with no explanation of the condition, the reason for the accommodation, and how the accommodation will address the circumstances of the condition. The EEOC’s resource should be of assistance to employers on these issues, where it notes that documentation from a physician is most helpful where it includes:

  • The nature of the patient’s condition. State the patient’s pregnancy-related medical condition.
  • The patient’s functional limitations in the absence of treatment. Describe the extent to which the medical condition would limit a major life activity (e.g., lifting, bending or concentrating), or a major bodily function (e.g. bowel or circulatory functions), in the absence of treatment or any other accommodation. If the symptoms of the condition come and go or are in remission, describe the limitations during an active episode. It is sufficient to establish substantial limitation of one major life activity or major bodily function.
  • The need for an accommodation. Explain how the patient’s medical condition makes changes at work necessary. For example, if your patient needs an accommodation to perform a particular job function, you should explain how the patient’s symptoms – as they actually are, with treatment – make performing the function more difficult. If necessary, ask your patient for a description of her job duties. Also explain to the employer why your patient may need an accommodation such as a schedule change (e.g., to attend a medical appointment during the workday.) Limit your discussion to the specific problems that may be helped by an accommodation.
  • Suggested Accommodation(s). If you are aware of an effective accommodation, you may suggest it. Do not overstate the need for a particular accommodation in can an alternative is necessary.

This language, at least, can be cited by employers in their correspondence to physicians regarding accommodations requests to better help advance these discussions quickly.

The Pay Data guidance relates to the recent proposal to begin collecting summary pay data by gender, race and ethnicity, and again is generally directed at employees to explain their rights to equal pay and how to enforce those rights. However, the one piece of additional news for employers is that the EEOC is continuing to pursue the revision of the EEO-1 for the collection of pay data and, sometime during this summer, will be submitting revisions for a second comment period before the proposal for data collection is finalized. We will keep you posted on this initiative.

OFCCP Releases Final Rule on Gender Discrimination

On June 14, 2016, the Office of Federal Contract Compliance Programs (“OFCCP”) released its updated final rule regarding sex/gender discrimination. The stated purpose of the update was to revise OFCCP’s decades old guidance which was, at some level, in conflict with certain new principles currently espoused by EEOC. For example, OFCCP’s old rule required covered contractors to provide separate bathrooms for men and women.

Oh how times have changed!

The new rules do some reiterate well-known requirements that personnel actions may not be taken on the basis of gender. The rule also reminds contractors that distinctions between married and unmarried persons in the workplace, without applying them equally to men and women, are unlawful.

With respect to gender identity, the rule explains that contractors may not make facilities and employment-related activities available only to members of one sex. Significantly, the rule provides that if a contractor provides showers, changing rooms, restrooms or other similar facilities, the contractor must provide same sex or single user facilities as well. The rule goes on to state that employers must allow employees to use the facilities consistent with the gender with which they identify. It also makes it unlawful to discriminate against applicants based on the applicant’s receipt of “transition-related medical services.”

The final portion of the rule covers some nonbinding best practices recommended by OFCCP including avoiding the use of gender-specific job titles such as foreman or linemen.

While the revised rule addresses a number of other issues regarding sex discrimination, harassment and pay discrimination, the revisions related to gender stereotypes and gender identity seem to be the largest change. The rules are effective August 14, 2016. They apply to all covered government contractors with contracts of $10,000 or more. The final rule is available here.

Covered contractors should note that the rules will likely require some changes to their restroom facilities and should plan accordingly. As always, the true impact of these rules will not be fully understood until courts begin to rule on their implementation. Stay tuned.

McNees Labor Seminar Wrap-Up: The EEOC Issues Guidance on Leave as a Reasonable Accommodation

Just as the Commonwealth Court seemed to know we would be discussing the work-relatedness of injuries that occur on an employer’s premises, so too did the EEOC anticipate our presentation entitled “Your Leave is Giving Me a Migraine” by issuing guidance on May 9, 2016 addressing “Employer Provided Leave and the Americans with Disabilities Act.”

The guidance, which discusses the question of when and how leave is to be provided in cases of an employee’s disability under the Americans with Disabilities Act, makes several key points for employers that we also raised at the McNees Labor seminar:

  • If an employer has a leave policy, such as sick, vacation, extended, or otherwise, and whether paid or unpaid, a disabled individual must be permitted to use this existing leave in the same way any other employee would use it. Importantly, if an employee asks for leave under this policy and an employer would not normally request a doctor’s note for use by any other employee, the employer cannot require it of the disabled employee as a condition of the leave.
  • In the absence of a leave policy and/or where leave has been exhausted, additional leave can be a reasonable accommodation. As noted by the EEOC, the “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” An employer cannot assert that it does not provide leave or the leave provided has been exhausted as a defense to a leave request and/or the ultimate claim that the ADA has been violated.
  • Anytime leave is requested as an accommodation, an employer should consider whether or not or under what circumstances it could be granted; such leave does not have to be paid leave. However, leave should only be refused where the employer has determined that providing additional leave will constitute an undue hardship to the employer.
  • Because the employer should generally refuse leave only where it presents an undue hardship, policies that provide for a maximum amount of leave, after which an employee would be automatically terminated, do not satisfy an employer’s obligation to engage in the interactive process and undue hardship analysis. As much as we as employers and attorneys would prefer it, the EEOC has refused to set a bright line rule defining how much leave is too much.
  • Similarly, requiring that an employee be 100% healed before returning to work from a leave of absence could constitute an ADA violation because it fails to take into account whether the employer can perform the functions despite any ongoing limitation with or without a reasonable accommodation. Unless no accommodation exists or the employee poses a “direct threat” in the restricted capacity, the employer must consider reassignment and other alternatives to the application of the 100% healed policy that would allow the employee to return to work. Naturally, this will require the employer to consult with the employee prior to their return as a natural part of the ongoing interactive process mandated by the ADA, and employers can, within reason and considering the circumstances of the leave, engage with the employee during the course of the leave in order to plan for the return to work.
  • In assessing the reasonableness of the need for leave and whether or not it presents an undue hardship, employers can consider leave already taken, the amount of leave being requested, the frequency of the leave if not continuous, the flexibility of the leave in terms of when it is taken if intermittent in nature, whether intermittent leave is predictable or unpredictable, the impact on coworkers and/or the duties can still be performed in an appropriate and timely manner, and the impact on the employer’s operations and ability to serve its customers. No one factor is controlling, and each of these factors is wholly unique to each individual case.

The takeaway here is that communication is key. This includes communication with employees requesting leave about the nature of and need for the leave as well as expectations regarding the return to work, and it also includes communication with managers and supervisors about the effect of the leave, and communication with decision-makers about policy modifications. Policies must also allow for communication, employers must ensure that the communication occurs in each case, and employers also have to consider each request individually in order to avoid ADA concerns.

The Legalization of Medicinal Marijuana in PA – What Does it Mean for Employer Provided Insurance Coverage?

Pennsylvania’s Medical Marijuana Act (MMA) was signed into law on April 17, 2016 and officially took effect last week. One of the questions we’ve been asked since the passage of the Act is: how will employer provided insurance (both health and workers’ compensation) be affected by the legalization of medical marijuana in Pennsylvania? The simple answer is that there should be no immediate effect on either employer provided health insurance or the administration of workers’ compensation insurance.

Pursuant to Section 2102 of the MMA, insurers and health plans, whether paid for by Commonwealth funds or private funds, are not required to provide coverage for medical marijuana. The inclusion of Section 2102 in the MMA is consistent with a nationwide consensus that medicinal cannabis need not be covered under health insurance. That marijuana remains a Schedule I controlled substance, is illegal under federal law and is not an FDA approved medical treatment lend support to those employers and insurance companies objecting to coverage. Section 2102 recognizes these concerns and objections and gives clear guidance to insurers and health plans in Pennsylvania regarding their requirements – or rather the lack thereof – to provide health insurance coverage for medicinal marijuana.

With regard to workers’ compensation coverage, insurance carriers and self-insured employers may have similar objections to paying for medicinal cannabis prescribed for a work-related condition covered by the MMA (i.e. neuropathies or severe chronic pain). Section 2102 is broadly written and, thus, likely also supports the argument that medical marijuana need not be covered under workers’ compensation insurance.

While the MMA does not require employers and carriers to provide coverage for medicinal cannabis, we recognize that some employers may consider doing so. In the context of chronic pain for example, medicinal cannabis is seen as an alternative to opiate therapy, which can be costly, ineffective and, in some cases, deadly. If the treating physician of an injured worker suffering from chronic pain should suggest medical marijuana as an alternative to opiates, there is nothing in the Act prohibiting workers’ compensation insurance from covering such treatment. Before providing coverage, however, employers and carriers should ensure that there is compliance with all other aspects of the MMA. For example, the prescribing doctor must be a registered “Practitioner” as that term is defined by the Act, the requirements of “Continuing Care” must be met and the injured worker must be suffering from one of the “Serious Conditions” enumerated in the Act. Employers and carriers should further consider the impact of federal law on providing such coverage and should consult with counsel to address specific questions.

As with any new law, there are many unanswered questions. The Department of Health is required to publish temporary regulations by October 17th and full regulations must be published by the fall of 2017. These regulations should provide guidance on the implementation of the Act and interpretation of specific provisions. Note – medical providers may not begin prescribing medicinal marijuana until the regulatory framework is in place. Accordingly, until the regulations are published, we cannot know the full impact that the law will have on the workplace.

The McNees Labor and Employment Group will be closely monitoring developments to the law and, specifically, the implementation of the temporary and permanent MMA regulations. We will continue to keep you advised as things develop. In the meantime, should you have specific questions about the law, your policies and plans or your employees, please do not hesitate to contact any member of the McNees L&E Group.

Constructive Discharge: Supreme Court Sets the Clock in Employees’ Favor

On May 23, 2016, the Supreme Court of the United States ruled that the filing period for constructive discharge claims, which can be filed pursuant to many different employment laws, begins to run upon an employee’s resignation as opposed to the employer’s act that triggered the resignation. In Green v. Brennan, the plaintiff was employed as a postmaster in Colorado. When he was denied a promotion that was given to another employee with less seniority and (allegedly) inferior qualifications, he filed a complaint alleging that racial discrimination motivated the employer’s decision. After filing the complaint, the plaintiff believed he was subjected to increased criticism and accusations in the workplace.

In an attempt to resolve the mounting workplace issues, the plaintiff was given six months of paid leave. In exchange, however, the plaintiff was presented with two choices upon expiration of his leave; accept a demotion to an office hundreds of miles away to a position that paid considerably less or resign from employment. The plaintiff elected a third option. He resigned and filed a constructive discharge complaint, but not until five months after his resignation date.

The employer argued that the suit was untimely, claiming that the last discriminatory act (the deal wherein the plaintiff was given leave in exchange for his resignation) triggered the filing period, which had lapsed before the complaint was filed. The plaintiff argued that his resignation triggered the filing period thereby rendering his complaint timely.

In siding with the plaintiff, the Supreme Court held that the filing period on a constructive discharge claim does not begin to run until the date of the employee’s resignation. Specifically, the court noted that resignation is a necessary element in a constructive discharge case, and therefore, the claim cannot be brought until after an employee resigns. The Court also clarified that the filing period begins to run on the date that the employee tenders their resignation as opposed to the last date of employment.

For Pennsylvania employers, the impact of this case is straightforward. An employee now has 300 days after giving notice of their resignation to bring a discrimination-based constructive discharge claim.

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