Employment Accommodation Request Form: Confidential: Fill & Download for Free

When an employee enquires about a workplace accommodation, they must provide some details about their limitations—but they do NOT need to provide their full diagnosis.Employers are not allowed to probe employees for all the details of their diagnosis if they are not relevant to working safely or creating the accommodation. Asking for unnecessary information breaches an employee’s confidentiality and can cause legal problems for the employer.What should you do?Request an employee get a Functional Limitations form filled out by their doctor, as this does not reveal the full diagnosis, but does outline their capabilities.Write out the accommodation plan and keep track of goals; they may need to be adjusted and some alternative work options may need to be provided to the employee.Frequently communicate and review the accommodation plan progress to ensure that is working effectively for both yourself and the employee.Having a strong workplace accommodation policy and procedure can reduce time employees are off work.

While novel coronavirus­ (or COVID-19) has not yet been declared a global pandemic, people in 81 countries and 13 US states have been infected with the virus, and state and local public health departments are reporting new cases every day. The spread of coronavirus presents unique issues for employers seeking to protect themselves, their employees and the public.Employers are advised to take preventative measures—such as developing policies specific to the outbreak, educating employees about how the virus spreads and encouraging telework­—to reduce the risk of the virus spreading in the workplace. Employers should take care to implement such measures in a manner that is consistent with applicable laws, including the ADA, OSHA, and the FMLA, as well as workers' compensation and state law wage and hour regulations. Employers should track the most up-to-date information from the Centers for Disease Control (CDC) and state and local government agencies about the severity and spread of novel coronavirus in determining the best course of action for their workplaces.WHAT EMPLOYERS CAN DO TO PREPAREEmployers can take steps to prepare for the onset of a potential pandemic virus, including:Identifying a pandemic coordinator and/or team with defined roles and responsibilities for pandemic response planning.Forecasting and allowing for employee absences during a pandemic due to things like personal illness, family member illness, community containment measures and quarantines, school closures, and public transportation restrictions.Establishing policies for employee compensation and absences unique to a pandemic (in accordance with applicable law, as discussed below).Providing infection control supplies such as hand sanitizer and tissues, increased cleaning of public facilities, such as door handles, countertops, kitchen and bathroom equipment.Establishing and enhancing remote-access capabilities to support employee telework.Ensuring that data and information that must be confidential is kept private while employees are teleworking by providing privacy screens or VPN services.Educating employees about the facts and directing them to available resources. With the onset of many diseases, numerous rumors arise. For example, a recent study reported that many beer-drinking Americans would not buy Corona beer because of fear of contracting the virus. (That is not the case.) Providing employees with basic information can prevent panic and paranoia.Establishing channels of communication (for example, email or text distribution lists, an intranet site or hotline) so that employees can receive timely updates and information.Employers should protect their employees and the public by encouraging employees to:Stay home if they are sick.Work from home if possible. A number of companies have already announced mandatory work from home policies, or have encouraged employees to do so.Regularly wash their hands with soap and water for at least 20 seconds.Avoid touching their noses, mouths and eyes, and cover coughs and sneezes with a tissue or their elbow.Avoid shaking hands.Avoid face-to-face meetings in favor of video or teleconferencing.Keep unnecessary visitors, family members, and other members of the general public from visiting the workplace.Require employees who have been out sick to provide a doctor's note or submit to a medical examination before returning to work.Avoid any unnecessary travel.EMPLOYMENT LAW IMPLICATIONSPreparing for and responding to a pandemic raises numerous employment law issues. Employers who implement pandemic preparation procedures must do so in a way that is consistent with the law. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.Americans with Disabilities Act (ADA)The US Equal Employment Opportunity Commission (EEOC) has issued guidance for implementing pandemic preparation strategies in a manner that is consistent with the ADA. Generally, seasonal flu is not a disability under the ADA, but complications arising from pandemic coronavirus may lead to the condition becoming an ADA-covered disability. ADA-covered employers must make reasonable accommodations for an employee with a disability, including providing leave or adjusting attendance requirements. Implementing pandemic measures impacts two important issues regulated by the ADA: (1) inquiring about medical information and conducting medical exams, and (2) reasonable accommodations.Inquiring About Medical Information and Conducting Medical ExamsBefore a pandemic is declared, employers may not ask employees to disclose health conditions that might make them more susceptible to contracting the virus. But, employers can ask questions related to non-medical reasons an employee may miss work during a pandemic, such as a public transportation shutdown or school closure. Various factors, both health and non-health-related, that may cause an employee to miss work during a pandemic may be listed in a one-page form, with instructions to employees to provide a single yes or no answer as to whether any of the reasons listed would make the employee unable to come to work in the event of a pandemic.During a pandemic, employers may:Ask employees whether they are experiencing influenza-like symptoms and send employees home if they are. Employees may be told to stay home and not come to work until at least 24 hours without symptoms.Take employees' temperature to determine whether they have a fever.Ask whether employees are returning from locations where the coronavirus is present, even if the travel was personal.Make a disability-related inquiry or require a medical examination if the employer reasonably and objectively believes that the employee's medical condition either impairs the employee's ability to perform essential job functions or poses a direct threat to the health or safety of the employee or others.Whether coronavirus poses a "direct threat" under the ADA will depend on the severity of the virus, so employers should stay updated on the latest information from the CDC and state and local health departments about the severity of coronavirus.Any information gathered about an employee's health must be kept separate from their general employment file and treated as a confidential medical record. In providing information to the workforce about the spread of the virus, it is important to do so without disclosing the names of those workers who may be infected.Reasonable Accommodations and TeleworkEmployers may require employees to telework as an infection-control strategy, and employees with disabilities that put them at high risk for complications of coronavirus may request telework as a reasonable accommodation. If an employee with a disability has accommodations at work, the employer should provide the same accommodations for telework unless it would be an undue hardship. For example, a disabled employee who has a voice recognition program on his work computer as a reasonable accommodation should be provided a similar accommodation if required or permitted to telework.Wage and HourNon-Exempt Employees. Non-exempt employees need only be paid for time that they are working. Employers can generally reduce scheduled hours or hourly pay without violating wage and hour laws; however, certain laws and local ordinances may require "reporting time" pay if non-exempt employees are called off their shift either after reporting or without sufficient advance notice.If non-exempt employees are permitted to work from home, employers must make sure that those employees accurately track all time worked, are paid overtime according to state and federal law, and are provided meal and rest periods in accordance with state and federal law.Exempt Employees. Exempt employees must generally be paid the same minimum weekly salary regardless of how many hours they work. Employers who fail to pay exempt employees' full weekly salary risk altering their exempt status and making them eligible for overtime pay. Employers can avoid this risk in one of three ways:Unpaid furlough. Employers may impose unpaid furloughs. However, exempt employees cannot perform any work while on furlough. Employers must make sure that furloughed employees do not respond to email, take calls or otherwise perform work duties. If an exempt employee works during furlough, they must be paid for the full week.Mandated Vacation. Employers may require employees to use vacation time or PTO rather than treating a furlough as unpaid.Fixed Salary and Base Hours Reduction. Employers may implement a fixed reduction in future salaries and base hours due to a bona fide reduction in the amount of work an employee can do during a pandemic. Employers taking this route should be careful, as the Department of Labor and federal courts have concluded that this practice is only acceptable so long as it is occasional and due to long-term business needs or economic slowdown.Workers' CompensationFor an illness to be compensable under a workers' compensation system, it must generally be contracted in the course and scope of an employee's employment and be specific to the work performed by that employee. So, for example, an attorney who catches coronavirus from a coworker is not likely to have a cognizable workers' compensation claim. But a health care worker who contracts the virus while treating infected patients at work probably does.Employers whose employees are likely to encounter novel coronavirus in the scope of their employment should evaluate whether they have adequate workers' compensation insurance coverage and coverage limits that include occupational diseases.If an employee contracts coronavirus and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits.Occupational Safety and Health Act (OSHA)OSHA requires employers to provide employees a safe place to work. Employers may be responsible for workplace safety violations related to the coronavirus outbreak under OSHA's "general duty" clause. In a pandemic, an employer could be cited for a general duty clause violation where, for example,The pandemic virus was present in the workplace and the employer's efforts to control exposure were insufficient.Employees were required to perform tasks that exposed them to the hazard of pandemic coronavirus.Employers are required to take feasible steps to eliminate or mitigate recognized hazards. Employers should anticipate protecting employees by implementing controls, changing work practices, and, where appropriate, providing personal protective equipment.Contagious diseases that are contracted at work (with the exception of the common cold or flu) are subject to OSHA's recordkeeping requirements and must be recorded. An employee's refusal to come to work for fear of contracting coronavirus may be protected activity, triggering OSHA's anti-discrimination provisions.Family and Medical Leave Act (FMLA)Employers who are covered by the federal FMLA must provide job-protected leave and other benefits to an eligible employee who misses work due to his or her own serious health condition, or to care for a close family member who has a serious health condition. While the common flu is typically not a serious health condition, pandemic coronavirus may be if it causes hospitalization or incapacitation. Many states (including California) have similar state leave laws.The following absences do not qualify as protected leave under the FMLA:Missing work to care for a healthy child whose school is closed.Staying home to avoid exposure to the coronavirus.There may be state laws (such as California's Labor Code Section 233) that protect caring for a sick family member that would protect an employee who stays home to care for a family member with COVID-19.Unionized WorkforcesFor those employers with a unionized workforce, making changes to wages, hours, and terms and conditions of employment will usually require the employer to provide notice to the union and an opportunity to bargain, unless the issue is already covered by the current collective bargaining agreement.The novel coronavirus situation is developing rapidly, and preparation by employers at this stage is key to keeping employees safe and avoiding legal missteps if and when it comes time to respond to coronavirus in your area. Please feel free to contact the attorneys listed on this Advisory for further guidance or analysis.

One of the stickiest issues around workplace drug testing pertains to prescription medical disclosure. Employers often wonder if they have the right to make an employee disclose a medication, while employees question if they have to disclose medication information to their employer should it be requested.Both sides of the issue are a bit tricky. The short answers are yes, an employer can require prescription medication disclosure, and yes, employees must disclose their medication if requested to do so by the employer. However, both situations have certain conditions that must be met. A lot of employers believe that so long as it is in your policy, an employer has the right to ask an employee to disclose a medication, and the employee will be obligated to disclose that information to the employer. As you will see, this is not the case – prescription medication disclosure policies and procedures are highly nuanced.“Job-related and Consistent with Business Necessity”Asking all employees about their use of prescription medications is not considered job-related and consistent with business necessity. Generally, employers must be able to prove that requiring prescription medicine disclosure is job-related and consistent with business necessity. In specific situations, however, certain employers may be able to demonstrate the need for prescription medication disclosure if it is job-related and consistent with business necessity for those employed in safety-sensitive positions that require mental alertness. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions would result in a direct threat to the general public or workplace safety.For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A police department, however, could not require employees that perform only administrative duties to report their use of medications because it is unlikely that such employees would pose a safety threat as a result of their impairment on the job and/or while performing essential job functions.What Protections Exist for Prescription Medication Taking Employees?There are two federal regulations that protect employees regarding prescription medication. One is the Health Insurance Portability and Accountability Act (HIPPA).[1] HIPPA prohibits the sharing of an individual’s medical information and restricts the amount of information that can be shared to only what is necessary. Title 1 of the Americans with Disabilities Act (ADA) 29 CFR 1630.14 states that any history or medical information must be documented on separate confidential forms and locked away from personnel records or files.[2] An employer cannot discriminate against an existing employee or refuse to hire an individual based on prescription medicine information or a medical condition. Employees or applicants can only be asked medication information or about existing medical conditions if it poses a risk to the safety of themselves or others. Policy, specifically job descriptions, in this area becomes critical and should include language that requires mental alertness to perform the job function.The MRO and Prescription Medicine DisclosureThe Medical Review Officer’s (MRO’s) function in the verification process of a prescribed medication becomes a vital part of the review process. The MRO performs the verification process on a presumptive positive from the laboratory, and should be aware of the employee’s/applicant’s job functions and duties. The only way for the MRO to determine if the medication poses a safety risk is to know exactly what the duties and functions are for the employee/applicant. The job duties information should be provided to the MRO ahead of time, likely when contracting the MRO. It is also a good idea for the MRO to have a solid understanding of what the company’s safety concerns are for non-regulated employees.Policy and Prescription Drug DisclosureAlong with having a strong, compliant, and up-to-date policy in place, there must be consistent enforcement of the policy. Below are two cases that provide some insight into what can happen when employers do not have a strong policy in place:Bell-Arrow Automotive, Inc. (Arizona) had a policy of automatic rejection of any job applicant who tested positive for a list of drugs, including prescription medications. After offering a position to a qualified candidate, the offer was rescinded when the candidate’s drug screen was positive for a single substance that could be a prescription medication. The candidate was able to prove that the medication was legally prescribed to treat a disability. When the company still refused employment, the Equal Employment Opportunity Commission (EEOC) was called in for litigation because of the “blanket policy.”[3]The EEOC contended that Bell-Arrow Automotive violated the ADA by maintaining a “blanket exclusion policy” for certain prescription medications and refusing to consider an exception to its drug testing policy as a reasonable accommodation.[4]When a regional medical center in Georgia fired a physician after finding out he used prescription medication to relieve chronic pain, the EEOC filed a lawsuit on the physician’s behalf. The physician had provided certification from his own healthcare provider, describing the need for the medication and the treatment plan, which also included spinal injections. The medical center continued to pursue termination without any direct communication with the physician, violating ADA guidelines.A press release issued from the EEOC, in conjunction with the filing of this action, stated:“…[E]mployers have an obligation to conduct individualized assessments when they have a concern about an employee’s ability to safely perform his or her job duties…… The EEOC will continue to hold employers accountable when they summarily dismiss employees based on unsubstantiated fears about a perceived disability.”