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Labor and Employment - Employment Law Update - Spring 2006

Date: December 12, 2006

Americans with Disabilities Act (ADA) Blind Employees and Vision Impairments Obtaining Medical Information Confidentiality Rules
By: Kevin C. McCormick, Esq.

Americans With Disabilities Act (ADA) - When Is Vision Impairment A Disability Under the ADA?
A vision impairment is a disability if (1) it substantially limits a major life activity, (2) it was substantially limiting in the past (i.e., the individual has a "record of " a substantially limiting impairment), or (3) an employer "regards" or treats it as being substantially limiting. Major life activities are basic activities, including seeing, that an average person can perform with little or no difficulty.

Whether vision impairment actually substantially limits a major life activity depends on how significant the visual loss is. While a person who has no sight at all is obviously substantially limited in seeing, the assessment of most vision impairments requires a more individualized approach. Although mitigating measures that the individual uses, such as corrective lenses and compensatory strategies that the body has developed, must be taken into account, they don't automatically exclude someone from coverage under the first part of the ADA's definition of "disability."

Example: An individual with vision impairment wears eyeglasses, but they improve his poor vision only slightly. Even with eyeglasses, he can't drive and needs strong magnification to read standard-size print. That individual is substantially limited in seeing. Individuals with monocular vision also may meet the ADA's first definition of disability.
Example: An individual lost all of his sight in one eye as a result of an accident several years ago. He has learned some compensatory strategies, such as turning his head slightly to adjust for his loss of visual field and using shadows, highlights, and other visual cues to judge longer distances. He has loss, however, of both peripheral vision and stereopsis (the ability to combine two retinal images into one that people with vision in both eyes accomplish easily).

The loss of peripheral vision means that the individual is limited in seeing people or objects on his blind side and he must position himself accordingly in meetings, theaters, or while walking down the street. Because he can't see people approaching or standing on that side, he must rely on his hearing to detect that someone is near him and then turn his head to see the person. He still is substantially limited in seeing despite his use of compensatory strategies such as hearing, touch, or memory to substitute for his lack of vision in one eye.

Being "regarded as" substantially limited in seeing is a more common basis for coverage.

Example: As part of the hiring process for a manufacturing position, an employer requires a physical exam, including a vision test. An applicant with monocular vision fails the vision test, which requires a minimum of 20/40 vision in the better eye with correction and no less than 20/20 vision in the weaker eye. The physician who conducted the physical examination recommends to the HR department that the applicant not be hired, indicating in a notation on the application: "Failed vision test, essentially blind in one eye and lacks depth perception, recommend against hiring for any manufacturing work." In accordance with its typical practice of deferring to the recommendation of the employer's doctor, the HR department withdraws its offer of employment to the applicant, never assessing whether she can in fact perform the essential functions of the job. If the doctor's statement that the applicant shouldn't be hired for "any manufacturing work" meant that the applicant was unsuitable for manufacturing work generally and not just for a particular job in the employer's plant, the employer will have regarded the applicant as substantially limited in working in a class of jobs.

What's the proper procedure for obtaining and using medical information?
Before an offer of employment is made. The ADA limits the medical information that you may seek from a job applicant. You may not require a job applicant to submit to a medical examination or ask about an applicant's disability before making a job offer. That means, for example, that you may not:

ask about any medical procedures an applicant has had related to his vision, e.g., whether he ever has had eye surgery;
inquire about whether the applicant uses any prescription medications, including medications for conditions related to the eye; or
ask whether the applicant has any condition that may have caused vision impairment, e.g., whether he has diabetes if the employer suspects that he has retinopathy.

You may, however, ask all applicants if they will need a reasonable accommodation for the application process. For
example, you may include on an application contact information for the person who will handle accommodation requests. Additionally, you may ask all applicants whether they can meet job related requirements, and you may conduct nonmedical tests that require the use of vision to measure the applicant's ability to perform job-related functions.

Example: An employer that runs a warehouse may ask all applicants if they can read the labels on products so that they can be stocked in the appropriate places or may ask each applicant to demonstrate that he can perform that function.

Are there ever situations in which an employer may ask about an applicant's visual disability before making a job offer?
Yes. If a disability is obvious (or if the applicant discloses that she has a visual disability) and you reasonably believe the applicant will require a reasonable accommodation to perform the job, you may ask whether she will need a reasonable accommodation and, if so, what type.

Example: A woman appears with her guide dog for an interview for a job as a school principal. The position requires significant reading. Because the applicant's vision impairment is obvious, the employer may ask her if an accommodation will be needed to perform functions that involve reading and, if so, what type.

After an offer of employment is made. Once you have made a job offer, you may ask questions about the applicant's health, including questions about whether he has a visual disability, and you may ask for, or require, a medical examination as long as all applicants for the same type of position are treated the same, i.e., all applicants are asked the same questions and are subject to the same examination. The job offer must be "real," meaning that you have obtained and evaluated all nonmedical information that was reasonably available before making the offer.

If you learn from a postoffer inquiry or medical exam that an applicant has a vision impairment, you may ask medically related follow-up questions or conduct medically related exams. You may not withdraw an offer from a person whose vision impairment is a disability, however, unless you can demonstrate that he is unable to perform the essential functions of the position, with or without a reasonable accommodation, or that he will pose a direct threat to safety.

Example: A county sheriff with monocular vision applied for a position with the state police as a criminal
investigator. He was highly qualified for the job and was conditionally offered a position pending qualification under the state police department's medical criteria for criminal investigators. The doctor who conducted the medical examination of the applicant determined that because of his monocular vision he didn't meet the state's standards, and the conditional offer of employment was withdrawn. The state police department didn't violate the ADA by requiring the medical exam. If the applicant's monocular vision is a disability, however, the department must be prepared to show that the applicant was unable to do the essential functions of the job, with or without a reasonable accommodation, or that he would have posed a direct threat if he had been hired.

When may you question employees or require an exam on a vision impairment?
The ADA strictly limits the circumstances under which you may ask questions about an employee's medical condition or require the employee to undergo a medical exam. Generally, you may ask an employee for medical information if you have reason to believe that (1) there's a medical explanation for some change in the employee's job performance or (2) the employee's medical condition may pose a direct threat to safety.

Example: A data entry clerk has recently been making numerous errors when entering information into the employer's computer system. For example, he seems to be confusing the numerals 1, 7, and 9. The clerk's supervisor also has begun to see the clerk rubbing his eyes frequently and looking more closely at both his computer screen and printed materials. The employer has a reasonable belief based on objective evidence that the clerk's performance problems are related to a medical condition, i.e., an eye problem, and therefore may ask for medical information.

Poor job performance, however, often is unrelated to a medical condition and therefore should be generally handled in accordance with your existing policies concerning performance.

Example: A receptionist with a known degenerative eye condition hasn't been answering all the calls that come in to the office in her usual friendly manner. The employer may counsel the receptionist about how she answers the phone but may not ask her questions about her eye condition unless there's evidence that that may be the reason for her changed demeanor.

You also may ask an employee with a nonobvious vision impairment who has requested a reasonable accommodation for documentation demonstrating that he has a disability and needs the accommodation. In addition, you may ask an employee with a vision impairment to justify the use of sick leave by providing a doctor's note or other explanation as long as you require all employees to do so.

Example: An employer's leave policy requires all employees who are absent because of a medical appointment to submit a note from their doctor verifying the appointment. An employee who uses sick leave for an ophthalmological examination must submit a note to that effect from his doctor in accordance with the policy. The employer may not, however, require that the note include information about the results of the examination or a statement about the employee's diagnosis or treatment, if any.

Finally, you may collect medical information about a vision impairment and you may conduct an eye examination as part of a voluntary wellness program. For example, you may offer a voluntary annual screening for glaucoma so that employees can promptly obtain treatment if necessary. A wellness program is voluntary if an employee is neither required to participate nor penalized for nonparticipation.

What are the rules on keeping medical information confidential?
You must keep all medical information separate from general personnel files and treat it as a separate, confidential medical record. Issues regarding confidentiality usually arise with regard to nonobvious conditions, but even if the impairment is obvious, information about it must be kept confidential.

Example: Most of the paralegals in a large firm have outdated computer monitors. A paralegal who's on medication for a disability that causes vision problems requests, and is given, a new monitor with a special program that allows her to see the screen better. If the other paralegals ask why she has a new screen and they don't, the employer may not divulge any information about her impairment, including the fact that the monitor is a reasonable accommodation.

Are there any exceptions to the ADA's confidentiality requirements that might justify disclosing information about an employee's vision impairment?
Yes. Information that's otherwise confidential under the ADA may be disclosed:

to supervisors and managers who need the information to provide a reasonable accommodation or meet the employee's work restrictions;
to first-aid and safety personnel if the employee would need emergency treatment or other assistance in the event of an emergency (e.g., in case of a fire) because of his vision impairment;
to officials who are investigating compliance with the ADA and similar state or local laws;
to state workers' compensation offices or workers' comp insurance carriers in accordance with state workers' comp laws; or
for insurance purposes.

Fair Labor Standards Act (FLSA)
DOL Offers Guidance on Defining "Volunteers"

The Labor Department has issued two opinion letters providing significant guidance to employers whose workers volunteer for charity or extracurricular responsibilities in addition to their regular jobs, explaining that the kind of work being performed and how often it occurs will determine whether the arrangements pass muster under the Fair Labor Standards Act. In the most recent letter, released November 28, 2005, the Labor Department's Wage and Hour Division said that FLSA nonexempt employees of a school district could be paid a stipend for volunteering to coach a sport for the employer as along as the stipend was "nominal" when compared with what would be paid if someone were hired to do the job full time.

The letter explained that a minimal stipend could be paid to volunteer coaches as long as the payments were "nominal" under an economic realities analysis and the payments were not a substitute for wages.

At issue was the example of a nonexempt school custodian who coaches the high school track team and received $3,678 for a season for volunteer coaching. The custodian is not required to coach any team as a condition of employment, and the stipend is not conditioned on a specific number of hours spent coaching or the performance of the team.

In the example cited, the coach spends his own money to provide certain extra benefits to the students, e.g., hamburgers, pizza, ice cream, an end of season party, plaques or trophies, and commemorative booklets. These "extras" are common among coaches, but not required, and the school does not reimburse the coach.

Small Fees Acceptable. "The [FLSA] recognizes the generosity and public benefits of volunteering, and does not seek to pose unnecessary obstacles to bona fide volunteer efforts for charitable and public purposes," the letter explained. "The Department of Labor is committed to ensuring that citizens are able to freely volunteer their services for charitable and public purposes within the legal constraints established by Congress."

While not permitting compensation, DOL said the FLSA in 29 C.F.R. §553.106(f) does permit small fees or stipends as long as they are not a "substitute for compensation" or "tied to productivity."

The letter explained that a key factor in the case of a coach or club adviser is "whether the amount of the fee varies as the particular individual spends more or less time engaged in the volunteer activities, or varies depending upon the success or failure of a particular team or school activity."

If the fee does not vary based upon the win-loss record of a team, or the degree of student involvement in a particular club, DOL said the fee would generally not be viewed as a compensation substitute or based on productivity and therefore would be permissible.

Additionally, the letter said that 29 C.F.R. §553.106(e) lists several factors DOL uses to determine whether a given amount is nominal, including the distance traveled and time and effort expended by the volunteer; whether the volunteer agreed to be available around-the-clock or only during certain specified time periods; and whether the volunteer provided services as needed or throughout the year.

Determining "Nominal." While these factors have generally been used in analyzing volunteer firefighters, DOL said they can also be used in the coaching situation to determine "whether the fee is actually analogous to a payment for services or recompense for something performed and, hence, is not nominal."

In addition to determining whether the activity is nominal, DOL said it was also necessary to determine whether the fee qualified as "nominal" under an economic realities test.

"In making a determination whether the $3,675 stipend at issue here constitutes a 'nominal fee,' the Department believes the analysis of the 'economic realities' as described in 29 C.F.R. §553.106(f), should include a comparison between the volunteer stipend and that it would otherwise cost the school district to compensate someone to perform those services," DOL explained.

The regulations, DOL added, use a 20 percent test to determine whether something is insubstantial. If the coach is offered no more than 20 percent of what a full-time coach would be paid, DOL said the fee would likely be viewed as nominal and appropriate.

"Such a threshold assumes that the coaches are freely volunteering their services and the school district simply provides a lump-sum payment or series of payments without regard to wins or losses or hours worked as discussed above," DOL concluded. "Moreover, a willingness to volunteer for an activity for 20 percent of the prevailing wage for the job is a likely indicium of the spirit of volunteerism contemplated by the 1985 amendment to the FLSA."

After-Work Volunteers. In addition to the question of nominal fees for volunteers, DOL has also issued opinion letters relating to after-work volunteers, short-term employment of volunteers, and volunteers who are paid by their full-time employer while volunteering as peer reviewers.

In one letter, released October 17, 2005, DOL said that university employees who volunteer at an annual university-sponsored charity event are considered volunteers if the event occurs outside the usual workday and they are not performing the kind of work they are paid by the university to regularly perform.

"It is Wage and Hour Division policy that when employees volunteer to do the same type of work that they perform as a part of their normal work duties, the volunteer work must be included in the employees' hours worked calculations," DOL explained, adding it was the agency's opinion "that the employer must compensate employees for the hours spent volunteering during their normal working hours or when the volunteer work performed in similar to their regular duties."

In contrast, however, DOL said that employees who perform duties that are not similar to their regular duties and are voluntarily performed after their normal working hours are volunteering under the FLSA and therefore not owed compensation.

Fair Labor Standards Act (FLSA)
Worker Walking Relating to Donning, Doffing Safety Gear Is Compensable, Justices Rule

The U.S. Supreme Court has recently ruled unanimously in two consolidated cases that time an employee spends walking after the first primary work activity and before the last primary work activity of the workday is compensable under the Fair Labor Standards Act, even when the work activity involves donning and doffing required safety gear (IBP Inc. v. Alavarez, 11/8/05).

Expanding the "continuous workday" deemed compensable under the act to include all time spent after donning safety equipment and before taking it off, the justices resolved a federal circuit split over the meaning of one of the Labor Department's Portal-to-Portal Act regulations. The justices, however, refused to classify the time waiting to perform the first "principal work activity" as compensable.

At issue for the Court was whether the time spent on the walk between the locker room of meat and chicken processing plants -- where employees were required to dress in protective and safety gear -- and the plant floor should be compensated or whether the official start of the "workday" for FLSA purposes was when the employees began their jobs on the plant floor.

"[W]e conclude that the locker rooms where the special safety gear is donned and doffed are the relevant 'place of performance' of the principal activity that the employee was employed to perform within the meaning of §4(a)(1)," Justice Stevens explained for the Court: "Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced."

The Court said that under Steiner v. Mitchell, 350 U.S. 247, 248 (1956), employees should be compensated for any activity that is "integral and indispensable" to the "principle activity" of the workplace. If applying and removing protective gear is "principal activity" related to working in a meat processing plant, then the walking that occurs after dressing and before undressing should be compensated based on Steiner, the Court explained.

"[W]e hold that any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' under §4(a) of the Portal-to-Portal Act," Justice Stevens explained. "Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA."

The Court also was careful to explain that while it believed the walking time before reaching the plant floor was compensable, that did not mean that travel time before the start of the actual workday would be compensable.

"[T]here is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case," Justice Stevens explained, adding that the time spent by the IBP employees walking between the locker room and their workstations was less than the donning and doffing activities that precede or follow it.

While siding with the workers on the larger question of compensation for walking, the justices sided with the employers on the more narrow question of compensation for the time waiting to change into safety gear. The employees argued that employees are often forced to wait before obtaining their first piece of safety gear and that the time spent waiting in line before actually dressing also should be compensated. "[W]e are not persuaded that such waiting -- which in this case is two steps removed from the productive activity on the assembly line -- is 'integral and indispensable' to a 'principal activity' that identifies the time when the continuous workday begins," Justice Steven explained. "Accordingly, we hold that §4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday."

The workers, joined by the Labor Department, relied on 29 CFR §790.7(h) to argue that when an employee is required to report at a certain time but there is no work available, the waiting for work to arrive is a "principal activity." The justices, however, rejected this argument, finding the regulation only applied if the employers required their workers to report to the changing area at a specific time only to find that no protective gear was available. That is different, the Court continued, from having to wait in line to get the safety equipment.

"[T]he fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are integral and indispensable to a principal activity under Steiner," Justice Stevens concluded.

EEO - Age Discrimination
Court Finds No Bias in Not Rehiring Retiree; Company Hired Worker With Long-Term Goals

Rheem Manufacturing Co. did not discriminate on the basis of age when it refused to rehire a retired employee, believing that he was interested only in earning money over a short term, the U.S. Court of Appeals for the Eighth Circuit ruled. Lee v. Rheem Mfg. Co., 8th Cir. (12/28/05).

Affirming summary judgment to Rheem on George R. Lee's claim under the Age Discrimination in Employment Act, Judge Raymond W. Gruender said that Lee failed to show either direct or circumstantial evidence of age discrimination.

When Lee retired as human resources manager of Rheem's plant in Fort Smith, Ark., he elected to receive his pension and profit-sharing accounts in a lump sum in 1996. After that he lost a substantial amount of money in the stock market, the Court said.

In 2002, Rheem advertised a position called labor relations administrator in the human resources department. Lee had supervised the labor relations administrators during the 27 years he was at Rheem, and he applied for the position.

During the six years Lee had been retired from Rheem, relations between the company and Local 7893 of the United Steelworkers had grown increasingly tense. Union members had gone on strike during contract negotiations. During the tenure of a new union president, the number of grievances filed increased dramatically, according to Rheem.

Twelve applicants were interviewed for the position. In Lee's interview for the job, he was told that things have changed a lot, and he was asked whether he could grasp these new processes. The interviewers also asked Lee how long he intended to work if hired.

Lee was not hired. The successful candidate was 39, and at the time, Lee was 63. He sued in the U.S. District Court for the Western District of Arkansas, claiming a violation of the ADEA. Lee argued that the statements made by the interviewers were direct evidence of age discrimination. The appeals court disagreed, saying none of these statements demonstrate a specific link between the alleged age-related discriminatory animus and Rheem's decision not to hire Lee.

"Although Lee's expected years of work [are] related to his age, factors other than age, but which may be correlative with age, do not implicate the prohibited stereotype, and are thus not prohibited considerations," the judge wrote, citing Schlitz v. Burlington Northern R.R. (8th Cir. 1997).

"We have held that the statement by a decision-maker to an employee, allegedly made while explaining the decision to demote him, twenty years is too long; you should have moved five years ago, did not constitute direct evidence of age discrimination," the Court stated, citing Erickson v. Farmland Indus., Inc. (8th Cir. 2001).

"This is because to amount to direct evidence of age discrimination, there would have to be evidence that [the employer] was using length of tenure as a proxy to accomplish age discrimination," the Erickson Court had ruled. In Lee's case, the interviewers' comments expressed legitimate business concerns and did not clearly point to an illegal motive, the Court found.

Lee also failed to establish circumstantial evidence of age discrimination, the Court ruled, assuming that Lee had established a prima facie case. Rheem articulated "several legitimate, nondiscriminatory reasons for its employment decision," it found.

Rheem wanted to hire someone who would work for more than a few years and had the potential to succeed the present human resources manager, who was 56 and had been Lee's subordinate, the Court said. "The search committee believed that Lee's goal was not to begin a challenging career, but to earn short-term money necessitated by his losses in the stock market," it said.

The employer also believed that the successful candidate was better qualified. The successful candidate was interested in a long-term relationship with Rheem and eventual promotion, it said. He had significant labor relations experience and was familiar with "lean manufacturing principles."

Lee also claimed that Rheem's concern about his health was pretextual. Yet he previously had acknowledged that his health was a legitimate concern, the Court said. He also claimed that the company's concern about his contact with the union president was pretextual. But Rheem's concern was reasonable, given the "charged atmosphere at the plant," the Court said.

Rheem's wish to hire someone familiar with "lean manufacturing" was also a pretext, Lee argued, because that qualification was not listed in the newspaper advertisement. The advertisement stated, however, that an applicant needed experience in handling grievances and negotiations, the Court said, and those requirements implicated "lean manufacturing principles."

"Although Lee had significant labor relations experience at Rheem, the search committee took many factors into consideration, and we will not question the wisdom of Rheem's decision," the Court concluded.