Dear Human Resource Professionals:

These newsletters have been very well received, and while it has been some time since I last presented one to you, they will be issued quarterly in the future. In this newsletter I would like to address the requirement of the Americans with Disabilities Act to offer a vacancy to a covered employee, the impact of the Americans with Disabilities Act upon the requirement of a full medical release, and to address what is truly a public record.

A person covered by the Americans with Disabilities Act is one who is qualified to hold a job and who has a permanent or significantly long term physical or mental impairment that substantially limits a major life activity, but who can perform the essential functions of the job with or without a reasonable accommodation. All of the highlighted components of the previous sentence must be met before action by the employer is required under the ADA. Hard questions on each of those components must be asked of the employee's condition and of the employer's needs and abilities.

In regard to a reasonable accommodation, the ADA at 42 U.S.C. 1211 (B) provides that a reasonable accommodation:

"May include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."

In regard to a vacant position, while one may exist and be capable of being offered to a current employee covered by the ADA who cannot perform the essential functions of the job in which they are employed, the question must be asked as to whether it is reasonable or unreasonable to move the employee to that vacant position. From the view point of the employee, the accommodation might be unreasonable where any vacant position offered is an undesirable one in terms of pay, status, and/or location. From the employer's stand point, however, the question must be asked whether it would be unreasonable for the employer to offer a vacant position where there were aspirants for promotion to that vacant position. Stated otherwise, is the employer required to engage in affirmative action for the covered employee? The United States Fifth Circuit on two separate occasions has answered this question in the negative.

In 1997 in Foreman vs. Babcock and Wilcox Company, 117 F. 3rd 800 (C.A. 5th, 1997), the Fifth Circuit concerned itself with the case of an expediter in a steel fabrication plant who, because of installation of a pacemaker, could not perform the essential functions of his job. The complainant argued in part that he should be given a reasonable accommodation by the assignment to a vacant position even though he did not have the seniority requirements fixed by the collective bargaining agreement between the employer and the union. With citations to other federal circuits, the Fifth Circuit stated that "we hold that the ADA does not require an employer to take action inconsistent with the contractual rights of other workers under a collective bargaining agreement". Additionally, the court stated that even if there was no collective bargaining agreement in place, the employer would not be obligated to assign the complainant to another position. With citation to the case discussed immediately below, the Fifth Circuit said "we do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less".

That case last quoted by the Fifth Circuit is Daugherty vs. City of El Paso, 56 F. 3rd 695 (C.A. 5th Cir. 1995). The complainant there was unable to perform his duties as a city bus driver because of a disability, and asked for reassignment to a vacant position. He had been a part-time bus driver and the city charter gave priority in the filling of jobs to full time employees over part-time employees. The Fifth Circuit quoted the Director of Personnel for the city as stating that "if we were to give Mr. Daugherty a full time position, we might very well have a complaint from an employee who had been waiting for that vacancy for promotion, who had been a full time employee 5 to 10 years, have been preparing for that job and Mr. Daugherty was placed in it with some 8 or 9 months service, priority over him. I believe we would have had a lawsuit". Further in regard to the complainant's request that he be given a vacant position with the same pay and same hours, this Director of Personnel is quoted as stating "if we had done that, we would have violated our own rules and regulations, we would have subjected ourselves to a lot of liability, which ends up being an undue hardship not only on the City, but for the taxpayers". The Fifth Circuit in Daugherty concluded that the ADA did not require the City of El Paso to alter its charter, or its rules and regulations, stating, as quoted above, that the ADA did not require affirmative action by giving priority in hiring or reassignment over those who are not disabled, but only prohibited discrimination against qualified individuals based upon their disability. The court found for the City.

This state's jurisprudence recognizes clearly that the Civil Service system exists to reward merit and to encourage employees to pursue careers within state service. Given these goals of the Civil Service system, and given the practice of career progression within identified career fields, I do not believe that the ADA requires that a vacancy be offered to a covered individual without regard to the impact upon other aspirants within state service to that particular position.

The next issue I would like to discuss is also one drawn from the Americans with Disabilities Act and which deals with determination of the essential functions of a job. We often require an employee who has been out on sick leave for an extended period of time to present a "full medical release" which states that the employee can perform all of the functions of the job, but where the employee is covered by the ADA our inquiry should only be whether the employee can return to work and perform the essential functions of the job. The hazards in improperly defining the essential functions of the job were demonstrated in Barber vs. Nabors Drilling USA, Inc., No. 97-20102,

decided November 12, 1997 by the United States Fifth Circuit Court of Appeal. Mr. Barber was a tool pusher on a drilling rig who, according to the company, could not perform the essential functions of the job because of a permanently disabling back condition. The controversy centered around whether certain duties were "essential duties". These duties required getting into and wearing an oxygen tank in the event poisonous gases were released into the area, fighting a fire on the rig, filling in for other crewmen on the rig, and retrieving heavy equipment in order to keep the rig running. It was undisputed that the complainant could not perform these duties, and the issue of whether these duties were essential functions was submitted to the jury. The jury concluded that these were not essential functions. The Fifth Circuit concluded that this particular jury had considered the circumstances in which the complainant would have to perform these emergency duties as being too remote, and, as the court noted, while the consequences of the failure to perform a particular function is an issue in determining whether the function is essential, the jury apparently concluded that these consequences did not outweigh what it considered to be the remoteness of the chance of having to perform them. The jury awarded certain damages that were affirmed by the Fifth Circuit.

Before a jury retires to make its decision, a trial judge instructs the jury on the requirements of the law. The jury applies this law as it is taught by the trial judge to the facts it heard at trial in order to reach a verdict. The Fifth Circuit found that the instructions regarding essential functions were taken almost verbatim from the EEOC's regulations and guidelines, and the Fifth Circuit quoted them in detail. I quote them here because they provide very good guidance in defining the essential functions of a job. The court instructed the jury that:

"The phrase "essential functions" of an employment position means the basic, fundamental duties of the job the person with a disability holds or desires. Essential functions do not include the marginal functions of the position. A job function may be considered essential for any of several reasons, including but not limited to the following:

(1) Because the reason the position exists is to perform that function,

(2) Because of the limited number of employees available among whom the performance of that job function can be distributed, and/or,

(3) Because the function may be highly specialized so that a person is hired for his experience or ability to perform that particular function.

In determining whether a particular function is essential, you may consider:

(1) The employer's judgment as to which functions are essential,

(2) Written job descriptions prepared before advertising or interviewing applicants for the job,

(3) The amount of time spent on the job performing the function,

(4) The consequences of not requiring the employee to perform the function,

(5) The work experience of past incumbents in the job, and/or

(6) The current work experience of persons with similar jobs.

I bring the case to your attention not for the purpose of suggesting that emergency duties with a serious consequence for non-performance should not be considered essential functions of the job, but to point out to you the importance of knowing the essential functions of a job and to present guidelines for making that determination. A full medical release requested of a person with a disability covered, or possible covered, by the ADA should only be for the performance of the truly essential functions of the job.

The next subject I would like to address is public records. We know from past conversations and our practice that all of the documents and electronic recordings, including data stored in computer memory, are defined as public records to which the public has access by state statute. We also know, however, that an individual's constitutional right of privacy may outweigh the public's right of access as defined by those statutes. Deciding exactly which documents and which information is protected by this right of privacy has proven itself to be an art, and not a science. The language in court cases is some help, but it appears that the courts have as difficult a problem with the issue as do state managers. The latest expression from the Louisiana Supreme Court demonstrates this well.

In Capitol City Press vs. East Baton Rouge Metropolitan Council, 696 So.2d 562 (La. 1997) the Supreme Court concerned itself with a request by the newspaper in Baton Rouge for copies of the applications of those seeking appointment as the Assistant Airport Commissioner in Baton Rouge. The First Circuit Court of Appeal had applied the balancing test that the Second Circuit Court of Appeal had applied in Gannett River States Publishing vs. Hussey, 557 So.2d 1154 (La. App. 2nd Cir. 1990). In that case the local newspaper in Shreveport sought the applications of those seeking employment as the Fire Chief. The Second Circuit recognized that the law defined those applications as public record, recognized that the applicants had an expectation of privacy because they did not want their current employers to know of their application, and recognized that the City had an interest in maintaining such privacy in order to encourage a large number of applicants. The Second Circuit recognized that these expectations were what it characterized as subjectively reasonable expectations, but concluded under the circumstances they were not objectively reasonable and, therefore, would not be protected. The court recognized that the Fire Chief had significant responsibility within the community not only for fire safety, but for a large number of employees and a large annual budget. The court concluded that society should not protect the subjective expectations of privacy due to these objective considerations.

The Second Circuit in Gannett had drawn its balancing test from the Third Circuit's decision in Trahan vs. Larivee, 365 So.2d 294 (La. App. 3rd Cir. 1978), writ refused, 366 So.2d 564 (La. 1979). In that case the Third Circuit recognized that both the employer and employee had a subjective expectation that the performance rating of an employee would remain confidential because exposure of the rating would be a source of embarrassment to the employee and would hinder candid

evaluation by the employer. The Second Circuit in Gannett noted that the employees in Trahan were mid-level employees unlike the Fire Chief, such that the subjective expectation of privacy was not outweighed by objective factors.

The Supreme Court in Capitol City Press endorsed this balancing test by defining such test as being "not only whether the person had an actual or subjective expectation to privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable". As mentioned above, the court was concerned with the applications of those seeking appointment as the Assistant Director for Aviation at the Baton Rouge Airport. The court did not seek to determine whether the assistant director position was a mid-level position or was a higher position with significant responsibility, because it said that the balancing test should not have been applied in this case at all. Without reference to any supporting testimony appearing of record, the Supreme Court concluded that the applicant's subjective desire for privacy was not in the facts contained in the application, but in the fact that an application had been submitted at all. Again without any discussion, the court simply stated that "an applicant for public employment in Louisiana has no reason to expect that his or her application will be kept private". The court concluded that because it had found that there was no subjective expectation to privacy, the balancing test of Trahan and Gannett was not appropriate. The court ordered the applications made public.

I would suggest that the court's bare conclusions about the subjective expectations of the applicants reflect the difficulty in dealing with this issue. This difficulty is further represented in Hatfield vs. Bush, 572 So.2d 588 (La. App. 1st Cir., 1990). In that case a news reporter wanted the leave slips of five employees of the District Attorney's Office over a specified period of time. The court discussed the balancing test of Gannett and found that the burden was on the custodian and/or the employee to show that their right to privacy was reasonable and should be protected.

The court stated that it had before it nine leave requests for annual leave and one request for sick leave. The leave slips had limited information upon them.

In regard to the name upon the leave slip the court concluded that the public has a right to know who it is hiring to perform public service. As to the dates of absence, the court concluded that the public has as much right to know when an employee is not working as when an employee is working. The court made this same analysis in resolving the right to know the type of leave as it applied to annual leave, but in regard to the disclosure of sick leave, the court recognized that there might be a defensible expectation of privacy for "certain types of sick leave and the reasons therefore". The court further concluded that "however, in this particular case, the employee in question has not shown any compelling reason to justify the suppression of disclosure of the sick leave record". The court ordered the leave requests delivered to the news reporter.

This issue regarding the leave slips is a difficult one, and I expect that the court had a difficult time with the issue. The principle that the public has as much right to know when an employee is not working as when an employee is working is a good one, but the fact of health problems existing in an employee is not, I believe, one that is proper for public disclosure. I am not sure, however, exactly how to resolve that conflict. The court in Hatfield resolved it by stating that "in this particular case"

no compelling reason had been shown not to release the sick leave request. It would be my advice to evaluate each request for leave slips to determine initially whether the slips, themselves, contain any medical information that might be public and if the leave request discloses something other than normal health problems, to consult with the affected employee, and unless the employee authorizes such release, to resist release and litigate the issue. The fact of the litigation might disclose the fact of the health problem of the employee, but also might establish some guidelines for future use in similar cases. Again, the employee should be consulted and advised of the alternatives.

In closing on this issue, I would like to share with you what the courts and statutes specifically identify as public or private, and to give you my opinion regarding some matters that are otherwise not specifically addressed. What we are told by statue and/or court decision is that names, job titles, and salaries are public record, as are SF-10 application forms. Telephone numbers and addresses of employees are public records unless the employee has requested that they be kept confidential, or, because of the nature of the employee's work, the employee has a "private or unlisted" phone number. In regard to the desire of an employee, in Hayes vs. Lundy, 616 So.2d 265 (La. App. 2nd Cir. 1993) the president of Grambling received a request from a reporter on April 30th for release to a newspaper of names and addresses, and on May 1st asked each employee whether they desired to have their names and addresses held confidential. The court held that this was a proper procedure so long as the president had advised the requesting newspaper that he had a question about whether these could be released without permission, and where the employees responded within a reasonable time, which, in this case, was found to be by May 5th. There is no obligation to ask the employees, but it is permissible.

What we are told is private are these names and addresses when so requested, and, additionally, service ratings. The service ratings are confidential both in the score received and the comments made. That is, all of the service rating is confidential.

It is my view that a certificate of eligibles is a public record, but not the scores that an individual makes on a test as shown on a certificate, or otherwise. The results of a drug test of either an applicant or a current employee should not be considered public record. Additionally, the grade and/or the comments of the members of an interview panel considering applicants for promotion should not be made public for the same reasons that service ratings are protected from public disclosure. I would like to point out the fact that a document might not be considered a public record does not prevent its being subpoenaed for production before a court. The court, itself, can determine what protection, if any, should be afforded the information.

Further, sister state agencies or entities should not be considered members of the "public" in determining whether a document is a public record. That is, we are organized into twenty executive branch departments and the primary branches of executive, judicial, and legislative because the state constitution fixes it so, but we are all members of the same government. For example, a request by a prospective employer in another agency for the service rating of an employee who has applied for employment there should be honored. The document should be stamped confidential, delivered via personal and confidential mailing, and delivered only where the custodian is satisfied that the request for the document is legitimate and for a governmental related reason. A letter from the requesting official would be appropriate.

Please share with me any matters you would like to see addressed in the next newsletter.

Sincerely,

Robert R. Boland, Jr.

General Counsel