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A Review of Clark Hill's Spring 1997 Employment Law Update

New Guidance on ADA/Workers' Compensation Issues

January 01, 1997-Some of the most commonly asked questions about the Americans with Disabilities Act ("ADA") relate to its relationship to state workers' compensation laws and employers' "light duty" policies. The Equal Employment Opportunity Commission, which enforces the ADA, recently released enforcement guidelines which attempt to clarify some of the issues.

A "disabled" employee for workers' compensation purposes may not necessarily be "disabled" under the ADA. Workers' compensation laws use different standards for determining disability. Impairments caused by an occupational injury may not be severe enough to substantially limit a major life activity or may be only of a temporary nature. Whether an impairment results from an occupational or non-work related injury, one of the following additional criteria must be met to claim an ADA disability: (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of such an impairment; or (3) being regarded as having such an impairment.

EEOC guidance also addresses "reasonable accommodation" in the context of workers' compensation. Assuming an employee meets the ADA definition of disability, he or she cannot be discharged because of an inability to work unless it would be an undue burden for the employer to provide medical leave as a reasonable accommodation. In some instances, leave may be requested even after the employer has indicated that it cannot hold the position open. The EEOC's position is that the employer must consider whether it has a vacant, equivalent position to which the employee can be reassigned. If no equivalent position is available, the employer must look for a position at a lower level. Continued leave is not required if such a position is not available.

Alternatively, an employer may provide a reasonable accommodation that requires an employee to remain on the job (e.g., reallocating marginal functions or providing a temporary reassignment). However, an employer cannot satisfy its obligation to accommodate an employee with a disability-related occupational injury by placing him in a workers' compensation vocational rehabilitation program. As to reinstatement rights, according to the EEOC, the employee is entitled to return to his original position once he has recovered, provided it would not be an undue hardship to hold that position open.

"Light duty" positions are usually reserved for employees with occupational injuries. In some situations, however, the ADA may require an employer to consider reassigning a disabled employee who is not occupationally injured to a light duty position. According to the EEOC, if a disabled employee becomes unable to perform the essential functions of the job and there is no other accommodation available, the employee must be reassigned to a vacant reserved light duty position if (1) the employee can perform its essential functions and (2) the reassignment would not impose an undue hardship on the employer. Such a reassignment need not be permanent if light duty positions are generally provided only on a temporary basis.

The EEOC guidance also addresses questions regarding medical exams, which arise most often with job applicants. An employer may not ask questions or conduct a medical exam to obtain information about prior workers' compensation claims or occupational injuries until after a conditional job offer is made (and before employment has begun), and then only if all new employees in that job classification are subject to the same inquiries and exams. An employer may ask disability-related questions or require a medical exam of a current employee injured on the job, provided it is job-related and consistent with business necessity.

Qualified applicants and current employees on leave with prior occupational injuries cannot be excluded from employment unless the "direct threat" standard under the ADA is met. That means there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The EEOC guidance sets forth the following factors to be considered in a direct threat analysis:

  • The similarities and differences between the position in question and the position in which the prior injury occurred;
  • The number and frequency of prior occupational injuries;
  • The nature and severity of the prior injuries;
  • The amount of time the person has worked in the same or similar positions since the prior injury without subsequent injury; and
  • Whether the risk of harm can be lowered or eliminated by a reasonable accommodation.

Statistics indicate that a majority of lawsuits brought under the ADA are by current employees who are either injured on the job or, because of non-work related injuries or conditions, request a light duty position. Despite the EEOC's guidance, there are still many legal ADA land mines which must be avoided in the workers' compensation and light duty arena.

If you have any questions about this issue, please contact William Moore.

Department of Labor Rules Employees' Smoke Breaks are Work Time

A recent Wage and Hour Opinion Letter issued by the Department of Labor ("DOL") holds that employee "smoke breaks" of short duration are compensable work time under the Fair Labor Standards Act. The employer in question was a resort property that prohibited on-the-job smoking. Employees who wished to smoke were permitted to punch a time clock and leave their work stations for a smoke break ranging from 10 to 25 minutes.

It has long been the DOL's position that coffee breaks are considered hours worked. The DOL noted in the recent opinion letter that the fact that an employee chose to smoke during such a break did not affect its compensability. The compensability of the break was not affected by whether the employee used the time to smoke, drink coffee or use the restroom. The letter noted that the DOL's interpretation did not prevent an employer from prohibiting smoking in the workplace. However, "an employer may not arbitrarily fail to count time spent in breaks during the workday because the employee was smoking at his or her workplace or outside thereof."

MIOSHA: New Governing Agency

Safety standards under MIOSHA regulating working conditions are implemented and monitored by three commissions; (1) the General Industry Safety Standards Commission, (2) the Construction Safety Standards Commission, and (3) the Occupational Health Standards Commission. Until early 1996, the General Industry and Construction Safety Commissions were within the Department of Labor and the Occupational Health Commission was part of the Department of Public Health. As a result of a recent reorganization of the State Executive Board, all three Commissions (now known as Divisions) were brought under the control of the newly created "Michigan Department of Consumer and Industry Services" (formerly the Department of Commerce). This new department was fashioned by abolishing the Michigan Department of Labor and merging its functions with those of the former Department of Commerce. The substantive requirements of MIOSHA were unchanged by the reorganization.

Permanent Labor Certification Processes Revised

Employers who seek to permanently hire foreign workers usually are required, as an integral part of the process, to obtain a certification from the Secretary of Labor that there are no able, willing, qualified and available U.S. workers to fill the position and that the terms of the job offered do not depress wages and working conditions of similarly employed U.S. workers. Although there are a few exceptions, such a demonstration is generally required to support the hiring of most skilled and professional workers.

There has been an attempt at the Department of Labor (DOL) to "re-engineer" the process. Some aspects of the current procedure can be restructured simply by changing the Department's processing directions. In the first stage of the "re-engineering," effective October 1, 1996, certain changes have been implemented.

Initially, as part of the labor certification process, the employer must describe the minimum education, training and experience requirements necessary for a worker to be deemed minimally qualified to fill the position. The employer must also describe any and all "special requirements" of the specific job which may not be similar to those generically imposed on the position in the marketplace. These "special requirements" are often considered by the DOL to be "unduly restrictive" unless justified by a "business necessity" demonstration. Such a demonstration is an attempt to convince the DOL that a person cannot function in the position without a specific skill or experience level. The Department has mandated that the State Employment Service Agency (SESA) not authorize recruitment where either (1) restrictive job requirements are imposed or (2) requirements are imposed which did not exist before the alien was hired. Now, the SESA will send all such applications to the Regional Office of the DOL for review before the mandatory recruiting takes place. Consequently, there will be mandatory review and approval of the restrictive job requirements, with full opportunity for appellate review, before the mandatory recruiting will be permitted to take place.

In many cases, employers have been recruiting for a position for a substantial period of time prior to submission of the labor certification application, using their usual recruiting process. If the prior recruitment is deemed to comply with the Department's recruiting requirements, including advertisement of the prevailing wages and working conditions, and if the employer can demonstrate this recruitment over a period of six months through sources normal to the occupation and industry, the Department will now entertain "reduction in recruitment" requests. That is, the Department may deem the prior recruiting to be sufficient to avoid the need for a new mandatory recruiting process pursuant to the regulations.

In the past, the DOL Regional Certifying Officers have often issued denials of labor certification applications based on a technical failure to comply with a regulatory provision. The Department has now recognized that an error in the process may be "harmless" and does not affect the validity of the overall mandatory recruiting process. Consequently, the Department will now recognize the concept of "harmless error" on a case by case basis.

Many labor certification applications are completed with few, if any, applications received during the mandatory recruiting period. These are relatively straightforward cases with simple job requirements, clear compliance with the requirement of payment of the prevailing wage, and virtually no one applying for the position. Such cases will now be flagged by the SESA for "limited review processing," a form of expedited processing to allow quick approval.

SESA's operate under the direction of the DOL, and receive limited federal funds for the activities associated with the labor certification application process. In the recruiting part of the process, SESA's receive resumes of persons responding to advertisements and forward them to employers. In the past, the resumes forwarded often consisted of all resumes received, whether or not there was any reasonable prospect that the applicant might be qualified. The DOL will now require SESA's to forward only those resumes submitted by applicants who appear potentially qualified for the position.

In certain instances, the recruiting process may have been completed with an error which is not deemed harmless. The Regional Certifying Officer may, however, permit a partial re-recruiting to correct the error. In such instances, such re-recruitment will now be limited to a single advertisement, if the advertisement is properly placed in a newspaper of general circulation, and a 10 day posting on the SESA job bank.

SESA's will no longer routinely approve advertisements in advance of recruiting, unless the text of the advertisement is incorporated with one of the other required submissions to the SESA. Further, the DOL has in the past required SESA's to send questionnaires to U.S. applicants involved in the recruiting process, to verify employer evaluations of those applicants. Because of budgetary constraints, SESA's will be directed to no longer routinely send out such questionnaires.

The bottom line is that the DOL, recognizing that the system is broken, is attempting to fix it as quickly as possible. While these efforts may or may not all bear fruit, they are generally a first step in the right direction, and employers mired in the process may take some comfort that help may be forthcoming.