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Class action settlement addresses complex ADA issue

Under the Americans with Disabilities Act, not only are employers here in Wisconsin and the rest of the country barred from discriminating against employees and job applicants based on their disabilities or perceived disabilities, but they are also prohibited from making certain inquiries about the health of employees and job applicants.

A case that illustrates this facet of the ADA was recently settled. The national retail chain Dillard's will pay $2 million to settle a class action disability lawsuit that involved accusations of requiring its employees to disclose private medical information.

Dillard's reportedly had a longtime policy that it was practicing at its stores across the country that required employees to provide personal information in order to be approved for sick leave.

Since at least 2005, Dillard's department stores asked employees to disclose the exact nature of their medical issues in order to obtain approval for sick leave. Many workers -- whose doctors advised them of their rights and told them not to give their employers their private medical information -- were fired when they refused to disclose the information that Dillard's requested.

Under the ADA, employers can only make medical inquiries in certain, limited cases. These include when the inquiry is both job-related and tied to a business necessity. In general, this means that an employer can ask about a disability if the employer has a reasonable belief, based on evidence, that the employee cannot perform essential elements of the job due to a disability or medical condition, or that an employee poses a direct threat because of a medical condition.

Employers may also request certain information if a worker requests an accommodation under the ADA.

Simply asking workers to provide confidential medical information in order to take leave, however, does not meet the strict standards of the ADA. The EEOC is expecting thousands of workers to come forward who were affected by Dillard's policy.

This class action settlement also addresses allegations that the stores terminated employees who took more than a certain amount of sick leave, which is also an ADA violation.

Source: U.S. Equal Employment Opportunity Commission, "Dillard's to Pay $2 Million to Settle Class Action Disability Settlement, " Dec. 18, 2012

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