The Duty of Dialogue

The Concern About Inquiries

Under the ADAAA and likely new regulations, employers will be forced in many instances to shift their thinking from questioning whether an employee is disabled to whether and what type of accommodation is warranted. However, often employers become paralyzed by fear of the ADA's implications. Moreover, many employers have been drilled extensively on actual and imagined restrictions imposed on inquiries about potential disabilities. They fear doing something impermissible or something that will be used to prove that they "regarded" the employee as disabled - either way inviting ADA challenges and liability.

Job-Related Inquiries Are Permissible

Once an employee brings a potential disability to the employer's attention, or an impairment is having an obvious effect on his or her performance thus putting the employer on notice, the restrictions on inquiries are more relaxed. The employer can make job-related inquiries consistent with business necessity. A legitimate purpose of such inquiries is to determine the extent of the employee's limitations. This, in turn, largely will provide the basis to determine whether the employee is covered by the ADA and, if so, what reasonable accommodations are available and appropriate.

Individualized Inquiries Are Required

The ADA, and now the ADAAA, requires individualized inquiries to determine whether an employee is protected. Courts at all levels have recognized this. The EEOC's implementing regulations further recognize that "it may be necessary" for an employee to determine appropriate reasonable accommodations. Some courts have held that a dialogue with the employee is mandatory. Other courts recognize that the effort is unnecessary in instances where it is readily apparent that the employee cannot perform the job duties with or without reasonable accommodation. But virtually all courts deem this interaction necessary in cases where the employee's capabilities and limitations are not obvious.

In short, the employer very often must talk with an employee specifically about his or her condition and limitations in order to make an educated assessment of the employee's rights and the employer's obligations under the ADA. In this context, the discussion is job related and a matter of business necessity, and therefore permissible. Indeed, an employer's failure to have such discussions, in most instances, erodes the employer's ability to conduct the required individual assessment. Thus, it often is a legal as well as practical requirement.

Opening a dialogue to learn more about an employee's limitations is not the same as regarding the employee as disabled. Rather, it is a matter of satisfying the employer's legal obligation to determine the necessity and nature of any reasonable accommodations. At most, the employer regards the employee as limited in some way. This is what starts the process and necessitates the dialogue to begin with, and it is not illegal.



Posted by Thamer E. "Chip" Temple III

Stimulus Bill Provides COBRA Changes

The American Recovery and Reinvestment Act of 2009, better known as the "Stimulus Bill," will be signed into law on February 17, 2009. Although the primary thrust of the Stimulus Bill is aimed at the current economy, among its many varied provisions are important changes to employer COBRA obligations.

COBRA provides employees and their dependents who otherwise might lose health benefits the right to continue benefits at group rates for up to eighteen months (and sometimes longer). In most instances, the employee pays the cost of COBRA - the monthly insurance premiums.

The Stimulus Bill provides a COBRA subsidy for eligible employees and former employees, and a corresponding payroll tax credit to employers for the cost of the subsidy. Specifically, the employer will pay sixty-five percent of the health insurance premiums for up to nine months. The amount paid then will be applied as a credit towards the employer's payroll taxes. The employee would remain responsible for the remaining thirty-five percent of the premium cost.

Eligible employees for the subsidy are those who have been involuntarily terminated from employment between September 1, 2008 and December 31, 2009, and who have an annual individual income of less than $125,000 or a family income of less than $250,000.

Since the COBRA changes apply retroactively to those employees involuntarily terminated on or after September 1, 2008, eligible employees who initially declined COBRA coverage must be given an additional sixty day period to elect COBRA coverage with the new subsidy. Employers will need to send qualified employees and their beneficiaries amended COBRA notices. For those who then elect coverage, the coverage period would begin on February 17, 2009, not on the original date of employee termination.

Employers also will need to amend their standard COBRA notices for the remainder of 2009. The U.S. Department of Labor is expected to issue model notices by mid-March.

Posted by Thamer E. "Chip" Temple, III

Mandatory E-Verify Participation Put On Hold

Under a final rule issued November 13, 2008, the United States government (specifically, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council) amended federal procurement regulations to require federal contractors to verify worker employment eligibility through the Department of Homeland Security's E-Verify system. This final rule was the result of an executive order that President Bush issued last year mandating use of the system to address, in part, the problem of employment of illegal aliens.

The new rule requires government contractor employers to use E-Verify to determine the eligibility of all new hires and to confirm the eligibility of all existing employees working on federal contracts. Prior to this rule, use of the E-Verify system has been voluntary.

Many groups, including the Society for Human Resources Management, the U.S. Chamber of Commerce, and the American Council on International Personnel, questioned the mandatory imposition of a voluntary process. They claim the government exceeded its authority in requiring participation. Other groups, such as the Center for Immigration studies, commended expansion of the E-Verify system as an important way to reduce the illegal labor pool.

The final rule was to take effect on January 15, 2009. As a result of a lawsuit filed in a Maryland federal court challenging the propriety of the new rule, the government initially agreed in early January to delay the rule's implementation until February 20th. The government now has agreed to delay implementation until at least May 21st in order to allow the new Obama Administration an opportunity to review the rule and consider the broad range of options. The pending lawsuit will remain on the court's docket, but by agreement court proceedings will be suspended for the time being.

At this point, it is uncertain whether the regulation will be implemented later, if at all. In the meantime, federal contractors are relieved of the immediate obligation to comply, but they may voluntarily participate in the system.

Posted by Thamer E. "Chip" Temple, III