Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

The U.S. Department of Labor, in its Family and Medical Leave Act Advisor, recently clarified what an employer may require of an employee seeking to return to work from an illness. If the employer requires, the employee must provide a medical certification of the employee's fitness to return to work if the FMLA leave was taken for the employee's own serious health condition.

The employer's requirement must be made pursuant to a practice or uniformly-applied policy and FMLA applies only to the health condition which caused the employee to be unable to perform the functions of the employee's job. For example, if the employee took FMLA leave because a back injury prevented the employee from loading trucks, the employer could not require the employee to submit certification regarding HIV.

The employer's requirement for a fitness for duty medical certification must be communicated to the employee in writing, usually at the time the employee provides notice of the need for leave, or immediately after leave begins if unforeseeable.

The medical certification of the employee's fitness to return to work may be only a “simple statement” from the employee's doctor.

The requirement for a certificate of fitness to return to work must be job-related and consistent with business necessity pursuant to the Americans with Disabilities Act (ADA) as detailed in Regulations 29 CFR Part 825.310.  In a recent case I worked on, the trial judge interpreted the “job related” requirement very narrowly. The Judge opined that an employer must give specific job descriptions/job duties of all vacant positions to the employee’s physician, so the employee’s work restrictions may be precisely evaluated for his return to work. The judge opined that simply asking an employee for his/her “work restrictions” was overbroad and a violation of the law.  

To avoid this situation, employers may wish to err on the side of caution and be very precise when asking for “job-related” medical restrictions. For example, consider:

• Having specific jobs in mind when you make this request of your employees 
• Supplying the employee with written job descriptions that set forth the physical and mental requirements of the job

If all the employer's notification responsibilities have been met, and the employee fails to provide a fitness certificate as required at the time the employee is to return to work, the employer may delay the employee's return to work until the fitness certificate is provided.

Under some circumstances, if the employee fails to provide the fitness certificate, the employee may be terminated as noted in Regulations 29 CFR Part 825.311(c). 

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In a recent newsletter by HR Strategies, Staffing Concepts International, Inc. outlined some of the changes employers can expect with the new amendments to the Americans with Disabilities Act (ADA).

The Americans with Disabilities Act Amendments Act (ADAAA) was signed into law by President Bush on September 25, 2008, and became effective on January 1, 2009. The ADA prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities and transportation. 

Employers should, by now, have trained their managers and supervisors about the new changes in effect under the ADAAA. If a company has 15 or more employees, they must comply with the ADA and the ADAAA. The ADAAA broadens the definition of a “disability” making more employees subject to protection under the ADAAA.  

Disability is now defined as:

• A physical or mental impairment that substantially limits one or more major life activities (see list below)
• A record of such impairment
• Being regarded as having such an impairment

The ADAAA specifically defines a “major life activity” to include, but not be limited to:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

 The ADAAA states that a major life activity includes the operation of a major bodily function, including, but not limited to:

• Functions of the immune system
• Normal cell growth
• Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

In short, the definition of disability has expanded. Employers and EEO investigators should no longer be questioning merely whether someone is disabled, but rather, questioning whether a reasonable accommodation can be made. If an employee is only “regarded as" having a disability, no accommodations need to be made for that person.  If a disability is under control with medication (aka "mitigating measures"), or in remission, he or she can still be considered disabled under the ADA’s protections.

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In addition to protecting qualified applicants and employees with disabilities from employment discrimination, one ADA provision – the "Association" provision (42 U.S.C. § 12112(b)(4))-- protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.

Protection Against Adverse Actions

According to the EEOC’s Questions and Answers About the Association Provision of the Americans with Disabilities Act, the purpose of the “association” provision is to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.  Thus, it makes unlawful actions such as:

• Refusing to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable
• Firing an employee who works with people who are HIV-positive or have AIDS based on the assumption that the employee will contract the disease
• Denying an employee health care coverage available to others because of the disability of an employee's dependent

Reasonable Accommodation Not Required

However, the ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person's association with someone with a disability.  Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.

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A large number of EEO investigations I have done have involved some aspect of disability or a medical leave of absence claims—even if "Disability Discrimination" is not the main claim being made by the employee complainant.  EEO investigations are oftentimes complex with many different legal issues, and “disability” may be just one of many allegations. 

New twists and turns on disability claims are being made by complainants all the time, and no two cases are ever the same. Sometimes a complainant’s attorney is simply being creative with the law and trying to push the envelope to see how far the law can be stretched into uncharted territory. Other times, the claim is not really a new type of disability claim at all—but rather, it’s a nuance in the law that has gone largely unnoticed, unpublicized, or occurs infrequently.  

One of these nuances of disability discrimination law is Caregiver Discrimination. While an employer’s managerial employees are generally familiar with their obligation not to discriminate against qualified disabled individuals, they may not realize that the American's with Disabilities Act (ADA) also provides limited protection for individuals who may not have disabilities at all.  Specifically, the ADA prohibits employers from excluding or otherwise denying equal jobs or benefits to persons (disabled or not) who have a relationship or association with an individual with a disability.

Caring for individuals with disabilities – including care of adult children, spouses, or parents – is a common responsibility of workers.   According to the U.S. Census Bureau, Disability and American Families: 2000, nearly a third of families have at least one family member with a disability, and about one in ten families with children under 18 years of age includes a child with a disability. Most men and women who provide care to relatives or other individuals with a disability are employed. See Informal Caregiving: Compassion In Action, published by the U.S. Department of Health and Human Services.

An example of a violation would be an employer refusing to hire a job applicant whose wife has a disability because the employer assumes that the applicant would have to use frequent leave and arrive late due to his responsibility to care for his wife. See e.g., Abdel-Khalke v. Ernst & Young, LLP, No. 97 CIV 4514 JGK, 1999 WL 190790 (S.D.N.Y. Apr. 7, 1999) (employer refused to hire applicant because of concern that she would take time off to care for her child with a disability).

Caregiver discrimination claims can be tricky, so EEO investigators need to stay up on the many nuances so they don't unknowingly provide a false report of no liability.

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