Articles Posted in Disability Rights

Many Texas employers require potential applicants and current employees to submit to drug testing. Federal and Texas laws permit private employers to adopt and implement broad drug and alcohol testing policies for their employers, with minimal limitations. However, according to the Texas Workforce Commission (TWC), government employers must show a compelling justification for drug testing.

The consequences of a failed drug test can be life-altering for an applicant or employee. In some cases, employers will provide rehabilitation services, but more commonly, employers will refuse to hire a potential applicant or terminate an employee. Additionally, employers are allowed to release the test results to the TWC, and this can affect a person’s unemployment compensation. Employees who believe their employer impermissibly drug tested them may have some legal protections.

Most employers should provide their employees with a written drug testing policy that outlines what results will be a violation, which employees require drug testing, and what measures will be taken after a violation. Unfortunately, Texas employers can fire employees that refuse to sign an acknowledgment of the drug testing policy. However, employers need to provide the employee with a warning that there is a risk of termination if they fail to sign the policy. Additionally, the policy needs to be enforced in a non-discriminatory manner.

The Family and Medical Leave Act (FMLA) is a labor law that provides eligible employees with the right to take job-protected, unpaid leave for up to 12 weeks per year for family and medical reasons. Under the FMLA, eligible employees who take this leave will retain their group health benefits. Generally, employees are eligible if they worked for their employer for 12 months, for at least a minimum of 1,250 hours, and at a location where the organization employs at least 50 employees within 75 miles. Employees can take leave in specific situations, including during and after the birth of their newborn, after a child is placed with the employee for foster care or adoption, to care for a spouse, child, or parent with a severe medical condition, or when the employee cannot work because of a critical medical condition. Additionally, in 2008, the FMLA afforded additional benefits to military families through the Military Family Leave provision.

The “Exigency Leave” portion of the FMLA provides additional protections to qualifying employees whose spouses, parents, or children are deployed or going to be deployed to a foreign country. Similar to typical FMLA requirements, individuals who want to use this leave must work for a qualified employer and meet eligibility requirements. This leave allows the individual to take a total of 12 workweeks of leave to address issues that often arise when a family member is facing deployment. For example, the leave is designed to allow family members to arrange for daycare or attend official military ceremonies.

Additionally, Military Caregiver Leave allows qualifying spouses, parents, children, and next-of-kin to care for their military family members if they are suffering from qualifying injuries or illnesses. An employee can take this leave as long as they meet eligibility requirements and work for a qualified employer. This leave provides caregivers with the right to take a total of 26 workweeks of unpaid leave during a single 12-month period.

Under the Americans with Disabilities Act (ADA), employers cannot discriminate against prospective or current employees based on their disability. The ADA provides that qualified individuals with disabilities should receive a reasonable accommodation to perform their job duties, unless it imposes an undue burden on the employer. These accommodations offer disabled individuals the ability to engage in equal employment opportunities.

Reasonable accommodations can be provided at all stages of employment and in various ways. For example, employers may be asked to change the application process or training process to accommodate a prospective or new employee. Moreover, an employer could adjust equipment or software to assist a disabled employee. Although employers are not required to create new positions, they may be required to reassign employees if a qualified position becomes available.

In some instances, an employee may request to work at home to accommodate their disability. Although not every job can be performed at home, teleworking can be a reasonable accommodation depending on the circumstances. The ADA does not mandate employers offer teleworking as a reasonable accommodation; however, if an employer does retain a teleworking policy, they must allow disabled employees that same opportunity. The result may be an employer modifying their current teleworking policy to accommodate a person with disabilities.

In addition to the Americans with Disabilities Act, the Rehabilitation Act of 1973 (the Act) protects employees who work for the federal government, a program conducted by a federal agency, a program receiving federal financial assistance, or a federal contractor. This Act protects the rights of people with disabilities from discrimination regardless of the number of employees. Legislators designed the Rehabilitation Act in response to the large number of individuals with disabilities who were either unemployed or underemployed based on employers’ reluctance to hire them. Additionally, the Rehabilitation Act requires employers to hire and retain individuals with disabilities.

Section 504 of the Act prohibits employers who receive federal funds from discriminating against a qualified individual with a disability. The Act provides that employers cannot deny benefits, exclude, or discriminate against prospective, current, or former employees based on their disability. Additionally, the Act requires Texas agencies or contract service providers who receive federal funds to recruit actively, employ, and advance qualified disabled individuals.

If a Texas employee believes their employer is discriminating against them, but the ADA does not cover them, they may still be able to pursue a claim based on the Rehabilitation Act. However, the Rehabilitation Act and ADA use the same standards when determining if an employer is engaging in employment discrimination.

Under both state and federal law, Texas employees are protected from discrimination based on pregnancy and pregnancy-related illnesses; however, that was not always the case.

Originally, the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, religion, sex, and national origin was not interpreted by the courts to include protection for pregnancy and related medical conditions. During this time, employers were able to make decisions based on the fact an employee was pregnant. It was not until over a decade later, with the passage of the Pregnancy Discrimination Act of 1978 (PDA) that pregnancy was covered. Since the passage of the PDA, discrimination based “on the basis of pregnancy, childbirth, or related medical conditions” has been prohibited because it is considered to be discrimination based on a person’s sex.

Under the PDA, women who are pregnant or are suffering from pregnancy-related illnesses cannot be discriminated against. Common pregnancy-related illnesses include:

In some cases, an employer may ask a returning employee to take a fitness-for-duty examination to ensure that the employee is mentally and physically able to perform the tasks of their job. However, these fitness-for-duty exams can be intrusive and may reveal confidential information about an employee’s disability. Generally speaking, an employer’s ability to request a fitness-for-duty examination depends both on the nature of the injury that necessitated the employee’s leave as well as the specific functions of the employee’s job. When the employee’s underlying condition is one that qualifies as a “disability” under the Americans with Disabilities Act (ADA), employers are limited in their ability to require fitness-for-duty examinations.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” If the reason for the employee’s leave was not considered a disability under the ADA, and the employee’s condition is one that could reasonably affect their ability to perform their job, then employers generally will have broad discretion in requiring a fitness-for-duty examination. However, even when an employer is able to require a fitness-for-duty examination, the employer must follow the procedural requirements outlined in 29 CFR § 825.310. This includes providing adequate notice to the employee as well as a list of the “essential functions” of the employee’s position. Of course, a fitness-for-duty exam can only be required as it relates to the specific health condition that caused the employee’s absence.

When an employee suffers from a disability as classified by the ADA that necessitates they take FMLA leave, an employer can only request a fitness-for-duty examination if the examination is related to the employee’s job and is required by business necessity. Typically, this requires that an employer be able to show that the employee’s condition either prevents them from performing the necessary functions of their job or that the employee poses a direct threat to their own safety of the safety of others. Importantly, an employer’s belief must be based on concrete facts, rather than stereotypes or assumptions about an employee’s condition. For example, an employer could not require a fitness-for-duty examination for a returning employee who suffered from debilitating depression based on the belief that all people who suffer from depression present a potential risk in the workplace.

As we’ve discussed in previous posts, federal discrimination laws prohibit employers from engaging in discriminatory conduct during employment. This also includes the pre-employment interview process. Employers cannot make a hiring decision based on a person’s age, race, religion, sex, national origin, or disability.

Sometimes, employers trying to gather as much information as possible about an applicant will rely on preconceived notions and stereotypes in doing so.

A few of the problematic questions employers routinely ask are:

  • whether an applicant is married, engaged, single, or divorced;
  • whether an applicant has any children and, if so, how old they are;
  • whether an applicant plans on becoming pregnant;
  • what an applicant’s spouse or boyfriend does for a living;
  • whether an applicant attends religious services and, if so, what days; and
  • the origins of an applicant’s last name.

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Under the Americans with Disabilities Act (ADA), employers are required to offer employees with disabilities reasonable accommodations that will provide them with the ability to apply for or perform the necessary functions of their positions. Employers will often attempt to shrug off this responsibility by claiming that providing the employee with a reasonable accommodation would cause the company to suffer an undue hardship. However, in order to prove an undue hardship and avoid a Texas disability discrimination claim, the employer must provide evidence showing that the accommodation would result in a significant expense or difficulty.Although employees may request a specific reasonable accommodation, employers may provide their own accommodations. The Equal Employment Opportunity Commission (EEOC) looks at various factors to determine whether the hardship is significant or whether the accommodation is appropriate.

When Is Light Duty Considered a Reasonable Accommodation?

Light duty is a malleable term that is applied differently depending on the employment setting. Broadly, light duty is considered to be a type of temporary or permanent work that is less strenuous than an employee’s normal job duties. Light duty can be applied in both physical and mental-health contexts, and it is relative to the particular position.

Veterans returning to the United States may face many challenges while trying to adjust to civilian life. Unfortunately, many veterans face employment discrimination, and they may have difficulty obtaining and maintaining employment. Often, employers are reluctant to hire individuals who suffer from disabilities related to their deployment. This can have startling consequences for the workforce, since almost a third of the 12 million veterans report having some type of disability.

In response to the rising reports of employment discrimination, Congress enacted the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). At its inception, the VEVRAA provided Vietnam veterans with protection against employment discrimination. Some common forms of employment discrimination veterans face are when an employer claims a job is no longer available, an employer states they do not want to hire veterans for fear of future deployments, an employer counts military leave against accrued vacation time, or an employer harasses or otherwise retaliates against a service member.

Although the name suggests otherwise, the VEVRAA protections apply to several categories of protected veterans. Protected veterans include those who were:

  • Released from active duty because of a service-connected disability or entitled to compensation under the Veterans Administration;
  • Recently released;
  • On active duty; or
  • Campaign or Armed Forces medal recipients.

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The Americans with Disabilities Act (ADA) is a federal law enacted in 1990 designed to protect individuals with disabilities from being discriminated against. The ADA prohibits discrimination against those individuals who have disabilities in all areas of public life. The ADA applies to areas such as public and private places, transportation, employment, and education. This means that both private and public employers are covered under the ADA.

What Is Considered a Disability under the ADA?

Almost ten years ago, an amendment to the ADA was signed into law clarifying what is considered a disability for the purposes of the ADA. To qualify for protection under the ADA, a person’s impairment must be substantial. Impairment is considered substantial when it restricts or limits a major life activity. Some things considered major life activities are learning, working, walking, breathing, hearing, and seeing.

When Do ADA Protections Apply and What Is Covered?

An employer is required to provide protections under the ADA if the employee has a disability and is qualified to perform the essential functions of the job with or without reasonable accommodations. Essentially, the individual must be able to meet the employer’s requirements, and then must be able to perform the job with or without accommodations. Under the ADA, an employer cannot have any discriminatory practices in areas such as compensation, benefits, hiring, training, firing, and recruiting.

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