Dealing with Return to Work Issues: Injuries, Illnesses, and Military Leave

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1 Dealing with Return to Work Issues: Injuries, Illnesses, and Military Leave JAMES C. HANKS AHLERS & COONEY, P.C. 100 COURT AVENUE, SUITE 600 DES MOINES, IOWA (515) I. Introduction A. Return to Work Issues an employee missed work due to injury, illness or military obligations and now they are returning to you and looking for their old job. What are your obligations as an employer? B. This outline will focus on three federal laws that govern employee reinstatement: the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Uniformed Service Employment and Reemployment Rights Act (USERRA). 1. Often, other issues will come into play, including state Worker s Compensation laws, federal laws for public employers prioritizing veterans for certain positions, and federal and state anti-discrimination statute. 2. This outline will focus only on the FMLA, the ADA, and USERRA. II. Family Medical Leave Act (FMLA) A. Eligibility B. Employee Rights 1. Employees must work for a covered employer. The FMLA applies to all public agencies and to private-sector employers who have more than 50 employees in 20 or more workweeks in the current or proceeding calendar year. 2. Employees must have worked for the employer for a total of 12 months 3. Employees must have worked at least 1,250 hours over the past 12 months 1. An eligible employee is entitled to take up to 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: i. Birth or care of employee newborn child, or placement with the employee of an adopted child or a foster child; ii. To care for a spouse, child, or parent with a serious health condition; iii. To take medical leave when the employee is unable to work because of his or her own serious health condition; or iv. Special circumstances resulting from that employee s spouse, child, or parent on active military, Guard or Reserves duty. a. Military Caregiver Leave eligible employees are entitled to up to 26 workweeks of FMLA leave during a 12-month 1

2 period to care for a family member s injury or illness resulting from active military duty. i. The 26 weeks is calculated on a per-service-member, per-injury basis. ii. However, the total amount of FMLA leave is capped at 26 weeks for all FMLA covered conditions. b. Covered service members are individuals in the Armed Forces, reserve components or veterans who served within 5 years of the date of that veteran s medical treatment. i. The Department of Labor modified the FMLA definition of child for Military Caregiver Leave by dropping the age limit, allowing parents to care for adult children. c. Medical treatment includes recuperation, therapy, outpatient treatment or attention to persons on the military s temporary disability list. d. To care for means physical or psychological care, including transportation for care. 2. Employees may take intermittent leave to reach the 12 total workweek tally. 3. Qualifications - the employee shall be given a reasonable opportunity to fulfill any requirements of the position that may have expired during the leave (e.g., license, special course, etc.) if the employee is no longer qualified for the position the employee left. 4. Maternity Leave - Positions are held for employees consistent with FMLA provisions C. Employer Obligations 1. Job Restoration i. Upon return from FMLA leave, an employee must be restored to the employee s original job or to an equivalent job with equivalent pay, benefits, and other terms or conditions of employment. ii. An employee s use of FMLA leave cannot result in the loss of any employment benefits that the employee was earning or entitled to before using FMLA leave iii. Employers may not discriminate in the use or taking of FMLA leave when making promotion or disciplinary actions iv. FMLA leave cannot be counted under no fault attendance policies. However, failure to timely notify employer of the need for FMLA leave may, in some circumstances, warrant disciplinary action. 2. Employer must maintain group health insurance coverage for an employee on FMLA leave if the insurance was provided before the leave, on the same terms as if the employee had continued to work. i. If the employee was already paying a portion of the premiums before the employee took FMLA leave, arrangements will need to be made to obtain those payments while the employee is on leave. 3. ADA overlap: if employee is unable to perform the position duties due to a physical condition, the ADA may govern. 4. Change in Schedule: An employee may request to be restored to a different shift, schedule, or position which better suits the employee's personal needs 2

3 on return from leave, subject to the employer's approval. i. Employer cannot force an employee to accept a different position against the employee's wishes. 5. Also note, an employee who fraudulently obtains FMLA leave is not protected by FMLA's job restoration or maintenance of health or dental benefits provisions. D. Denial of Reinstatement E. Notice 1. When an employee desires to return to her former position, an employer must oblige unless the employer can show that an employee would not otherwise have been employed at the time reinstatement is requested. 2. Key Employee Exception occasionally, restoration of employment may be rejected if it would cause the employer substantial and grievous economic injury. i. This exception typically comes into play with highly-paid salaried employees who are amount the highest-paid 10% of all employees that work within 75 miles of that key employee s worksite ii. Key employees may not be denied leave, but could, in certain circumstances, be denied reinstatement if the employer notifies that employee in writing of her status as a key employee and allows that employee a reasonable opportunity to return to work after the notification. 3. Seasonal or Term employment - If an employee was hired for a specific term or project, the employer need not reinstate the person if the term or project is over and the employer would not have otherwise continued to employ the person. 4. Employer may request certification from employee s health care provider that the employee is able to return to work and perform essential functions of the job. i. Fitness-for-duty inquires must be applied equally to all employees in a position and must comply with applicable state laws and CBAs ii. Inquiries may be made once. Second and third inquiries are prohibited iii. Inquires cannot delay reinstatement by more than 2 days. iv. If, after the 12 week FMLA leave entitlement runs out, the employee remains unable to return to work, the employer is not required to reinstate the employer under the FMLA. However, depending on the circumstances, the employee may continue to be protected under the ADA. 1. Employees must provide a 30-day advanced notice of leave when the need for leave is foreseeable and the notice is practical. 2. If the need for leave is not foreseeable 30-days in advance, employees must give notice as soon as is practical. 3. Absent unusual circumstances, the employee should comply with the employer s usual practices regarding requesting leave. 3

4 4. Employee must provide sufficient information to the employer for a determination of whether the requested leave falls under the FMLA. i. For the first request, the employee does not need to expressly assert FMLA rights or mention the FMLA in his/her leave request. ii. For subsequent leave requests, the employee must either specifically reference either the qualifying reason for leave or the need for FMLA leave. iii. When an employee requests FMLA leave or the employer learns that the leave may be for an FMLA, the employer must notify the employee of eligibility to take leave and notify that employee of the employee s rights under the FMLA. F. Employer may require employee to periodically report on her status and intent to return to work. 1. When the FMLA leave is for the employee s own serious health condition, and the period of incapacity is more than 5 days, the employer may require the employee to provide medical certification indicating that they are able to return to work. 2. Employers should be mindful to ensure reporting requirements are not discriminatory and fairly take into account all circumstances of the employee s leave. G. Change in circumstances when an employee s leave situation changes and the original amount of approved leave is no longer necessary, the employee should give at least 2 days notice of her ability to return to work earlier. 1. An employee may not be required to take more leave than necessary to address the qualifying circumstances. III. Americans with Disabilities Act (ADA) A. Does the ADA apply? 1. Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC) and prohibits public and private employers with 15 or more employees from discriminating against individuals on the basis of disability or perceived disability including hiring, firing, promotion, and reinstatement decisions. 2. An Individual with a Disability means a person who: i. Has a physical or mental impairment that substantially limits one or more major life activities; ii. Has a record of such an impairment (i.e. was substantially limited in the past, such as prior to undergoing rehabilitation); or iii. Is regarded, or treated by an employer, as having a substantially limiting impairment. iv. The ADA uses a different, more inclusive, standard than the military for determining disability, which may trigger other requirements for disabled veterans. 4

5 B. The ADA Amendments Act 1. The ADA Amendments Act expands the term major life activities so that it is easier for an individual to establish that he/she is an individual with a covered disability 2. Major Life Activities includes physical acts such as walking and hearing, but also includes brain and neurological functions such as concentrating. 3. An impairment substantially limits a major life activity regardless of whether the employee has access to assistive devices, prosthetics, or medications that may lessen an impairments effect. 4. Sporadic episodes, such as Post Traumatic Stress Disorder, are considered disabilities if they would be substantially limiting when active. C. Returning to Work 1. Employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship. i. In some circumstances, the employee may request additional leave under the ADA even after the employer notified the employee of an undue hardship. In this situation, the employer must offer a vacant, equivalent position for which the employee is qualified. ii. If an equivalent position is not available, the employer must offer a vacant position at a lower level. If none is available, continued accommodation is not required. 2. If the employee cannot perform the essential functions of the employee s previously held job, the employer must consider reassignment, first to a vacant equivalent position and then to one at a lower level. 3. Health Insurance Coverage: Under the ADA, the employer must continue insurance coverage for an employee taking leave or shifting to part-time work so long as the employer also provides coverage for other employees in the same leave or part-time status. D. Accommodations 1. FMLA Overlap: if an employee requests time off for a reason reasonably related to a disability, the employer should consider the request for ADA reasonable accommodations as well as for FMLA leave. i. Employer may require FMLA certification and may make reasonable disability-related inquiries to decide whether the employee is entitled to reasonable accommodation. ii. If the employee states that he/she only wants to invoke rights under the FMLA, the employer should not make additional inquires related to ADA coverage. iii. When both laws may apply, the FMLA requires that the employer provide leave under whichever statutory provision provides the greater rights to employees. FMLA (b)-(e). iv. The ADA allows for the employer to offer the employee a reasonable accommodation other than leave if both parties can agree to the terms. 2. Modification of equipment or devices may be required. i. For example, a glare guard for a computer monitor persons with a brain 5

6 injury, or ii. Reconfigured workspace for someone who uses a wheelchair 3. Be mindful of persons with psychological injuries who may have poor concentration or other decision-making difficulties. i. Communication, feedback or break adjustments may be considered. ii. Job coaches or other support staff could provide initial assistance. 4. The VA is also available to assist returning service members with service-incurred disabilities, including providing assistive technology. IV. Uniformed Services Employment and Reemployment Rights Act (USERRA) A. USERRA strengthens the employment and reemployment rights of all uniformed service members. (38 U.S.C , October 13, 1994). 1. Applies to virtually all employers, regardless of size. 2. Goes further than the FMLA and the ADA by requiring employers to make reasonable efforts to assist returning service members, whether disabled or not, in becoming qualified for a job upon reinstatement. 3. Covered employees (eligible for reemployment) - Reemployment rights extend to persons who have been absent from a position of employment because of "service in the uniformed services." i. Uniformed services includes Army, Navy, Marine Corps, Air Force, or Coast Guard, and their corresponding reserve corps. a. Also includes the Army National Guard or Air National Guard, b. And the Commissioned Corps of Public Health Service, c. And any other category designated by the President in an emergency. ii. "Service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service, including: a. Active duty, including active duty for training and initial active duty for training b. Inactive duty training c. Full-time National Guard duty d. Absence from work for an examination to determine a person s fitness for any of the above types of duty. e. Funeral honors duty performed by National Guard or reserve members. f. Intermittent employees of NDMS when activated for a public health emergency 1 g. Note that this includes service members who leave their civilian jobs voluntarily or involuntarily for military obligations. 4. Departing service members must be treated as if they are on a leave of absence. i. While they are away they must be entitled to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence, whether paid or unpaid. 4316(b). ii. If there is a variation among different types of leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. a. Example A: A three-day bereavement leave is not comparable to a 1 The National Disaster Medical System (NDMS) is part of FEMA. 6

7 two-year period of active duty. iii. The returning employees shall be entitled not only to nonseniority rights and benefits available at the time they left for military service, but also those that became effective during their service. iv. Service members may be required to pay the employee cost, if any, of any funded benefit to the extent that other employees on leave of absence would be required to pay. 4316(b)(4). v. Vacation pay must be permitted for time accrued before beginning the military service instead of unpaid leave. 4316(d). a. The use of vacation pay is at the service member s request b. Service members cannot be forced to use vacation time for military service. vi. Health benefits must be continuous for persons absent from work due to military service and for their dependents a. If the plan s coverage would terminate because of the absence, the person may elect to continue the plan coverage for up to 18 months after the absence begins. b. The person cannot be required to pay more than 102% of the full premium for this coverage. c. If the absence is less than 30 days, the person cannot be required to pay more than the normal employee share of any premium. B. Employee Requirements 1. Notice Employees must either orally or in writing, provide their employers with advance notice of service obligations, so long as it is practical or reasonable to do so. 4312(a)(1). 2. Cumulative length of service causing absence from work does not exceed 5 years 4312(c) Employees may forfeit certain rights if, prior to leaving for military service, they provide clear written notice of an intent not to return to work after military service. 4316(b)(2)(A)(ii). i. At the time of providing the notice, the employee must be aware of the specific rights and benefits to be lost. ii. Notices of intent not to return can waive only leave-of-absence rights and benefits. iii. An employee cannot waive other rights that they are entitled to, including reemployment rights. C. Exemptions & Disqualifications 1. Employer does not have reemployment obligations if employee s pre-service position of employment is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. 4312(d)(1)(C). 2 This section applies to all employers, regardless of size, even if that employer is not subject to COBRA. 3 There are eight categories of exceptions to the 5 year rule, which includes accommodations for service members in specialized troupes, protects employees who were stop-lossed, exempts annual National Guard two-week training, and governs activation for emergencies, wars, and operational missions. 4312(c)(4). We encourage employers to speak to legal counsel before refusing reemployment based on the 5 year rule. 7

8 2. 4 Circumstances for Disqualifying Service : 4304 i. Dishonorable or bad conduct discharge. ii. Separation from the service under other than honorable conditions. 4 iii. Court Martial or persons dismissed by order of the President during war time. iv. AWOL for more than 3 months or incarcerated. 3. Change in Circumstances / Reduction in Force may excuse an employer from reemployment obligations if doing so would be impossible, unreasonable or an undue hardship. 4312(d)(1)(A) and (d)(1)(b). D. Timeframe for Returning to Work 1. Reporting back to work depends on the duration of a person s military service 4312(e). 2. Generally, for service up to 30 days, an employee must report to his/her employer by the beginning of the first regularly scheduled work period following the completion of service, after allowance for travel home and an 8-hour rest period. i. For example, if a person returns home at 10 p.m., it is inappropriate for them to report to the following 3 a.m. shift. They may, however, be scheduled for a 6 a.m. shift (8 hours between 10 p.m. and 6 a.m.) ii. Fitness-for-Service Examinations and corresponding absences are treated the same as persons absent up to 30 days. 3. Service of 31 to 180 days employee should submit an application for reemployment within 14 days after completion of that person s service. i. Employers may request documentation showing that the employees application for reemployment is timely, the person is within the 5 year mark and the person s separation from service does not disqualify them. 4312(f). ii. If an employee cannot provide satisfactory documentation, the employer must still reemploy the person. However, if documentation later reveals that the employee failed to meet the reemployment requirements, the employer may terminate that person. 4. Service of 181 or more days employee should submit an application for reemployment within 90 days after completion of that person s service. 5. Disability reporting or application deadlines are extended for up to two years for persons recovering from a disability incurred or aggravated during the period of military service. Depending on the situation, additional extensions may apply. 6. Unexcused delay will not automatically forfeit reemployment rights. Instead, that person who failed to report to work or apply for reemployment within the required time limits will be subject to the employer s rules governing unexcused absences. E. Pension Contributions and Retirement Plans Rules governing pension contributions are highly comprehensive. 2. An employer may delay making retroactive pension contributions for persons who have been absent for military service for 91 or more days until the person submits satisfactory documentation. 4312(f)(3)(B). i. Contributions will still have to be made for persons who are absent for 90 or fewer days. 3. Pension plans tied to seniority require the reemployed person to be treated as not 4 Regulations for each military branch specify when separation from the service would be considered "other than honorable." 8

9 having a break in service. Military service is considered service with an employer for vesting and accrual purposes. The reemployed person is entitled to any accrued benefits from employee contributions to the extent that the person repays 5 the employee contributions. 4. Pension Plans and Multi-employer plans must follow special rules F. Reinstatement Position is Based on Length of Service 4313(a) 1. The position a person is reinstated is based on the length of a person s military service. i. Persons who have a disability incurred in or aggravated by military service are excepted from this section. ii. Escalator Principal this concept requires that each returning service member actually step back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed. a. The position may not necessarily be the same job the person previously held. b. Example A: If the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion upon reinstatement. c. Example B: The position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be in layoff status. 2. Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed. 4316(a). 3. Military Service Lasting Up to 90 Days these employees must be promptly reemployed 6 according to priority: i. The job the person would have held had the person remained continuously employed (assuming qualification); 7 or ii. The position of employment the person had when they left for service (assuming the person is not qualified, and cannot become qualified after reasonable efforts by the employer, for jobs in (i)); iii. If the above are not possible, the person should be reemployed in a position that is the nearest approximation to the position described above which the person is able to perform, with full seniority. 4. Military Service of 91 or More Days the law requires employers to promptly 5 Repayment of employee contributions can be made over three times the period of military service, but no longer than five years. 4318(b)(2). Contributions are calculated based on the employee s compensation during the period of her military service according to the rate of pay she would have received from her employer. 6 "Promptly reemployed" is not defined and will be case-specific. For example, reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. However, reinstatement following five years on active duty might require giving notice to an incumbent employee who has occupied the service member s position and who might possibly have to vacate that position. 4313(a). 7 Employers must make reasonable efforts to qualify returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold for reasons other than a disability incurred or aggravated by military service. This may include refresher training, and any training necessary to update skills due to technological advances. 9

10 reemploy in the following order of priority: i. The job the person would have held had the person remained continuously employed, or a position of like seniority status and pay, assuming the person is qualified for such a position or could become qualified after reasonable efforts by the employer; or ii. The position of employment the person had when they left for service, or a position of like seniority, status, and pay the duties of which the person is qualified to perform; or iii. If the employee cannot become qualified for the position either in (i) or (ii), then in any other position that most nearly approximates the above positions (in that order) the duties of which the employee is qualified to perform, with full seniority. G. Disabilities Incurred (or Aggravated) During Service 4313(a)(3) 1. USERRA sets out a three-part reemployment scheme for persons with disabilities. i. Employer must make reasonable efforts to accommodate the disability so that the person could perform the position she would have held if she had remained continuously employed; or ii. If despite reasonable accommodation efforts, the person is not qualified for the position due to her disability, the person must be employed in a position of equivalent seniority, status, and pay, so long as the employee is qualified to perform the duties of the position or could become qualified to perform them with reasonable efforts by the employer; or iii. If the person cannot become qualified for the above positions, the person must be employed in a position that, consistent with the circumstances of that person s case, most nearly approximates the position in (ii) in terms of seniority, status, and pay. H. Conflicting Reemployment Claims to the Same Position 4313(b)(1), (2)(A) 1. The person who first left the position has the superior right to it. 2. The person without the superior right is entitled to employment with full seniority in any other position that provides similar status and pay I. Employee Protections from Discharge, Discrimination and Retaliation 1. A reemployed employee may not be discharged without cause for a year from the date of reemployment if the person s military service was more than 180 days; or for six months if the person s service was for days. 4316(c). 2. Discrimination for past, current, or future military obligations is prohibited including in hiring, promotion, and benefits decisions Retaliation is prohibited against anyone who files a complaint, participates in proceedings to enforce USERRA, or who exercises rights under the law, regardless of whether or not that person performed military service. 4311(b) J. Enforcement for non-federal Employers 1. Government assisted court actions. Reemployment assistance is provided by the Veterans Employment and Training Service (VETS), which is part of the Department of Labor. i. VETS investigates complaints and attempts to resolve them. VETS can access documents and has subpoena power 4326 ii. Persons whose complaints are not successfully resolved by VETS may 10

11 request that their complaints be submitted to the Attorney General for possible court action on the complainant s behalf Private Actions are available to those who choose not to file with VETS or who have chosen not to request representation by the AG or who have been refused representation by the AG. 4323(a) 3. Double damages for awards of back pay or lost benefits are available for "willful" violations. 4323(d)(1)(C) 4. Attorney fees, expert witnesses and other litigation expenses may be awarded to successful plaintiffs. Also, court costs are not levied against people who bring suit under this law. 5. Only persons claiming rights may bring lawsuits. Employers, pension plans, or unions may not bring actions for declaratory judgments to determine potential claims of employees. 4323(f). Resources A. FMLA: Department of Labor B. ADA: EEOC C. USERRA: Department of Labor - the DOL s A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act is a great resource for general employer questions, In addition, the U.S. Department of Veteran s Affairs periodically puts out employer guides relevant to treatment of returning service members 11

12 Employer Obligations Employer Obligations: Yes No 1. Did the service member give advance notice of military service to the employer? (This notice can be written or verbal) 2. Did the employer allow the service member a leave of absence? The employer cannot require that vacation or other personal leave be used. 3. Upon timely application for reinstatement, did the employer timely reinstate the service member to his/her escalator position? 4. Did the employer grant accrued seniority as if the returning service member had been continuously employed? This applies to the rights and benefits determined by seniority, including status, rate of pay, pension vesting, and credit for the period for pension benefit computations. 5. Did the employer delay or attempt to defeat a reemployment rights obligation by demanding documentation that did not then exist or was not then readily available? 6. Did the employer consider the timing, frequency, or duration of the service members training or service or the nature of such training or service as a basis for denying rights under this Statute? 7. Did the employer provide training or retraining and other accommodations to persons with service-connected disabilities. If a disability could not be accommodated after reasonable efforts by the employer, did the employer reemploy the person in some other position he/she was qualified to perform which is the "nearest approximation" of the position to which the person was otherwise entitled, in terms of status and pay, and with full seniority? 8. Did the employer make reasonable efforts to train or otherwise qualify a returning service member for a position within the organization/company? If the person could not be qualified in a similar position, did the employer place the person in any other position of lesser status and pay which he/she was qualified to perform with full seniority? 12

13 9. Did the employer grant the reemployed person pension plan benefits that accrued during military service, regardless of whether the plan was a defined benefit or defined contribution plan? 10. Did the employer provide health coverage upon request of a service member? Upon the service member s election, did the employer continue coverage at the regular employee cost for service members whose leave was for less than 31 days? 11. Did the employer discriminate in employment against or take adverse employment action against any person who assisted in the enforcement of a protection afforded any returning service member under this Statute? 12. Did the employer in any way discriminate in employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of past or present membership, performance of service, application for service or obligation for service? RTF-1\

14 TIPS FOR DEALING WITH RETURNING EMPLOYEES JAMES C. HANKS AHLERS & COONEY, P.C. 100 COURT AVENUE, SUITE 600 DES MOINES, IOWA (515) Make sure that all of your job description are complete, accurate, and up-to-date. The job description is the key document for determining an employee s duties, the essential duties of the position, and the qualifications and skills necessary to perform those duties. 2. Carefully screen and select a medical provider or clinic to serve as the employer s doctor for all medical inquiries. Explain to the providers exactly what it is you need from them before you make a selection. The employer s medical provider should then be used for all work-related medical inquiries, other than those that require a specialist or that require the use of a neutral provider. 3. Become intimately familiar with the medical inquires that you are permitted to make and those that you are prohibited from making and understand the extent of the inquiry that you may make. Remember that the EEOC believes that medical inquiries are limited to questions or examinations which are job-related and consistent with business necessity. 4. Familiarize yourself with the differences between an independent medical examination and a functional capacity evaluation and know when to request which one. An independent medical examination is an examination of an individual by a medical provider not otherwise associated with providing care to that individual, and it is conducted to determine the cause, extent and medical treatment of a work-related or other injury. An FCE is an assessment of an individual s work-related abilities and is usually specific to the individual s current job. 5. Whenever you communicate with the employee s medical provider or when the employee offers to supply you with information from his/her provider, be sure to give the provider a copy of the current job description for the employee s position and emphasize that you are requesting information relevant to the employee s medical condition and limitations on the employee s ability to perform his/her duties, not opinions or recommendations regarding possible accommodations for the employee s limitations. 6. If you believe that you need a mental health evaluation of an employee, review the information or behaviors that have caused you concern with a qualified mental health professional before you direct an employee to submit to an examination. 7. Establish a positive working relationship with your worker comp provider and develop an understanding of the provider s procedures and settlement standards. Have a frank discussion with the work comp provider of the conditions under which the it would be willing to negotiate a global release of claims as part of an employee s separation from employment. 14

15 8. Review and understand the terms of any long-term disability insurance plan that your employer has in place. Establish a positive working relationship with the claims department for the LTD provider. Develop an understanding of the definition of disability and the procedure that the carrier uses to make a determination regarding disability. 9. In challenging cases, consider developing a plan for managing the employee s return to work and carefully monitoring that plan. Regular communication with an employee who is not at work is often a critical component of the success of a plan. 10. Keep an electronic or paper library of resources for addressing return to work issues: EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the ADA EEOC Enforcement Guidance: Workers Compensation and the ADA EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities EEOC Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations EEOC Fact Sheet regarding FMLA, ADA, and Title VII 15

16 EEOC Enforcement Guidance: Disability-Related Inquiries And Medical Examinations INTRODUCTION Title I of the Americans with Disabilities Act of 1990 (the "ADA") limits an employer's ability to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. In its guidance on preemployment disability-related inquiries and medical examinations, the Commission addressed the ADA's restrictions on disability-related inquiries and medical examinations at the pre- and post-offer stages. This enforcement guidance focuses on the ADA's limitations on disability-related inquiries and medical examinations during employment. Disability-related inquiries and medical examinations of employees must be "job-related and consistent with business necessity." This guidance gives examples of the kinds of questions that are and are not "disability-related" and examples of tests and procedures that generally are and are not "medical." The guidance also defines what the term "job-related and consistent with business necessity" means and addresses situations in which an employer would meet the general standard for asking an employee a disability-related question or requiring a medical examination. Other acceptable inquiries and examinations of employees, such as inquiries and examinations required by federal law and those that are part of voluntary wellness and health screening programs, as well as invitations to voluntarily self-identify as persons with disabilities for affirmative action purposes, also are addressed. A. Background GENERAL PRINCIPLES Historically, many employers asked applicants and employees to provide information concerning their physical and/or mental condition. This information often was used to exclude and otherwise discriminate against individuals with disabilities -- particularly nonvisible disabilities, such as diabetes, epilepsy, heart disease, cancer, and mental illness -- despite their ability to perform the job. The ADA's provisions concerning disability-related inquiries and medical examinations reflect Congress's intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs. Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness 16

17 programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA. B. Disability-Related Inquiries and Medical Examinations of Employees The ADA states, in relevant part: A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. This statutory language makes clear that the ADA's restrictions on inquiries and examinations apply to all employees, not just those with disabilities. Unlike other provisions of the ADA which are limited to qualified individuals with disabilities, the use of the term "employee" in this provision reflects Congress's intent to cover a broader class of individuals and to prevent employers from asking questions and conducting medical examinations that serve no legitimate purpose. Requiring an individual to show that s/he is a person with a disability in order to challenge a disability-related inquiry or medical examination would defeat this purpose. Any employee, therefore, has a right to challenge a disability-related inquiry or medical examination that is not job-related and consistent with business necessity. Only disability-related inquiries and medical examinations are subject to the ADA's restrictions. Thus, the first issue that must be addressed is whether the employer's question is a "disability-related inquiry" or whether the test or procedure it is requiring is a "medical examination." The next issue is whether the person being questioned or asked to submit to a medical examination is an "employee." If the person is an employee (rather than an applicant or a person who has received a conditional job offer), the final issue is whether the inquiry or examination is "job-related and consistent with business necessity" or is otherwise permitted by the ADA. 1. What is a "disability-related inquiry"? In its guidance on Preemployment Questions and Medical Examinations, the Commission explained in detail what is and is not a disability-related inquiry. A "disability-related inquiry" is a question (or series of questions) that is likely to elicit information about a disability. The same standards for determining whether a question is disability-related in the pre- and post-offer stages apply to the employment stage. Disability-related inquiries may include the following: asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee's disability; asking an employee to provide medical documentation regarding his/her disability; asking an employee's co-worker, family member, doctor, or another person about an employee's disability; 17

18 asking about an employee's genetic information; asking about an employee's prior workers' compensation history; asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications; and, asking an employee a broad question about his/her impairments that is likely to elicit information about a disability (e.g., What impairments do you have?). Questions that are not likely to elicit information about a disability are not disability-related inquiries and, therefore, are not prohibited under the ADA. Questions that are permitted include the following: asking generally about an employee's well being (e.g., How are you?), asking an employee who looks tired or ill if s/he is feeling okay, asking an employee who is sneezing or coughing whether s/he has a cold or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship; asking an employee about nondisability-related impairments (e.g., How did you break your leg?) asking an employee whether s/he can perform job functions; asking an employee whether s/he has been drinking; asking an employee about his/her current illegal use of drugs; asking a pregnant employee how she is feeling or when her baby is due; and, asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency. 2. What is a "medical examination"? A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health. The guidance on Preemployment Questions and Medical Examinations lists the following factors that should be considered to determine whether a test (or procedure) is a medical examination: (1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task ; (6) whether the test normally is given in a medical setting; and, (7) whether medical equipment is used. In many cases, a combination of factors will be relevant in determining whether a test or procedure is a medical examination. In other cases, one factor may be enough to determine that a test or procedure is medical. Medical examinations include, but are not limited to, the following: 18

19 vision tests conducted and analyzed by an ophthalmologist or optometrist; blood, urine, and breath analyses to check for alcohol use; blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., for conditions such as sickle cell trait, breast cancer, Huntington's disease); blood pressure screening and cholesterol testing; nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome); range-of-motion tests that measure muscle strength and motor function; pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out); psychological tests that are designed to identify a mental disorder or impairment; and, diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI). There are a number of procedures and tests employers may require that generally are not considered medical examinations, including: tests to determine the current illegal use of drugs; physical agility tests, which measure an employee's ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee's performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure); tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions; psychological tests that measure personality traits such as honesty, preferences, and habits; and, polygraph examinations. 3. Who is an "employee"? The ADA defines the term "employee" as "an individual employed by an employer." As a general rule, an individual is an employee if an entity controls the means and manner of his/her work performance. Where more than one entity controls the means and manner of how an individual's work is done, the individual is an employee of each entity. Example: XYZ, a temporary employment agency, hires a computer programmer and assigns him to Business Systems, Inc. (BSI), one of its clients. XYZ determines when the programmer's assignment begins and pays him a salary based on the number of hours worked as reported by BSI. XYZ also withholds social security and taxes and provides workers' compensation coverage. BSI sets the hours of work, the duration of the job, and oversees the programmer's work. XYZ can terminate the programmer if his performance is unacceptable to BSI. 19

20 The programmer is an employee of both XYZ and BSI. Thus, XYZ and BSI may ask the programmer disability-related questions and require a medical examination only if they are job-related and consistent with business necessity. 4. How should an employer treat an employee who applies for a new (i.e., different) job with the same employer? An employer should treat an employee who applies for a new job as an applicant for the new job. The employer, therefore, is prohibited from asking disability-related questions or requiring a medical examination before making the individual a conditional offer of the new position. Further, where a current supervisor has medical information regarding an employee who is applying for a new job, s/he may not disclose that information to the person interviewing the employee for the new job or to the supervisor of that job. After the employer extends an offer for the new position, it may ask the individual disability-related questions or require a medical examination as long as it does so for all entering employees in the same job category. If an employer withdraws the offer based on medical information (i.e., screens him/her out because of a disability), it must show that the reason for doing so was job-related and consistent with business necessity. An individual is not an applicant where s/he is noncompetitively entitled to another position with the same employer (e.g., because of seniority or satisfactory performance in his/her current position). An individual who is temporarily assigned to another position and then returns to his/her regular job also is not an applicant. These individuals are employees and, therefore, the employer only may make a disability-related inquiry or require a medical examination that is job-related and consistent with business necessity. Example A: Ruth, an inventory clerk for a retail store, applies for a position as a sales associate at the same store. Ruth is an applicant for the new job. Accordingly, her employer may not ask any disability-related questions or require a medical examination before extending her a conditional offer of the sales associate position. Following a conditional offer of employment, the employer may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. Example B: A grade 4 clerk typist has worked in the same position for one year and received a rating of outstanding on her annual performance appraisal. When she was hired, she was told that she automatically would be considered for promotion to the next grade after 12 months of satisfactory performance. Because the clerk typist is noncompetitively entitled to a promotion, she is an employee and not an applicant. The employer, therefore, only may make a disability-related inquiry or require a medical examination that is job-related and consistent with business necessity. Example C: A newspaper reporter, who regularly works out of his employer's New York headquarters, is temporarily assigned to its bureau in South Africa to cover the political elections. Because the reporter is on a temporary assignment doing the same job, he is an employee; the employer, therefore, may make disability-related inquiries or require medical examinations only if they are job-related and consistent with business necessity. JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY Once an employee is on the job, his/her actual performance is the best measure of ability to do the 20