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Work Solutions Insight April 2015 Newsletter

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LEGAL UPDATE

U.S. Supreme Court Remands Young v. UPS and Creates New Standard for Pregnancy Discrimination Claims

By: Labor and Employment Practice Group April 1, 2015
http://www.frostbrowntodd.com/resources-1793.html

In a 6-3 decision, the U.S. Supreme Court remanded a closely watched Fourth Circuit Court of Appeals decision in Young v. UPS and created new standards for deciding pregnancy discrimination claims. 

Background

Young, a part-time package car driver for UPS, had complications related to her pregnancy and was placed on lifting restrictions by her doctor prohibiting her from lifting more than 20 pounds.  At UPS, it is an essential function for package car drivers to be able to lift 70 pounds or more.  Because Young was medically restricted from performing the essential functions of her job, she was given medical leave until she could perform the essential functions.  Young, however, requested a different “light duty” position until her medical restriction was lifted.  Although UPS offered “light duty” work to other employees unable to perform their regular duties because of on-the-job injuries, ADA disabilities, or Department of Transportation (DOT) restrictions, Young was not allowed to work “light duty” because she did not fit into any of the above-listed categories. 

Previously, the Fourth Circuit ruled in UPS’s favor and held that Young was not treated differently from other employees similar in their ability or inability to work.  UPS had a facially neutral policy that only allowed individuals with on-the-job injuries, ADA disabilities or DOT restrictions to work “light duty.”  Although Young was denied “light duty”, it was because she did not qualify for the program’s non-pregnancy related factors.  Young was treated the same as all other employees who did not suffer from on-the-job injuries, ADA disabilities or DOT restrictions. 

Supreme Court Rejects Both Parties' Arguments

The Supreme Court struck down part of the Fourth Circuit’s reasoning and disagreed with both Young and UPS’s arguments interpreting the Pregnancy Discrimination Act (PDA). Young argued that pregnant employees should be given any accommodation that was previously given to any other employee, regardless of other factors, if they are similar in their ability or inability to work.  The Supreme Court rejected this “most favored nation” status. The Supreme Court held that “disparate treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so.” 

UPS conversely argued, in part, that the PDA requires employers to treat pregnant women the same as other employees similar in their ability or inability to work, unless there are other differentiating criteria.  UPS argued that they treated Young the same as any other non-pregnant employee who did not suffer from an on-the-job injury, ADA disability or DOT restriction. 

Supreme Court Creates New Analysis for Pregnancy Discrimination Act Claims

The Supreme Court disagreed with both parties’ interpretations and created a new interpretation of the PDA. The Supreme Court held that an employee can establish a PDA claim by following the familiar three-part McDonnell Douglas test.  Absent direct evidence, an employee can establish a PDA failure-to-accommodate claim by demonstrating 1) she is a member of a protected class; 2) she sought an accommodation; 3) the employer failed to accommodate her; and 4) the employer did accommodate others “similar in their ability or inability to work.”  The employer may then rebut the employee’s prima facie case by relying on a legitimate, nondiscriminatory reason for denying the accommodation.  “That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates.” 

If the employer puts forward a nondiscriminatory reason, the employee must then establish that the employer’s reason was pretextual.  Importantly, the Supreme Court held that an employee may establish this by proving that an “employer’s policies impose a significant burden on pregnant workers, and that the employer’s legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden.”  Specifically, the Supreme Court stated that if an employer has a policy that accommodates a large percentage of nonpregnant workers, but also fails to accommodate a large percentage of pregnant workers, that policy could be discriminatory.

New Standard Requires Careful Examination of Previous Accommodations for Other Employees

The Supreme Court also admonished the Equal Employment Opportunity Commission (EEOC), which issued new pregnancy discrimination guidance just two weeks after the Supreme Court decided to review Young v. UPS.  The Supreme Court held that the EEOC’s guidance lacked the timing, consistency and thoroughness of consideration to be persuasive.  The Supreme Court also held that the EEOC’s guidance lacked basis and was inconsistent with positions long advocated by the government.  Revisions to the EEOC’s guidelines are likely after the Supreme Court’s decision. 

Importantly, after the Fourth Circuit ruled in favor of UPS, UPS voluntarily changed its internal policy and now makes “light duty” work available to pregnant workers with lifting or other physical restrictions to the same extent as such work is available as an accommodation to employees with similar restrictions resulting from on-the-job injuries. 

The Supreme Court’s new standard creates some new issues for employers, as they can no longer rely upon facially neutral policies to justify the denial of an accommodation to a pregnant employee.  When presented with accommodation requests from pregnant employees, employers will have to examine what accommodations they have provided to other employees in the past, who were similar in their ability or inability to work. Employers should also make sure that even facially neutral policies do not result in a large percentage of pregnant employees being treated differently than non-pregnant employees. 

RESEARCH UPDATE

Repetition as an Ergo Stressor by Curt DeWeese, PT

Source: An Equation to Predict Maximum Acceptable Efforts for Repetitive Tasks
By Peter Budnick, PhD, CPE May 13, 2014 
http://ergoweb.com/an-equation-to-predict-maximum-acceptable-efforts-for-repetitive-tasks/

The big three ergonomic stressors for musculoskeletal disorders are force, posture and repetition. Forces can be measured with scales, strain gauges and dynamometers. We can visually assess a worker to determine work postures or positions that are outside of a neutral range. Repetition has been a challenge to determine how many reps in a minute, hour or shift is acceptable and how much force can be tolerated with each repetition. Recently, Ergoweb highlighted an article on this topic. The referenced issue presents information on an equation to predict maximum acceptable efforts for repetitive tasks. The research was conducted by Jim Potvin and looked at maximum acceptable effort (MAE) and duty cycle (DC). It doesn't answer all the questions but certainly provides thought provoking information on how repetition can impact a worker.

This information is useful to consider as we try to quantify the effects of these stressors on the human body. There are resources including the NIOSH lifting equation to assist in determining the impact of changes to the amount of weight lifted the height where the lift occurs and the distance the load is away from the worker, on overall task demand. A formula that helps identify an acceptable number of repetitions for a task could improve our ability to demonstrate "before and after" conditions when making ergonomic improvements. The article acknowledges limitations related to the equation; however this could be a significant step in the right direction.

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LEGAL UPDATE

The Importance of Job Function Descriptions by Donna Wilson, PTA

Source: Not Job Descriptions Again..... 
HR Professional Magazine, (Vol 4, Issue 12)
By Paula Watkins, SPRH December 2014 
http://hrprofessionalsmagazine.com/not-job-descriptions-again/

The reason behind the interest in written job descriptions in any industry is the ADAAA law, passed in 2008. After the ADA was passed, the Supreme Court and lower courts narrowly defined 'disability'. With the passage of the ADAAA law, it became easier for an individual to meet the definition of disability and to be entitled to reasonable accommodation. The emphasis shifted then to employers to make sure they met their obligations under the ADAAA laws.

Because of a wider view of what is protected under a disability, HR and Safety Managers knew they needed written job descriptions that included physical demands, frequency of those demands, environmental factors, PPE, as well as details of personal appearance, attendance and the need for rotation shifts and overtime.

A recent court case (EEOC vs. Ford Motor Company) involved the request by a worker with some impairment to work from home. The company was able to show the job she had could not be performed from home, based on her written job description. While there is plenty case law that recognizes that working from home may be a reasonable accommodation, but business necessity will usually win over the convenience of the employee.

Also, the requirement of shift work and overtime has become central to a number of court decisions. In Feldman vs. Olin Corporation, Mr. Feldman worked a rotating shift and overtime. He was diagnosed with fibromyalgia and sleep apnea. His MD restricted him from night work and overtime. Olin layed him off and he filed with the EEOC. Olin argued that it was required by all of their employees to work nights and overtime, however this was not listed in all of the written job descriptions. As well as Mr. Feldman being able to show that some employees never worked overtime. The courts did not agree with Olin that overtime was an essential job function.

Terri Kallail v Alliant Energy Corporation Services, Inc. Terri was an insulin dependent diabetic and her position required she work swing shifts. She argued this disrupted her ability to manage her blood sugar. Her MD recommended she work only day shift. Alliant declined because her position's essential job functions required rotating shifts. She was offered other positions and she declined. Her disability was not questioned. The point was whether she could perform the essential functions of her job with or without reasonable accommodation. The company was able to prove that shift work was essential primarily as it was listed as one in her written job description.

These cases demonstrate the importance of including information in the job description that may seem out of the norm. (Attendance, physical appearance, mental abilities). Also they demonstrate the necessity of defining function based physical demands that are required while performing a job. Knowing the physical demands as it applies to each essential job function is vital for communication with the medical community, supervisors and the worker. This facilitates returning a worker back to his job safely and in a more timely manner, decreasing the number of lost and restricted days and more rapid workers' compensation resolutions. Post offer testing, using the actual job demands as the test, will decrease the number of injuries and help workers know if they are applying for the right job. The knowledge of what the job "is" as it pertains to the human body is the foundation of a valid written job function description. Well written job function descriptions are needed to protect the interests of both the employer and the employee.

DSI'S NEW JOB FUNCTION MATCHING® SOFTWARE

This cloud based software program facilitates the development of:

  • DSI's Job Function Description™
  • Job Function Test™
  • Job Function Matching®
  • Ergonomic Opportunities

Major advancements are seamless use of job analysis information to populate the DSI Job Function Descriptions > Test > Job Matching and Ergonomic report. ADAAA compliance is high as there the testing is developed directly from the job description in essential function format. The DSI Job Function Matching format also facilitates reasonable accommodation information to be aligned directly with specific tasks. 
To learn more about DSI's Job Function Matching® system and to join our growing list of new software users, contact ghalling@dsiworksolutions.com or call 270.245.1000.

2015 JOB FUNCTION MATCHING TRAINING CALENDAR

May 15-17: Training: DSI Job Function Matching and FCA: Medford, WI - OPEN
May 18-20: Training: DSI Job Function Matching and FCA: Danville, VA - OPEN
May 28-30: Training: DSI Job Function Matching and FCA: Rochester, NY - OPEN 
August 28-30: Training: DSI Job Function Matching and FCA: Bowling Green, KY - OPEN
September 18-20: Training: DSI Job Function Matching and FCA: Rochester, NY - OPEN

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