As e-mail and the Internet became staples of daily life, both employers and employees began to recognize the benefits of working in one’s home with the aid of a telephone and computer connections – an arrangement commonly referred to as “telecommuting” or, alternatively, the “virtual office.”  Telecommuting is, of course, attractive to employees because of its many conveniences, but it has more than its share of benefits for employers as well.  It can, among other things, reduce office expenses, increase morale, and give employers access to the services of individuals who might be unavailable if forced to work in a more traditional environment.

While telecommuting may no longer be considered a novel concept, Yahoo’s recent ban on all work-from-home arrangements, including those that had previously been granted, put telecommuting back in the national spotlight.  The significant media attention that has been given to Yahoo’s ban may make it an appropriate time to review some of the various legal issues involved in deciding whether or not telecommuting arrangements should be allowed.

Despite its obvious attractions, telecommuting presents employers with a host of potential legal pitfalls.  For the most part, traditional employment laws are no less applicable to the “virtual office” than to the traditional office.  The unique nature of telecommuting, however, makes legal compliance an often challenging enterprise.  In the absence of careful planning, employers’ inability to closely monitor home-based employees and control their working environments can give rise to significant legal exposure.

For example, telecommuting makes it more difficult for employers to ensure compliance with applicable wage and hour laws, such as the Fair Labor Standards Act (“FLSA”) and comparable state statutes.  This is particularly true where the employees do not fall within one of the several exemptions to the FLSA’s minimum wage and overtime requirements.  Employers must make sure to develop appropriate procedures for non-exempt telecommuting employees to report their hours worked each week, and must keep adequate records to demonstrate that those employees were paid appropriate straight time and overtime compensation.

Additionally, decisions concerning telecommuting privileges may be subject to scrutiny under the anti-discrimination laws.  Employers should make sure that their telecommuting policies are applied to their employees in a non-discriminatory manner, so that employees cannot allege that they were denied telecommuting privileges because of their sex, age, race, or some other protected category.

Employers should also be aware of reasonable accommodation issues that may arise for employees who become unable to work in the office due to a disability, but are able to work at home.  The Equal Employment Opportunity Commission has opined that telecommuting is, in fact, a reasonable accommodation under the Americans with Disabilities Act ("ADA"), as long as the employee can perform the essential functions of the job and the accommodation would not cause the employer undue hardship.  Consequently, a blanket rule against all telecommuting arrangements -- without exceptions to comply with the employer's obligations under the ADA and state disability discrimination statutes -- may be subject to scrutiny.

As noted above, there are many factors that employers must consider in determining whether to allow telecommuting, under what circumstances telecommuting will be permitted, and what positions are appropriate for telecommuting arrangements.  This post only highlights some of the more common issues and challenges involved with telecommuting arrangements.  Employers are advised to become familiar with all of the potential risks and work with counsel when developing and applying telecommuting policies.

On February 20, 2013, the U.S. District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC") alleging that U.S. Steel's policy of conducting random breath alcohol tests on probationary employees violated the Americans with Disabilities Act ("ADA").  The Court agreed with U.S. Steel's contention that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC's Enforcement Guidance as unpersuasive.

In general, the ADA prohibits an employer from requiring an employee to undergo a medical examination (which includes an alcohol test) unless the medical examination is shown to be job-related and consistent with business necessity.  In the U.S. Steel Corp. case, the Court recognized that maintaining workplace safety is a legitimate and vital business necessity, and found that U.S. Steel had met its burden of demonstrating that the policy of randomly testing probationary employees for alcohol was consistent with the business necessity of maintaining workplace safety.  The Court noted that the employees at U.S. Steel's Clairton, Pennsylvania, coke manufacturing facility are in extremely safety-sensitive positions, and that some of the hazards they face include molten coke which can reach a temperature of up to 2,100 degrees Fahrenheit, dangerous heights, massive moving machinery, and superheated gasses that are toxic and combustible.  In light of these work-related hazards, the Court stated that "employees must be alert at all times" and that "no level of intoxication is acceptable on the job in these circumstances."

The Court also noted that the policy of randomly testing probationary employees for alcohol was negotiated with the union representing the employees and was contained in the Basic Labor Agreement between U.S. Steel and the union.  According to the Court, this highlighted the consensus by all parties that such testing was consistent with maintaining workplace safety.

The EEOC argued (citing its own Enforcement Guidance), that a medical examination is not job-related and consistent with business necessity unless the employer has a reasonable belief (based on objective evidence) that an employee's ability to perform essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition.  The Court determined that the EEOC's Enforcement Guidance was not persuasive and not entitled to any deference.  The Court stated:

The EEOC's vision of the ADA would defy common sense by prohibiting random alcohol testing on new employees under the counterinuitive and unsupported premise that they are not more likely to engage in risky behavior like abusing alcohol at work.  Such an outcome could result in a work environment that is less safe and would do nothing to further the purposes of the ADA . . . .

Although the Court's decision in U.S. Steel is certainly a positive one for employers, the decision does not necessarily mean that all policies requiring random drug or alcohol testing in all work environments will withstand a challenge under the ADA.  Random drug or alcohol testing of employees who do not hold safety-sensitive positions may still be found to violate the ADA if it is determined that such testing is not job-related or consistent with business necessity.  In addition, employers whose employees are represented by a union should make sure to satisfy any bargaining obligations they may have under the National Labor Relations Act before implementing a drug or alcohol testing policy.  Employers who are considering implementing a drug or alcohol testing policy should consult with their labor and employment counsel.

Guidance from the U.S. Equal Employment Opportunity Commission, issued on October 12, 2012, cautions employers that federal employment discrimination laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act may apply in certain situations involving applicants or employees who experience domestic or dating violence, sexual assault, or stalking.  This guidance, which is provided in a Q&A format, contains examples of such employment situations.

As employers are aware, Title VII prohibits employment discrimination based on race, color, sex, religion, or national origin, and the ADA prohibits employment discrimination based on disability.  These laws do not specifically protect individuals who experience domestic or dating violence, sexual assault, or stalking.  In its guidance, the EEOC recognized this, but cautioned that "potential employment discrimination and retaliation against these individuals may be overlooked.”

In the Q&A, the EEOC addresses three protections under Title VII which may be implicated in a situation that may involve domestic or dating violence, sexual assault, or stalking:  (1) disparate treatment based on sex (including treatment based on sex-based stereotypes); (2) sexual or sex-based harassment; and (3) retaliation for engaging in protected activity.  The guidance provides several illustrations of employment decisions that may violate Title VII, including:  an employer terminating an employee who was subjected to domestic violence because the employer fears the “drama battered women bring to the workplace”; and an employer declining to hire a male applicant after learning he had obtained a restraining order against his male domestic partner because the employer believes that men should be able to protect themselves.

The EEOC also addresses a number of protections under the ADA, including the prohibition against different treatment or harassment at work based on an actual or perceived impairment that may result from domestic or dating violence, sexual assault, or stalking.  As an example, the EEOC guidance provides that an employer who refuses to hire an applicant after finding out she received counseling for depression due to a sexual assault might be found to be in violation of the ADA.  The EEOC guidance also reminds employers that reasonable accommodations must be made for any disabilities that result from domestic or dating violence, sexual assault, or stalking.

The EEOC guidance does not change the existing protected categories or prohibitions under Title VII or the ADA.  Instead, the EEOC guidance provides employers with a reminder that those laws may be implicated in situations where an employee or applicant is a victim of domestic or dating violence, sexual assault, or stalking.  Employers in New York should also be aware that the New York Human Rights Law was amended in 2009 to include a specific prohibition against discrimination based on domestic violence victim status.

We all anticipated that the Americans with Disabilities Amendments Act (ADAAA) would make it easier for certain medical conditions to qualify as protected disabilities. That was, after all, the point of the Act. Earlier this year, the EEOC provided us with an example of how the ADAAA may do so when it issued an informal discussion letter noting that it will now be easier for individuals with paruresis – commonly known as “shy bladder syndrome” – to meet the statutorily revised definition of a disability. This informal discussion letter is a clear reminder that employers should not make assumptions about whether a particular condition qualifies as a disability.

Paruresis is the inability to urinate in public restrooms or in close proximity to other people, or the fear of being unable to do so. The condition is typically considered to be an anxiety disorder, but it can also consist of chronic pelvic floor dysfunction. To determine if paruresis qualifies as a “disability” under the ADAAA, the EEOC letter opinion reminds employers to conduct an individualized analysis to determine if one of the statutory definitions has been satisfied:

1. a physical or mental impairment that substantially limits a major life activity;
2. a record of a physical or mental impairment that substantially limits a major life activity; or
3. an adverse employment action taken because of an actual or perceived impairment that is not both transitory (i.e., expected to last for 6 months or less) and minor.
 

An individual with paruresis has a disability under the ADAAA if his or her condition “substantially limits” one or more “major life activities.” The list of major life activities, though not intended to be exhaustive, has always included caring for oneself. Under the ADAAA and the corresponding regulations published by the EEOC in March 2011, this list now also encompasses bladder and brain functions, as well as operations of the neurological and genitourinary systems. This makes it easier for paruresis to meet the standard.

The term “substantially limits” is broadly construed in favor of expansive coverage. An impairment no longer has to prevent or severely or significantly restrict a major life activity to be substantially limiting. Additionally, the determination of whether an impairment substantially limits a major life activity must be made without regard to mitigating measures such as medication or cognitive-behavioral therapy. All of these changes also make it easier for someone with paruresis to meet the statutory standard, but an individualized assessment is still required.

An individual with paruresis also has a disability if the employer “regards” that individual as being disabled. To regard an employee as disabled, the employer must take an adverse action against the employee because of an actual or perceived impairment (unless the impairment is transitory and minor). The EEOC opined that paruresis does not appear to be a transitory impairment. Accordingly, if an employer terminates, fails to hire or takes another similar adverse action against an individual because of paruresis, whether the condition is real or perceived, it is probable that the individual will be “regarded as” having a disability. It should be noted, however, that employees who are merely “regarded as” disabled are not entitled to reasonable accommodations.

In light of this EEOC informal discussion letter and the broad definition of disability under the ADAAA, employers who require applicants and/or employees to undergo drug testing are advised to use caution before subjecting individuals with paruresis to adverse employment actions because they are unable to take a drug test through urinalysis. Employers faced with this situation should conduct an individualized assessment to determine whether the individual, in fact, qualifies as an individual with a disability under the ADAAA. If the individual qualifies (which is likely), one potential alternative for employers to consider would be to allow the person to take an alternative drug test which does not involve urination (i.e., a hair, saliva or patch test).
 

More than two years ago, the ADA Amendments Act (the “ADAAA”) of 2008 went into effect. The statute was designed to broaden the coverage of the Americans with Disabilities Act. Earlier this year, the EEOC issued long-awaited and much-debated final regulations to implement the ADAAA. In conjunction with the release of the regulations, the EEOC also released an appendix to the regulations containing examples, a fact sheet on the regulations, a question and answer document and a small business question and answer document.   The regulations are effective on on May 24, 2011.

The final regulations eliminate or change many of the more controversial proposed regulations to which employer representatives objected during the notice and comment period. One item which continues to cause controversy, however, is EEOC’s list of so-called “per se disabilities,” impairments that have been characterized as automatically qualifying as covered disabilities. EEOC has created this list through a series of rules of construction used to analyze whether a particular impairment is a disability. The regulations explain that in using these rules of construction, some impairments, such as epilepsy, diabetes, cancer and bipolar disorder, to name a few, will virtually always constitute disabilities. However, the regulations do provide that an individualized assessment is still required in every case.
 

Most of the new regulations, however, simply implement the ADAAA’s requirements. For example, the regulations provide certain rules of construction used to determine whether an individual is substantially limited in performing a major life activity, and therefore disabled under the Act. Those rules of construction range from the very general (the term substantially limits should be construed broadly in favor of expansive coverage and requires a lower degree of functional limitation than previously required by the courts), to the more specific (an impairment in remission is a disability if it would substantially limit a major life activity when active).

Questions about whether and how a particular major life activity might be substantially limited, including the major life activity of working, are addressed not in the regulations themselves, but in an appendix to the regulations. The EEOC notes that given the significant changes in the definition of disability made by the ADAAA, it will rarely be necessary to determine whether an individual is substantially limited in the major life activity of working.

Consistent with the ADAAA, the new regulations expand coverage under the “regarded as” prong of the statute, focusing on the employer’s treatment of the individual, rather than whether the employer believed the individual had a substantially limiting disability. The question becomes whether the employer took a prohibited action because of an actual or perceived impairment that is neither transitory nor minor. As a result of this redefinition of the “regarded as” prong, the new regulations note that proceeding under this prong will be sufficient for most complainants, the most significant exception being cases where the employee claims he or she was denied a reasonable accommodation. In those cases, the employee will have to proceed under the actual disability or record of disability prongs.
 

As reported in the Daily Labor Report, Equal Employment Opportunity Commission officials have disclosed that the White House’s Office of Management and Budget has completed its review of the long awaited regulations implementing the 2008 Americans with Disabilities Amendments Act. The next step is publication of the regulations in the Federal Register. At that time, we will know what the final regulations contain. The Commission was not able to say exactly when that will occur. When it does, we will provide an update.

“In one of the first cases of its kind to make it to the summary judgment phase,” a federal district court in Indiana found last month that under the recent amendments to the Americans with Disabilities Act (“ADAAA”), cancer even while in remission is a disability, Hoffman v. Carefirst of Fort Wayne Inc. The case is significant because it is one of the first cases to interpret broadly the ADAAA’s expanded definition of disability and to rely on Equal Employment Opportunity Commission (“EEOC”) guidance in doing so. It is also significant because it imposes a reasonable accommodation obligation for an impairment that did not substantially limit a major life activity at the time the accommodation was requested.

According to the Court’s opinion, the plaintiff, Stephen Hoffman was employed as a mobile service technician. In November 2007, Hoffman was diagnosed with stage III renal cancer. In January 2008, two months after undergoing surgery to remove a kidney, Hoffman returned to work. Although Hoffman sometimes suffered from fatigue, pain, and discomfort, particularly when sitting or driving, Hoffman continued working his routine schedule without any medical restrictions.

One year later, in January 2009, Advanced Healthcare informed Hoffman that due to a new contract it had acquired, he would have to work significant overtime, travel to a different location for a night shift once a week, and be on call on weekends. Hoffman objected, claiming that the additional hours would put him “in the grave” because of his recent bout with cancer, and provided a note from his doctor stating that Hoffman could not work more than eight hours per day and no more than five days per week. Ultimately, Advanced Healthcare would not agree to provide Hoffman with the accommodation he requested. Hoffman subsequently filed a disability discrimination suit alleging that Advanced Healthcare unlawfully terminated his employment and failed to offer him a reasonable accommodation.

In its motion for summary judgment, Advanced Healthcare argued that Hoffman was not disabled because he did not have a disability which substantially limited a major life activity at the time of the relevant events. The Court disagreed, holding that it was “bound by the clear language of the ADAAA. Because it clearly provides that an ‘impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active . . ..’” With respect to the question of whether Hoffman’s cancer would have substantially limited a major life activity when it was active, the Court looked to the EEOC’s guidance, which lists cancer as a condition which substantially limits a major life activity. The Court logically concluded that “under the ADAAA, because Hoffman had cancer in remission (and that cancer would have substantially limited a major life activity when it was active), Hoffman did not need to show that he was substantially limited in a major life activity at the time of the alleged adverse employment action. As a result, his employer had an obligation to engage in the interactive process to provide him with a reasonable accommodation. The reasonable accommodation holding is, of course, simply the logical outgrowth of the Court’s determination that Hoffman had a covered disability under the ADAAA. Once that exists, the reasonable accommodation obligation follows.
 

As we reported earlier this year, the Equal Employment Opportunity Commission (“EEOC”) has proposed regulations implementing the Americans with Disabilities Act Amendments Act (“ADAAA”). The EEOC published its proposed regulations in September, and the period for public comment recently closed on November 23, 2009. The EEOC will now evaluate the comments it has received and then issue final regulations, which may or may not include changes to the proposed rules.

Consistent with the intent of the ADAAA, the EEOC’s proposed regulations would broaden the definition of what constitutes a protected “disability” under federal law. The EEOC believes that this will have the effect of shifting the focus of litigation away from whether a person’s impairment is a covered “disability,” and to the issue of whether an employer has complied with its obligations under the law.

While many aspects of the proposed regulations appear to reasonably interpret the ADAAA, commentators have noted there are some provisions which, at least arguably, constitute overreaching on the EEOC’s part. Among the most controversial of these provisions are the following:

 

New List of “Per Se” Disabilities

Perhaps the most controversial element of the proposed regulations is the EEOC’s creation of what some commentators have called a “per se” list of protected disabilities. The ADAAA itself neither contains such a list, nor expressly authorizes the EEOC to create one. The EEOC claims its non-exclusive list does not preclude employers from undertaking an “individualized assessment” to evaluate a potential disability. At the same time, according to the agency, the list is intended to ensure this assessment “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Elimination of “Condition, Manner, or Duration” Analysis

The proposed regulations would redefine the term “substantially limits,” by eliminating the previous “condition, manner or duration” evaluation used by employers to determine whether an impairment substantially limits a major life activity. Instead, the regulations state this evaluation should be made on the basis of “common-sense” and “without resorting to scientific or medical evidence” by comparing an individual’s limitation to “the ability of most people in the general population.” (The ADAAA does not expressly address this issue, and the statute’s legislative history suggests that the drafters intended to preserve the “condition, manner, or duration” analytical device.)

“Major Life Activity” of “Working”

The proposed regulations would also alter the framework employers are required to use to analyze whether an impairment substantially limits the major activity of working. (The ADAAA is silent on this issue as well.) Specifically, under the proposed regulations, “an impairment substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or meet the qualifications for, the type of work at issue.” This new framework would replace current law which requires an inability to perform a “broad range” or “class” of jobs.

Less controversial, but nonetheless noteworthy, are the following provisions:

Expansion of “Major Life Activities” and “Major Bodily Functions” Lists

The proposed regulations would expand the list of “major life activities” found in the ADAAA, to include: sitting, reaching and interacting with others. Similarly, the proposed regulations would expand the ADAAA’s list of “Major Bodily Functions” to include: hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular.

Expansion of “Mitigating Measures” List

The proposed regulations supplement the ADAAA’s list of mitigating measures, which may not be considered in determining whether an individual has an impairment which substantially limits a major life activity, to include surgical interventions that do not permanently eliminate an impairment. However, EEOC takes the position that mitigating measures may be taken into consideration for other purposes, for example, to determine whether a reasonable accommodation is required or to determine whether an individual poses a “direct threat” in the workplace.

Although it is not known when the EEOC will issue its final regulations, Commissioner Constance Barker has stated it could be as early as March 2010. We will continue to monitor and report on any noteworthy developments.
 

The U.S. Equal Employment Opportunity Commission (“EEOC”) has approved new regulations implementing the Americans with Disabilities Act Amendments Act of 2008 . Although these regulations are not yet public (and are pending review at the Office of Management and Budget), recent comments offered by EEOC officials nevertheless provide an insightful glimpse as to what changes employers can expect—including some changes arguably outside the scope of the ADAAA.

Congress passed the ADAAA with the intent of reversing several Supreme Court rulings interpreting the ADA’s scope of protection.  In short, the ADAAA sought to expand the definition of “disability” to cover a broader range of impairments than permitted under the Supreme Court’s interpretation of the law. The legislation also empowered EEOC to draft regulations implementing this new, broader definition.

EEOC recently met to approve proposed regulations fulfilling this mandate. At this meeting, EEOC officials—principally Assistant Legal Counsel Christopher J. Kuczynski—commented on select portions of the new regulations, which appear to constitute a major shift in policy. Given the remedial intent of the ADAAA, this shift will not come as a surprise to most observers. What is surprising, however, is that EEOC’s proposed regulations, at least according to some commentators, arguably exceed the scope of the ADAAA’s rulemaking authority. A few examples illustrate this noteworthy development.

 

First, comments from both Commissioner Constance Barker (who voted against approval) and Kuczynski indicate that EEOC has proposed removing the “condition, manner, or duration” concept from the current ADA regulations. To date, employers have applied this criteria to determine whether an impairment “substantially limits” a major life activity and, therefore, may require a reasonable accommodation. The new regulations would replace this concept with hypothetical examples designed to aid disability determinations. According to several commentators, however, nothing in the ADAAA indicates that Congress intended to eliminate the “condition, manner, or duration” concept, and, in fact, the legislative history suggests that drafters intended to preserve this analytical device for employers.

Second, the proposed regulations would redefine how an employer must evaluate whether an individual is substantially limited in the major life activity of “working”—another issue not expressly addressed by the ADAAA. Under current law, an individual is protected only if he or she cannot perform a “broad range” or “class” of jobs due to an impairment. The proposed regulations, however, would dispense with this concept, and, instead, require that an employee be unable to perform the “type of work” at issue (such as commercial truck driving, clerical work, assembly line work, or law enforcement).

Third, the proposed regulations include what amounts to a list of per se disabling conditions. According to Kuczynski’s comments, this list would include the following conditions: autism, blindness, cancer, cerebral palsy, deafness, diabetes, epilepsy, HIV/AIDS, intellectual disabilities, missing limbs, mobility impairments, multiple sclerosis, muscular dystrophy, as well as major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Enactment of such a per se list—which was not included in the ADAAA itself—would constitute a major departure from EEOC’s current policy calling for employers to take a “case-by-case” approach to assessing potential workplace impairments. The proposed regulations also identify several examples of “major life activities” and “major bodily functions” not included in the ADAAA itself.

Although more will be known once the proposed regulations are made public (including what steps employers may need to take to ensure compliance), one fact appears clear even at this early juncture: EEOC is plainly favoring a more categorical approach to determining whether an individual has a covered disability instead of the “individualized assessment” process which has thus far served as a hallmark of the ADA. 

Once the Office of Management and Budget completes its review, we anticipate the proposed regulations will be published in the Federal Register and interested parties will then have an opportunity to submit comments. In the mean time, employers should ensure their current practices conform with the ADAAA—which went into effect on January 1, 2009—paying particular attention to their reasonable accommodation policies and procedures.