EEOC Expands Reach of Pregnancy Discrimination Act

stork-and-baby

On July 14, 2014 the Equal Employment Opportunity Commission (“EEOC”) issued its first “enforcement guidance” on the Pregnancy Discrimination Act (“PDA”) since 1983.  One of the more significant aspects of the Guidance is the EEOC’s view of an employer’s duty to accommodate pregnant workers under the Americans with Disabilities Act (ADA).

The EEOC now takes the position that employers must accommodate a pregnant employee’s work restrictions to the same extent it accommodates non-pregnant employees with similar restrictions.

This means, in the EEOC’s view, that employers who offer light duty work to individuals injured on the job must also offer light duty work to pregnant employees with work restrictions, regardless of the fact that the light duty policy only applies, by its terms, to those employees who have restrictions stemming from a work related injury.

The EEOC’s Enforcement Guidance is quite extensive.  The entire Guidance document can be found here:

http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm .

The EEOC also issued a “Questions & Answers” document, found here:

http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm .

As if that wasn’t enough summer reading, the EEOC also issued a “Fact Sheet” that summarizes the PDA’s requirements at:

http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm .

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

3 AMERICANS WITH DISABILITIES ACT MYTHS

adasigning2

Although the Americans with Disabilities Act (“ADA”) was enacted in 1990,  employers and employees still hold certain misconceptions about the law and its requirements.  Here are three common myths surrounding the ADA:

MYTH #1 – The company can condition an employee’s return to work on the employee providing a “full medical release” without restrictions.

REALITY:  The company can require a medical release before an employee can return from a medical leave.  But, it cannot demand that the release be “restriction free.”  Rather, if the employee presents  restrictions with the release, the company must determine if it is able to provide a reasonable accommodation to the employee to enable the employee to perform the job’s “essential functions.”

MYTH #2 – If an employee’s disability is controlled by medication(s), the employee is not disabled.

REALITY:  The amendments to the ADA make clear that an employer cannot take into account the mitigating effects of medication or equipment on the employee’s medical condition in assessing whether the employee has a disability.  The employee can still be considered disabled even if the medication or device adequately controls the employee’s symptoms.

MYTH #3 – A company can enforce a leave of absence policy that provides an employee will be terminated if unable to return from a medical leave after a specific number of weeks or months.

REALITY:  Although a “leave of absence” can be a reasonable accommodation, the Equal Employment Opportunity Commission (“EEOC”) takes the position that an employer cannot “automatically” terminate an employee if the employee is unable to return to work after a specific period of time (e.g. 6 months or a year).  Rather, the EEOC views such “blanket” policies as violating the ADA’s requirement that the employer treat each accommodation situation on an individual basis.  Instead, the employer would have to establish that no other reasonable accommodation exists before terminating the employee.

 

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

Fight Club’s First Rule of HR – You DO NOT Talk About Your Lawyer

Remember the classic scene in the movie Fight Club?  Brad Pitt, founder of the “Club,” is talking to prospective pugilists about its rules.  He boldly declares the First Rule of Fight Club: “you do not talk about Fight Club.”  He then gives the Second Rule: “you DO NOT talk about Fight Club.”  Needless to say, everyone got the point – keep your mouth shut to avoid trouble.

In homage to Fight Club’s simple genius, I offer a modified version of this Rule for Human Resource Managers:

YOU DO NOT TALK ABOUT YOUR LAWYER.

You see, part of my job as a management side employment lawyer is preventative in nature:  I  consult with companies before they make a termination decision.  I do so in order to help them (hopefully) avoid lawsuits, and to put them in the best position to defeat any litigation that ensues.  Among other things, the client and I discuss the rationale(s) for the termination decision, the performance history of the employee, the existence (or lack thereof) of supporting documentation, whether the company is following its own disciplinary policies and/or practices, and the legal risks involved if the employee falls into a “protected” classification under discrimination laws.

These attorney-client discussions are treated under the law as “confidential” – they are protected from involuntary disclosure by the “attorney-client privilege.”  I cannot ethically disclose them.  Likewise, the company representative I am talking with cannot generally be forced to reveal them at deposition, in an interrogatory answer, or at trial.  This protection is critical, as it allows the client and I to engage in candid discussions of sensitive issues, without the fear of later disclosure.

Unfortunately, HR managers often violate my modified Rule. They say things like “we checked with our lawyer and he told us ….,” or “we will talk with our lawyer and get back to you”  in termination or disciplinary meetings with employees, or when discussing “reasonable accommodations” with them. To a degree it is understandable, as part of the normal  “give and take” of a conversation with an employee.

Moreover, on their face such remarks seem harmless.  But in reality, they are subtly dangerous.  Why? First and foremost, the client may have just waived the attorney-client privilege.  Remember, the privilege is for the client’s benefit.  But it can also be waived by the client. Any statement that references the content of a client’s prior conversation with their lawyer will likely be construed (or at least argued) as a “waiver” of the privilege.

If waived, the employee’s lawyer could ask the client probing questions about the details of that conversation, including all statements made before the decision to discipline, discharge or not accommodate.  This could result in the disclosure of comments that, even if not acted upon by the client, will be presented as evidence of a discriminatory or retaliatory intent, and/or at least an awareness of the potential for litigation.  Such statements will be trumpeted as “smoking guns” for the company’s “real” motivation behind its decision.

Second, such comments often “raise a flag” in an employee’s mind.  The employee thinks his situation has become “serious” –  for goodness sake, the company just told him/her that its lawyer has become involved!   With this knowledge, the employee usually does one of a couple of things: (a) he becomes very sensitive and files a “retaliation” claim for any adverse employment action taken against him, believing it was caused by his raising of a “legal” issue; or (b) goes out an immediately retains his own lawyer to advocate on his behalf; or (c) both.

None of these outcomes are positive for the company.  So apply the First Rule of HR:

YOU DO NOT TALK ABOUT YOUR LAWYER

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws