Reasonable Accomodations and Using Arrest and Conviction Records In The Hiring Process: EEOC To Hold Public Meeting To Discuss These Issues

On April 25, the EEOC will hold a public meeting in Washington D.C. to discuss the legality of employer's consideration of an applicant's arrest and conviction record when making hiring decisions.  At this same meeting, the EEOC also plans to offer guidance on reasonable accommodations and undue hardship under the ADA.  It is expected that the EEOC will offer additional, and perhaps written guidance, on these topics at the meeting or shortly after the April meeting.

In 2011 the EEOC's office of Legal Counsel issued a non-binding advisory opinion on employer use of arrest and conviction records during the hiring process.  The opinions not only reaffirmed the EEOC's  interest in employer background checks, they also outlined the EEOC's current thinking on the subject.  Specifically:

• The EEOC will continue to draw a distinction between arrest and conviction records;
• The EEOC is not yet prepared to adopt a presumption of disparate impact when employers use arrest (or conviction) records in the hiring process; and
• The EEOC encouraged employers to make sure their criminal background checks related to the job duties for the position in question.

The EEOC also a public meeting in June 2011 to discuss reasonable accommodations and leaves of absence under the ADA.  The EEOC indicated in that meeting that it would be releasing further enforcement guidance on that issue, but has not yet done so. 

GINA Record Keeping Regulations Take Effect April 3

On February 3, 2012, the EEOC extended its existing record keeping requirements beyond Title VII and the Americans with Disabilities Act (ADA) to include those employers covered by Title II of the Genetic Information Nondiscrimination Act (GINA).  GINA applies to employers with fifteen (15) or more employees and prohibits the use of “genetic information” in making employment decisions.  GINA also severely restricts an employer’s access to such genetic information, as well as an employer’s acquisition and distribution of genetic information and prohibits an employer for retaliating against an employee who complains about genetic discrimination.

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EEOC ISSUES REVISED GUIDANCE ON THE ADAA AND VETERAN’S EMPLOYMENT

At the end of February, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing various employment laws and how those laws impact the employment of veterans.  The aim, according to the EEOC, is to make clear how the Americans with Disability Act Amendments “…make it easier for veterans…including those that are often not well understood…to get needed reasonable accommodations” in the workplace.  Included in the discussion are some of the more challenging impairments to accommodate in the workplace, such as traumatic brain injury and post-traumatic stress disorder.

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$20 Million Reasons Why Evaluating Your "No-Fault" Attendance Policy Makes Sense

In July of last year the EEOC entered into a consent decree with telecommunications giant Verizon Communications settling claims that Verizon, and its subsidiaries, failed to provide reasonable accommodations to disabled employees.  The focus of the EEOC’s claims was Verizon’s rigid, “no-fault” attendance policy.  Such policies charge employees with an absence regardless of the reason for the absence.  According to the EEOC, Verizon’s failure to make exceptions to this “no-fault” attendance policy for employees whose absences were due to disability constituted unlawful discrimination under the ADA.  The settlement, totaling $20 million, was the largest disability settlement in EEOC history.

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Attendance, Essential Job Functions, and Reasonable Accommodations: First Circuit Adds “Flexible Work Schedule” Wrinkle to Traditional Analysis

The First and other circuits have long held that attendance is an essential function of any job.  The recent case of Valle-Arce v. Puerto Rico Ports Authority, 651 F.3d 190 (1st Cir. 2011), adds a new wrinkle to that line of authority and raises questions regarding the scope of an employer’s duty to accommodate disabled employees under the Americans with Disabilities Act (“ADA”).  Specifically, the Valle-Arce decision addresses the degree to which the ADA may require employers to provide flexible work schedules that address a disabled employees’ inability to adhere to a fixed work schedule.

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Presentation Note: Social Media and The ADAAA - Trends and Updates

Anne Birgel Cunningham will be presenting today to a group of business students at Saint Joseph's College in Standish, Maine.  Anne's presentation will focus on social media use in the workplace as well as issues related to the ADAAA, including the EEOC's focus on developing new regulations that define what constitutes a reasonable accomodation.

An Over-the-Counter Remedy for the Health Risk Assessment Headache

The following article was originally published on the Verrill Dana Employee Benefits & Executive Compensation group's blog EmployeeBenefitsUpdate.com.

A number of clients have recently asked a relatively simple question: Can they require an employee to take a health risk assessment (“HRA”) as a condition of participation in a wellness program or group health plan? This question seems simple enough. Nevertheless, the answer involves unraveling a complex web of federal and state privacy, discrimination, and disability-related laws – and that’s just the beginning! Parsing through these laws will give even the most savvy HR professional a headache. This post offers an over-the-counter remedy for that headache by describing some basic principles that employers can follow to determine what they can and cannot do in designing HRA incentives. But first a bit of background about HIPAA, the Americans with Disabilities Act Amendments Act (“ADAAA”), and a recent case that appears to help.

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Effective Date Arrives For New ATM Accessibility Standards

March 15, 2011 marked the effective date for new regulations (the “2010 Standards”) implemented by the US Justice Department (“DOJ”) that govern accessibility for places of public accommodation, including automatic teller machines (“ATMs”).  The regulations include technically specific accessibility requirements that were previously lacking in the general accessibility requirements established in 1991 (the “1991 Standards”).   While the 1991 Standards require ATMs to be accessible and independently useable by persons with visual impairments, the 2010 Standards related to ATMs include but are not limited to technical requirements for speech output, privacy, tactilely-discernable input controls, display screens, and Braille instruction. 

Safe harbor provisions, allowing for continued compliance with the 1991 Standards for a period of time, do not apply to these technical specifications that are new to the 2010 Standards.  Consequently, the technical, communications-related elements required for ATMs in the 2010 Standards must be implemented by March 15, 2012, unless compliance would cause an “undue burden” for the financial institution.  Therefore, unless you can make a showing of “undue burden,” ATMs must be upgraded to the new standards on or after March 15, 2012, “to the extent readily achievable.” 

Generally speaking, it is much more difficult to meet the standard for an “undue burden” than the standard for what is not “readily achievable.”  An undue burden requires “significant difficulty or expense.”  In each case, the DOJ considers these standards to require individualized, case-by-case analyses.  The requirements of the new regulations are lengthy, and financial institutions should develop implementation plans to the extent their ATMs are not in compliance with the regulations. 

The regulations may be found here: http://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm.