The May 15 changes were necessary because of the ADA Amendments Act, which expanded the law’s coverage in 2009, the U.S said in a press release.

The documents explain how ADA applies to applicants and employees with cancer, diabetes, epilepsy and intellectual disabilities. The amendments made it easier to conclude that individuals with those impairments — and many others — are entitled to ADA’s protections, the commission explained.

The guidance documents also describe when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment, according to EEOC. 

These guidance documents for these specific conditions were chosen for revision because “[n]early 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than two million have an intellectual disability,” EEOC Chair Jacqueline A. Berrien said in a statement. “While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

The documents revised are:

• Questions & Answers about Cancer in the Workplace and the Americans with Disabilities Act;
• Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act;
• Questions & Answers about Epilepsy in the Workplace and the Americans with Disabilities Act; and
• Questions & Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act.

Visit the HR Compliance Expert for more on ADA compliance.

Wage-and-hour related provisions should include pay details, safe harbor and state law

Employees often sue employers for various FLSA violations, and the U.S. Department of Labor actively investigates employers for noncompliance. Therefore, employers should consider including the following provisions in their handbook, at a minimum.

• Pay and hours. Pay and hour provisions indicating work hours, rest and meal periods, overtime, paychecks and deductions (including garnishments) are recommended. Employers should delineate differences between exempt and nonexempt employees.
• FLSA safe harbor. To protect against having the accidental improper docking of pay of exempt salaried employees jeopardize their FLSA-exempt status, or be the basis of a back wages claim, an employer should include an anti-docking provision that complies with DOL’s safe harbor provisions in 29 C.F.R. §541.603(d). The provision should: (1) state the employer’s policy against the improper docking of pay; (2) require employees to promptly report any improper docking; and (3) provide for the prompt reimbursement of improperly docked employees.
• Overtime notices. The criteria for earning overtime should be specifically stated (for example, 1.5 times the employee’s regular rate after 40 hours in a work week). In addition, employees should be warned that they must obtain supervisor approval for overtime, or otherwise face possible disciplinary action. (Note: Employees must be paid for all overtime work, even if it was unauthorized.)
• Federal and state law. Employers should remember that they have wage and hour obligations under both the FLSA and state law (which may be stricter than the FLSA).

Employee handbooks are frequently reviewed in litigation — be sure your language is proper

Employee handbooks frequently play a role in litigation, and should cover as many areas of the employment relationship as possible. Employers should consider adding provisions related to other federal laws, such as the Americans with Disabilities Act, the National Labor Relations Act and the Family Medical Leave Act.

• Use clear and concise language. Handbook provisions should clearly and accurately describe the employer’s practices and policies and avoid interpretations the employer does not intend. For example, any provisions that do not apply to a certain class of employees otherwise covered by the handbook should clearly indicate which employees are covered, or make other differentiations. For example, many employers do not grant vacation time or other benefits to part-time employees. In such a case, the handbook should state that clearly.
• Include provisions related to major federal laws. In selecting handbook provisions, employers must evaluate whether the provision is needed and desirable given the work environment. For example, all employers should include an anti-harassment policy because it is required by law and supports an employer in defending against discrimination claims. Unionized employers may need provisions addressing which issues are negotiable. Some other provisions to consider:
• An equal employment opportunity policy, stating that you don’t discriminate on the basis of race, class, sex, age, national origin, and other protected categories and that retaliation against employees exercising rights under this provision will not be tolerated. In addition, a growing number of companies are including gay, bisexual and transgender employees in their nondiscrimination policies, even though it is not required by federal law or in most jurisdictions.
• No harassment policy, covering sexual harassment and other discriminatory harassment. The policy should define harassment and unacceptable conduct, and establish procedures for reporting, investigating and addressing claims.
• Family and Medical Leave Act policy, if the employer is covered under the FMLA.

For more information, see the Guide to Employment Law Compliance 8th Edition.

The short answer is that yes, foreign students are eligible for paid employment off campus, but subject to certain conditions. Thankfully, there is little paperwork for an employer that hires foreign students. All additional paperwork is handled by the student, the school and the U.S. Citizenship and Immigration Services.

Three possible visas for students who want to work

Three different types of visas allow non-U.S. citizens to study and work in the United States: the F-1 visa (Academic Student), the M-1 visa (Vocational Student) and the J-1 visa (Exchange Visitor).

F-1 visa students can work off-campus after one year of study in the United States

The F-1 visa allows someone to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school or other academic institution or in a language training program. He/she must be enrolled in a program or course of study that culminates in a degree, diploma or certificate. The school must be authorized by the U.S. government to accept international students.

F-1 students may not work off-campus during their first academic year, but may engage in a few types of off-campus employment after they have been studying for one academic year (and are still studying to maintain their F-1 visa).

M-1 visa students are eligible for only a short amount of OPT

The M-1 visa category includes students in vocational or other nonacademic programs, other than language training. Examples of these students include those in mechanical studies, cooking schools, language programs or cosmetology schools.

J-1 visa students must be sponsored by a private sector or government program

A J-1 visa is a non-immigrant visa issued by the United States to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical or business training within the United States. All applicants must meet eligibility criteria and be sponsored either by a private sector or government program. Different categories exist within the J-1 program, each defining the purpose or type of exchange, including doctors, nannies, camp counselors and scholars (among others).

For a full discussion of these visas, and the answers to some frequently asked questions, click here.

DOL’s Office of Federal Contract Compliance Programs is in the final stages of a rulemaking that would require federal contractors to aim to have workers with disabilities make up 7 percent of their workforces. The also would need to have individuals with specific “targeted” disabilities make up 2 percent of their workforces.

But if DOL wants to enforce a hiring goal, it should have to play by the same rules, said Rep. Rodney Alexander, R-La., who introduced the Equal Standards in Hiring Americans Act (H.R. 759). If enacted, the law would keep DOL from enforcing the hiring goal unless it can first show that it has met the goal in its own workforce.

Congress has expressed concern with the goal from the beginning. When it was first proposed, lawmakers said they were worried that the goal would amount to a quota. Furthermore, “[w]e question the legal authority under Section 503 permitting OFCCP to establish a numerical hiring standard,” members of the House Committee on Education and the Workforce wrote in a letter to then-Labor Secretary Hilda L. Solis. See Congress, Stakeholders Challenge OFCCP’s Proposed EEO Quota.

“This proposed rule has created a wave of anxiety among those in the federal contracting community, many of whom are facing severe budget cuts and are struggling to retain current employees on their payrolls,” Alexander said in a press release. “Remarkably, it does not appear that DOL is in compliance with the regulations it is attempting to impose on federal contractors. 

According to a U.S. Office of Personnel Management report, however, individuals with disabilities made up more than 7 percent of DOL’s workforce in fiscal year 2011. It did not achieve the proposed goal for targeted disabilities though, having individuals with those specific disabilities accounting for only 1.18 percent.

Alexander said that while he appreciates DOL’s desire to ensure that workers with disabilities are sufficiently represented in the workplace, the federal government should “set the standard — not lead from behind.”

“We should not be asking others to meet goals we ourselves our unwilling or unable to achieve,” he added .

The bill was referred to the House Committee on Oversight and Government Reform.

OFCCP’s final regulations are expected in April.

See New Disability Regulations for Contractors Expected in April for details.

The case, Keith v. County of Oakland (2013 WL 115647, No. 11–2276 (6th Cir. Jan. 10, 2013)) involved Nicholas Keith, an individual who has been deaf since birth.

He applied for a lifeguard position with Oakland County, Mich. and told them that he would need an interpreter for meetings and classroom instruction. He successfully completed the training program and the county offered him a job, on the condition that he pass the medical exam it requires for all lifeguards.

However, when the doctor said that Keith would have to be “constantly accommodated” and the county’s risk management consultant expressed concern about his abilities, the county revoked his job offer.

Keith filed suit in the U.S. District Court for the Eastern District of Michigan, arguing that with a reasonable accommodation, he was qualified for the job. He alleged that Oakland County violated the Americans with Disabilities Act and Rehabilitation Act of 1973 when it failed to conduct an individualized inquiry into his abilities and failed to engage in the interactive process of looking for an accommodation.

The court however, granted summary judgment for the employer. It determined that the county had conducted an individualized inquiry into his abilities and properly determined that Keith was not “otherwise qualified” for the job because hiring an additional lifeguard as a full-time interpreter was not a reasonable accommodation. Additionally, any failure by Oakland County to engage in the interactive process did not establish a violation of ADA, the court said, because there was no reasonable accommodation available anyway. 

Keith appealed and the 6th Circuit overturned the lower court’s decision, finding that the county had not conducted an individualized inquiry as to whether he was qualified. The court said it was “incongruent” with ADA’s objectives for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not.                                                                                                                                

The appeals court also disagreed with the lower court that there exists no reasonable accommodation that would allow Keith to communicate effectively. ADA provides that accommodations may include “the provision of qualified readers or interpreters.” The inclusion of interpreters in the statute suggests that the provision of an interpreter will often be reasonable, the court said — particularly when one is needed only occasionally, as Keith requested. 

The district court also erred on the interactive process question, the 6th Circuit found. Its conclusion that any failure by Oakland County to engage in the interactive process did not violate ADA because there was no accommodation available is “erroneous because it rests on an incorrect premise,” the appeals court said. “Because we conclude that Keith has met his burden to show that a reasonable accommodation was possible, at least sufficient to survive summary judgment, we ask the district court to address the merits of this argument on remand.” 

For the full story, visit http://hr.complianceexpert.com.

A year ago, DOL’s Office of Federal Contract Compliance Programs proposed a mandate that would require contractors to aim to have individuals with disabilities make up 7 percent of their workforce.

The Notice of Proposed Rulemaking (41 C.F.R. 77056) said the goal is intended “to establish a benchmark against which the contractor must measure the representation of individuals within each job group in its workforce.” It will serve as an “objective that should be attainable by complying with all aspects of the affirmative action requirements” of Section 503 of the Rehabilitation Act of 1973.

The rule will strengthen the affirmative action requirements established in Section 503, according to OFCCP. Despite the law’s requirement that federal contractors and subcontractors make a good faith effort to recruit and hire workers with disabilities, the unemployment rate of such individuals remains disproportionately high. “Clearly, that’s not working,” Patricia A. Shiu, director of OFCCP　said in a statement. These new regulations will require real accountability, she said.

The regulations also will increase data collection obligations and change recordkeeping requirements, according to OFCCP.

When the NPRM was issued, Congress expressed concern that the goal would amount to a quota. Furthermore, “[w]e question the legal authority under Section 503 permitting OFCCP to establish a numerical hiring standard,” members of the House Committee on Education and the Workforce wrote in a letter to Labor Secretary Hilda L. Solis.

The April deadline for the final regulations was announced in DOL’s fall 2012 regulatory agenda.

For additional information about employers’ requirements, see Thompson’s employment law library, including the ADA Compliance Guide.

Coordinating Plan Changes with CBAs

Employers that have FTEs under a union contract will have a trickier task, because health reform’s new definition of FTE probably doesn’t fit in the framework used in CBAs, Frank C. Morris, Jr., an attorney in EBG’s Washington office, said. He said coordinating health plan changes with CBAs will be important for some employers.

Some plans are going to lose the ability to tailor benefits for the goal of recruitment, retention and union demands. Others will need to scale back extras in order to comply with new areas of coverage required by reform, or to keep health costs under control. But they’ll have to do so in a way that does not alienate employees or galvanize unions.

In such instances, employers may reopen CBAs (rather than making unilateral changes), meeting with union reps and discussing targeted changes to the CBA that are limited to just provisions required to comply with health reform, without disturbing the other areas (wages and hours, etc.) worked out with the union.

Morris said one option is a short-term CBA, in effect during 2013 only, during which employers resolve the issues, and come into compliance with health reform rules in 2014.

Be Careful of Unions When Eliminating Excess Coverage

Employers that are mulling over whether to drop health coverage (or if they have to change or modify coverage to decrease plan costs) might want to let the union know whether they can achieve concessions in the CBA if all sides agree that it is necessary to maintain the health plan.

However, employers need to be careful about moves to either drop or scale back coverage, Morris continued. Unions could galvanize around this issue to increase organizing. If employers lessen the benefits in their plans, or drop health coverage altogether, unions may become emboldened to recruit members.

He said he expects this will be the case with lower-paid workers, presenting unions with an opportunity to go after part-time employees who don’t have coverage: “If you drop coverage, higher paid employees who would not typically perhaps be as fertile ground for organizing efforts can again become more fertile ground because of the fact that they are very unhappy over the loss of employer provided coverage, as a result of the decision that may be best cost decision but not the overall most sensible decision for the employer.”

Morris also mentioned (outside the union context as well) other risks of dropping coverage: (1) the loss of employees to competitors; (2) a decrease in the work productivity from workers who no longer have quality health care; and (3) the loss of tax-preferred status of benefits.

The U.S. Equal Employment Opportunity Commission, which is responsible for enforcing both of those laws, made the announcement in a new question-and-answer document.

Because Title VII and ADA do not explicitly protect victims of domestic violence or sexual assault, “potential employment discrimination and retaliation against these individuals may be overlooked,” the commission explained. But in certain circumstances, those two laws may prohibit discrimination against these applicants and employees.

Title VII prohibits gender discrimination. In explaining how it may protect assault victims, EEOC offered the example of an employer that fires a worker after learning that she was subject to domestic violence. It is illegal to take adverse employment actions based on myths and fears about “the potential ‘drama battered women bring to the workplace,’” EEOC said.

ADA prohibits disability discrimination and according to EEOC’s new guidance, “disabilities” can include impairments resulting from domestic or dating violence, sexual assault or stalking. The guidance offers the example of an employer that searches an applicant’s name online. If a search reveals that she was a complaining witness in a rape prosecution and received counseling for depression, the employer could not fail to hire her based on fears that she may require time off for symptoms or treatment.

For more examples, see the full Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.

For additional information about discrimination in the workplace, see Thompson’s employment law library, including the ADA Compliance Guide.

The commission made clear that such a requirement could violate the ADA in an informal guidance late last year, but clarification was necessary after “significant commentary and conjecture,” it said in new guidance issued Wednesday.

The original guidance came in the form of a discussion letter and made clear that “if an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity.”

Apparently, the guidance elicited questions from employers because the commission has now followed the letter up with more guidance, this time in the form of a Q&A.

In the new document, the commission clarifies that while it is not illegal for employers to require that employees possess high school diplomas, “an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate a qualification for the job in some other way.” This may include considering work experience or allowing an individual to demonstrate performance of the job’s essential functions, the commission said.

Released Sept. 2, these are DOL’s first revisions to child farm labor rules in 40 years. Several agricultural groups had requested extra time respond to formulate their responses. Among their concerns, communicated in an Oct. 14 letter:

• youths under 15 years of age could be prohibited from working for any family member other than a parent.
• a prohibition on youth under 15 from working near sexually mature livestock could result in youths not being able to work on certain farms altogether.

Among other things, DOL’s proposed regulations would:

• Strengthen current child labor prohibitions regarding agricultural work with animals in timber operations, manure pits, storage bins and pesticide handling.
• Prohibit hired farm workers under the age of 16 from employment in the cultivation, harvesting and curing of tobacco.
• Prohibit youth in both agricultural and nonagricultural employment from using electronic devices, including communication devices, while operating power-driven equipment.
• Prohibit hired farm workers under the age of 16 from operating almost all power-driven equipment. A similar prohibition has existed as part of the nonagricultural child labor provisions for more than 50 years. A limited exemption would permit some student-learners to operate certain farm implements and tractors (when equipped with proper rollover protection structures and seat belts) under specified conditions.
• Prevent children under 18 years of age from being employed in the storing, marketing and transporting of farm-product raw materials. Prohibited places of employment would include country grain elevators, grain bins, silos, feed lots, stockyards, livestock exchanges and livestock auctions.

More information on the proposed changes can be found online at DOL’s Wage and Hour Divisions web site.