Christmas may be over, but you better watch out because DOL is “checking it twice” – and getting the Florida Department of Revenue’s assistance in their initiative to identify – and correct – independent contractor misclassification!January 14, 2015 at 6:50 pm | Posted in Uncategorized | Leave a comment
Tags: accommodations, audit, business, compliance, Department of Labor, economy, employee, employer, fines, independent contractor, tax
Directly from the U.S. Department of Labor’s website:
WHD News Release: [01/13/2015]
Contact Name: Tania Mejia or Lindsay Williams
Phone Number: (202) 693-4686 or (678) 237-0630
Email: Mejia.Tania@dol.gov or firstname.lastname@example.org
Release Number: 15-0034-NAT
US Labor Department signs agreement with Florida Department of Revenue to reduce misclassification of employees
WASHINGTON — Officials from the U.S. Department of Labor and the Florida Department of Revenue today signed a memorandum of understanding with the goal of protecting the rights of employees by preventing their misclassification as independent contractors or other nonemployee statuses. Under the agreement, both agencies will share information and coordinate law enforcement. The MOU represents a new effort on the part of the agencies to work together to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification. The Florida Department of Revenue is the latest state agency to partner with the Labor Department.
In Fiscal Year 2013, WHD investigations resulted in more than $83,051,159 in back wages for more than 108,050 workers in industries, such as janitorial, food, construction, day care, hospitality and garment. WHD regularly finds large concentrations of misclassified workers in low-wage industries.
“Misclassification deprives workers of rightfully-earned wages and undercuts law-abiding businesses,” said Dr. David Weil, administrator of the Wage and Hour Division. “This memorandum of understanding sends a clear message that we are standing together with the state of Florida to protect workers and responsible employers and ensure everyone has the opportunity to succeed.” “Working with the states is an important tool in ending misclassification,” said Wayne Kotowski, the Wage and Hour Division’s regional administrator for the southeast. “These collaborations allow us to better coordinate compliance with both federal and state laws alike.” “By partnering with the U.S. Department of Labor we are actively working to level the playing field for Florida’s businesses to stop the misclassification of workers. Businesses that misreport workers obtain an unfair advantage over other law-abiding businesses,” said Florida Department of Revenue Executive Director, Marshall Stranburg.
Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem. Independent contractors are often denied access to critical benefits and protections, such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance, to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.
Memoranda of understanding with state government agencies arose as part of the department’s Misclassification Initiative, with the goal of preventing, detecting and remedying employee misclassification. Alabama, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington state agencies have signed similar agreements. More information is available on the Department of Labor’s misclassification website at http://www.dol.gov/misclassification/.
The mission of the department is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and ensure work-related benefits and rights. To learn more about the FLSA’s requirements, call the Wage and Hour Division’s toll-free hotline at 866-4US-WAGE (487-9243) or visit its website at http://www.dol.gov/whd/.
From Hultman Sensenig + Joshi: This is a topic near and dear to our hearts; if someone works only for you, is paid a salary, has no tools or equipment, and you control nearly every aspect of their employment, is it highly doubtful that they are a legitimate independent contractor. With this new agreement between the U.S. DOL and the FL DOR, if either Agency pays an employer a visit to review your “employees” vs. “contractors”, the other agency will soon be there to review whether civil money penalties and back taxes are owed – this is an expensive proposition. Be proactive, review the status of the people you engage vs. employ, and get some assistance if you have any questions.
There is no legal advice given through this blog, nor is an attorney client relationship created through the reading of this blog.
Tags: compliance, employee, employer, OSHA, reporting, workers compensation
From the Florida Division of Workers’ Compensation:
Beginning January 1, 2015, there will be changes to what employers are required to report to the Occupational Safety and Health Administration (OSHA). OSHA has requested the assistance of the Division of Workers’ Compensation in disseminating this information to Florida employers.
OSHA UPDATE: NEW REPORTING REQUIREMENTS START JANUARY 1.
Employers will now be required to report all work-related fatalities within 8 hours AND all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding out about the incident.
Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident.
The updated reporting requirements are not simply paperwork but have a life-saving purpose: they will enable employers and workers to prevent future injuries by identifying and eliminating the most serious workplace hazards.
Employers have three options for reporting these severe incidents to OSHA. They can call their nearest area office (www.osha.gov/html/RAmap.html) during normal business hours, call the 24-hour OSHA hotline at 1-800-321-OSHA (1-800-321-6742), or they can report online at http://www.osha.gov/report_online. For more information and resources, including a new YouTube video, visit OSHA’s webpage (www.osha.gov/recordkeeping2014) on the updated reporting requirements.
*Employers under Federal OSHA’s jurisdiction must begin reporting by January 1. Establishments in a state with a State run OSHA program should contact their state plan for the implementation date.
To learn more about these issues and other Workers’ Compensation information click here: http://www.myfloridacfo.com/Division/WC/
From Hultman Sensenig + Joshi: This is a new requirement for Florida employers. If an injured employee is sent to the hospital, Risk Management or HR must be aware of whether the employee is admitted to the hospital within 24 hours of learning about the accident and hospital visit. This will require extra vigilance on the part of HR and Risk Management as most injured workers don’t realize that hours of observation in a hospital is not actually being admitted and will likely report to a supervisor that they were admitted if they stayed at the hospital for 23 hours.
Your 2015 New Year’s Resolution Courtesy of the U.S. Department of Labor – Update your OSHA Reporting!December 16, 2014 at 3:26 am | Posted in Uncategorized | Leave a comment
Tags: audit, business, compliance, Department of Labor, DOL, OSHA, regulations
This posting is taken verbatim from the U.S. DOL’s blog: http://blog.dol.gov/2014/12/15/a-new-year-new-osha-reporting-requirements/?utm_source=rss&utm_medium=rss&utm_campaign=a-new-year-new-osha-reporting-requirements.
The New Year will be here before we know it! For employers under the federal jurisdiction of the Occupational Safety and Health Administration that means more than just making resolutions, they will need to comply with new reporting requirements going into effect January 1, 2015.
OSHA-flowEmployers will now be required to report all work-related fatalities within 8 hours and all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding about the incident. Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident.
There will be three options for employers to report. They will be able to call their nearest area office during normal business hours, call the 24-hour OSHA hotline at 1-800-321-OSHA (1-800-321-6742), or report online.
Since announcing the new requirements in September, we’ve been conducting extensive outreach to make sure employers understand what to do when they go into effect. Just last week, we held a live Twitter chat to answer questions.
During the chat, we answered over a dozen questions. But we noticed a few that seemed to be on everyone’s mind. So, we decided to share with you a little FAQ:
Q: How can an employer confirm the report from an injury has been documented?
A: If you do it online, you will receive email confirmation. By phone, you will be speaking directly to OSHA representatives.
Q: What is the best URL on the OSHA site to point our branch offices to for details of their obligations to report?
A: The best way is to go to: http://www.osha.gov/recordkeeping2014
Q: What constitutes formal admittance for care? Surgeries can be either outpatient or inpatient.
A: The hospital or clinic determines whether the worker was formally admitted as an in-patient.
We also have a variety of additional resources for employers including a dedicated webpage, more FAQs, a Fact Sheet, and a video I recorded to help explain the new requirements.
It’s important to remember that these updated reporting requirements are not simply paperwork but have a life-saving purpose: they will help employers and workers prevent future injuries by identifying and eliminating the most serious workplace hazards.
I think we can all agree that’s something to celebrate in the New Year.
Dr. David Michaels is the assistant secretary of labor for Occupational Safety and Health.
From the Sensenig Law Firm, P.A.: As we make resolutions to get more exercise, spend more time with family, drink less, and eat healthier foods, let’s add “keep our business healthy” by ensuring compliance with OSHA to the list. Consider designating someone to be your OSHA point person, make sure your logs and reports are kept up to date and maintained. Take a look at the FAQ sheet as to what else you may need to do in case of a workplace injury – workers’ compensation is not your only concern. To quote a favorite line from a venerable old TV show, “Be careful out there.”
Please be aware that reading this blog does not create an attorney client relationship, nor is any information provided in this considered to be legal advice.
U.S. Department of Labor provides assistance to central Florida farmworkers – are you prepared for an audit and in compliance?November 20, 2014 at 3:59 am | Posted in Uncategorized | Leave a comment
Tags: agriculture, audit, AWPA, business, compliance, Department of Labor, employee, employee rights, employer, employment, employment law, federal minimum wage, FLSA, Harvesting, Minimum wage in Florida
Directly from the DOL’s website
WHD News Release: [11/12/2014]
Contact Name: Michael D’Aquino or Lindsay Williams
Phone Number: (678) 237-0630
Email: D’Aquino.Michael@dol.gov or email@example.com
Release Number: 14-2052-ATL
US DOL helped thousands of agricultural workers in central Florida this year
Investigations find minimum wage, overtime, housing and transportation violations
TAMPA, Fla. — A multiyear enforcement initiative conducted by the U.S. Department of Labor’s Wage and Hour Division has uncovered widespread labor violations in the central Florida agricultural industry. The initiative focused on hand-harvested crops — including citrus, strawberries, tomatoes, blueberries and watermelons — where many vulnerable migrant workers are employed and recovered average back wages of $340 per worker, more than enough to buy a week’s worth of groceries.
The initiative found migrant workers were often required to perform intense physical labor for long periods without compensation in violation of federal law. Other labor violations exposed these workers to unsafe transportation and unsanitary housing conditions. The investigations also found that employment conditions were not disclosed to workers. During fiscal year 2014, the division’s Tampa District Office conducted 155 agricultural investigations and recovered more than $131,000 in back wages for 387 workers. The division also assessed approximately $196,000 in civil money penalties.
“We are working harder and smarter to combat labor violations in the agricultural industry. We are studying employment relationships and directing our enforcement efforts throughout the supply chain to protect workers better and address problems at every level of the industry,” said Dr. David Weil, administrator for the Wage and Hour Division. “All our efforts are aimed at helping move employers toward positive, compliant business practices, so that workers and employers can prosper together.”
“We are committed to strong enforcement, but are also working with the industry to promote long-lasting compliance and a level playing field for law-abiding businesses. For example, we have partnerships with the citrus industry to provide compliance assistance and learn about industry problems. This cooperation has led to increased compliance with labor laws. In 2014, we saw fewer violations in the citrus industry than in 2013,” said James Schmidt, director of the division’s Tampa District Office. “We are eager to work with others, such as strawberry growers, where we continue to find significant labor violations.”
Under the ongoing initiative, investigators will continue to visit fields and packinghouses to assess compliance among agricultural employers, facility owners, growers, farm labor contractors and other businesses providing services to these agricultural operations. Thorough inspections of migrant housing units, vehicles, field sanitation facilities, and employment practices and pay records are being conducted to ensure compliance with applicable child and agricultural labor standards. When violations are found, the division will pursue corrective action, including litigation and the assessment of liquidated damages and civil money penalties, to recover workers’ wages and ensure accountability under the law.
These violations were committed under federal labor laws that set minimum standards for wages and disclosure of employment conditions to workers, basic standards for employers to provide safe and clean housing and safe transportation to workers, and standards for workers’ access to clean drinking water and toilet facilities in the field.
During FY14, the division is focused on educating stakeholders in the agricultural industry and continues to conduct educational outreach sessions, which provide valuable education and compliance assistance to agricultural employers, farm labor contractors and employees.
Most agricultural employers, agricultural associations and farm labor contractors are subject to the Migrant and Seasonal Agricultural Worker Protection Act, which provides protections for migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The MSPA also requires farm labor contractors to register with the department.
The Fair Labor Standards Act requires that covered workers be paid at least the national minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, for hours worked beyond 40 per week. The field sanitation provisions of the Occupational Safety and Health Act require covered employers to provide toilets, potable drinking water, hand washing facilities and information regarding good hygiene practices to their employees.
The Wage and Hour Division’s Tampa District Office can be reached at 813-288-1242. Information on the FLSA and other wage laws is available by calling the division’s toll-free helpline at 866-4US-WAGE (487-9243) and visiting the division’s website at http://www.dol.gov/whd/.
From the Sensenig Law Firm: For my colleagues and friends in the harvesting and agricultural professions, this is very important for you to know – compliance does have value; compliance affects your bottom line. Take the upcoming harvesting season and the New Year as a good starting point to make compliance an achievable goal for your business.
Nothing in this blog is to be construed as the Sensenig Law Firm, P.A. as having provided legal advice. There is no attorney client relationship created as a result of the posting or reading of this blog.
Tags: agriculture, AWPA, compliance, discrimination, EEOC, employee, employee rights, employment, EPLI, farmworker, harassment, insurance, lawsuit, litigation
Directly from the EEOC website: http://www1.eeoc.gov/eeoc/newsroom/release/10-22-14.cfm
Federal Agency Charges County Fair Farm With Subjecting Female Farmworkers to Groping, Verbal Abuse, Solicitations for Sex
BOSTON — County Fair Farm, a farm and produce wholesaler located in Jefferson, Maine, violated federal law by creating and maintaining a sexually hostile work environment for female farmworkers since 2003, the U.S. Equal Employment Opportunity Commission (EEOC) announced in a lawsuit today.
The EEOC charged that female farmworkers were groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers while working at County Fair Farm. The lawsuit alleges that female farm workers repeatedly complained to County Fair Farm about the harassment, but the employer failed to take any action to correct the hostile work environment. In one case, the EEOC said, a female farm worker was subject to increased harassment after she complained and was ultimately forced to leave her job.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination and prohibits employers from retaliating against employees who oppose it. The EEOC filed the lawsuit (EEOC v. County Fair Farms, 14-cv- 00415-GZS) in U.S. District Court for the District of Maine in Portland after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary and injunctive relief.
The lawsuit, one of many similar suits filed by the agency in recent years on behalf of farmworkers, underscores the EEOC’s longstanding nationwide commitment to addressing the plight of these vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.
Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP). These policies can include disparate pay, job segregation, harassment and human trafficking. Preventing harassment through systemic enforcement and targeted outreach is another specific SEP priority. To learn more about the EEOC’s strategic plan and enforcement priorities, visit http://www.eeoc.gov/eeoc/plan/sep.cfm.
“Farmworkers are particularly vulnerable to discrimination and harassment,” said Robert D. Rose, regional attorney for the EEOC’s New York District Office. “They are entitled to the full protection of our laws, and the EEOC will vigorously enforce those laws when farmworkers are targets of abuse.”
Sara Smolik, trial attorney in the EEOC’s Boston office, added, “County Fair Farm has a responsibility to protect its workers, not tolerate harassment of them.”
For a select list of pending and resolved EEOC cases involving national origin discrimination and/or immigrant workers from 2005 to the present, see
For a select list of pending and resolved cases involving farmworkers from 1999 to the present, see http://www.eeoc.gov/eeoc/litigation/selected/farmworkers_august_2014.cfm.
The EEOC is responsible for enforcing federal laws against employment discrimination. The Boston Area Office’s jurisdiction includes Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island. Further information is available at http://www.eeoc.gov.
From the Sensenig Law Firm, P.A.
Employers in agriculture need to be aware that vigilance in monitoring what is happening in the fields, in the groves, in the packing sheds, in the slaughterhouses, in the canneries, MUST occur; to claim “too much area to monitor” will not be an excuse the EEOC, or private counsel, accepts.
Having policies in place, and possibly proper insurance, will provide agricultural employers with defenses and funds to respond to litigation. First and foremost, this is a wake-up call for agricultural employers to be more proactive as to their harassment, discrimination and anti-retaliation policies.
Tags: federal minimum wage, Florida minimum wage, overtime
Florida employers covered by minimum wage and overtime will need to update their posters on January 1,2015. Minimum wage in Florida will rise from $7.93 to $8.05, and tipped wages will increase from $4.91 to $5.03 per hour. The Florida minimum wage is currently higher than the federal minimum wage (which we know the increase of is a priority for the current administration) so covered employers must post both the federal and the state minimum wage notices.
Be sure to print the free new poster providing the new minimum wage from the http://www.floridajobs.org site once the updated poster is published. Failure to do so is risking the ire – and a fine – from the Department of Labor if they happen to drop by to see if you are correctly displaying the new poster. Be sure your accounting department and payroll companies are aware of this change. An early Happy New Year to you!
Tags: Department of Labor, FMLA, New employment laws/amendments
Directly from the Department of Labor’s website:
Proposed rule to extend Family Medical Leave Act protections to all eligible employees in same-sex marriages announced by US Labor Secretary.
WASHINGTON — U.S. Secretary of Labor Thomas E. Perez announced today a proposed rule extending the protections of the Family and Medical Leave Act to all eligible employees in legal same-sex marriages regardless of where they live. The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court’s decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.
The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are, for example, entitled to take FMLA leave to care for a spouse who has a serious health condition. Millions of workers and their families have benefited since the FMLA’s provisions became effective and even more American families would be made secure as a result of the proposed rule.
“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Secretary Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”
The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.
Following the Windsor decision, noting that it was “a victory… for families that, at long last, will get the respect and protection they deserve,” President Obama directed the Attorney General to work with the Cabinet to review federal statutes to ensure the decision, including its implications for federal benefits and obligations, is implemented.
For additional information on the FMLA, including information and fact sheets on the proposed revisions, visit http://www.dol.gov/whd/fmla/nprm-spouse. The department encourages all interested parties to view the proposed rule and submit comments at http://www.regulations.gov. The regulation identification number is 1235-AA09. Comments must be received within 45 days following publication in the Federal Register.
Major features of the new proposed rule:
The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).
The proposed definition of “spouse” expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
The Department of Labor proposes to define “spouse” as follows:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.
Comments from the Sensenig Law Firm:
What all of this means is that a whole lot of Handbooks are going to require a whole lot of revisions if the proposed Rule is approved. Employers will need to become a bit more savvy as to laws outside of the “home” state. The proposed rule is following along with the notion of “full faith and credit.” I am sure the proposed rule will be hotly debated and this is just the first draft of proposed new FMLA language. Each and every one of us has the ability to send our comments/opinions to the DOL about this proposed language, and the proposed Rule’s impact on the workplace.
The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.
Tags: DOL, employee, employer, employment, FMLA, handbook, health care, New Laws, policies
The U.S. Department of Labor’s Wage and Hour Division today announced a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the Family and Medical Leave Act of 1993 (FMLA) in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. More information is available at the Wage and Hour Division’s FMLA NPRM Website.
See http://www.dol.gov/whd/fmla/nprm-spouse/ for more information.
The Rule has not been changed yet, but it is good to know the direction the DOL, the department charged with enforcing the DOL, is taking. Stay tuned for more information!
The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.
Tags: agriculture, H-2A
The Department of Labor’s prior guidance on the minimum wages and housing that were required to be offered to cattle, sheep and goat herders (jobs that are not exactly coveted) under the H-2A visa program is no longer valid following a D.C. Court of Appeals case. See Mendoza v. Perez, 2014 BL 165299, D.C. Cir., No. 13-5118, 6/13/14 .
The DOL guidance was found to be substantive rules that established standards under the H-2A agricultural guest worker program. As such, they had to go through the rule making process, including the provision of a notice and comment period. That did not happen, so back to the drawing board for these H-2A regs!
The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.
Tags: accommodations, ADA, ADAA, disability, discrimination, EEOC, employee, employer, reasonable
Directly from the EEOC’s website: http://www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html
The U.S. Equal Employment Opportunity Commission
EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Reasonable Accommodation
February 25, 2014
This is in response to your letter to Chair Jacqueline A. Berrien, dated December 6, 2013, concerning a Sample Reasonable Accommodation Policy and accompanying sample forms. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for “informational, educational, and/or training purposes only.”
You state that these documents were obtained from the website of a state agency. As your correspondence noted, a government official stated that the sample policy is no longer available on the agency’s website and was never used as official accommodation policy of any agency. Rather, it was posted only for training purposes.
We will not offer a comprehensive review of the sample policy and its forms. Instead, we address several aspects of the sample policy and accompanying forms that raise concerns, even if they are intended for “informational, educational, and/or training purposes.”1
Sample Disability Accommodation Policy
Requests for reasonable accommodations must be handled on an individualized basis. Employers generally need to engage in an interactive process to determine whether a reasonable accommodation is warranted, and this process is influenced by, among other things, the nature of an employee’s disability, the employee’s job, and the work environment. Consequently, it is difficult to develop a policy and related forms that can address all variables. In addition, the law in this area continues to develop, making it risky to conclude, as the policy does, that certain things never (or almost never) have to be provided as reasonable accommodations.
The sample policy states that an employer is not required to provide certain accommodations. The policy is correct that certain actions, such as eliminating essential functions, are not required. However, the sample policy states that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.”
This formulation could lead to the inappropriate denial of a reasonable accommodation. First, the sample policy does not distinguish between unscheduled and excessive absenteeism. It is highly unlikely that an employer could deny unscheduled leave in all cases.
For example, an employee with epilepsy may have one or two seizures a year requiring unscheduled leave of one day each time. The fact that the leave is unscheduled, or could be characterized as erratic, unpredictable and intermittent, does not mean that an employer can deny this type of leave. An employer would have to grant leave under these circumstances as a reasonable accommodation unless it could show undue hardship.2
Second, the sample policy does not explain when leave needed as a reasonable accommodation will be considered “excessive,” thus increasing the possibility that requests will be handled inconsistently and leave will be denied inappropriately. Whether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship.3
Working from Home
The sample policy states that working from home is “generally” not a reasonable accommodation “except in extraordinary circumstances.” While we are aware that some courts have found a legal obligation to provide telework as a reasonable accommodation to be limited,4 the law is far from settled. The EEOC recognizes telework as a form of reasonable accommodation and has provided guidance for employers and employees in determining if it may be an effective form of reasonable accommodation.5 Thus, the suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA. Of course, telework is not appropriate for all jobs. Working together, the employer and employee should determine whether it would enable performance of the job’s essential functions. Additionally, an employer need not provide telework as a reasonable accommodation if it is not necessitated by the disability or if another reasonable accommodation can be provided that will effectively meet an employee’s limitations.
Use of Mitigating Measures
The sample policy states, “if an employee can control an impairment with medication or assistive devices and thereby perform essential job duties, no reasonable accommodation would normally be needed or reasonable.” However, people with many types of disabilities and who use many different kinds of mitigating measures still may require reasonable accommodation because the mitigating measure either does not eliminate all disability-related limitations or because it imposes limitations. For example, someone with a prosthetic arm may require a device to assist with lifting, and someone with diabetes may need more frequent breaks to monitor blood glucose and insulin levels.
Our second concern is that this sentence can be read to mean that if an employee currently does not use medication or another mitigating measure, but an employer believes the employee could benefit from one, the employer may not have to provide a reasonable accommodation. The Sample Request for Accommodation Form, which asks the requestor to “list the medication and/or devices that you use or that have been recommended for you to use” (emphasis added), reinforces our reading of the language in the policy. A similar set of questions in the Health Care Provider Form asks a doctor if there are medications or assistive devices that could mitigate the effects of the impairment. If there are and the doctor has not prescribed them, the doctor is asked to explain why.
The effectiveness of medications and other mitigating measures can vary widely. The use of a particular medication or other mitigating measure may eliminate one employee’s need for a reasonable accommodation, but not another’s. Moreover, the choice of whether to use a mitigating measure is the individual’s, and an employer cannot base a denial of a reasonable accommodation on its belief that the individual ought to be using a particular mitigating measure instead.6
Request for Accommodation Questionnaire
Requirement that Employee Requesting Accommodation Be Substantially Limited in Performing Essential Functions
This form begins by stating that the employer is committed to accommodating the needs of any qualified individual who has a physical or mental impairment “which substantially limits his or her ability to perform the essential duties of the job.” However, an individual does not have to be substantially limited in the major life activity of working (there is no major life activity of performing essential functions) to have a disability under the ADA, and an employee who is substantially limited in a major life activity other than working (which will usually be the case) need not demonstrate that any work-related limitation necessitating a reasonable accommodation is “substantial.”7
Questions that Ask for More Information than Permitted by the ADA
The form asks questions that, in many situations, will violate the ADA if asked routinely of all employees requesting reasonable accommodation. Although, as the EEOC has noted, employers are permitted as part of the interactive process to ask disability-related questions if they are necessary to establish that the person has a disability and/or needs a reasonable accommodation, this does not entitle the employer to obtain any medical information it wants.8
First, if a disability is obvious (e.g., blindness, deafness, missing limb), an employer may not ask questions to establish if the person’s impairment is a disability.9 Even when the disability or need for accommodation is not obvious, the ADA prohibits employers from asking disability-related questions of employees unless they are job-related and consistent with business necessity.10 Employers may seek disability-related information as part of the interactive process as long as such information is necessary to establish that the person has a disability and/or needs a reasonable accommodation.11 The appropriate questions will differ in each situation depending on a number of considerations, including the individual’s impairment, the employer’s previous knowledge about the employee’s disability, and the type of reasonable accommodation requested. Therefore, requiring everyone who requests an accommodation to answer all of the questions on this form will violate the ADA in most, if not all, instances.
For example, we strongly disagree with the practice of routinely asking a person requesting reasonable accommodation to describe “your treatment plan in detail.” There may be situations in which an employer might be entitled to certain information about an employee’s treatment to determine whether a medical condition is a disability (such as information about use of a mitigating measure), or whether a person’s treatment is connected to the type of reasonable accommodation requested (most notably, where the employee has requested leave to obtain treatment). However, an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans. Similarly, although an employer may ask about the use of mitigating measures to determine an employee’s need for a reasonable accommodation, we disagree that employers may routinely ask individuals requesting reasonable accommodation what medication and/or devices “have been recommended for you to use.” Indeed, such a question will rarely, if ever, be permissible.
Questions that Require Employees to Address the Need for Accommodations They Have Not Requested
In addition to asking for medical information that may not be needed to evaluate a request for reasonable accommodation, the form focuses on certain types of reasonable accommodations, apparently requiring an individual to address the need for them, even if they are not the ones being requested. For example, there are questions asking whether (1) the requestor’s impairment requires leave or the need for adjustments to work schedules or (2) the impairment affects the ability to work a normal work schedule. There is no reason to ask these questions of someone who, for example, requests a modification of equipment or a sign language interpreter.
Focusing on Certain Accommodations to the Exclusion of Others
The form implies that the listed questions are the only ones that should be asked in response to a request for reasonable accommodation. However, the form does not ask questions that would be helpful in assessing requests for accommodations such as modification or purchase of equipment, a change in a workplace policy (other than leave and attendance policies), the ability to bring a service animal to work, or removal or substitution of a marginal function. Additionally, the form does not account for situations in which employees require accommodations for reasons other than to perform essential functions. The obligation to provide reasonable accommodation extends to employees seeking equal access to a benefit or privilege of employment, such as employer-provided training, as well as to applicants who require accommodation for some aspect of the hiring process.12 We are not suggesting that this form be lengthened to add more questions (we think it is already too long as an initial means of obtaining information related to a request for reasonable accommodation); rather we want to point out that the wide-ranging nature of reasonable accommodations undermines any attempt to draft a comprehensive form that asks all the right questions.
Questions that Are Confusing or Irrelevant
One question asks whether the impairment limits the person’s “ability to perform or engage in any activities outside of work[.]” If the question is an attempt to determine the major life activity that is substantially limited as a result of an impairment, it is poorly worded to elicit such information. If the question has nothing to do with determining whether the requestor has a disability, then the question would appear to be irrelevant.
A follow-up question implies that an inconsistency exists if a requester states that an impairment affects work-related activities but not non-work activities: “Explain why your non-work activities are not affected when the impairment will affect your work activities.” (emphasis in the original). However, it is quite possible that a disability will present work-related difficulties that do not affect an individual off the job.
Failure to Explain the Reason for Asking the Questions on the Form
Finally, we note that the sample form does not explain the need for asking any of these questions. Once an employer has carefully considered the necessity of asking certain questions as part of an interactive process, it should explain to the individual, either on the form or in person, the reason for asking each question, i.e., an employer should explain how a particular question provides information to establish the existence of a disability and/or a need for reasonable accommodation. Though not specifically required by the ADA, this can encourage the individual’s cooperation in providing information.
Health Care Provider Questionnaire
This sample questionnaire is 7 pages long and asks many of the same questions asked in the sample Request for Accommodation Form. The ADA prohibition on asking disability-related questions of an employee, except if they meet the “business necessity” test, extends to questions asked of an employee’s doctor.13 Consequently, we believe that a number of the questions on this form that also appear on the sample Request for Accommodation form discussed above would violate the ADA for reasons discussed in the previous section.
Also of concern is the wording of certain questions. They give a doctor limited choices in answering, apparently because the form seems to focus on a limited number of reasonable accommodations. For example, one question asks the doctor whether the employee is able to perform his job, including meeting normal attendance and overtime requirements. If the doctor answers no, then the doctor is instructed to check only one of the following three answers:
The Patient is not able to perform any job duties and needs a continuous leave of absence
The Patient is able to perform all job duties but needs a special work schedule
The Patient is able to perform some, but not all, job duties.
The questions do not take into account the possibility that the employee can perform all work functions but needs a reasonable accommodation other than a modified work schedule. Perhaps this sample form is intended to be used only for employees requesting leave or changes to their work schedules, but that is by no means clear.
The ambiguity of other questions raises concerns that a doctor’s answers could, incorrectly, lead an employer to fail to provide a reasonable accommodation or exclude a qualified individual with a disability from working. For example, one question asks the doctor to answer “yes” or “no” to the following: Will the Patient fully recover from the Health Condition at some date in the future so that the Patient can perform all job duties without restrictions?” It is not clear how the doctor should respond if, for example, the employee will never fully recover but may still be able to perform all job duties without restrictions.
More troubling is the fact that the sample form suggests to an employer that an employee who has been on leave because of a disability or who sustained an injury must ultimately be able to work without any restrictions. Employers cannot require that employees be fully recovered or able to work without restrictions if an employee could return to work with a reasonable accommodation (absent undue hardship).14
The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer. Additionally, the longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer’s interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation.
If an employer uses forms to gather information about the need for a requested reasonable accommodation, it should ask, in plain English, the few questions that will help to determine whether the requestor has a disability and needs a reasonable accommodation. (If the disability is obvious, then an individual should be asked to answer only those questions on the form that address why a reasonable accommodation is needed.) Regarding the existence of a disability, for example, a form could ask information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; and the way in which the activities are affected.15 A form could also ask about the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition. It is helpful to give examples to explain terms that many people may not recognize as having specific legal meanings. So, a form that asks about an impairment’s effect on “major bodily functions” or other “major life activities,” could offer examples such as normal cell growth; endocrine, neurological, or brain function; standing; lifting; and concentrating. Similarly, a form could provide examples of mitigating measures such as medication, physical therapy, assistive devices, and behavioral modifications. Regarding the need for reasonable accommodation, a form could ask how an accommodation would assist the individual to apply for a job, perform the job’s essential functions, or enjoy equal access to the benefits and privileges of employment.
Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question. Employers also may wish to have an appropriate management official handling the request (e.g., an HR director) review the form before giving it to a particular applicant or employee to determine if certain questions should be eliminated as irrelevant to the particular request and/or whether other questions should be asked.
I hope this information is helpful. This letter does not represent an official opinion of the EEOC.
Peggy R. Mastroianni
1 We note that the introduction to the sample forms does encourage an employer to seek legal advice from its counsel when faced with “particular fact situations.”
2 Example 34 in EEOC’s Q&A on “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html, addresses a similar situation. This section also provides examples where an individualized assessment of the facts supports an undue hardship determination. The discussion also notes the impact of the Family and Medical Leave Act when an employee requests intermittent leave, something the sample policy does not acknowledge in suggesting that intermittent leave may generally be denied.
3 The sample policy states that “not all possible accommodations are reasonable” and this includes “excessive absenteeism.” The EEOC regards the length of leave as an issue of undue hardship. See Question 44 in EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, http://www.eeoc.gov/policy/docs/accommodation.html [hereinafter “EEOC Accommodation Guidance]. Therefore, we believe that it would be better to explain that denial of excessive leave will be based on the undue hardship factors, which include the impact on the employer’s operations resulting from leave already used and any additional leave requested.
4 See, e.g., Mobley v. Allstate Ins. Co., 531 F.3d 539 (7th Cir. 2008).
5 See Question 34 in EEOC Accommodation Guidance, supra note 3; see also EEOC Fact Sheet, “Work at Home/Telework as a Reasonable Accommodation,” http://www.eeoc.gov/facts/telework.html.
6 See Question 38 in EEOC Accommodation Guidance, supra note 3. As the answer to Question 38 points out, the decision to forgo use of medication, treatment, or an assistive device (or any other mitigating measure) may render an individual not qualified. See also 29 C.F.R. pt. 1630 app. § 1630.2(j)(1)(vi).
7 See 29 C.F.R. pt. 1630 app. § 1630.2(j) (discussion of “Substantially Limited in Working”).
8 See Questions 6 and 8 in EEOC Accommodation Guidance, supra note 3.
9 See Question 6 in EEOC Accommodation Guidance, supra note 3.
10 See “General Principles” section in EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter EEOC Inquiries Guidance].
11 See Question 7 in EEOC Inquiries Guidance, supra note 10.
12 See Questions 12-13 and section on “Reasonable Accommodation Related to the Benefits and Privileges of Employment” in EEOC Accommodation Guidance, supra note 3.
13 See Question 1 in EEOC Inquiries Guidance, supra note 10.
14 Cf. Question 13 in the EEOC Enforcement Guidance: Workers’ Compensation and the ADA, http://www.eeoc.gov/policy/docs/workcomp.html.
15 The ADA Amendments Act of 2008 (ADAAA) made it much easier for individuals claiming rights under the ADA to show that they have covered disabilities. For example, certain impairments will easily be found to be disabilities, including diabetes, post-traumatic stress disorder, and epilepsy. See 29 C.F.R. § 1630.2(j)(3)(iii) and 29 C.F.R. pt. 1630 app. § 1630.2(j)(3). Information substantiating that an individual has one of these types of impairments should be sufficient to establish that the individual has a covered disability. As a result of the ADAAA, most of the focus of the reasonable accommodation process, and the forms used to gather information as part of that process, should be on whether an accommodation is needed, and if so, what type, rather than on whether an individual has a covered disability.
Comments from Christine Sensenig of the Sensenig Law Firm:
One size fits all does not apply to the ADA, or the ADAA. Employers must consider each request for a reasonable accommodation on a case-by-case basis. Employers must also consider the actual impact on the organization as a result of the employee’s request for accommodation. While a very small employer may not be able to accommodate an employee’s request for major changes in his or her work schedule, larger employers will not have the same restrictions. Using forms provides consistency for an employer, but that form must be tailored each and every time to apply to the unique situation at hand. The key phrase to use is “how can we help you?” when addressing disability related issues.