Monthly Archives: September 2012

September 25, 2012

It’s Fall…EEO-1 and VETS-100 Filing Deadlines Loom

By Chris Chrisbens

It’s that time of year again.  With the change of seasons also come the EEO-1 survey deadline of September 30 and the VETS-100 filing deadline, which has now been extended to October 31.  Just in case, requests for extensions of time to file the EEO-1 survey may be made via email to e1.extensions@eeoc.gov including the company name, address and contact information for the person responsible for the filing.  Extensions of time to file VETS-100 reports are generally not available. 

                EEO-1

Private employers and affiliates with 100 or more employees must file an EEO-1 survey regarding the race, gender and ethnicity of its employees, based on a payroll period between July 1 and September 30. Likewise, private employers with 50 or more employees and federal contracts or first-tier subcontracts of $50,000 or more must also file, as must employers which serve as a depository of Government funds in any amount, and/or are covered by FDIC or NCUA deposit insurance. 

 Information regarding preferred Web-based filing may be found at the EEOC’s Website, including filing instructions, forms and FAQs.   Failure to file may result in the EEOC obtaining an order compelling the filing, and federal contractors risk loss of federal contracts. 

                VETS-100

The VETS-100 and VETS-100A reports require information regarding veteran employees and veteran hiring for the 12 month period preceding a payroll date between August 1 and September 30.  Employers with a federal contract or subcontract of $100,000 or more dated or modified on or after December 1, 2003 must file a VETS-100A.  Banks which serve as a depository of Government funds in any amount, and/or are covered by FDIC or NCUA deposit insurance must file a VETS-100A.  Employers with 50 or more employees and a federal contract or subcontract of $25,000 or more dated before December 1, 2003 must file a VETS-100

Filing instructions and FAQs may be found at the VETS Website.  Filing is important for federal contractors because federal contracting agencies may not commit funds to a contractor who has not timely filed a required VETS-100 or VETS-100A report for the previous fiscal year.  The Department of Labor also keeps a database for federal contracting officers listing the contractors and subcontractors which have filed reports.

September 21, 2012

Job Transfer May be Reasonable Accommodation…More Often Than You Think

By Chris Chrisbens

When an employee who is arguably disabled under the law asks to be transferred to a different job, in a different state, as an accommodation for her disability, do you have to agree?  A recent case suggests the answer may be, “Yes.”

In cases over the last couple decades, the 10th Circuit Court of Appeals (which covers Colorado) has held that, pursuant to the Americans with Disabilities Act (ADA) and the Rehabilitation Act:

–  a disabled employee unable to perform the essential functions of his current job may be entitled, as a reasonable accommodation, to transfer to another vacant job for which he is qualified, provided transfer does not cause the employer undue hardship;

– time off for medical care or treatment may also constitute a reasonable accommodation; and

– even where a disabled employee can perform the essential functions of his job, reasonable accommodation may include time off for medical treatment to mitigate the effects of the disability. 

                Sanchez v. Vilsack

The 10th Circuit has now taken things a step further.  The question before the 10th Circuit in Clarice Sanchez’ Rehabilitation Act suit against the U.S. Forest Service was whether a job transfer from Texas to New Mexico allowing her to access medical treatment could be a required, reasonable accommodation for her disability, even though she could perform the essential functions of her job.  The 10th Circuit says, yes, as a matter of law it may.  Sanchez v. Vilsack, No. 11-2118 (10th Cir. Sept. 19, 2012).

 Ms. Sanchez, then an administrative assistant, suffered an irreversible brain injury as a result of a fall at work which caused her to lose 50% of her field of vision in each eye, meaning she cannot see anything left of the center of her vision when she looks straight ahead.  She was able to return to work and although she experienced difficulties, there was no dispute she could perform the essential functions of her job.  Nonetheless, she requested a hardship transfer from her position in Lufkin, Texas to Albuquerque “because no doctors in Lufkin were qualified to provide specialized therapy to help her adjust to her injury.”  Although the Forest Service granted her temporary reassignment to Albuquerque, she was turned down for two equivalent-pay positions in Albuquerque for which she was qualified, and ultimately took a different, lower-paying Forest Service job in Albuquerque.  She then sued under the Rehabilitation Act (which is similar to the ADA, but generally applies to public entities) arguing that the denial of her transfer request was a failure to reasonably accommodate her disability. 

In addition to arguing that Ms. Sanchez was not disabled, the Forest Service argued that under existing 10th Circuit law, a job transfer is required only where the employee’s disability prevents her from performing the essential functions of her current job.  In reaching its decision, the court relied on contrary decisions in other circuits, as well as the EEOC’s position.  In particular, the court found language from a similar 9th Circuit case most persuasive:

[C]ontrary to what the government urges, employers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job. Qualified handicapped employees who can perform all job functions may require reasonable accommodation to allow them to (a) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees or (b) pursue therapy or treatment for their handicaps. In other words, an employer is obligated not to interfere, either through action or inaction, with a handicapped employee’s efforts to pursue a normal life.

Accordingly, the court held that, as a matter of law, a transfer accommodation for “medical” care, treatment or therapy may be a reasonable accommodation, “even if an employee is able to perform the essential functions of her job without it.”  The court expressly did not reach questions of whether such an accommodation would impose an undue hardship for the Forest Service, or whether or not a transfer was really necessary for Ms. Sanchez to access treatment. 

                Moving Forward

In its simplest terms, the Sanchez case means that employers must at least consider job transfers to open positions, for which the employee is otherwise qualified, as a possible accommodation to allow a disabled employee to access medical care, treatment or therapy that is not locally available, even when such treatment relates to general quality of life rather than to performance of essential job functions.  However, based on the court’s opinion, it appears the employee would still bear the burden to prove that a transfer accommodation is reasonable because the treatment sought is: 

– medical care, treatment or therapy;

– necessary to mitigate the effects of the disability or otherwise to improve the employee’s work or home life by assisting her to cope with her disability; and

– not locally or otherwise reasonably accessible without the transfer. 

Of course, employees are not always entitled to the accommodation of their choice, so if an equally effective accommodation exists—aside from a job transfer—then a transfer may not be required.  Likewise, although typically difficult to prove, undue hardship to the employer remains a viable defense.

September 14, 2012

Working from Home – Not a Reasonable Accommodation

By Mark Wiletsky

If an employee claims that she needs to work from home due to a medical condition, do you have to grant such a request under the Americans with Disabilities Act (ADA)?  Typically, the answer is no.  Physical attendance is often an essential job function.  So, even if some job duties could be performed remotely, being at work is still considered a critical part of the job.  In a recent case, a federal district court in Michigan reiterated that principle, rejecting a claim brought by the Equal Employment Opportunity Commission (EEOC) against Ford Motor Company.

In that case (EEOC v. Ford Motor Co., Case No. 11-13742, E.D. Michigan), an employee with irritable bowel syndrome asked to work from home up to four days a week.  Ford ultimately rejected the employee’s request.  Although Ford allowed some employees in the same group to telecommute, those employees worked at home only one day a week, on a prescheduled day.  Also, the employee who made the request had a history of attendance and performance problems, and Ford concluded that working from home that many days per week would not allow the employee to interact with others, as needed to complete her job.  The employee then filed a charge of discrimination with the EEOC.  A few months later, Ford placed the employee on a performance improvement plan for failing to meet certain goals, and then discharged her when she did not successfully complete her improvement plan.  The EEOC later sued Ford for failing to accommodate the employee, and for retaliating against her for filing a charge of discrimination.  The federal district court rejected both claims as a matter of law.

The court noted that the employee was absent more often than she was at work, which meant she was not a “qualified” individual under the ADA.  More importantly, though, the court rejected the EEOC’s argument that Ford should have allowed the employee to telecommute.  Courts typically do not second-guess an employer’s business judgment regarding what job functions are essential.  Here, Ford said that attendance was an essential job function.  In addition, courts generally find that working at home is “rarely a reasonable accommodation.”  In this case, that was especially true because the employee wanted to work from home up to four days per week, choosing what days to work from home at her own discretion; she had frequent and unpredictable absences, which negatively affected her job performance and increased her colleagues’ workload; and her managers did not agree that she could complete her job duties from home.  Therefore, the court concluded that working from home was not a reasonable accommodation in this case.

The court also rejected the EEOC’s retaliation claim.  There was no evidence that Ford’s stated reasons for the employee’s low performance rating and ultimate discharge were “pretextual,” or a cover for unlawful retaliation. 

Lessons Learned

Although Ford prevailed in this case, employers can expect more and more requests from employees to work from home as technological advances make it easier to communicate and complete certain tasks remotely.  Therefore, consider these tips:

  • Review and, if necessary, update your job descriptions to make sure they capture the essential job functions.  If attendance at work is an essential job function, make sure your job description says so, either directly or through a description of other job duties, e.g., employee must regularly interact with managers, customers, and vendors to negotiate sales agreements, etc.
  • If you allow one employee to work from home for a non-medical reason, be aware that doing so might impact your ability to decline a request from an employee who asks to work from home for medical reasons.
  • If you allow someone to work from home temporarily, be sure to document that it is a temporary issue, and that you will monitor and potentially modify the arrangement as needed.
  • If an employee asks to work from home as an accommodation, be sure to engage in the interactive process, e.g., carefully consider the request in light of the employee’s job duties and the organization’s business needs, talk to the employee, and consider other alternatives if working from home is not feasible.
  • If you reject an employee's request to work from home, especially if the request is based on an alleged disability or medical condition, be sure you can support your decision with legitimate, nondiscriminatory and nonretaliatory business reasons.