Texas Employee Rights
By Danny Wash
Complying With ‘Reasonable Accommodation’ Requests
By Myra Creighton This article by Myra Creighton was first featured in Risk Management magazine.
Employers must understand their accommodation obligations. Denying an accommodation request because the employee is not disabled is a risky proposition.
Under the Americans with Disabilities Act (ADA), disability is still defined as “an impairment that substantially limits a major life activity,” but the meaning of those words is considerably different now. Major life activities now include major bodily functions and the term “substantially limits” is undefined. Further, the term “disability” is to be broadly interpreted, and the positive effects of mitigating measures such as medication, physical therapy, etc., cannot be considered in the disability analysis.
A “reasonable accommodation” is a change in the work environment or in the way a job is customarily done, or in the pre-employment process that gives a disabled individual equal employment opportunities. Employers must accommodate a disabled employee when the employee or his representative (e.g., a physician) tells the employer that he needs an adjustment or change at work because of his impairment.
Individuals do not have to mention the ADA or use the phrase “reasonable accommodation.” They simply must connect the requested change to their impairments. An employer has to initiate the interactive process only if it:
Knows the employee is disabled;
1. Identify the job’s essential functions.
2. Consult with the employee and/or employee’s physician to determine the specific limitations at issue.
3. Consult with the employee and identify potential accommodations and assess each accommodation’s effectiveness.
4. Select the accommodation that best serves the need of the employer and the employee.
In order to determine how to accommodate an employee, essential functions of his job must be determined. A function is “essential” to a job if it is a major or an important part of the job, as opposed to being secondary or merely desirable. Consider the following when deciding whether functions are actually essential to a position.
Does the position exist primarily to perform that function?
Employers must provide unpaid leave and hold an employee’s position during the leave unless doing so is an undue hardship. The employer may have an obligation to provide the employee leave under the FMLA, which grants eligible employees the leave regardless of whether it is an undue hardship. Indefinite leave, however, is not a reasonable accommodation because it does not enable the employee to return to his job.
An employer should not assume that a leave request without an estimated date of return or a leave request where the physician cannot immediately provide a fixed date of return is a request for indefinite leave. A leave is indefinite when the physician actually uses the word “indefinite” or indicates he does not know when the employee will be able to return. When an employee indicates that he does not know when he will be able to return to work, an employer should engage in the interactive process to determine whether the leave requested is indefinite. If the physician indicates the leave is indefinite, an employer may terminate the employee.
Modified Work Schedule
Accommodations relating to attendance or punctuality involve an intertwining of the notions of “essential function” and “reasonable accommodation.” The courts have identified three analyses used in cases dealing with requests for modified schedules:
1. whether a fixed schedule is an essential function of the job;
2. if it is, whether there is a reasonable accommodation; and
3. whether a modified schedule would enable the employee to perform the essential functions of the job.
Punctuality generally is an essential function of most positions because maintaining adequate manpower is critical to meeting construction needs. Modifying a start time in such a situation could significantly disrupt a job, which would be an undue hardship. Likewise, when a shift accommodation would cause other employees to have to do the disabled employee’s work or would mean a shift did not have a supervisor on duty for part of the shift or that coverage would be indefinite, courts likely will find undue hardship.
Reduced Work Schedule
Generally, an employer is obligated to allow an employee to work part-time as a reasonable accommodation when the part-time schedule is not indefinite. For example, if an employee returning to work after having exhausted his FMLA leave needs to work part-time for four weeks, then an employer must allow it unless doing so is an undue hardship. In a construction environment, however, a reduced schedule may be an undue hardship if the employer cannot get adequate coverage for the hours the employee cannot work.
An employee may request a shift change as an accommodation. If the shift is not an essential function and a position is available on the requested shift, the accommodation may be required. The ability to work a specific shift, however, can be an essential function of a job. For example, a shift can be an essential function if the work must be done at a particular time.
An employer never has to create a new job to accommodate an employee. Therefore, it is not required to create light-duty jobs or to eliminate essential functions for disabled employees. To the extent that a construction company decides to “create” light duty for employees injured on the job (e.g., by eliminating a lifting function), they should impose a temporal restriction on the period of time the employee can be in a created light duty job (e.g., three months).
An employer also may restrict its “created” light duty program to employees injured on the job as long as it also creates light duty for employees whose work injuries resulted in disabilities. In such a program, an employer would not be required to create light duty for a disabled employee who did not sustain a work injury.
Finally, to the extent a company sets aside a pool of positions for employees who need light duty, it also should restrict these positions to work-injured employees and indicate in writing that the position is temporary. Otherwise, employees may claim the light duty position is a permanent position.
Published in Risk Management on April 2, 2014. Thanks to Fisher & Phillips Attorneys LLP who first published the above article.
April 17th, 2014 No Comments »
By Danny Wash
Ysleta Independent School District v. Franco, 417 S.W.3d 443 (Tex. 2013)
Phillips v. Continental Tire Americas, LLC, No. 13-2199 (7th Cir. 2014)
Spurling v. C&M Fine Pack, Inc., No. 13-1708 (7th Cir. 2014)
Maverick Transportation, LLC v. U.S. Dept. of Labor, No. 12-3004 (8th Cir. 2014)
Gogos v. AMS-Mechanical Systems, Inc., No. 13-2571 (7th Cir. 2013)
Gaines v. K-Five Construction Corporation, No. 12-2249 (7th Cir. 2014)
March 17th, 2014 Comments Off
By Danny Wash
The EEOC has published a new fact sheet providing basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available here.
March 17th, 2014 Comments Off
By Danny Wash
What can an interviewing potential employer ask about your disabilities, impairments or medical issues in the first job interview:
•Employer can’t: Your potential employer can’t ask any questions about any medical issues or require a physical examination before making a job offer. Prohibited questions would be things like, “Will you need any accommodations to perform this job?” “Do you have any medical conditions that would limit your ability to perform this job?” “How long will it take for your broken arm to heal?” or “What medications are you currently taking?”
•Employer can: The potential employer may ask if you are able to perform the job before they make a job offer. For instance, questions like, “Are you able to perform all the duties of this job with or without accommodations?” “How would you perform this job task?” “Can you meet our attendance requirements?” “How many Mondays did you miss work other than holidays and scheduled vacations?” or “Do you currently use any illegal drugs?” If you come to the interview with a broken leg, it’s not unusual for the interviewer to ask what happened, but they can’t get into details about what treatment you had, how extensive the break is or how long it will take to fully heal.
•Conditional offer: If you get a job offer, it may well have conditions, like passing a drug test or a physical agility test. At that point, the employer can ask if you need any accommodations for a disability. Once you get the job offer, that’s the time to disclose if you need any reasonable accommodations. If you need, for instance, a CCTV to help you see your computer screen better, that’s something to disclose before you start working. If the employer doesn’t want to provide the accommodation, they’ll have to show an undue hardship. Make sure you’ve passed any tests and received an unconditional offer before you give notice at any existing job. You don’t want to give notice only to find out the offer was withdrawn.
•Reference checks: The employer can’t ask anything from your references that it can’t ask you. Questions about whether you needed accommodations, took Family and Medical Leave or needed time off for medical conditions are not allowed. How will you know if they ask? You probably won’t. That’s a major problem with the law, but if you have a good relationship with your former employer, they may tell you. If you get a call saying, “Wow, they asked me lots of questions about your medical condition,” then that’s a red flag that something illegal happened.
If the employer finds out about your disability either at the interview stage or after you’ve been hired and then withdraws the offer or suddenly fires you, then you may well have a disability discrimination case. If you think you were a victim of disability discrimination, I suggest contacting an employment lawyer in your state to learn more about your rights.
Thanks to Attorney Donna Ballman for the above information which you can read more about here
February 12th, 2014 Comments Off
By Danny Wash
There are many whistleblower protection statutes at the federal level that are enforced only by OSHA (Occupation Safety & Health Administration) through the Department of Labor. The OSHA website gives you information on how to file with them in order to receive assistance in bringing a whistleblower claim. There are many federal statutes that do not permit you to file a lawsuit on your own to be protected from or compensated for being retaliated against for exposing your employer’s wrongdoing. You should go to this website and determine if your whistleblower claim is covered by OSHA or you can contact a lawyer to advise you whether the claim can be brought by you or has to be brought by OSHA.
January 6th, 2014 Comments Off
By Danny Wash
Texas doctors were given a “perk” that the rest of Texas employees were not provided by the Texas Legislature in section 15.50 Texas Business & Commerce Code. The section modifies the regulation of covenants not to compete, which typically are contracts providing that an employee cannot compete with his employer when the employee leaves employment. The amended regulation gave doctors a “plum” by providing that any agreements limiting their practice must provide for a buy out of the covenant by the doctor, so that the doctor could free himself from it for a reasonable price if he so chose to do so. The law also made it mandatory to include this provision and the 14th Court of Appeals in Texas recently ruled in Laskiplus of Texas, Inc. v. Mattioli, M.D.;that the failure to have the provision invalidates the entire agreement. Obviously, the medical association had a better lobby with the Legislature than the rest of us common folk. But, don’t they always, as evidenced by their own malpractice law that grants them special protections in lawsuits when they are accused of medical malpractice.
December 2nd, 2013 Comments Off
By Danny Wash
Two areas have been in the news relating to overtime pay for employees.
The first area deals with the “fluctuating workweek”. The Fair Labor Standards Act (FLSA) requires that employees that are not qualified as exempt (usually called “non-exempt employees”) from overtime receive one & one-half times their regular rate of pay for any hours worked in excess of 40 in a workweek. This general rule applies to hourly employees and to salaried, non-exempt employees, such as clerical or certain administrative employees. The area of exempt vs. non-exempt is fairly complicated and information about these classification can be found by clicking on this link. If an employer makes a mistake in classifying an employee as exempt and does not pay overtime, the employer would owe the employee back pay at a rate of 150 percent of the employee’s regular rate for the overtime hours worked.
The fluctuating workweek exception (FWE) may apply to salaried, non-exempt employees but not to hourly employees. The key to whether or not the FWE may be utilized is the actual agreement between the employee and employer. The bottom line is whether or not there was an agreement made between the employer/employee before the method was utilized. The agreement does not have to be written and can be proven by statements or actions of the parties. The importance of the FWE is that if there is an agreement that the salary paid is intended to cover all hours worked by the employee during the workweek, then any hours worked over 40 in the week will be compensated as overtime by payment of an additional 50% of the weekly rate (instead of 150%) for each overtime hour worked (calculated by dividing the number of hours actually worked in the subject week by the salary amount for the week). An example would be if the weekly salary was $1,000 and the employee worked 50 hours during the week, the overtime would amount to $100 ($1000/50 hrs.= $20/hr; 50% of $20= $10/hr overtime rate; $10 x 10 hrs= $100 overtime pay). Here and here are postings by a law firm blog discussing in more detail and criticism of certain court rulings concerning the FWE.
The second important overtime area is one that will not be effective until January 1, 2015. This area involves home care employees. At present, home care companies can compensate their home care employees utilizing the “companionship” exemption to paying overtime and pay them on a salary basis. The exemption is generally applicable to any employee who provides services for the care, fellowship, and protection of persons who, because of advanced age or infirmity, cannot care for themselves. The exemption covers employees engaged in a wide variety of care jobs of the home bound persons. Under the new rule, the exemption will change and will only apply to individuals employed directlyby the household. Those workers who continue to work through an agency will become hourly workers subject to the duty to pay them overtime for each hour worked over 40 hours during a workweek.
October 28th, 2013 Comments Off
By Danny Wash
The Health Insurance Portability and Accountability Act (HIPAA) does not contain any express language conferring rights to sue upon a person or employee if the privacy regulations are violated. The Fifth Circuit in Acara v. Banks, 470 F.3d 569 (5th Cir., 2006) held that HIPAA does not provide a private cause of action to an individual for privacy violations but that Congress left the enforcement of the law to the Secretary of Health and Human Services. Therefore, an individual or employee who believes their privacy rights under HIPAA have been violated would need to file a complaint with said agency. Here is where you may find information on filing a complaint.
An individual may still have a common law suit for invasion of privacy for the unauthorized revelation of medical information; however, this would be separate and not involve any HIPAA protections or violations.
September 18th, 2013 Comments Off
By Danny Wash
Many people confuse the term “right to work” with “employment at will”. I hear a lot of people say that Texas is a “right to work” state and what they mean to say is that Texas is a state in which you can be fired at will. The term “right to work” state actually means that a person has the right to work at a company that has a union without having to be a member of the union. Without a the right to work law, a so-called “union shop” company could refuse to hire or be forced to hire only union employees. The right to work law does not prevent a company from having a union or union employees, it just simply means that a non-union person can still work at the company, if the company wants to otherwise hire that person.
August 8th, 2013 Comments Off
By Danny Wash
The Family Medical Leave Act (FMLA) is a great benefit for employees who are eligible and comply with the rules of the law. However, some people have the erroneous impression that they can’t be fired when they are under “doctors care”. This is absolutely wrong and believing this urban legend can get you fired. While the FMLA helps an employee out with some beneficial rules, it has a rule called “medical certification” that if ignored by the employee will cause you to lose your FMLA protection for your leave. Even if the doctor and you notify the employer that you are off with an illness that you and he believe are covered by the FMLA, if the employer sends the doctor a “medical certification” allowed by 25 CFR 825.313 (b), the doctor still must comply with the request. The doctor must fill out the medical certification and return it to the employer within 15 days. Now, here is the big catch- It is your duty as the employee to see that the medical certification is filled out properly and returned timely! Even if it is the doctor’s fault, the mailman’s fault, or the dog ate your medical certification; it is still your fault that it did not get back to the employer on time and you lose your FMLA leave protection thereby letting the employer off the hook and free them up to fire you (there is an exception is it was not “practicable due to extenuating circumstances” to return it within 15 days but this is living dangerously to depend on this exception). So, be persistent and forceful with the doctor and his staff to get the certification done and then you make sure its either timely mailed or you deliver it yourself (or someone on your behalf). I know this doesn’t seem fair but sometimes life isn’t fair and we have to accept it and follow the rules.
July 23rd, 2013 Comments Off