Americans with Disabilities Act

Independent Contractor Classification Narrowed by Department of Labor

On July 15, 2015, the Department of Labor (“DOL”) issued new guidance which would allow more workers to qualify for overtime pay.  In the Administrator’s Interpretation No. 2015-1, the DOL is narrowing the definition of an independent contractor taking the position that most work should be performed by employees and independent contractors should be used sparingly. Under this new guidance, the department considers six factors when determining a worker’s status:

■ The extent to which the work performed is an integral part of the employer’s business

■ The worker’s opportunity for profit or loss depending on his or managerial skill

■ The extent of the relative investments of the employer and the worker

■ Whether the work performed requires special skills and initiative

■ The permanency of the relationship

■ The degree of control exercised or retained by the employer

These six factors will be examined in relation to one another and no single factor can determine into which category a worker falls. Additionally, hiring business entities and independent contractors will not consequently protect an employer from liability under the Fair Labor Standards Act.

Finally, the DOL reinforces that the type and scope of work being performed should be reviewed before an independent contractor is hired. When it is appropriate to hire an independent contractor, ensure the correct indemnification provisions are in place to protect a company from any wage and hour claims that may arise. It is an employer’s duty to audit the status of all independent contractors in the event their duties or the work being performed becomes more akin to that of an employee as opposed to an independent contractor.

For more information on the new DOL guidance or any other employment law related matters, please contact Dana Perminas at 312-334-3474 or dperminas@messerstrickler.com for more information.

Employer Alert! New Illinois Law Requires Accommodations for Pregnant Employees

Effective January 1, 2015, Illinois employers will be required to provide reasonable accommodations to pregnant employees and new mothers.  Women in Illinois who are physically unable to perform certain tasks of their job because of pregnancy will be guaranteed reasonable accommodations.  This new law will cover full-time, part-time and probationary employees, and it will affect employers of all sizes. 

Employers will be required to make reasonable accommodations for conditions related to pregnancy, childbirth, and related conditions, unless the employer can demonstrate that the accommodation would impose an “undue hardship” on the ordinary operation of the employer’s business.  “Undue hardship” is defined by the law as an action that is “prohibitively expensive or disruptive” when considered in light of:  (1) the nature and costs of the accommodation; (2) the overall financial resources of the facility involved in the provision of the reasonable accommodation, the number of employees at the facility, the effect on expenses of the facility, or other impact on the facility; (3) the overall financial resources of the employer with respect to the number of employees and number, type, and location of its facilities; and (4) the type of operations of the employer.  Some examples of accommodations include limits on lifting, longer or more frequent bathroom breaks, access to places to sit, water breaks, private space for breastfeeding, and time off to recover from pregnancy, childbirth and related conditions.

Under the new law, employers will not be able to require an employee to take a leave of absence if another reasonable accommodation can be provided.  Additionally, employers cannot require the employee to accept an accommodation that the employee has not requested.  The laws will also prohibit employers from retaliating against an individual who “requested, attempted to request, used or attempted to use” a reasonable accommodation for pregnancy or childbirth.

This law dds to the existing federal laws Illinois employers are already required to follow providing for employee accommodations, such as the Family and Medical Leave Act, Americans with Disabilities Act and the Pregnancy Discrimination Act.  Illinois employers should take this time to review and revise employee handbooks or policy manuals to reflect the new law.

For more information on this topic, contact Stephanie Strickler at 312-334-3465 or sstrickler@messerstrickler.com

Drug, Alcohol and DNA Testing: Using It Right

A big problem in the U.S. that costs employers and the country millions of dollars, and inevitably leads to countless lawsuits is Americans being on the job while under the influence of drugs and alcohol.  In our previous blogs we discussed that employers have the right to ensure their workplace is free from use of alcohol and the illegal use of drugs.  We also discussed cases, in which drug and alcohol addiction can be considered a disability and thus be covered by the Americans with Disabilities Act (“ADA”). 

To help our clients and employers to learn more about drug and alcohol testing, we would like to bring to your attention the Pincus Professional Education webinar- Drug, Alcohol and DNA Testing: Using it Right that will be held on April 22nd (recordings will be available after the webinar).  This webinar will cover the factors employers and other professionals need to know to effectively use this tool.  Specifically, you will learn about applicable state statutes pertaining to drug, alcohol and DNA testing; current methods of this testing; and factors that should be considered in determining whether a test is valid.

If you have questions on ADA coverage of drug and alcohol addiction and employment in general, please contact Dana Perminas at (312) 334-3474 or at dperminas@messerstrickler.com.

Nation’s First Statewide Settlement Agreement to Ensure Employment and Integrated Day Services for Individuals with Disabilities

On April 8th, 2014, the Justice Department entered into the nation’s first statewide settlement agreement with the State of Rhode Island supporting the civil rights of individuals with disabilities, stating that this group is unnecessarily segregated in facility-based day programs and workshops.  The settlement agreement came as a resolve to the Civil Rights Division’s findings announced on January 6th, 2014, which were a part of an Americans with Disabilities Act (“ADA”) Olmstead investigation.  That investigation focused on whether Rhode Island’s day activity service is over-relying on segregated settings, such as faculty-based day programs and sheltered workshops, while excluding integrative alternatives, including supported employment and integrated day services.

The settlement agreement will resolve the violations of the ADA for approximately 3,250 residents of Rhode Island with intellectual and developmental disabilities (“I/DD”).  The State will provide supported employment to approximately 2,000 individuals: at least 950 individuals currently in facility-based non-work programs, at least 700 individuals currently in sheltered workshops and approximately 300-350 students leaving high school.  Additionally, the State will provide transition services to approximately 1,250 youth between the ages of 14 and 21, ensuring that this group has access to a variety of transition, supported employment and vocational rehabilitation services.  The Justice Department and the State of Rhode Island jointly filed the settlement in federal district court, requesting that it be entered as a court-enforceable Consent Decree.  You may find the Fact Sheet about Proposed Consent Decree here.

For more information on the ADA and other employment-related federal and state regulations, you may contact Dana Perminas at dperminas@messerstrickler.com or at (312) 334-3474.

ADA Coverage: Drug v. Alcohol Users, Part 1

While statistics do not give us precise numbers of Americans that are on the job while under the influence of drugs or alcohol, it is a big problem in the U.S. that costs the country billions of dollars and leads to countless lawsuits from both employers and employees. Title I of the Americans with Disabilities Act (”ADA”) permits an employer to ensure that the workplace is free from the use of alcohol and the illegal use of drugs, as well as to comply with other federal laws and regulations that address drug and alcohol abuse, such as the Family Medical Leave Act (“FMLA”) that will be covered in our future blogs.  Simultaneously, the ADA protects alcoholics and recovering drug abusers against discrimination, but this protection is limited.  Moreover, the ADA has different policies regarding drug and alcohol users.

Drug Users and ADA Coverage

According to the ADA, if the employee or a job applicant is currently engaging in the illegal use of drugs, regardless if the user is an addict or a casual user, the employee or a job applicant is not qualified as individual with a disability and thus is not protected by the ADA.  Therefore, employers do not violate the ADA by enforcing its rules by prohibiting illegal use of drugs by employees, as long as this enforcement is done uniformly.

Qualified individuals, as provided in the ADA, are individuals who:

a)       have been successfully rehabilitated and are no longer engaged in the illegal drug use;

b)      are participating in the rehabilitation program at present time and are no longer engaged in the illegal drug use; and

c)       are erroneously considered as using drugs illegally. (42 U.S.C. § 12114(b) (1994))

It is important to note that there is an essential difference between a former drug addict and a former casual drug user.  A former drug addict may be protected under the ADA since the addiction may be considered as a substantially limiting impairment.  On the other hand, a former casual drug user is not protected according to the EEOC Technical Assistance Manual on the ADA because this user is not “substantially limited” due to a drug use. (EEOC Technical Assistance Manual on the ADA § 8.5)

Based on the “qualified individuals” definition above, the ADA does not protect those users of illegal drugs that are currently engaged in this behavior.   However, the definition of “current” has been causing a lot of difficulty to employers.  The EEOC Technical Assistance Manual on the ADA provides this definition: “’Current’ drug use means that the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. It is determined on a case-by-case basis.” Also, if an individual tests positive for the illegal use of drugs, this person is considered a current drug user under the ADA (EEOC Technical Assistance Manual on the ADA § 8.3)

Sometimes a question is raised whether an employee who is addicted to drugs and breaks the company rules, can enroll in a supervised drug rehabilitation program and claim ADA protection to avoid an employer’s discipline.  The EEOC Technical Assistance Manual on the ADA speaks directly to that and states:

“An applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program and seek to avoid the possibility of discipline or termination by claiming that s/he now is in rehabilitation and is no longer using drugs illegally. A person who tests positive for the illegal use of drugs is not entitled to the protection that may be available to former users who have been or are in rehabilitation”(EEOC Technical Assistance Manual on the ADA § 8.3).

A question that employers often ask regarding former drug addict employees is whether accommodations have to be made.  One of the most important requirements under the ADA is the duty to provide reasonable accommodations to qualified individuals with disabilities.  Former drug addict employees who are no longer engaged in illegal drug use may be entitled to reasonable accommodation.  For example, they may require a modified work schedule to allow them to attend Narcotics Anonymous meetings or a leave of absence to attend treatment.

Check back next month to see our next blog post regarding the ADA coverage of Alcohol Users.

To learn more about ADA protection of Drug Users and what that means for employers, you may contact Dana Perminas at dperminas@messerstrickler.com or by calling Dana at (312) 334-3474.

The Importance of Updating Job Descriptions

Job descriptions are a basic and essential tool for employers as these descriptions concern so many aspects of an organization such as recruiting, succession planning, training, legal, and compliance.  However, job descriptions are often neglected and outdated and do not accurately represent the essential job functions an employee performs.  This can create obstacles in many employment law cases, including employment discrimination cases.  For instance, if an employee is terminated as a result of the employee’s inability to perform necessary work for the job, the employer will want to make sure that this “necessary work” is described in the job description.  Although having an accurate and updated job description will not completely eliminate employee discrimination claims like this, it can act as helpful evidence against discrimination claims. Additionally, the job description is an important tool for an employer’s compliance with the Fair Labor Standards Act (“FLSA”) which prescribes the standards for the basic minimum wage and overtime pay.  The FLSA requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.  The job description is often the starting point in determining the exempt status of an employee.  In order for an employee to be “exempt” their primary job duties must be exempt.  Therefore, it is important for the job description to accurately reflect an employee’s job duties for this determination of exempt and non-exempt status for wage and overtime pay compliance.

Job descriptions are also an important component for employer compliance with the Americans with Disabilities Act (“ADA”).  The ADA protects qualified individuals with a disability who, with or without reasonable accommodation, can perform the “essential functions” of the employment position.  It is the employer’s judgment as to what are the essential functions of a job that is given consideration.  Thus, it is important for an employer to make sure the job descriptions, specifically the physically demanding positions, describe the essential functions of the job and reflect the actual tasks performed by existing employees performing similar jobs.

Employers should update job descriptions once a year at a minimum.  This can be completed concurrently with the annual performance review process.  Thus, once employers complete reviews and set goals and objectives with their employees, they can update job descriptions to reflect these goals and objectives.  Using the job description during the review process or in disciplinary situations can also be an excellent communication tool because it can clear up any misunderstanding regarding job expectations.

Creating and updating job descriptions is a team effort.  Human resources professionals, managers and even employees should be involved in the creation and update of a job description.  Employees are in the best position to illustrate what they actually do at their job.  Managers are important in the process because they can ensure that the responsibilities and requirements are aligned with actual activities.  The human resources department can act as the coach and facilitator in the process of updating a job description.  Human resources professionals are in the unique position to view how each job description fits into the larger organization and the organization’s legal obligations.

It is important to note that the organization’s mission statement can act as a safety net to poorly drafted or outdated job descriptions.  Including the organization’s mission statement on all job descriptions will ensure employee awareness of the organization’s overarching goals.  Therefore, in the event the job description fails to explicitly mention a particular job expectation and the employee’s conduct is contrary to the mission statement, the employee is on notice of the issue.

For more information on this subject, contact Stephanie Strickler at sstrickler@messerstrickler.com.