In the case — Nixon-Tinkelman v. N.Y. City Dep’t of Health & Mental Hygiene — a municipal employee who was suffering from several ailments announced to her employer that she couldn’t reasonably make the over-60-minute commute to her job via public transportation, and she asked that her employer provide some sort of accommodation under the American with Disabilities Act. The employer quickly decided that “commuting” wasn’t part of her job description and thus wasn’t eligible for an ADA accommodation. She was ordered to make the commute or be fired. She sued, arguing that commuting does fall under the ADA.

The case was tossed out by a district court, but the federal appeals court told the district court to go back and analyze whether the company might be able to accommodate the request by, for instance,

• transferring the employee to a closer location
• allowing the employee to work from home, or
• providing employee with a car or parking permit.

The court did note that the employer should “consider” those and other accommodations, according to the resources of the employer. In other words, the bigger the employer, the broader the range of reasonable accommodations.

What’s it mean? Certainly, there’s no hard-and-fast rule that employers must provide a commuting accommodation, nor would all accommodations be reasonable. For example, it’s less likely that someone in a manufacturing job could work at home. However, the court’s decision does send a warning that employers shouldn’t simply dismiss accommodation claims based on long or difficult commutes by an employee suffering from health problems or a disability.

You could have a problem if your job descriptions have been sitting around a while in a file drawer. You could have an even bigger problem if you don’t have job descriptions.

Let’s start with the connection between job descriptions and the Americans with Disabilities Act, which recently expanded the definition of “disabled” and focuses on so-called “essential” duties of the job.

The ADA protects employees and applicants who can perform essential job functions with or without a reasonable accommodation. Often, the issue in an ADA case is determining what job duties are, in fact, essential. The job description is where your organization has a chance to lay out accurately the essential job functions in writing.

The leftover function
Typical problem: A job description that was written years ago, probably by someone else, says the employee must be able to lift 20 lbs. as an essential function of the job. Except that the job description is outdated and the 20-lb. requirement is no longer valid. And then somewhere along the line, a disabled applicant gets turned down because of the requirement. You have a problem if the applicant finds out about the invalid requirement — and claims you used it to avoid hiring a disabled person.

The forgotten function
Or let’s look at the other side of the coin. Suppose a job description has been sitting in a file drawer for a while, without revision, and over the years, lifting 20 lbs. has become a real requirement of the job — but it’s not in the job description. And a supervisor turns down a disabled applicant because of the unwritten requirement. Problem: The applicant howls that she was refused the job based on a requirement that doesn’t exist in the job description.

The FLSA catch
The U.S. Labor Dept. is looking closely at how companies classify employees for purposes of paying overtime. Under the Fair Labor Standards Act, anyone who’s considered nonexempt must be paid time-and-half for all weekly hours over 40. And the nonexempt determination is made based on the employee’s major duties — in reality and in the job description. And the two had better match if an employee challenges an exempt classification. Courts and auditors will look suspiciously at a situation where the job description says one thing and the actual duties are something else.

Time for review
So now’s the time to take a look at your job descriptions and see if they match what employees are really doing. Get HR and your supervisors involved. As much as anyone, they’ll want to know if a problem exists as much as anyone.

That’s the upshot of a critical new court ruling out of Florida. Of course, this case also comes with a few cautions for any company looking to cut its health expenses (and who isn’t these days?).

Check out the specifics of this new ruling and how you can use it to make employees and your company’s bottom line healthier.

The specifics

The employer in this case had started a wellness program in an attempt to get a handle on its health costs. A critical part of the plan: That employees complete a health risk assessment, consisting of a questionnaire and biometric screening.

That’s a common-enough practice. But the employer’s approach when someone failed to comply was a little less mainstream: It deducted $20 for every pay period that individual hadn’t done the screening or filled out the form.

One employee balked, and a class action suit followed, asserting that requiring a health risk assessment violated the Americans with Disabilities Act (ADA). Participation should be voluntary, employees argued, so it was illegal to financially penalize folks for refusing to participate.

The verdict

Not so, said the court.

The ruling: If a bona fide health plan exists, medical info can be collected. And a wellness program counts as part of a health plan. Which means that collecting data via health risk assessment doesn’t violate the ADA, and requiring them to comply doesn’t step out of bounds.

The learning for employers

This ruling is great news for every cost-conscious employer out there. Wellness programs remain one of the only strategies proven to lower healthcare costs.

So any tool at your disposal that can get more people participating is worthwhile. While some employers have done well by offering incentives for employees who participate, there are times when the opposite approach may nab the results you’re after. And now you can be more confident it’s a legal strategy.

However, nothing’s ever that neat and tidy. This verdict was strictly one court’s opinion. But you have plenty of  laws and agencies to worry about running afoul of: HIPAA, The Genetic Information Nondiscrimination Act (GINA) and the EEOC.

So when crafting your organization’s wellness plan, and how you’ll get employees to take part, you’ll need to watch all of these. And while the EEOC, for one, hasn’t ruled on the voluntary nature of health risk assessments, informally it has said requiring them would violate the ADA. But will they take an official stance soon in light of this new ruling?

Stay tuned.

Cite: Seff v. Broward County.

How? It violated the Americans with Disabilities Act (ADA) when it asked questions that weren’t specifically limited to a worker’s ability to do the job at hand.

Questions were too broad

In the midst of a bevy of health and mental problems, security officer James Scott was fired for refusing to respond to questions on a staff medical questionnaire.

Scott filed suit, saying the info he was asked for violated the ADA.

That info included:

• “Have you ever been treated for a mental condition?” and
• “List all medication you are currently taking with dosage and frequency.”

The company said the questions were job-related and necessary – it had to know if Scott was mentally and physically healthy to perform his job as an armed security officer.

But the court said the info it asked for was too broad – they weren’t limited in time and didn’t distinguish between job-related and non-job-related health problems.

The takeaway: Firms can ask about staffers’ ability to do a job, but the questions must be limited to the worker’s ability to perform the job’s essential functions.

Anything beyond that could violate the ADA.

Cite: Scott v. Napolitano

You know of course that, under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for known disabilities of workers, as long as those accommodations don’t create undue hardships for the company.

The question is: Where can employers draw the line?

That was the question at hand in a recent federal case out of Pennsylvania where a staff member suddenly lost her ability to drive at night.

‘It wouldn’t be fair’ to the other workers

Shortly after starting work at Rite-Aid, cashier Jeanette Colwell lost vision in her left eye.

Though Colwell could do her job without an accommodation, she was no longer able to drive at night. Since buses didn’t run late in her town and there was no taxi service, she requested that she only be scheduled for day shifts.

Her supervisor, however, denied her request, saying it “wouldn’t be fair” to the other staff.

Colwell got a note from her doctor recommending that she not drive at night, but her manager denied the request again.

Did manager not do enough?

Colwell eventually resigned and filed suit, claiming Rite-Aid violated the Americans with Disabilities Act (ADA) by not changing her shift.

Rite-Aid countered that it wasn’t required to accommodate her – how she got to and from work fell outside the scope of the ADA.

But the judge sided with Colwell. The issue wasn’t so much how Colwell got to work but when she was scheduled to work. Since a company can control when its employees work, it can accommodate a shift change request if it’s reasonable – and Rite-Aid was unable to prove Colwell’s request created an undue hardship.

Managers should always consider every possible option for accommodating a disabled worker’s request – even ones that may go against the norm. As long as employees’ requests aren’t extreme, there probably is an accommodation that works for everyone – not to mention one that keeps everyone out of court.

Cite: Colwell v. Rite-Aid

The case involves a temp worker for an Alabama electronics firm who applied for a permanent position with the company.

As part of the pre-employment process, the applicant was required to take a drug test. The man suffered from epilepsy, which was controlled through a prescription for barbiturates.

Questionable questions

When his drug test came back positive for the drug, the man was called into his supervisor’s office. The applicant explained he had a doctor’s prescription for the barbiturates. The supervisor later sat in a room as a doctor asked the employee a series of questions about the medication and his condition.

After that discussion, the company canceled its job offer. The man sued, claiming the company violated the ADA during the testing process.

An appeals court agreed. Although employers have the right to ask questions about the results of a failed drug test, they’re prohibited from “targeted disability-related inquiries.” The doctor’s questions – posed in a situation where the supervisor could overhear the responses – violated that prohibition, the judge ruled.

Cite: Harrison v. Benchmark Electronics

The case involves a UPS manager who was coming to the end of her 12-month workers’ comp leave. The company sent her medical certification forms to be filled out by her physician – the first step in granting her an accommodation.

She ignored two requests for the forms.

Never asked for accommodation

In the meantime, she called several company supervisors, saying her doctor had cleared her to return to work. She said she’d occasionally need some help with things like lifting, but she never actually asked for an accommodation.

After she failed to submit the certification forms, the company terminated her. She sued, saying the company violated her Americans with Disability Act (ADA) rights.

And the court agreed. Just because she hadn’t “played by UPS rules” didn’t mean the woman wasn’t eligible for an accommodation. The company should have done more to help the woman through the ADA process, the judge said:  “…(I)f it appears that (an) employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.”

Cite: Decree v. UPS

Here’s a reassuring message: New looser disability definitions don’t apply to cases brought before January 1 of his year.

Congress this year passed the ADA Amendments Act (ADAAA)  in response to several Supreme Court decisions that narrowly interpreted the Americans with Disabilities Act rules. The ADAAA greatly broadened the standards for what counts as a disability — and also increased the odds of companies facing more and more accommodation requests.

Deluge averted

That possibility still exists, of course. But after a recent federal court ruling, at least you can be sure the new regs aren’t retroactive. That means employers won’t have to weather a deluge of cases from employees whose suits were dismissed under the old rules.

The recent decision came out of a case involving an employee of a sewer district who filed an ADA suit after his termination. The man claimed he should have been offered an accommodation because he was disabled; a lower court dismissed his suit.

In his appeal, the man claimed his case should be reconsidered using the new disability definitions.

The judge said no. If Congress had intended the law to be retroactive, it wouldn’t have specified a date — Jan. 1, 2009 — when the measure would become effective.

Cite: Lytes v. DC Water and Sewer, U.S. Circuit Crt. DC, No. 08-7002, 7/21/09.

In one recent case, an employee was fired after dozing off during duty.

His job: flight instructor for Southwest Airlines. Frequently he would fall asleep while giving lectures. The problems continued for about a year and a half before he was terminated.

The employee suffered from sleep apnea and couldn’t control when he fell asleep. He told his manager the problems would be limited if his shift was changed — but that would have required other employees to work longer, so no change was made.

He also argued that he could work just fine despite his condition. But the company wouldn’t take any chances — after all, his job was to make sure pilots could do their jobs safely. So, with no other options, the company fired him.

He sued, claiming Southwest fired him because of his disability, in violation of the Americans with Disabilities Act (ADA).

Accommodating sleeping disorders

Who won the case?

Answer: the company.

The court ruled it would’ve been unreasonable for the company to continue having an employee with a sleep disorder train its pilots on how to stay safe. Since he couldn’t perform the essential functions of his job — and no reasonable accommodation seemed to be available — the company was right in firing him.

Note: ADA suits are always case-specific. A condition that prevents employees from performing one job may not have the same result in others.

In some positions, allowing an employee the chance to take short rest periods may be a reasonable accommodation for a sleeping disorder.

Cite: Grubb v. Southwest Airlines