Posted on May 6, 2008 by Christina Hausner

Interaction Between FMLA & ADA - Don't Get Tripped Up

The Family and Medical Leave Act (FMLA) turns 15 this year and workers’ rights advocates, the Bush Administration and the Labor Department are weighing in on proposed changes to the law. According to an April 24 article in the Washington Post,

“...workers would have to tell their bosses in advance when they take nonemergency leave, instead of being able to wait until two days after they left. They would have to undergo "fitness-for-duty" evaluations if they took intermittent leave for medical reasons and wanted to return to physically demanding jobs. To prove that they had a "serious health condition," they would have to visit a health-care provider at least twice within a month of falling ill. What's more, employers would have the right to contact health-care providers who authorized leave.”

As I reviewed these proposals it occured to me that some of these changes may serve to blur the distinction between the FMLA and the Americans with Disabilities Act of 1990 (ADA). It is not uncommon for employees to bring claims under both the FMLA and ADA. Avoid getting tripped up in the similarities of FMLA and ADA by understanding the distinctions between the two laws.

FMLA

ADA
  • is enforced by the Department of Labor (DOL)
  • is enforced by the Equal Employment Opportunity Commission (EEOC)
  • applies to employers with 50 or more employees
  • applies to employers with 15 or more employees
  • eligible employees must have been employed for at least 12 months and worked 1,250 hours in the previous 12 months of employment
  • no eligibility restrictions
  • only requires an individual (or family member) to have a "serious health condition"
  • only covers individuals with a disability
  • there may be individual liability
  • no individual liability
  • no punitive or emotional damages can be awarded
  • punitive and emotional damages can be awarded
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Posted on May 15, 2007 by Michael Moore

Violence in the Workplace: Observations and Recommendations

There are psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

  • Previous history of violence, toward the vulnerable, e.g., women, children, animals
  • Loner, withdrawn; feels nobody listens to him; views change with fear
  • Emotional problems, e.g., substance abuse, depression, low self-esteem
  • Career Frustration, either significant tenure on the same job of migratory job history
  • Antagonistic relationships with others
  • Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order .

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and the treatment of employee conduct that exhibits violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

34. When can an employer refuse to hire someone based on his/her history of violence or threats of violence?

An employer may refuse to hire someone based on his/her history of violence or threats of violence if it can show that the individual poses a direct threat. A determination of "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence.

30. May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?

Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.

Given the legal limitations confronting employers in their efforts to provide a safe workplace, the following are some suggestions in development of a Violence Program:

  • Establish and communicate a written violence policy
  • Consider pre-employment assessments and background checks
  • Establish an Employee Assistance Program
  • Train supervisors to recognize warning signs of employee violence
  • Recognize "at risk" situations like employee discipline or discharge and plan accordingly
  • Consider professional evaluations of at-risk employees based on objective signs of workplace problems
  • Assess workplace security measures
  • Develop and Communicate a Disaster Management Plan
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Posted on April 20, 2007 by Christina Hausner

Employment Screening and Background Checks - Part III

Many employers utilize some form of pre-employment testing to assist them in hiring decisions. A 2000 study by the American Management Association reported that 69% of firms used some form of job skills testing and 33% used psychological testing. 

There are general legal restrictions on the use of pre-employment testing in addition to the general prohibitions on discrimination found in Title VII and the Pennsylvania Human Relations Act. The Uniform Guidelines on Employee Section Procedures prohibit the use of a test or selection process that has an adverse impact on individuals in a protected class unless the test has criterion-related, content and construction validation studies. The validation studies must consist of empirical data demonstrating that the test is (1) predictive of performance of important elements of job performance; (2) contains content which tests important aspects of performance on the job; and (3) consists of procedures that assess identifiable characteristics that have been determined to be important to job performance.

Both the ADA and the Pennsylvania Human Relations Act prohibit the use of "medical tests" prior to an employer extending a conditional offer of employment. A medical test is generally one that seeks information about an individual's physical or mental health or impairments. Courts examining whether a test is "medical" have looked at the following factors: (1) administration or interpretation of the test by a medical professional; (2) intent of design of the test to reveal a medical or mental impairment; (3) conducting the test in a medical setting; (4) measurement of the individual's psychological responses to performing a task; (5) necessity of medical equipment to perform the test; and (6) invasive nature of the procedure.

Following is a summary of some of the more popular pre-employment tests employed by businesses to assess applicants:

 

  • Psychological and Personality Tests

Psychological or personality tests are increasingly popular tools used to evaluate prospective employees as well as existing employees.   There is no absolute legal bar to using these tests as long as the administration of the testing is conducted in accordance with the EEOC Guidelines on a non-discriminatory basis, and as long as the tests are not "medical tests" under the Americans with Disabilities Act.

Generally, psychological tests that are designed to identify a mental disorder or impairment are considered medical examinations, but that personality assessments that measure personality traits such as honesty, preferences, and habits are not. Distinguishing the two types is not an easy task and even courts have come to different conclusions. In Karraker v. Rent-A-Center and in Saraka v. Dayton Hudson, courts determined that the Minnesota Multiphasic Personality Inventory (MMPI) was considered a "medical examination" under the ADA because it was designed to reveal mental impairment. As a medical test, the employers who used it as a pre-employment test violated the ADA. On the other hand, in Miller v. City of Springfield, a court determined that the MMPI was an appropriate job-related screening tool that was used by a police department in a manner that was consistent with business necessity.

Pennsylvania courts have considered the validity of an honesty test (the Reid Test) in the context of an employee's refusal to take the test and whether his refusal constituted "willful misconduct" for the purpose of unemployment compensation eligibility. The court, in Heins v. UCB, determined that the employer's test requirement was job related even if the test might not have been of the highest reliability. The employee's refusal to take the test was unreasonable and he was denied unemployment.

  • Skills Tests and Functional Capacity Tests

Employers have long used simple job related tests like typing and math tests to assess the skills of job applicants. Intuitively these measures of important job functions have not been widely scrutinized by courts or government agencies. However, as the sophistication of employers has increased so has the "simple" skills test. Today many employers utilize functional capacity tests or work tolerance screening which are job specific tests in which applicants perform some or all of the job functions and are observed and evaluated. While such tests seem intuitively job related, the EEOC takes the position that such tests must meet the Uniform Selection Guidelines described above. In one situation, the EEOC won a lawsuit challenging a work tolerance screening that had a disparate impact on women. The court in EEOC v. Dial Corp., ruled that the strength and lifting test had no demonstrable business necessity and no content or criterion validity.

  • Drug and Alcohol Tests

Drug tests to determine the current use of illegal drugs are not considered medical examination under the ADA, whereas blood, urine, and breath analyses to check for alcohol use are.  The significance of this is that while drug testing is permitted before a conditional offer of employment, alcohol testing is permitted only after conditional offer of employment. Other types and circumstances for medical tests and examinations are limited by the EEOC to circumstances described in its Guidance on the Medical Examinations under the ADA

  • Polygraph Tests

Employers may not use a polygraph or lie detector test as a pre-employment screening devise under the restrictions contained in the federal Employee Polygraph Protection Act except:

    1. To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of an investigation; and
    2. To prospective employees of armored car, security alarm, and security guard firms who protect facilities, materials or operations affecting health or safety, national security, or currency and other like instruments; and
    3. To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who will have direct access to such controlled substances, as well as current employee who had access to persons or property that are the subject of an ongoing investigation.
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Posted on March 22, 2007 by Michael Moore

Temporary Staffing Agency Relationships: Who is the employer for legal compliance?

Staffing is a critical and time consuming function for human resource professionals. To expedite the process, many employers turn to staffing agencies to assist in or even take over the staffing function. Relationships with staffing agencies can take a variety of forms including temporary placements, temp to hire arrangements, and employee leasing with a professional employer organization (PEO).

 

 Many employers are surprised to learn that their company may have legal responsibility and even liability for temporary and leased employees. Liability arises when a company has the right to control the manner of the performance of the worker's activities.   When such a right to control is present, a company may be a joint employer with the temporary agency or PEO. Most common temporary agency relationships create joint employment because the temporary worker performs services at the company's business location under the direction and supervision of the company.

 

 The prime example of the joint employment principal in Pennsylvania is found in the case of JFC Temps, Inc. v. WCAB (Lindsay and G&B Packing), 680 A. 2d 862 (Pa. 1996). In JFC Temps, a worker was hired by a temporary agency, and was assigned to work for a trucking company. The worker performed his services at the trucking company, and the trucking company manager informed him of his work hours, the equipment he would be using, and the locations to which he was to drive. No representative of the temporary agency was ever at the trucking facility. The worker was injured in the course of the performance of the services for the trucking company. The injured worker sought workers' compensation benefits from the temporary agency.

Under these circumstances, the Pennsylvania Supreme Court held that the trucking company (not the temporary agency) was the injured worker's employer for worker's compensation purposes because the trucking company possessed the right to control the manner of the performance of the claimant's work. In fact, the Court noted, the temporary agency had no substantial contact with the claimant other than processing his paycheck, and, as such, could not be said to have controlled the manner of performance of the work. The Court so held despite the fact that the temporary agency had the authority to terminate the injured worker's employment.

The obvious problem for the trucking company was that the workers' compensation claim was likely uninsured since it did not consider the temporary worker to be one of its employees. This type of unexpected liability translates into other areas of the employment relationship like pension and medical benefits, payroll taxes, and discrimination laws. 

 As a joint employer, a company has compliance obligations and liability for violations of laws including the following (which are linked with case descriptions or regulations demonstrating their potential for liability):

 

Several large companies have been found liable to temporary workers and independent contractors for employment law violations.   For example, Wal-Mart paid $11 million to settle a claim against it by the U.S. Immigration Service based upon illegal janitorial workers provided to it by temporary service companies. Microsoft paid $93 million to settle two lawsuits brought by "permatemps" who claimed they should have been eligible to participate in stock purchase plans available to regular employees. Other examples are highlighted in the Temp Law Online blog detailing decisions related to all types of contingent workers.
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Posted on March 20, 2007 by Christina Hausner

FMLA, ADA, COBRA, OSHA . . . is your workforce covered?

Who's an Employer?  In the past week, I've had occasion to talk to several HR professionals about how the number of employees can define whether various employment laws apply, and that just a few employees either way can make a big difference, particularly for small employers.  Pay attention to the following shortlist, particularly if you have turnover and frequent changes in the number in your workforce.  Remember that how part time employees are counted also changes from statute to statute.  There may also be exemptions from coverage for certain industries like agriculture.    

 

      Total Number of Employees:                          Subject to the following employment laws:

  • All employers regardless of size . . . . . . OSHA, Equal Pay Act (EPA), Immigration Reform and Control Act (IRCA)
  • You have 4 or more employees . . . . . .  Pennsylvania Human Relations Act, Lancaster County Human Relations Ordinance
  • You have 15 or more employees . . . . . . Title VII,   Americans with Disabilities Act (ADA)
  • You have 20 or more employees . . . . . .  Age Discrimination in Employment Act, COBRA  
  • You have 50 or more employees . . . . . . Family and Medical Leave Act (FMLA)
  • You have 100 or more employees . . . . . . Worker Adjustment and Retraining Notification Act

The above is a partial list of statutes and law that apply to employers in Pennsylvania. For more information federal discrimination laws, consult the EEOC website.

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