Wednesday, December 14, 2011

EEOC Issues Informal Discussion Letter on the ADA and High School Diploma Requirements

Last month the Equal Employment Opportunity Commission (EEOC) posted an informal discussion letter on its website addressing the requirement of a high school diploma as it relates to jobs and job postings.  Some of you may be wondering how requiring a high school diploma may violate a disability anti-discrimination statute such as the Americans with Disabilities Act (ADA), but think about it: if an individual has a learning disability/impairment and is therefore restricted from a large pool of jobs that he or she could probably perform without a high school diploma, that would run afoul of the scope and spirit of the ADA.

From the informal discussion letter:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c). 
Thus, 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. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

However, there will obviously be a large pool of jobs that meet the "consistent with business necessity" requirement such as jobs as doctors, pharmacists, nurses, etc.  

Fitness Instructor Fired for Tweet About Big Mac

In yet another case of an employer over-reacting to a harmless social media posting, a fitness instructor's termination over a Twitter post is making news.  Grant Hill (not the NBA star), a cycling instructor at Life Time Fitness in Rockville, Maryland, like a lot of Americans, has a Twitter account and likes to tweet about life's musings.  One day Hill saw a coworker eating a Big Mac from McDonald's and decided to tweet:
“A McDonalds bag sits on an employees desk @lifetimefitness aka “the healthy way of life company.” Ah the irony.”
He was later terminated.  

Apparently, Life Time Fitness did not find the post humorous, and, according to the "Capital Business" article on the Twitter firing, "triggered weeks of back-and-forth with managers demanding that the tweet be deleted. Hill said he refused unless Life Time allowed him to write an article about the health risks of fast food for its widely distributed magazine."  Life Time Fitness is claiming the termination was not for the tweet but, instead, "for his work outside the company, which Life Time deemed to be a competing 
personal fitness business."

So, then, the inevitable question that ensues for such a termination: "Is this legal?"  Well, Hill wouldn't have a 1st Amendment claim because Life Time Fitness is a private employer and not public.  Hill "probably" doesn't have a discrimination claim unless other similarly-situated employees did the same, were in a different protected class and were treated more favorably.  That then leaves labor laws and the National Labor Relations Act (NLRA) which the National Labor Relations Board (NLRB) governs.  The most used section of the NLRA in social media terminations is Section 7 governing "concerted protected activity."  In this case, while it's not entirely obvious how Hill's tweet is protected, Hill did claim the tweet related to Life Time Fitness' "mission," and an argument could be made!

Wednesday, December 7, 2011

Can My Employer Force Me to Get a Flu Shot?

A popular question and issue that arises every year around this time is whether an employer can force it's employee to receive flu shots/vaccinations.  The answer is that employers may generally require employees to receive a flu shot but there are potential law violations associated with such a practice (and with requiring employees to do anything in general).  Specifically, there may be issues with some employees' religion or medical conditions that may prevent them from receiving a shot and employers run the risk of violating Title VI and the Americans with Disabilities Act Amendments Act (ADAAA) and state-equivalent employment laws.

If an employee just doesn't want to be told what to do, they may face discipline and even termination and it may not run afoul of any employment law.  If an employer has a reasonable purpose for requiring the shots (e.g., a health-care provider), then take that into consideration before declining the vaccination.  However, if you believe you genuinely and truly cannot have a shot, contact an employment attorney to discuss the matter.