by Corey Zoldan
Regardless of its ultimate outcome, a still-developing disability case in federal court in Norfolk serves to emphasize that you need to proceed with caution when instituting tests—especially written tests—for current employees or job applicants. The case also highlights the critical distinction between a “disability” and an “inability” for purposes of being covered under the Americans with Disabilities Act (ADA).
Rayford Gray worked for Columbia Gas of Virginia for 31 years. He started out as a laborer and later was promoted to service technician. In 2015, Columbia decided to institute a written test for all employees. Gray took the written test but failed it three times. Although he contended that he was still able to perform the essential aspects of his job, Columbia fired him.
Gray asked Columbia to reconsider its decision because his poor test results stemmed from the fact that he had attention deficit hyperactivity disorder (ADHD) and couldn’t read. The company refused, and in September 2018, Gray went to court. His lawsuit claims that Columbia discriminated against him based on his disability by not reinstating him after he made it aware he had ADHD and couldn’t read.
At this point, Columbia hasn’t responded to Gray’s lawsuit. But if the case isn’t dismissed or otherwise resolved, we can expect to learn more details as it proceeds.
Those details may include the scope of Gray’s disability and whether he was in fact still able to perform the essential functions of his job. Additionally, if he couldn’t perform the essential functions, then the issue becomes whether Columbia needed to—and could have—provided him with reasonable accommodations that would have enabled him to continue to do his work.
Is there a causal connection?
An interesting point that neither Gray nor Columbia has yet addressed is the connection between ADHD and the inability to read.
In 2012, the U.S. 4th Circuit Court of Appeals (which is based in Richmond and whose rulings apply to Virginia employers) considered whether ADHD is a disability. In that case, Halpern v. Wake Forest Univ. Health Science, the appeals court held that “ADHD and anxiety disorders constitute disabilities giving rise to protection under the . . . ADA.” In reaching that conclusion, the court reasoned that the ADA protects against any “mental or psychological disorder, such as . . . specific learning disabilities.” Clearly, that language includes ADHD and dyslexia.
The situation becomes trickier, however, if Gray’s ADHD and inability to read are unrelated. The Equal Employment Opportunity Commission (EEOC) has previously commented in the appendix to its ADA regulations that “disadvantages such as poverty, lack of education or a prison record are not impairments.” Thus, if a person is unable to read because of a poor education, that person isn’t disabled.
This distinction between disability and inability is likely to be an issue that will be developed as the case moves forward. In all likelihood, addressing the matter will require expert testimony about the nature and effects of ADHD and its impact on Gray’s ability to read and other cognitive functions. Gray v. Columbia Gas of Virginia, 2:18-cv-00475-HCM-LRL.
Avoiding ADA claims
While the distinction between ADHD and an inability to read might ultimately allow Columbia to prevail in the lawsuit, there are several proactive, preventive steps you can take to avoid disability discrimination lawsuits in the first place. The EEOC recommends that you offer an oral test as an alternative to a written test for employees who have a disability that hinders their ability to read. If administering the test in an alternative format isn’t a viable option, the EEOC suggests assessing the ability of a disabled applicant or employee “through an interview, or through education, license, or work experience requirements.”
Further, if the employee or job applicant first becomes aware of having a disability that could have affected the test results only after the test is given, which is what Gray claims, you should have a policy requiring him to inform you immediately. At that point, you should consider providing a retest if a reasonable accommodation is available. Bear in mind, however, that the EEOC says you aren’t required to accommodate when an employee seeks a retest for an “essential function of the position and no reasonable accommodation was available to enable the individual to perform that function, or the necessary accommodation would impose an undue hardship.”
Because an appropriate assessment of your obligations under the ADA involves a number of complex issues, it’s always wise to consult with experienced employment counsel to make sure you have addressed all the necessary factors and have a solid factual and legal basis for the actions you take.
Editor’s note: Because of the various important issues Gray’s lawsuit raises for all employers, we will monitor the legal proceedings and keep you informed of key developments as the case moves forward.
The firm proudly announces that the following attorneys have been recognized by their peers in The Best Lawyers in America© for their achievement in certain fields of law.
- Bernard J. DiMuro (Commercial Litigation, Personal Litigation – Plaintiffs and Defendants)
- Nina J. Ginsberg (Criminal Defense – General Practice and White-Collar)
- Michael S. Lieberman (Appellate Practice)
- Jonathan R. Mook (Employment Law – Management)
- Andrea L. Moseley (Criminal Defense – General Practice)
- Stacey Rose Harris (Commercial Litigation)
- Harvey B. Cohen, Retired (Commercial Litigation and Personal Injury Litigation – Plaintiffs and Defendants)
The Best Lawyers in America selection process involves a rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. The methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. We are very proud of our attorneys for being recognized by their peers for excellence in their specialties of law. Read more about them in here.
It is with pride and honor that we announce that Nina Ginsberg, one of our founding partners has been installed as President Elect of the National Association of Criminal Defense Lawyers (NACDL). At the Association’s annual meeting in Miami Beach, FL, on July 29, all new officers were sworn in and officially took on their new roles. However, taking on responsibilities for the Association is not new for Nina. She has been active and engaged for decades, serving on countless committees, many times as co-chair or chair as well as nominating committees including the Executive Director Screening task force. She has received three presidential commendations and has served on the Board of Directors several times. To read more about this appointment and her many accomplishments, click here.
By: Jonathan R. Mook
As published by HRHero.com, a division of BLR, in the Virginia Employment Law Letter
Dealing with employees on Family and Medical Leave (FMLA) always is tricky. You can incur liability for interfering with an employee’s leave rights as well as for retaliating against an employee for seeking to exercise those rights or taking FMLA leave. Additionally, oftentimes an employee who qualifies for FMLA leave due to a serious health condition also may be disabled under the Americans with Disabilities Act (ADA). In this circumstance, you have two federal laws to worry about.
To help sort through these issues, we have asked DiMuroGinsberg partner, Jonathan R. Mook, who is a nationally recognized authority on the ADA and leave issues, to provide our readers guidance on how to avoid both FMLA and ADA claims.
Is it permissible to terminate an employee who is on FMLA leave?
The answer is “yes,” but proceed with care and caution. Sometimes, while an employee is out on FMLA leave, the employer discovers that the employee has not been doing his or her job or has been engaged in some type of workplace misconduct that would justify termination. In this circumstance, the FMLA allows an employer to terminate the employee because it is a reason other than the employee’s taking or being entitled to the leave. Bear in mind that any evidence of poor performance or misconduct should be sufficiently documented. That way, if, and when, an FMLA complaint with the Department of Labor or a lawsuit is filed, you will be able to present evidence that the basis for the employee’s termination was other than the employee’s taking (or need for) FMLA leave.
Even if it is permissible, do you advise the termination for misconduct of employees on FMLA leave?
I usually advise employers to wait and allow the employee to complete his or her FMLA leave. When the employee returns to work, then the employer can confront the employee with the information that the employer has obtained while the employee was out. During the meeting with the employee, the employer should ask the employee if there is any excuse for the employee’s misconduct or any mitigating factors. If there are not, the employer can then take a job action.
When is it permissible to terminate an employee who has been on FMLA leave and has returned to work?
Again, it is permissible to terminate an employee for reasons other than the taking of FMLA leave (or the need for such leave), such as poor performance or misconduct. The law does not require you to keep an unqualified or disruptive employee. The only circumstance in which an employer should consider letting an employee go for reasons relating to FMLA leave would be if the employee has falsified the FMLA documentation that the employee submitted to the employer to be approved for FMLA leave. If an employee engages in fraud with respect to the taking of FMLA leave (for example, taking FMLA leave to go on vacation rather than for medical treatment), then the employer has a basis for termination.
What steps should an employer take to prepare for the possibility that an FMLA leave request will be followed by a need for an ADA reasonable accommodation?
Normally, it is the responsibility of the disabled employee to request a need for an ADA accommodation. An employer need not anticipate an accommodation request. However, where an employee has a serious health condition that rises to the level of an ADA disability, an employee may request leave for medical treatment and, possibly, recuperation. If the employee is entitled to FMLA leave, the employer will provide the employee with the 12 weeks of FMLA leave (or longer under certain state laws). After the FMLA leave expires, the employee may be entitled to additional leave as a reasonable accommodation under the ADA.
What is the EEOC’s position on leave as an ADA accommodation?
The U.S. Equal Employment Opportunity Commission (EEOC) has said that leave for medical treatment is a type of reasonable accommodation and that an employer may need to extend the leave until it becomes an undue hardship on the employer’s operations. However, not all courts agree with the EEOC’s analysis. In an opinion authored by Judge (now Justice) Neil Gorsuch, the Tenth Circuit Court of Appeals in its 2014 decision in Hwang v. Kansas State University said that an employer was not required to provide an employee suffering from cancer additional time off after the employer had already granted six months of paid leave. Recently, in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit said that a request for leave of several months over and above the twelve weeks of FMLA leave was not required as an ADA accommodation.
If additional leave is not granted, must the employer consider alternative accommodations?
Importantly, even if the accommodation of a multi-month leave of absence is not required under the ADA, you still need to explore other accommodations to allow a disabled employee to return to work following the expiration of that employee’s FMLA leave. Such accommodations could be the elimination of those marginal job functions that the employee cannot perform or transferring the employee to a vacant position that the employee can perform notwithstanding the employee’s limitations caused by the disability. You need to think ahead to take into account these possibilities. Unfortunately, there is not one easy answer. To make sure you have checked all the boxes, it always is advisable to consult with experienced employment counsel.
Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at firstname.lastname@example.org.
Not only must you be vigilant in preventing workplace sexual harassment in the age of #MeToo, but you also may face an uphill battle in defending against gender-based pay discrimination claims under the Equal Pay Act (EPA), according to a new decision from the U.S. 4th Circuit Court of Appeals—which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
While EPA claims currently may not be as common as claims brought under Title VII of the Civil Rights Act of 1964, that could change in light of the 4th Circuit’s recent decision in the case of the Equal Employment Opportunity Commission v. The Maryland Insurance Administration. Whereas Title VII merely requires an employer to provide a reason that explains a wage disparity, the Equal Pay Act requires that you prove that your reason actually explains the wage difference between male and female employees.
Jayna Genti takes a closer look at the case in the online article “Employers Face Heavy Burden When Defending EPA Claims” for the HR Daily Advisor. Along with her analysis of the case and its relevant applications, Jayna offers some “best practices” advice for employers on documenting complaints and actions. To read Jayna’s article, click here.
DiMuroGinsberg is proud to announce that founder and managing partner, Ben DiMuro, has been selected for inclusion in Virginia Lawyers Media inaugural class of the “Virginia Lawyers Hall of Fame”.
The Virginia Lawyers Hall of Fame honors Virginia lawyers age 60 and older. Criteria for inclusion in the Hall include career accomplishments, contributions to the development of the law in Virginia, contributions to the bar and to the commonwealth at large and efforts to improve the quality of justice in Virginia.
Ben is a former President of the Virginia State Bar and is widely known for his expertise in legal ethics, legal malpractice and business and employment litigation. Ben’s lengthy service to the Bar includes chairing the Task Force on Public Access to the Disciplinary System, serving on the Committee to Study the Code of Professional Responsibility, serving as a faculty member on the Bar’s Course on Professionalism and serving on the Bar’s Task Force on Corporate Counsel.
Ben is a long-time supporter and a former Board Member of the Special Olympics of Virginia. He is also a member of The Fellows of the American Bar, the Litigation Counsel of America and The Virginia Law Foundation.
For the Virginia Lawyers Media full press release, click here.
We are proud to announce that four of our attorneys will be listed in the 2018 Virginia SuperLawyers publication. SuperLawyers recognizes attorneys who have distinguished themselves in the practice of law and who stand out in their respective practice areas. Less than 5% of the state’s lawyers receive this honor.
Congratulations to our Virginia SuperLawyers:
Bernard J. DiMuro, one of the Top 100 for Business Litigation
Nina J. Ginsberg, one of the Top 50 for Criminal Defense
Michael S. Lieberman for Business Litigation
Andrea L. Moseley for Criminal Defense
DiMuroGinsberg is a litigation and business firm located in Alexandria, Virginia. The firm’s practice focuses primarily on general and complex litigation in the areas of corporate and commercial law, intellectual property, business torts, criminal law, white collar crime, employment law, personal injury, and professional liability and ethics. The firm’s complimentary business law practice offers services in the areas of business contracts, corporate debt and capital finance, business transactions, outsourcing, mergers and acquisitions, and corporate governance.
Recently, United Parcel Service, Inc. (“UPS”) agreed to pay $2 million to end a nationwide disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). The EEOC had charged UPS with violating the Americans with Disabilities Act (“ADA”) by maintaining an inflexible leave policy, whereby the company fired disabled employees automatically after 12 months of leave, without affording them the opportunity of taking additional leave or otherwise accommodating their return to work.
The settlement with UPS highlights the danger employers face if they have inflexible leave policies, even if those policies are generous like that of UPS. To better understand what the UPS settlement means for employers, DiMuroGinsberg partner, Jonathan R. Mook, addresses a number of the major questions involving this important issue:
What is the EEOC’s view on leave caps under the ADA?
Put simply, the EEOC says absolute leave caps are verboten. That’s because they do not allow for the possibility of reasonably accommodating a disabled employee by extending that individual’s leave beyond the cap. Leave to allow a disabled employee to obtain medical treatment or to recuperate may be a reasonable accommodation under the ADA. Whether leave is appropriate in a given instance is an individualized, interactive process between the person with a disability and the employer. An absolute leave cap does not allow for this process to occur and, hence, is considered to be a per se violation of the ADA by the EEOC.
A 12-month cap on leave is lengthy. Why can this amount of leave not be enough under the ADA?
A 12-month leave cap is, indeed, extremely lengthy. Nonetheless, there is a possibility that within a short time following the 12 months, a disabled employee will be able to return to work. Hence, the EEOC takes the position that 12 months may not be enough leave required by the ADA.
Should employers consider doing away with their leave caps?
I would not recommend that employers do away with the leave caps they have instituted. There are many practical reasons for an employer to have a cap. The ADA simply requires that before an employer terminates an employee when that employee’s leave exceeds the cap, the employer make an individualized assessment as to whether providing some reasonable additional leave will be sufficient to allow the employee come back to work.
How long should a leave cap be?
In light of the EEOC’s position on leave caps and the fact that even a 12 month cap on leave may need to be lengthened as a reasonable accommodation, I would recommend that employers institute a leave cap of substantially less than 12 months. Due to the FMLA, larger employers will need to have a leave cap of at least 12 weeks of medical leave, and possibly longer depending upon state laws. Thus, an employer should consider instituting a leave cap of at least 12 weeks. However, how much more than 12 weeks will depend upon the nature of the employer’s business and its workforce.
How should employers address requests for leave beyond the employer’s leave cap?
Just as with any other ADA request for reasonable accommodation, an employer should evaluate an employee’s request for additional leave, as well as other types of accommodations that may allow the disabled employee to return to work. One such accommodation might be transfer to a vacant position that the employee who is out on leave could perform.
If the employee keeps requesting an extension of his or her leave, at some point, the employer will be in a position to document why granting more leave would create an undue hardship. That may be because the position must be filled or the employee cannot provide medical evidence that with some specific amount of additional leave, the employee will be able to return to work.
Do the courts follow the EEOC’s position on leave as a reasonable accommodation?
Most do, but recently the Seventh Circuit Court of Appeals, in Severson v. Heartland Woodcraft, Inc., ruled that the ADA does not require multi-month leave. The Seventh Circuit covers Illinois, Indiana and Wisconsin, so its decision does not directly apply to Virginia employers. However, the Seventh Circuit’s position clearly will be cited as persuasive reasoning that should limit the amount of leave an employer must provide.
Without question, the amount of leave that an employer may be required to provide to an employee as a reasonable accommodation will continue to be the subject of debate in the courts. At some point in time, it is likely the Supreme Court will be called upon to provide some definitive guidance as to the proper analysis.
What’s the takeaway for employers?
Compliance with the ADA requires an individualized approach. When dealing with a disabled employee, employers may not refuse to consider possible accommodations because those accommodations would conflict with an employer’s rules. A leave cap is one of those rules that may need to bend as a reasonable accommodation. Under the ADA, there are no absolutes. If an employer is going to deny a possible accommodation, including additional leave, the employer should be able to justify that denial with fact based reasons as to why implementing the accommodation would be unreasonable and create an undue hardship.
This article was written by Jonathan R. Mook. For more information about this topic and other labor and employment law topics, please contact Jonathan Mook at 703-684-4333 or by email at email@example.com.
We are pleased to announce that DiMuroGinsberg partner, Jonathan R. Mook, has been named to the Editorial Advisory Board of Employment Law 360 – an online newsletter that provides daily legal news and analysis on labor and employment law developments. Law 360 subscribers include each of the top 100 law firms in the U.S., corporate legal departments, and major federal and state agencies.
As a member of the Editorial Advisory Board, Jonathan will provide Law 360 editors and reporters with suggestions about coverage of cutting-edge court decisions, important legislative developments, and emerging trends in labor and employment law.
Jonathan heads DiMuroGinsberg’s labor and employment law practice and represents employers and businesses on matters relating to employment law, business torts, and business disputes. Jonathan also is a nationally recognized authority on the Americans with Disabilities Act and is the author of two treatises on the statute, both published by LexisNexis.
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