Good day, everyone, welcome to the Americans with Disabilities Act (ADA) audio conference series "Hot Topics In Employment: Pre-employment Testing and Leave as an Accommodation" conference. Today''s conference is being recorded. At this time, would like to turn the conference over to Robin Jones. Please go ahead, ma''am.
Thank you, and thank you everyone for being patient as we get connected today. Per usual with a lot of people joining this program, it takes a while for people to get on-line. We also wasn''t to make sure that our accommodations are in place and our captioning is ready and up and going. So I do welcome everyone to the session today, and our session for our title today is "Hot Topics in Employment," and that we will be covering pre-employment testing, as well as leave as an accommodation today. And we are joined by Adele Rapport who is the attorney with the Equal Employment Opportunity Commission and I will introduce her in a minute. This is the second in our series on reasonable accommodations days that we are offering during this program. This audio conference series is sponsored by the 10 regional disability and business technical assistant centers, also known as ADA and Accessible Information Technology (IT) Centers. This is collaborative to provide information and training to people on a monthly basis on hot topics and issues of interest on the Americans with Disabilities Act. This session is being accessed by individuals in three different manners. One by telephone, two by streaming audio on the Internet, and the third being individuals using the real-time captioning. So as we go forward today, just keep in mine that people are connected in a multitude of ways. This session we will have our speaker, and then we will go into a question and answer period. The operator will give you instructions related to how you can connect and ask questions at that time. This also includes our individuals who are on-line. If you follow the instructions on how to ask a question, we will make sure that your questions get integrated, as well as those individuals using real time captioning. If you have questions, please ask them and we will make sure the captioning gets them into the queue as well. We will do what we can to respond to as many questions as possible. So without further ado, I am going to move forward here and introduce our speaker. Adele is a University of Michigan Law School graduate and Associate Regional Attorney for the Equal Employment Opportunity Commission. She previously was in Detroit, and she has recently become in an acting position in the office in Memphis, Tennessee. She has done a number of ADA cases over the years, and has successfully tried ADA cases as well to verdict, so she has experienced in a multitude of levels of actually taking in ADA cases, training on the ADA, and actually being in trial on the ADA. She is also currently the public co-chair of the ADA Labor and Employment section, the committee, the CLE committee, and the chair elect of the executive bored of ATLA''s employment rights section. She is also a member of the College of Labor and Employment Lawyers board of governance, and is an adjunct professor of law at the Detroit Mercy School of Law, where she teaches employment discrimination and disability rights courses. I think you will find today that our speaker is very knowledgeable and has a lot of experience and will be able to give us some insight into these issues and hot topics that we have identified, that being the testing and leave as a reasonable accommodation. So without further ado, I will turn it over to Adele for her presentation. Thank you Adele,
Good afternoon. First of all, I need to say that I am not speaking on behalf of the commission. We have guidance that specifically says the commission''s position. I am going to be speaking as a reasonable attorney who prioritized ADA litigation while I was in Detroit. We have a really good ADA docket here in Memphis as well. Today I am going to be talking about pre-employment testing and leave as an accommodation, and just to give you a little background, some of you are probably familiar with this, but I wanted to give you the statutory framework for how the testing issue arises, the various inquiry positions that come into play. Section 12112D has several provisions that deal with employment in examinations, testing, and inquiries. The first one deals with pre-employment inquiry, and that provides that you can''t conduct a medical exam or make medical inquiries of a job applicant as to whether they are an individual with a disability or as to the nature or severity of the disability. So basically, bottom line, simplest thing to do is no medical inquiries before you have made a job offer. The next issue arises, is when has an offer been made? Because some employers feel that they are going into the second level, and the second level allows employers to ask all employees who have been begin a conditional job offer pretty much anything that they want to ask them in terms of, you know, any kind of medical exam can be given, and a broad range of medical inquiries can be given. If they withdraw the offer, they have to show that decision was job related and consistent with business necessity, that essentially the person couldn''t do the job. But some employers get sort of caught in the middle, where they will want a pool of qualified applicants, so they may not have a given position open. But they want to have a number of people that they can offer as positions come open, and they may not even be anticipating a particular position, they just want to have this pool available. So they will start doing these medical inquiries, full blown medical inquiries and testing being they have made a real offer. My advice in this contest is you better have an offer in writing being you start doing that broad based asking anything you want kind of inquiry. We did have some litigation, class litigation against visdion where they that had created this people. We had several plants where they were making broad based inquiries of applicants without having given them an offer. And the solution was to make sure that offers had been given in writing before asking these kinds of questions. Now, after a person becomes employed, there is also a provision in the same section that says that you can''t make inquiries or exams about an individual''s disability status unless its job related and consistent with business necessity, that is on the employer to prove that high standard. So you have three levels of inquiry, and the case law that is involved on testing has sort of touched all three of those levels. The other provision that is important is not nearly as frequently litigated, actually none of these are frequently litigated, but this one less than all, is the qualifications standard provision, and that is 12112B6. That says that you can''t use a qualifications standard or an employment test or any other selection criteria that tends to screen out individuals with disabilities or a class of individuals with disabilities. And you can use a qualifications standard if you are, you know, if its job related or consistent with business necessity, but again, that is a very high standard that the employer has to meet. Another provision which is, I don''t know if I have seen any cases that dealt solely with this provision, states that you cannot use a test that measures, that measures skills that are, well, take that back. What you can''t do is use a test that really measures limitations rather than skills. So, in other words, you can''t, like, measure somebody''s hearing or vision or something like that. What you really need to measure is whether their skills and their ability to perform the essential functions of the job. So you can''t use a test that emphasizes limitations rather than abilities. Now, the question that first arises in these testing cases is who can challenge them. And the issue that has been pretty well litigated is do you have to be a person with a disability in order to challenge a testing provision on a pre-employment level? The majority of courts have said no, whether it is an employee or a job applicant. You don''t have to be a person with a disability. And the reason the courts have said that is because the language in the inquiries section talks about applicants and employees. It doesn''t talk about qualified individuals with disabilities, which is the language used in the other employment discrimination sections. So this is what I call an every man provision. It protects everybody from inquiries that would reveal confidential information that is unnecessary about disability, both at the pre-employment and at the employment level. And the other point that the courts have made in indicating that you dont have to be a person with a disability to challenge a test, is that it defeats the whole purpose. If you have to say I don''t want to have to reveal that I am a person with depression, so I am going to sue my employer because they asked me about depression while I was an employee, and in order to win that case, I have to prove that I am a person with depression. So in order to avoid that catch 22 of forcing somebody to reveal a hidden disability in order to gain protection, the courts have said you don''t have to be a person with a disability. And there are several cases Griffin, Friedenberg, all of those cases have held that the individual does not have to be a person with a disability. Now, if you make the inquiry, those cases have also held that the employer has to show that the inquiry is job related and consistent with business necessity if you are making any inquiries of employees. Now, it is very important that the Defendant, you know, prove that this particular question is related, like an example for an employee would be if a person asks for an accommodation, then the employer would have a right to say, all right, I need to get some medical information to back up your claim for an accommodation to make sure that you need it and that we can provide you with the best possible and most effective accommodation. Now, the employee has to be able to make the link themselves, though, between the inquiry and some sort of adverse action. Some courts have held that just being asked a question without something bad happening you as a result of that question being asked will not support a claim under the ADA. So basically these arise in a situation where a person hasn''t been hired. So they will allege two separate claims. They will say, one, you violated the inquiry provisions by asking me about my disability, asking me about workers'' compensation, asking whether I needed an accommodation before you made me a job offer and you didn''t make me a job offer. And if you can establish that no job offer was made, and that you were qualified for the job, then you can establish both the failure to hire claim and inquiry claim. And that is not an insignificant point, because in one of our cases handed up by the San Antonio office, we got a verdict against a retailer for $150,000 because of the inquiry violations alone, and in our Dupont case we got a $1.29 million verdict equity where part of the issue involved inquiry, but it also involved ultimately a termination. Particularly as a regional attorney for the Equal Employment Opportunity Commission (EEOC), I really like to focus on inquiry issues. Our office in Detroit always looked at the employment applications in every case we investigated, whether it was a Title VII case, or an age discrimination case, looked at testing, and we looked at inquiry provisions, because this is not something that the plaintiffs bar is particularly attuned to. This is something that as a government entity responsible for enforcing the ADA in the private sector that we feel we need to be litigating these cases, because having a test that has a tendency to exclude an individual with a disability or a class of individuals with a disability is shutting the door to employment opportunities. And also people who have disabilities may be discouraged from applying to employers if they know that there is going to be a test that really isn''t related to the job that they are applying to, but they are afraid that they won''t be able to pass it, so they may not even try to get the job. So this is something that I have always had as a top priority in my office in terms of litigation, and something that we look for in all of our cases. Sometimes this employer won''t need to be sued. We can just point out to them, you know, this test that you are using is unlawful under the ADA in the pre-hiring situation. If you want to give an Human Immunodeficiency Virus (HIV) testing, or whatever, and it is important because you are a hospital and you need is to know the answer to that, make the job offer, then do the test. And most of the employers are willing to do it. Some employers have given me the opportunity to sue them, and I have done that frequently, and we have succeeded. As a matter of fact, we file motions for summary judgment to have decisions issued for our favor on the inquiry provisions, and because it is clear cut law, either it is a violation or isn''t a violation, we have been pretty successful. I don''t think we have lost any of those motions, that really gets the ball rolling in our favor on the underlying claim as well. Now, the other thing to bear in mind, and for you employers out there, is that, you know, why do you need to know the answers to these questions? Before you make a job offer, all you should really be interested in in terms of testing is to use a test that actually measures their ability to do the job. So why would you be using a test that doesn''t really measure their ability to do the job, your going to screen out very qualified candidates who really could do the job fine for you, but just can''t pass the test because it has a tendency to screen people out who have their particular kind of disability? So this is something that I always, when I speak to employer groups in particular, I have them look at your employment applications, see if you are asking questions that you shouldn''t be asking, and then look at your tests and find out whether you use it. I think there is a lot of companies out there, or somebody may go to a conference and they will hear about a personality test, or use the MMPI, or use this particular ability test that is used by the unemployment compensation folks, and they may be persuaded that this is a good way to get good employees when in fact they may be violating a variety of the laws. Because they may be violating the ADA in a pre-employment inquiry or they might be violating Title VII if there is an adverse impact based on race or sex by using a particularly lifting requirement where it is not pertinent to the job, for example. Now, an important question in terms of testing is whether the particular test is a medical exam. The statute provides that drug tests are not a medical exam. So employers can give drug testing pretty much at any time to test for illegal drugs. They can test before they have made an offer person they can test during employment. That is not something that is controlled by the ADA. Other tests sometimes are a little harder. In you have a vision test, or a hearing test, that is obviously, or a test that measures heart rate, like a stress test, and you are actually putting we haven''t on where it is like a stress test that is given in a hospital kind of setting, that is obviously a test which can''t be given pre-offer. But some tests, like the MMPI, which is a psychological inventory, that kind of a test could be a personality test that is permitted under our guidance, or it could be a psychological test, and the case law has held that the MMPI in particular, and I am going to talk about the Karaker case in a minute, is in fact a psychological test and should not be given preoffer, and can''t be given to employees unless the employer can show its job related and consistent with business necessity. Now, our guidance, which is part of the materials, talks about some guide posts for determining whether a test is a medical exam under the ADA. First of all, is it administered by a health occasion provider? And that is kind of an interesting point, because courts have held that whether it is administered or even interpreted, which is another factor, by a healthcare provider, will help determine whether it is an medical exam, but way, employers shouldn''t be rewarded for having amateurs interpret tests that normally are up interpreted by psychologists or psychiatrists. So I think that is why the courts have said who it is interpreted by really isn''t the problem, but in fact if it is interpreted by a psychologist, psychiatrist, nurse or doctor, that is a pretty good example it is a medical exam and can''t be given pre-offer. And another question is, this test, is it designed to reveal impairment, like the MMPI is designed to reveal impairment. There are a number of psychological tests that are given to people to see whether they have an impairment, whether they are malingering. It is to test their disability status, quite frankly. And those tests are designed to do that, so employers can''t take that test, that is designed to measure impairment, even give it to an amateur to interpret, just an HR person and say, oh, that test isn''t covered, it is not a real pre-employment inquiry. Another issue is whether the test is invasive. If you are drawing blood, if you are asking for urine, it is a medical exam. But invasive doesn''t just mean bodily invasive. I mean, a hair sample, but also it can be psychologically invasive. If you have ever read the questions that are asked in an MMPI exam, I assure you it is nothing you would want to answer in order to get a job, and when the jury hears the kinds of questions that are being asked, it is not something that they are going to want, you know, people to have to answer in order to get a job. It is very invasive psychologically. I think most folks would rather give a blood or urine sample than answer some of those questions and tell strangers, you know, what their feelings are in very intimate areas. Another factor is does it measure performance of doing a task? You know, how much can you lift where you are going to be lifting boxes or loading them, how much can you lift, as opposed to measuring your physiological response when you are lifting. So if they have a blood pressure cuff or some other kind of measuring device put on you to measure your heart rate or your blood pressure while you are doing the work that you are doing for the test, that is a medical exam, or just asking you to demonstrate an ability to do a particular job wouldn''t be. Is this test normally given in a medical setting? And again that points to the idea of not letting amateurs matures do what professionals normally do. Some companies use what is essentially a cheap stress test, and if they are measuring your physiological response during a step test where you are stepping up and down and measure your response what your heart rate is doing while you are doing that, even though it is not being done in a medical setting, it is being done on the floor of the factory, and it is being interpreted by somebody who is not a licensed nurse or doctor. It is normally that kind of a stress test is normally done in a medical setting, so that would be an exam. And then again is medical equipment being use understand are they using some kind of medical equipment to measure? There is an interesting impairment test, it is a test that uses some medical equipment that measures eye responses. And that is medical equipment, and you could certainly argue that that is a medical examination. I think if you are going to read a case, the Karaker case that is in your material is the best case to read on this particular issue. That involved the MMPI, which is a very invasive psychological test. It is designed to measure psychological impairment, and what the Defendant argued in that case, what Rent-A-Center argued is yes, the MMPI can be used to measure impairment, but we were using it for vocational purposes. So we were using it as a vocational measure to see if these folks were qualified for management positions, and, you know, so it is not really a medical examination. The court rejected it, because really the MMPI is primarily designed, and I think that most of the literature would suggest that it is not appropriate to be used as a vocational measure. And it really, the court also said, you know, they argued, well, it will measure depression, but it will measure the kind of depression one would feel if oneness favorite team lost the World Series. But the court pointed out if it is going to be excluding people because they are depressed in the morning because they lost their keys, or their wife yelled at them, that it is also certainly going to exclude people who have major depression. And the court also expressed some concern about excluding people who really, you know, could perform this job very well, that this test, if it is not a very good measure of whether somebody is able to do the manager job well, if it is excluding people who have minor depression and major depression, and it also would be tending to eliminate a class of individuals who have disabilities, as well. Now, that case is very well written, and I would certainly commend that to you. Other courts have held that other types of tests which look like an MMPI have -- are not actually violations. For example, the past three tests, which is sort of a personality integrity test that is looking for trustworthiness and reliability, alienation index in the Thompson versus Bord-Warner case, the court held that that test was really just a personality test which we are saying is okay, and really wasn''t measuring impairment. And also I think importantly in that case, as in others where the testing issue has been lost from our perspective, is that the Plaintiff couldn''t prove the link between the nonhire and the test results. He apparently became very belligerent with the interviewer, and they felt that that was the real reason and said that was the real reason that he didn''t get the job, it wasn''t the test. Another interesting case is Korea versus Roadway. There an individual was taking a physical ability test, and agility and physical ability tests are okay as long as they are just marking ability to do the job, as opposed to physiological responses, and he said he was wearing something sort of wrist band. He thought they were measuring his physiological responses, put the court ultimately held that there was not enough evidence that they were. There wasn''t any test result, and there also wasn''t evidence that he had in fact not been given a job because of any physiological response to a test. And if you are giving that kind of test, you are skating very near, and you should be able to demonstrate that that particular test is job related and consistent with business necessity, should be validated for the particular position if question, and not just something you have heard was a good idea that other competitors of yours may be using. Now, qualification standards, the qualifications standard provision comes into play a lot of times when there is test. Like for example if you want to drive over the road in interstate commerce, you may need, you will, depending on the size of the vehicle, need a Department of Transportation certification, and part of that certification will involve a hearing test. So some employers will use the DOT test to exclude people who have a hearing impairment. Others, even though they may not need to be driving over the road in interstate commerce, maybe they are just driving locally, and they just think that the DOT certification is a good idea, so they are going to require the same level of hearing for people who drive within a small area in a small truck as they will for people who are driving big trucks over the road. They may argue this is a safety issue. But courts have said that you can''t use this qualifications standard unless it is an accurate measure of the ability to do the job. In the Morton versus UPS case, the court says that UPS had not established that people with a hearing impairment were a higher risk in terms of their driving ability that would justify using the DOT test. Now, we have not really been successful in the Supreme Court has said that using DOT certification for a job that requires DOT certification. We haven''t been successful. Although I had one case that raised an interesting point, where the woman was, had a hearing impairment, but she did have a state commercial license. She had been driving commercially without a problem, and she could have passed the test if she had been given a hearing aid, used the hearing aid for the test. She didn''t know she could use a hearing aid, and it was our theory in that case that the quarter who it was the expert in this area should have told her that she could use a hearing aid, she could have borrowed one from our vocational rehabilitation folk or they could have found one to have her test to see if she could pass with it and the question would rise who will pay for it because she would have had to wear the hearing age driving over the road. Another case Fuzzy versus S&B Engineering. A person had to do a 100-pound lifting requirement, and the court said that they did in fact prove that that lifting requirement was necessary for the job. Another case, Jacobson versus Tillman, involved a teacher with a learning disability, and she couldn''t pass a math test that was required for all teachers. She tried to take it many, many times, and she was given accommodations many, many times in terms of more time to take the test, and she was given many opportunities to take it. So the court said, you know, there really wasn''t, at some point, the expert testified there was really no possibility she was going to pass the math test, and in view of that, the court felt that the State did have a right to have people have a certain level of math skills forced to be certified to teach, and decided that the test was appropriate, and that she couldn''t be hired or retained in that teaching position. Now, also, an employee must cooperate in the testing process. If an employer says that they want to have, you know, a person says I want to be accommodated in the testing process, and the employer says, okay, fine, I need you to give me information about your disability status and your need for an accommodation. This usually arises where people have learning disabilities, or maybe mobility impairments, or dexterity impairments, and it is perfectly appropriate for an employer to request that information, limited information if the employee is asking for an accommodation case to test. The Collins case, the employee dropped the ball and didn''t provide updated information about her limitations and restrictions to justify the accommodations she sought in doing a test. Now, by the same token, an employer can make their test, you know, can create evidence that makes the test unnecessary, and defeats their ability to prove that its job related and consistent with business necessity if they don''t require that people who hold a given job be retested on at least an annual basis, and this is something that I always look for. A lot of times employers will have very high standards in hiring and say that this is absolutely necessary that people apply for this, you know, particularly public safety kind of position pass this test, and yet they are not having their full time employees retest in these areas on even an annual basis. Once you are in, you are in, so that defeats the whole idea that people have to have a certain level of fitness. You could have somebody who has been working in the job for 10 years, and you don''t know what their physical condition is, and if it is necessary they be able to run a certain distance or pass an agility test, one would thing that you would have yearly qualification. And that arose in the case of Jeffrey versus Ashcroft, where an applicant was applying, John Ashcroft, our former Attorney General. He was applying for position as a chaplain in a prison, and he had chronic destructive pulmonary disease, so he couldn''t pass the physical agility test. One of the issues that the court raised was the fact that once the person became a chaplain, they didn''t retest them, and that waived, in the court''s view, any right to insist that that test be done. And also the courts are requiring, in terms of employee testing, they are requiring that they look at the fact that they have done the job, fine, that the employee themselves has done the job fine, and that that makes the test not job related and consistent with business necessity. The Indianapolis case illustrated that, where a person had post polio symptom and flunked his typing test although he took it many times, yet he had performed very well as a dispatcher, his supervisor testified he was very bright and one of the best dispatchers they had, and they had him train other people. He failed the test when he was first hired, but they hired him anyway, let him work there for awhile, and then they try to discharge them because he can''t pass the test later in his career. So, also an issue that comes up in terms of employee testing is testing for fitness for duty. You can only test for fitness for duty if a reasonable person would believe that the test is necessary. In Jackson versus Lake County, the court felt that just some confusion with employee, you know, co-worker names, you know, a little slowness in performance, that didnt justify sending an employee out for a full-blown psychological battery, and said that that test was inappropriate. On the other hand, a case that was handled by my office, Prevos Family Market case. EEOC versus Prevos. In that case, an individual said he was HIV positive, told the employer that, the employer said they wanted him to submit to a full-blown medical examination, including an HIV test. He refused to do the exam, he worked at a fruit market. He gave them evidence that he was not contagious, didn''t have to tuberculosis, or hepatitis, and, you know, felt that that was enough information, that is all they needed to know. And the court, we won summary judgment at the lower court, but the 6th circuit ultimately held that the employer was within its rights to do the test, to check out his safety practice, and that she should have submitted to the test. Other cases that we have we have litigated that had raised this issue on hiring, and raised in an accommodation context is the Daimler-Chrysler case we litigated a class case on behalf of individuals with learning disability approximation they had not been able to pass the reading portion of a test. We argue that that reading portion was not valid for the positions that they were hired, because when we talk to the people that had been selected in other positions and the union, they said, oh, no, we don''t read as part of the job. So we asked as an accommodation they be given a reader to read the comprehension portion of the test, and we resolved the case with those folks being able to retest with the reader, they were placed in line to hire where they would have been if they passed the test originally. Some of them were given back pay, and the company agreed that they will provide readers for that test in the future. Another case we litigated involved an individual who had diabetes, and he was unable to drive over the roads so he wanted to work in house, loading, they made him take is a physical ability test. He flunked the test, and they basically as a resolution offered him the job, decided to waive the test for people who had demonstrated an ability to perform the functions of the job. And they are going to work with us at developing something that will better measure an individual''s ability to do it. Another issue I wanted to bring up briefly is the waiver issue. We litigated this in the Mohler Tech case successfully, obtained summary judgment on it, and that is where an employer puts into employment application that the employee waives any rights they may have to object to a test when they become employed. So they can do random alcohol testing or medical examination during their employment, the employment signs an agreement right when they are applying for a job saying that is okay with them. We argue that that was unlawful waiver of their rights an employee to have medical examinations and tests only when it is job related and is consistent with business necessity, and even with the random alcohol test, the court agreed with our position that that was a violation. One quick word on voluntary medical examinations. Some employers will say well if you submit to a voluntary test during your employment, you know, medical examination, and you pass that test, that we will give you a bonus. And the bonus may be money, cash money, the bonus may be decreased deductibles, or decreased premium. Have to be careful about that. It is not that we want to discourage voluntary, you know, healthcare medical kinds of things that an employer may suggest, but you can''t punish people with disabilities by depriving them of the opportunity to gain that benefit. So the question in my mind is what is the real level of deductible? What is the real level of premiums, because if only the people with disabilities have to pay the higher premiums and the higher deductibles then you are punishing them because they have a disability, and this test that you are giving that they can''t pass is really a violation of the ADA. Now, I have only got a little bit of time left to talk about leave as an accommodation. There is really only two main points. There is lots of cases, but only a couple of main points. It is sort of an odd concept, because if an individual is asking for leave, you know, they are not going to be working, and most accommodations help the person work. You know, it may be a technological assistive device that will help them at work. But the courts, and of course Congress has determined that sometimes people need to take leave in order to get surgery, in order to recover, in order to get treatment, and that when they come back, they will be able to work, but the leave is necessary for them to be able to return to work. The courts have universally recognized that unpaid leave is an appropriate accommodation. It depends on how long it is. If the person, you know, needs leave for, say, a year or more, some courts have said they are unqualified for their job, because, you know, in order to be qualified for the position, they have to be available to work and being unavailable for a year suggests they aren''t qualified. Some courts have said that it is an undue hardship for an employer to have to keep a job open for more than a year. But one mistake many employers make is they think that as long as they provide 12 weeks of leave that is required under the Family Medical Leave Act, they are home free on the ADA. And I have litigated that over and over and over. The employer may not let somebody go after the 12-week period, or after a six-month period unless they can show it is on undue hardship to hold that job open. I have had many cases where the individual was ready to come back to work, there are open positions they could do, the employer hired strangers to fill those positions instead of my 17-year veteran who knows the job inside out. How can they demonstrate an undue hardship under those circumstances? So what you have to do is look at this case by case caste. The courts have not set a time frame in stone. But many courts have said that it is not on undue hardship to hold a job open for a lengthy period of time if you can get temporaries to cover for them. That it could be six months to a year. Other courts have said that four months is too long, but that is dependent on the job and whether the employer can demonstrate that they couldn''t hold it open. Now it is the EEOC''s position, and also under FMLA, that you must hold the employee''s job open during the leave. They get their own job back, and I am litigating that now against a retailer where an individual had cervical cancer, and was out for five months, and they wouldn''t let her come back to the job as a manager that she held. They said they didnt think she was quite ready for that even though she said she was and had performed it for ten years. They demoted her, paid her less money, said we will promote you again back to your old job in 90 days if you do well. She did well, and they still didn''t promote her. So it was our position that they failed to accommodate her by giving her that five months of leave and giving her position back when she got back. So that is something that you really need to look at, and they, in my view, did not have a defense in that case. They basically said, well, we had too many managers anyway, so was opportunity for us to get the attrition we were looking for and get our management numbers back where they should be. What they had to demonstrate was they could not hold the position open because they immediately needed to fill it. In fact the evidence ran contrary to them proving its an undue hardship. The other -- so one point is that leave, you know, is an accommodation, and that you need to look at it as to whether it is an undue hardship to keep this position open for them until they are ready to come back. Another main point on leave is indefinite leave. It is the commission''s opinion and some courts, although I have to admit this is not the majority view, indefinite leave may be an appropriate accommodation. And the reason we say that whether leave is definite or indefinite may depend on the doctor. Some doctors can say, you know, my patient will be ready to come back in six weeks, at the end of six weeks they will say they are not ready to come back, maybe another three weeks or two week, and you could end up with six months in two to three week increments. Another doctor may say I am not sure exactly when this patient will be able. It depends on how their recovery goes. Patients could have the identical experience of being out for six months. One would be denied an accommodation because their doctor called it indefinitely, and another one would be granted the accommodation because their doctor originally gave a different date and then turned to extend it. So it is our view that indefinite leave can be an appropriate accommodation, but I have to admit that the vast majority of the case law says otherwise. The vast majority says that if the employees doctor doesn''t come up with a specific time frame, and its just indefinite, most of the cases, Wood versus Green, the Novak case versus a high school, many, many cases have said that indefinite sleeve not an appropriate accommodation. The other third named point on leave is that generally courts will, and we have over time been successful in litigating these cases grant leave that in a specific time frame if they say you need four mounths leave, six months leave, even a year''s leave, as long as it is a set time frame. If, however, the employee has sporadic and unpredictable absence, then case law is very bad on that from our perspective. Either the courts will hold that a person who has sporadic absences, unpredictable, that that person isn''t qualified because predictable attendance is a requirement of the job, or they will say that it is undue hardship for the employer not to know day to day whether an employee was coming in or when they were coming in. And in that vein courts have held that an open ended schedule, the employee coming in when they get their blood sugar under control, some courts have held that that open ended schedule in many jobs is not an appropriate accommodation. Although I have been able to demonstrate in some jobs if in the person is just doing data entry and there is no particular time frame, and they can stay later if they come in at 9:00 or 10:00, it really doesn''t make a difference, nobody is waiting for them, in those cases I have been able to demonstrate that it wasn''t appropriate for the employer to terminate them. Also we had a case involving a person who had diabetes that was difficult to control, and also person with sickle sell anemia that we resolved. Also, a person who has, you know, unpredictable absences for the entire day, not just start times, but they say they just need to be able to work as needed, or come into work, when they can, courts have basically said that is not an appropriate accommodation. Final word and then I will take some questions, deals with no fault attendance policies. Many employers have no fault attendance policy, and that is something that we look very carefully at, because if, it may be a violation of both the ADA and the FMLA. If you say you can only have so many excused absences, say 12 excused absences in a four-month period, and if you have, you know, more than 12, even though they are excused, you are going to be terminated. You better be able to demonstrate that it is on undue hardship for are the person to have more, you know, more than 12 absences, and that is going to be very hard to do, because we are going to look at what kinds of absences you have tolerated for other reasons, travel, child care, elder care issues, jury duty, whatever, and see, you know, in fact has the company been able to function notwithstanding the fact that somebody has been absence more than 12 times it is in a four-month period. Some also with a look at which absences did you count. So you really have to take out of the picture both for FMLA and ADA purposes any absence that was excused for medical reasons that are related to a disability. Now, if the person has 12 absences that are just because they called in and didn''t want to come in, or they had some other kind of personal family issues that were not related to their disability, that caused them not to be able to come in, or not -- you know, and also not protected by FMLA then you might be able to enforce that. But the no fault attendance policies are pretty much fraught with peril. You have got to be careful in administering them so as not to run afoul of the ADA and FMLA. So without further ado, if anybody has any questions, I would be happy to take them now.
A question and answer session will be conducted electronically. To signal for a question please press star 1 on your telephone keypad. Again, that is star 1 to signal for a question. We remind you if you are using a speakerphone to please make sure your mute function is turned off to allow your signal to reach our equipment. We will pause for just a moment to assemble the roster.
I have a question from our on-line participants, so I will go ahead and start with that while we are waiting for people on the telephone to queue in. The question here is related to testing issues for people with cognitive disabilities such as mental retardation or learning disabilities. I know you talked a little about that. This individual indicates they have run into a lot of testing issues where they are not convince that the test is related to the necessary job skills, and many of the participants seem to be screened out of jobs before they ever really get the opportunity to talk to anyone about their qualifications or actually doing the job. Can you, or do you know of any examples of any type of case law or anything to address any of those type of issues or any guidance that you might given to the audience or individuals who may have difficult with the testing, of the way it is constructed.
Well, certain, you know, I have litigated that issue myself, you know, in the Daimler-Chrysler case I mentioned on behalf of a class of individuals with learning disabilities. The testing, you know, sometimes these cases deal with disability status issue, like, for example, somebody will ask for an accommodation in a test for, like, Adules versus board of medical examiners, and the court said he wasn''t disabled because he was able to get through medical school, but there was a case, I can''t remember the name of it, it was a lawyer, and they said because they were able to get through law school. Of course, both of these individuals were able to get through med school and law school because they had been accommodated. So a lot of the case law out there has dealt with disability stats and requesting testing accommodations, and not really dealt with the testing issue. But the problem with these kinds of tests is that many employers will hire industrial psychologist firms, they will what we call validate the test, and what they mean by that is that the test will validly measure criteria for a given job. And they will not have an adverse race impact or sex impact. What they are not thinking about, and this is something that we got into in the Golson case that we litigated and it doesn''t consider disability, and doesn''t consider the possibility that this individual could perform up to the employers standards as needed by the test if they were given an accommodation. Exactly the example they are talking about. If the person could present their skills and abilities that they could I show this test isn''t a valid measure for them, and there isn''t much case law out there, but what guidance I would give you is for them to ask for an accommodation to test, and then if you are challenging, you know, the test in litigation, is to look at it, has it been, you know, just not accept that validation defense argument, because our guidance is very clear that validation is not a defense to a test that screens out people based on disability.
Okay. Thank you. I know this is a tough one. You know, many people especially some of the on-line testing stuff now, the HR kind of practices that electronic practice that employers are using where you, you know, go into the store, or go into the place and you take a test before you even really get through the application process. You are already answering testing questions, and it is sometimes a challenge for people who are trying to make that link between business necessity and the job itself when you haven''t even gotten past the front door yet. So next can we take some questions from the telephone, please?
And our first question will come from Gary at Disability Network.
Hi, this is actually Joel, Disability Network. A general question and comment regarding qualification standards, and something I see all the time as a person who is blind, either requirement to have a valid driver''s license when that is not an essential function of the job. I continue to see that, even ironically in RFPs for ADA coordinator positions. The other problem that particularly hits blind community when it comes to legitimate testing is having the accommodation or the actual software to be tested on to be accessible to begin with and so I was wondering if you had some comments on that.
Yes, those are some very interesting points. I believe in our guidance that we give as an example that you can''t require a driver''s license for a position that doesn''t require driving as an identification, that you to must accept some alternative form of identification. So a state identification or a passport, or something like that, should be offered, and, you know, submitted and just say I am offering this as an alternative, and I believe you should accept this as an accommodation, because I don''t have a driver''s license. And, you know, if really their only interest is verifying who you are and identifying you, they will accept it, you know, if they are trying to exclude people with a vision impairment, obviously they may not. Software tested on, again that is something that they are required to accommodate. They have to accommodate in the application process. And we haven''t, I don''t think that I have had cases, I mean I have represented individuals with vision impairments, but not where the application process has been of concern, but we have talked about in sessions, you know, I think Job Accommodation Network (JAN) has a website about how to make websites and, you know, including the application accessible to JAWS or some kind of software that that a person with a vision impairment would be using. But they certainly have a right to ask that their application be accepted in some alternative format. I am not sure, you know, employers usually have some line on the application that says if you need an accommodation, please contact us at, and, you know, if you can get access to that part of the application, you can, you know, or have some other number to call, and for the accommodation that you be permitted to take the employment test with accessible software. And I am sure that that is not something that a lot of employers have even thought about.
I know, just let me interject here. I know that we have had many inquiries and questions on this issue, because especially again when you go into some of these stores where you have a kiosk or something, they are normally done by a regional field office and not that individual store, so that individual store doesn''t normally have much to do with it so when you are trying to figure out how do I make my request for this accommodation, we have had people tell us they get on a run around, sent all over the place trying to get the accommodation. And often times you miss the opportunity for the position because they may be hiring now, and by the time you end up getting all of your questions answered or get a response, it is very problematic, because they have really removed the face to face interaction in a lot of these situations anymore.
Right, and another case that we litigated involved a person with a developmental disability. Actually, we resolved it short of litigation. He needed help with the application form itself. And they said, well, if you can''t fill out the application form, then there is nothing for you here. And his mother was assisting him, and they kept asking, and finally they, you know, through the EEOCs intercession agreed that they would allow him to apply for the job with some assistance in the application process. And the main thing there is to make sure that this big company knows that that is their obligation and that the next person who comes in and asks for assistance in filling out the application would get that kind of accommodation. So that also affects people with developmental disabilities, and we have litigated application issues involving people with hearing impairments, too, where somebody has come in and said, you know, part of the part of the exam was, you know, like a video, they had to watch a video and respond to it, and they couldn''t understand, you know, because it wasn''t captioned. And that also has to be accommodated. You know, the accommodation they offered was to pull their chair closer to the television screen. Not very effective.
Okay. Next question, please.
We will take our next question from Don Incorporated.
You said that we should ask for accommodations when they are giving a test that is not really job related to what they will be doing or the position that they are going for. I heard someone just say they get a run around with that. What do we do in that case if the job that they are going for, the test is not related to it at all? For instance, if it is a cart person, they don''t have a particular test for someone who just wants to do cart, or someone who just wants to be a greeter, what do we do in that case?
Well, that is exactly the case I was talking about with a person who had a developmental disability. He wanted to do a cart position, and they said well, we don''t have anything for you if you want fill out this application by yourself. And what, you know, what you ask for is an accommodation if doing that, for you have a test, the test has to be job-related for the job in question. They can''t just say, you know, this ask applicable for all the jobs in the store. So, you know, you have to say we want a, you know, we are only applying for this position, and we want an alternative method for applying for this position that doesn''t involve a test that is related to their ability to do this job.
Okay, and once we, because we don''t have that, they have asked that, if they don''t have specific tests for a cart person or a greeting person, it is a department, certain things come under are a certain heading and the tests are for those particular headings. So when they say that, then what do we do?
Tell them that you request that they waive the test.
Oh, that they waive it. Okay
Right. Waive the test, because, you know, this person is applying for a cart position, and, you know, that test isn''t applicable for that position.
Okay. Great. We will try that.
Particularly a lot of times, you know, my client had worked in other store and done the same job successfully, so that is more of a measure of whether they can do the job, and particularly if you have got that situation, say, look, they have done this job before, you can call their references about that, or they have been trained and we can give you references on their ability to do the job, you should accept that as an alternative to the test.
I had a quick statement. Have you run into situation where is a person has to test and then failed it and told they can take it again in three months or six months before they can take it again, especially with a person with a disability?
Yeah, sometimes I have seen that, and the question again is that that is sort of a side issue, the fact they may miss out on the job, because it is going to be gone by the time they retest it. What I mentioned to you, you know, the resolutions that we made in the Daimler case was that, you know, because they were retested, but, you know, they ever retested, the litigation years after they had take then test, so what we said is that, you know, you have got to put them in line, because, you know, for a job where they would have been when they took the test itself. I don''t think that there is anything, you know, if the test is invalid, it is going to be invalid three months later. The harder thing would be, let us say you have a person with a learning disability. They take the test thinking they might be able to pass it, which sometimes people do. It turns out they couldn''t pass it because they don''t have sufficient reading level to be able to do it. Then I think it would be appropriate to say if they asked for an accommodation, they were denied the accommodation to say I don''t think I should have to wait for another three months, because I asked for reader and you denied it. I want to take the test next week with a reader, because I don''t want to miss out on this job opportunity.
Sometimes it occurs where someone will go take the test on their own, thinking that they can do it not realizing how challenging it is, and not ask for an accommodation, and then come to a support agency and say I took that test, and obviously I need support, but I can''t take it again for three months or six months. Is there something we can say to that employer?
Well, that is a little more problematic, because the employer, you know, in the first instance didnt have a duty to accommodate in the test, and the person flunked it, so they had every right to say you can''t have the job, but I still think it without be worthwhile, you know, even though legally you are kind of on thin ground on that to go back to them and say, you know, the reason they flunked the test is because of the learning disability. We would like an opportunity to take it again with an accommodation days and apply for this open position right now, but if they didn''t say anything at the time, the employer hasn''t violated anything, any duty.
Thank you.
Great. Thank you very much. Next question, please.
Once again, the signal for question, please press star 1 on your telephone keypad. Next we will hear from Disability and Communication Access Board.
Hi, this is Debbie, and here in Honolulu, Hawaii, and I have been working with a state employer who has an employee that has been out of work on leave for two years. The employee did come back. In fact, they came back one day to their job, and then did not return, because they said, well, the diagnosis was depression, and they do have documentation from the doctor, and what the employer has done is they have divided up job responsibilities between other people, within that unit. However, they are facing morale problem because the person has not returned to work. So how long, I know you talked about this briefly, but how long is unreasonable?
I think two years, you are probably in good shape, and if been two years, you know, in terms of the employer. Because courts have balked at, you know, sometimes less than that if they can show an undue hardship, and neither the commission nor the courts wanted to get into a circumstance where they are punishing somebody for doing a good deed. Because a lot, you know, it is tempting for the employee to argue you have been able to hold the job open all this time, why not another six months? The employer by holding it open for two years is probably more than most courts would require. I think they get a little bit at one year, unless you have a situation like I described where they are constantly hiring into that position, there is no reason they can''t hire the person. Or they didn''t fill the position until after my client was able to come back. In that position, think the employer by keeping the position open for two year, and there is no fleece end in sight has probably fulfilled their duty.
All right. Thank you.
We will take our next question from Virginia University.
Go ahead. Take yourself off mute. Move on to the next question, please.
Hearing no response. We will move onto the governor''s commission on disabilities.
Thank you. As an employee of substance abuse rehabilitation program what demonstrates what job performance and/or other indications of substance abuse can the employer ask for a fitness for duty or drug or alcohol test?
Well, I don''t think the court, you know first of all, you know, alcohol is, drugs and alcohol are two different things under the ADA. Drugs are, there is just no protection for any kind of, you know, you can''t avoid any type of drug test. They can test before they make an offer, they can random test. Drugs just aren''t covered. Alcohol is a little different. There have been a few cases about, you know, involving last chance agreement, and the courts have supported employers who, if there is a reasonable basis for believing that the employee is not, you know, not you know, upholding be their responsibilities under the last chance agreement, in other words, they have gone, you know, they are drinking again, their performance is suffering, that can do a fitness for duty examination, but the best thing to do is to discipline them based on their performance. I mean, you know, what is a fitness for duty examination really going to do more than, you know, saying, look, your performance has deteriorated, so, you know, this is the rating you get for that deteriorated performance, or I am going to be put you on an improvement plan if they are not already on one, and you have to meet these goals in order to survive that, otherwise you will be terminated. So I think it would be best for most employers to deal with the performance issue if they believe that the last chance agreement has been violated, and they have got good objective evidence of that. I have seen cases where the courts have said that it is appropriate for them to ask for, you know, an alcohol test, that is not a random test, that is a for cause test because they have some evidence, you know, a person is driving erratically or slurring their words or whatever, and the courts have seemed to support that. There was a case involving a doctor, I cant remember the name of it, but that had a very good discussion about that. I think it was maybe Humana, Becker versus Humana Healthcare might have been the name of the case.
Great. I have one other question. At the exhaustion of FMLA entitlements, is the payment of overtime to replace an absent employee qualify or meet the undue hardship standards?
That would defend on then financial burden to the you know, employer. What are you talking about, is a state entity where we are talking about the entire state budget? Is it a small
State entity.
What is it?
State entity.
Then probably the undue hardship is going to be problematic, because, you know, you are just talking about money, and I think it would depend on how long that was going to be. Let us just say they have exhausted family medical leave, their doctor says they need another month or two before they can come back, so you are going to have to pay some overtime for a period of time, may not be able to qualify as an undue hardship.
All right. Thank you.
Okay. Next question, please.
We will take our next question from Miami-Dade County.
Hi. We have, our organization has a rule in dealing with reasonable accommodation requests as they relate to the testing of public safety officers, like peace officers, and we have requests from time to time for things like extra time on written exams because of learning and reading disabilities. Sometimes the department raises concerns that the ability to comprehend and read is a requirement of the job, also there are concerns that the test themselves, that to give extra time, is to defeat the purpose of the test, that the ability to comprehend in a certain spirit of time is actually a requirement of the test. Can you discuss and give us some advice and guidance in this area?
You know, that does come up frequently. We don''t litigate cases ourselves against Police Departments, you know, because that would be something the department of justice would do, but we do take in charges, and I will frequently see cases where an individual has asked for more time to take a test for a police officer position, and the Police Department saying no that this is essentially to be able to read quickly. And, you know, that is something that really I would look, I would make sure that you had an expert, you know, an expert industrial psychologist that says that you have to be able to read, you know, quickly, in order to perform this job. I think that it was found persuasive in a case involving a fire department where, you know, somebody going into a fire would have to be able to read, you know, what you know, very quickly what kinds of chemicals were present in order to combat the fire quickly. And, you know, there they were able to demonstrate that that was job related and consistent with business necessity. But having the supervisors believe that that is so, I would be looking at, you know, officers to see, you know, whether in fact, you know, how much reading are they really doing, and how essential is it to their job, and whether there is any way that they can be accommodated. You can put yourself into the situation I described with the firefighter, where you can demonstrate that in an emergency situation, you know, in order to understand your surroundings and, and how to react if split second timing that you have to be able to read quickly, then you can demonstrate that is a job necessity, and the accommodation would defeat the purpose of the test. But my guess is most of the cases I have seen these tests haven''t been validated that specifically, they have just been saying, yes, reading generally is a measure for success on the job, but you haven''t considered the possibility of accommodation or, you know, how quickly they need to read.
And the same goes for the test, that if the test is meant to measure reading speed, for instance, it would be inappropriate to give extra time on that?
Right. Yeah. I mean, you know, like I said. If you can show that reading speed is what you need to measure, because that is an essential function of the job, is being able to read quickly, like license plates, you know. You have to be able to read those quickly. You know, you might be able to demonstrate with police officers that that is an essential function of the job.
Thank you very much.
We will take our next question from the inclusion network.
Yeah, we have someone here who has asked the question is there a time limit for the Family and Medical Leave Act?
Yes, that is 12 weeks. 12 weeks, and usually the employers have that on a rolling basis, so it is 12 weeks within a 12-month period.
Thank you.
But the ADA does not have a time limit. The ADA is whatever an employer can, you know, do without an undue hard ship.
And I think it also should be noted that on your FMLA, a worker would have to work for a certain period of time before they would be eligible for FMLA, too, so they are not immediately eligible under FMLA the first day so far employment or first month, whatever.
The truth is most Americans are not covered by it, because so many Americans are employed by companies that aren''t big enough to be covered by the FMLA, because that is the coverage requirements are 50 employees, and also anybody that has worked for less than a year ask not covered by FMLA.
And think also people should look to what state laws, because there are some states that investigate their own medical leave act, California and some others, so they may, while they may not meet the requirements under their, the federal law, they may have some protections at the state level, and should really check that out as well.
Right. But, see, if the person has a disability, they are going to be covered by the ADA anyway, and the ADA doesn''t have that one year requirement or the 12-week limitation, or it is also 15 or more employees. It is only when a person only has a serious health condition as opposed to an actual disability that they are going to be limited to the 12 weeks, and with those other caveats. And you know, a again, the state law is an important point, because our state law in Michigan applies to one or more employees, our state disability law, and most states fill that gap between zero and 15.
Right. Or even the zero to 50 that FMLA doesn''t kick into it.
Right.
Next question, please.
We will take our neck question from the Arizona Bridge to Independent Living.
I have a question. If there is a significant workers compensation injury that made the worker ineligible to the requirements of the job, as an employer, should we require to waive the test or retest for that position as an employer, or just place that employee another position, and is that violating FMLA or workers'' comp laws?
Well, if you are saying the person has, if the person has an injury, and they want to return to work after a very severe injury, the first thing that you have to try to do is accommodate them in the job they held, and so maybe there is a technological assistant device, but if you have determined that the individual can''t return to the job they held, there is just no accommodation that would allow them to do that, then you have to put them into another position, and you want to put them in, you know, an equivalent position. Under FMLA, you have got to give them their job, you know, a substantially equivalent position, and under ADA, you have to give them their job back unless they can''t do it so you want to look for job that is similar if the only thing you have is a job that is, you know, a different job that they would have to have demonstrate some qualifications for, you can test them for that new position to make sure that they have the qualifications for that job. But it is the commission''s view and many courts have supported it, you know, you have an open position, somebody else may apply, you may feel that other person is more qualified, it is argued that the personal with the disability, if they have a have the qualifications gets that job. But you don''t have to waive the test for a new job and I want to make sure I have got your question right.
Yes. My question is, essentially, is that if the person cannot return to their job for whatever reason, and if we wanted to place them in a new job, like you said, would they have to be retested for that new job?
Right. You don''t have to place them in a job that near not qualified for, but you do have to right a right to find out if they are minimally qualified for that job. So let us just say you take somebody from a police officer position to a clerical position because they can''t perform, you know, the physical requirement of police officer job, and, you know, everybody who, you know, works at a clerical job has to taking a typing test, and that is an essential function of the job, typing, then, you know, you would have to you could test them for that with all of the other understandings that they could be accommodated in the test and it would have to be an essential function, et cetera.
Thank you.
And once again, to signal for question, please press star 1 on your telephone keypad. And we will take a follow-up question from the governor''s competition on disability.
The question is, if an employee is on paid FMLA consecutive leave and has private disability insurance, once the employer obtains the employee starts receiving disability insurance payments, be should the paid FMLA leave end in and the employee be placed on unpaid FMLA leave?
I think that the employer, you know, I teach FMLA, but I don''t enforce, it so I wouldn''t be giving you advice. I am giving you advice with my teacher head on. It is my recollection that under the FMLA it is the employer''s choice, they can require an employee exhaust their paid leave first, like if they need an FMLA leave, and I think if you throw in that they are getting disability payments at that point, you know, the employer can say, okay, at this point, you know, you know, we are going to, you know, it is going to be unpaid FMLA leave.
The employee receives the private disability insurance, let us say a month or two into the period of disability retroactively to the first date of incapacity, in that case, should the employee or can the employer require that the employee buy back or pay back their accrued leave that had been discharged during that period of time?
I don''t think, you know, again, I am not as familiar with FMLA as I am with ADA, but I don''t think that you can require an employee to pay back leave that they have taken. I mean, you know, if, you know, let us just say that the person has, you know, a certain amount of leave, you know, I don''t see that you can make them, you know, pay it back in a way like put them in the hole, if that is what you are suggesting.
If they would like to voluntarily buy back their time?
Right.
That they have use so that they could not have a back up accrued team.
Right. I think if you made a mutual agreement, it would be fine, but I don''t think you can force them to go into hole on their leave, because they have now received payment, you know, for that time period.
So the choice would be the employees, whether or not to either choose to buy back their time or not.
Yes, that is what my understanding is, although like I said, I am not as people with the intricacy, be I know FMLA is much more complicated on how you allocate the leave and those type of situations.
Alright, thank you.
And just as a reminder to people, for information, specific to FMLA, because this situation today was to really just talk about the interface between the two, ADA and FMLA, one should like to the U.S. Department of Labor for that information as they are the federal agency that has enforcement authority over FMLA.
All right. Thank you.
Uh-huh. Next question, please.
We will take a follow-up from Dawn Incorporated.
Hi. I have, I want to get back to the pretesting, prescreening, and I have two quick questions. One you said if we it would like to speak to an employer about waiving a test for someone who may be going there for cart handling position and the test is not specific that, we could do that. What is our recourse if the employer says no?. Do we, on behalf of them as a support agency, can we contact the EEOC on their behalf, or is that something they and their family have to do, or do we not do that at all and accept the employer''s position?
No, you can certainly, I have had many support agencies bring people in, you know, to file charges. I mean, you certainly can, you know, as an advocate help them do that. Sometimes their parents do, and sometimes the support agencies do. And I would do that, because your client is not the only one that is going to experience that. If that is what their they are doing, then other people''s clients, or people who don''t have a support agency, or going to be turned down for jobs that they are qualified for, and the only way to stop it is to go to the government agency and hopefully have it, you know, worked out through mediation, or if necessary through litigation.
Okay. And real quick, my second one was, is there any place that we specifically look on-line or anywhere to find out what some of the statistical data is about some of these tests? For example I have always seen these tests as screening people out as opposed to, I would love to find something that says they really do benefit the employer in knowing more about the person who is applying be as opposed to just screening out the people who can''t?
Well, I am not sure. I did some research, you know, generally, you know, where I get my material is directly from the employer, you know, when they use a physical ability test, they usually refer to them as PATs, and I ask for their validation studies, you know, in our requests for information. So I have access to what, you have been, they looked at, and I see all of the benefits, you know, in the case we had against a soft drink distributor, the, you know, it looked like the advantages, you know, to this stress test, this mock stress test that they were doing were, you know, demonstrated that the individuals had better attendance, better longevity at the job and less injuries if they had a certain level of physical fitness and recovery and speed of recovery, you know, that was measured physiologically. So that was the advantage to them, but to me that was, you know, smacking of ADA violations in and of itself, because you are not supposed to screen people out because you are afraid they are going to injure themselves in the future, because you are afraid they might be an attendance problem or they might not stay. But that is generally, and, you know, I mean for HR people, you know, it is over whelming when they look at the injury loss time that they can save if they use these tests. That is the advantage to them. It is financial, and, you know, in a variety of respects. Not only do to they not lose the time, their workers'' comp costs are less. It is a big financial advantage to them.
Oh OK. Can I follow up with one more question from Dawn? When we are with the employers and we encounter a problem where they won''t waive a test, is there anything we can give them, any documentation we want give them that states that these tests, these pre-employment tests must specifically address the job function that the employee is applying for?
Well, I would look, you know, all of our materials are on-line at EEOC.gov, and you can pull the material that you have, the pre-employment inquiry guidelines, and there is also the initial interpretive guidelines that we came out with when the ADA was passed has a section on qualification standards and a section on inquiries, and that is going way back to the early 90s, that you can look, there is language in there that is helpful, and I am trying to think if there is any, this isn''t something that is been litigated.
Okay.
So I can''t think of any cases. Some of the cases deal with safety issues, and they talk about job related and consistent with business necessity, but the language in, you know, our technical assistance manual, the guidelines and some our own guidance says it has to be related to the job in question. Think the statute says that, too.
Thank you.
Next question, please.
We will take our next question
Go ahead. Take off mute if you need to, or.
My question has to do with the ability of labor unions to trump any of this. I had a situation with a local county government actually where the union was able to successfully get them to move the parking, the accessible for disabled people parking, which was close to the door, because they had employee of the month who got to have those spaces, and they were successful in getting the spaces for people with disabilities moved further away from the door.
The ADA very specifically says that you cannot violate the statute by contract. So they can''t point to an agreement that they entered into themselves and say, see, you know, we can''t comply with the ADA because we have entered into an agreement with the union that, you know, makes it impossible for us to, you know, provide the access that people with disabilities need to get into work. That is absolutely indefensible, because, you know, otherwise, you know, employers would do that all the time. They would contract with hiring agencies that would discriminate with people in the hiring process, they would use a testing agency. That is another point, I am glad you brought that up, is that is in terms of testing, if the employer hires a testing agency to do the test, they can''t hide behind that agency and say I am not responsible. That testing agency has to accommodate, and both in terms of access to the facility, and access to the test, and accommodations within the test. Because often times that will be the issue, they will say well all we get the results, we don''t have anything to do with the testing. This agency does it. Well, they made a contract with the agency to do that part of the hiring process, so they are responsible. And your other point about unions is also interesting. I should mention this. We sued a local union because they would not put somebody on a referral list until they submitted medical information and submitted to a medical examination, and that is clearly a violation. And they were claiming, well, we don''t want to refer people for potential jobs with, you know, a variety of employers that we have a contract with if they are not able to do the job. And we said that is an unlawful pre-employment inquiry. You can''t screen people out for the employers, basically doing their dirty work for them because the employer could do not it themselves, so the union can''t do it for them. So unions cannot be used in any way to trump the ADA.
Thank you.
Okay. We are unfortunately at the end of our session today, and the time has gone quickly, and I am sure there are still some questions out there, because with any of these sessions we have found that often times our dialogue raises more questions that it answers, but at the same time I am hoping everyone got some valuable information. I think Adele did a great job dealing with a complex issue, and sometimes the answers are tough to find, because that is that case by case issue, and everything has to be really addressed as it comes up. So, again, thank you Adele for your time today, and I hope that everyone found this to be a valuable session. Just as a reminder, the program will be on our website, the digital recording, as well as the edited transcript. The digital recording already up in next couple of days, the transcript takes a little longer, should be up by best week after we have had a chance to edit it. The next session which will be the third session in our reasonable accommodations series will be held on March 21st. Our speaker is Brian Parsons who is the advisor for employment policy with the Office of Disability Employment Policy, U.S. Department of Labor addressing the issue of planning for emergencies in the workplace, inclusion of people with disabilities. So issues of disaster preparedness and such as relates to the workplace very specifically. This ties to a manual that their office released earlier this past year related to that, so those who are going to join us next month. I think you will find this to an interesting discussion and an area that we often times employers do not think about, or only think about after they hear of some other situation or unfortunately may have had a situation themselves that they were up prepared for, so I invite you to join us for that particular session as well. And then our fourth program in the series will be in April, and that is going to be a survey of employer resources on ADA, which will look at some of the vast array of websites, documents and things that are out there. Sometimes I think we forget the vast amount of material that EEOC and other agencies have produced about the ADA that can often be very valuable resources. So that session will focus on bringing us all up to speed on the resources that are out there and so I invite you to join us. Again, thank you Adele, and thank everyone for joining this session today, and we will hopefully see you next month when you join us for the March session. Take care everyone.
And again, that does conclude today''s conference. Thank you all for joining us.