More Attention on Disability Discrimination Laws
The U.S. Department of Labor has consistently shown a commitment to outreach and education for disabled workers. As part of this commitment, the DOL has celebrated “National Disability Employment Awareness Month” in October for a number of years. The Obama Administration’s support of DOL initiatives in this area has led to an increased emphasis on the interpretation and enforcement of disability discrimination laws.
This additional attention on disability employment issues means that employers may see an increase in discrimination claims and should take the time to evaluate their discrimination risk management and compliance procedures. Please read below on the heightened risks and how employers can mitigate those risks.
EMPLOYMENT DISABILITY DISCRIMINATION ENFORCEMENT
During his first term, President Obama’s administration has aggressively enforced the requirements of the Americans with Disabilities Act (ADA) and other federal disability discrimination laws. In the last three years, the EEOC and other federal agencies have significantly stepped up enforcement of these laws as well.Statutory and regulatory changes have placed additional obligations on employers with respect to compliance and managing exposure to claims.
Avoiding Disability Discrimination in Employment
The ADA generally prohibits discrimination in employment on the basis of disability. Specifically, employers may not discriminate in recruitment, hiring, promotions, training, pay, social activities and other privileges of employment. Employers must also make reasonable accommodations for limitations of otherwise qualified individuals with disabilities, unless doing so results in undue hardship for the employer.
The ADA Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA). The changes to the definition are intended to make it easier for a person seeking ADA protection to establish that he or she is disabled. In making these changes, Congress overturned several U.S. Supreme Court decisions that Congress believed interpreted the ADA definition of “disability” too narrowly. The expanded ADA rights provided by the ADAAA have been implemented through additional Equal Employment Opportunity Commission (EEOC) regulations.
Violations of the ADA can expose businesses to substantial liability. Employers that impermissibly discriminate against disabled employees or applicants may be subject to investigations by the EEOC along with lawsuits. They may be required to hire, reinstate or promote the affected individual and pay damages up to $300,000 (depending on the size of the employer) and attorneys’ fees. These employers could also be subject to additional remedies, such as being required to institute new policies, provide a method for employees to report discrimination, submit reports to the EEOC and provide additional training to employees regarding disability discrimination.
In order to successfully defend against claims of discrimination, employers must carefully document legitimate business justification for their hiring, promotion and other employment-related decisions with respect to individuals who might qualify as disabled.
For more information on the ADAAA, please contact your Insurance representative.
Medical Information Discrimination
Employers could also be at risk for claims of disability discrimination based on access to, or use of, genetic or other health information. The Genetic Information Nondiscrimination Act (GINA) prohibits employers with 15 or more employees from discriminating against an employee or individual on the basis of genetic information. Under GINA, employers may not discharge, fail or refuse to hire or otherwise discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment because of genetic information.
Employers are also prohibited from requesting, requiring or purchasing genetic information about an individual or family member except in very limited circumstances. Genetic information must be maintained separately and treated as a confidential medical record, which can only be disclosed to certain entities in certain situations.
In addition, employers and health plans are required to safeguard personal medical information under the ADA’s medical privacy requirements and the Health Insurance Portability & Accountability Act (HIPAA). This information may be used or shared only under very limited circumstances. Failure to properly protect this information could lead to situations involving discrimination based on a disability.
Violation of these rules can have significant liabilities for employers.In order to avoid these claims, employers must make sure that hiring and other employment practices, as well as employee benefits, workers’ compensation and wellness practices are up to date and properly managed.
For more information on GINA and HIPAA, please contact your Insurance representative.
EMPLOYER COMPLIANCE OBLIGATIONS
The increased focus on enforcement of these laws can increase an employer’s risk of facing more disability claims from a broader range of employees. The laws have made it easier for plaintiffs and the EEOC to prove that an individual is disabled, leaving employers with fewer defenses against these claims.
Employers should take the following steps to protect themselves from disability discrimination claims:
- Review and improve existing compliance and risk management practices to promote and document compliance. Pay close attention to all internal hiring, recruitment, promotion, compensation, recordkeeping, and reporting policies and practices;
- Be aware of potential discrimination issues with respect to applicants or employees with actual, perceived or claimed physical or mental impairments;
- Improve documentation and recordkeeping to be able to demonstrate nondiscriminatory justifications for employment decisions if necessary;
- Improve and document processes and procedures governing the collection and handling of records and communications that may contain information regarding an applicant’s physical or mental impairment (such as medical absences, workers’ compensation claims, emergency information or other records containing health status or condition related information); and
- Review employment records, group health plan, family leave, disability accommodation and other existing policies and practices to comply with GINA, HIPAA and the ADAAA. Properly plan wellness, health risk assessment, work-related injury, family or other medical leave or related programs.