ADA-WHAT IS NOT REQUIRED
UNDER THE LAW
The Americans with Disabilities Act (ADA) has caused a great deal of concern for employers. It has even created an unwarranted fear that companies must substantially alter their business to make accommodations for the disabled. Here are some interpretations that the courts have made concerning this Act.
 Alcohol & Drugs. The ADA expressly provides that employers need not condone alcohol or illegal drug use on the job or reporting to work "under the influence." However, employers should be aware that a number of courts have held that alcoholism and former drug addictions are disabilities and may require reasonable accommodation.
Leaves/Accommodation. An employer is not required to hold a job open indefinitely until an employee's health problems are corrected. Of course, certain employers may be required to provide 12 weeks of job guaranteed leave under FMLA.
Creating New Jobs. The courts have repeatedly emphasized that employers are not required to create new positions for employees. The ADA does not require an employer to create a "light duty" position unless the "regular" tasks an injured worker can no longer perform are marginal job functions which may be reallocated to co-workers or eliminated as part of the reasonable accommodations of job restructuring. In most cases, "light duty" jobs involve totally different work than the job the employee performed before the injury. The ADA does not require this type
of restructuring.
Reassignment. As a reasonable accommodation, an employer may be required to temporarily assign an employee to an available vacant position (with the attendant pay and benefits for the vacant position). An employer could violate the ADA if they refused to assign a disabled employee to an available position when it had accommodated other employees in this manner in the past. In an effort to comply with the ADA, employers mistakenly eliminate essential functions to other employees. Although a reasonable accommodation may include transferring non-essential or marginal functions of the position to other employees, it does not require any employer to restructure a job to eliminate the essential function.
Assistance. Hiring another worker to assist a disabled employee in doing the essential job function is not required. It may be "reasonable" to employ someone to assist a disabled person. However, an assistant need not be provided if such assistance would amount to job restructuring by eliminating the essential functions of the disabled employee's job, or if it would create an undue hardship on the company.
Employee Requests. Employers are not required to grant the exact accommodation the employee requests. While there needs to be a mutual discussion, there is not a requirement that the company follow all of the employee's suggestions.
Conclusion. The ADA is evolving at a rapid pace. A court's opinion is, at best, only a guide for employers. The ADA must be examined on a case-by-case basis.
HRMagazine
REVISED REGULATIONS FOR
AFFIRMATIVE ACTION EMPLOYERS
The Office of Federal Contract Compliance Programs (OFCCP) has revised a limited number of the regulations to implement Executive Order 11246, as amended, which prohibits employment discrimination and establishes affirmative action requirements for nonexempt federal contractors and subcontractors. These new regulations, published in the Federal Register dated Tuesday, August 19, 1997, became effective on September 18, 1997. The new regulations make changes in four areas: record retention, compliance monitoring, maintenance of non-segregated facilities, and enforcement procedures. Following are the highlights of these new regulations:
Record Retention
The stated record retention period for contractors with less than 150 employees and $150,000 annually in government contracts remains the same - one year. For those employers with 150 or more and at least $150,000 annually in government contracts, the stated record retention period is two years. [It is recommended, however, that all affirmative action employers retain pertinent records for three years (all personnel and employment records). This record retention period takes into account the fact that OFCCP may review the current year's Affirmative Action Plan (AAP), and if potential discrimination is found, request the prior year's AAP as well as other information and documentation for the preceding two years.]
The new regulations state that contractors shall permit access during normal business hours to its premises for the purpose of conducting on-site compliance evaluations and complaint investigations. Each contractor shall permit the inspecting and copying of such books, accounts, records (including computerized records), and other material, as may be relevant to the evaluation or investigation. In addition, failure to preserve records, whether computerized or hard copy may raise the presumption that the records, if available, would have been unfavorable to the contractor.
In addition, the regulations provide that information made available during the on-site review may be taken off-site by the compliance officer if further analysis is required to make a determination of compliance. Contractors may seek rulings of relevance with regard to data requested for off-site analysis, but the contractor must allow the compliance officer to take the disputed information off-site while awaiting the relevancy ruling.
Compliance Monitoring
The new regulations establish the "compliance evaluation" and define it as "any one or combination of actions OFCCP may take to examine a federal contractor's or subcontractor's compliance with one or more of Executive Order 11246's requirements." OFCCP believes that this flexible approach to compliance evaluations will streamline the compliance review process and more effectively and efficiently use its available resources.
Under the new regulations, a compliance evaluation may consist of any one, or a combination of any of the following:
- A compliance review
- An off-site review of records.
- A compliance check.
- A focused review.
The scope of the compliance evaluations and how they will be conducted is currently unclear.
The OFFCCP will continue to allow contractors 30 days from the date of official notification of a review to submit the requested documents and information. A proposal to shorten (to 15 days) the amount of time contractors would have to submit requested documents once they were notified by OFCCP of a compliance review was not adopted.
In addition, OFCCP has maintained the current mandatory nature of pre-award compliance audits, but raised the contract threshold to $10 million or more, up significantly from the previous $1 million threshold. The new regulations also exempt proposed contractors from pre-award evaluations if they have been audited within the past 24 months and found to be in compliance. This should significantly reduce the number of pre-award compliance evaluations conducted by OFCCP.
The new regulations also clarify that the terms government contractor or subcontrator include those organizations with 50 or more employees that are purchasing from the federal government in amounts of $50,000 or more, as well as those that are supplying goods or services to the government.
Maintenance of Non-segregated Facilities
The prior regulations prohibit the maintenance of segregated facilities (except where single-user restrooms, dressing or sleeping areas must be provided to assure privacy between the sexes) and required contractors to certify that they were in compliance with that obligation. Although the obligation to maintain non-segregated facilities still exists, the new regulations eliminate the necessity for contractors to provide written certification of same.
Enforcement Procedures
With the exception of a provision requiring that interest on back pay be compounded quarterly at the percentage rate established by the Internal Revenue Service for the underpayment of taxes, there is no substantive change to enforcement proceedings.
Debarment has always been one of the sanctions that could be imposed on federal contractors that refused to comply with an order, rule or regulation. The new regulations make provision for indefinite term debarment, as well as debarment for a fixed minimum period of at least six months. No debarment action will be taken without affording the employer an opportunity for a hearing.
MRA
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