Best Practices in Reasonable Accommodation: Back to the Basics - - PowerPoint PPT Presentation

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Americans with Disabilities Act

Best Practices in Reasonable Accommodation: Back to the Basics Back to the Basics

Karen Iezzi Michael, Esq. Vice President SunTrust Banks, Inc. April, 2003

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AGENDA AGENDA

Corporate Commitment to Disability- Related Issues ADA Compliance Issues Sample Case Studies

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The Origins of Corporate Best Practices

BLN Individual(s) dedicated to promoting disability-friendly policies Seminars for management/other

• rganizations related to disability best-

practices Centralized “reasonable accommodation” funding DRS and other agency partnerships

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Getting to a Reasonable Accommodation

Before even considering “reasonable accommodation,” first ask whether this is an ADA issue. Even if it isn’t, you might still want to provide the accommodation, but you need to know what your obligations are, and then what you want to do voluntarily.

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Why It Matters if You Have an ADA Issue

Prevents fraud Encourages consistency with the law Enables eligible employees to receive the accommodation they are entitled to For the same reason that law-makers limited how many people can be covered by employer obligations, most companies need to do the same thing.

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How to Determine If You Have an ADA Issue

Relevant portions of the ADA require:

an employer; to provide reasonable accommodation; to qualified individuals; with disabilities; who are employees or applicants for employment; unless to do so would cause undue hardship.

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For Each Employee -- Go Back to the Basics!

Does the individual have a Disability? Is the individual Qualified? Is the accommodation needed Reasonable?

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What is a Disability?

A “disability” is a physical or mental impairment that substantially limits a major life activity.

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Impairment

Is there an impairment? How do you know?

Obtain written information from the employee regarding the alleged impairment; Obtain written medical verification from health care provider.

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Is a “Major Life Activity” Impacted?

What are major life activities? “Major” means “important” “Life activities” means activities that are of central importance to daily life. Eating, Sleeping, Walking, Talking, Thinking, Breathing, etc.

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Is a “Major Life Activity” Impacted?

“Working” in a specific job is not a “major life activity”. The “disability” must extend outside of the

• ccupational tasks to those manual tasks

central to the ordinary person’s daily life

• utside of the workplace.

See Toyota Motors v. Williams (S. Ct. 2002)

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Is a “major life activity” significantly impacted?

Just because one has trouble breathing, doesn’t mean he is disabled. He must be significantly impacted in the ability to breathe. “Substantially” means “considerable” or “to a large degree.” Impairments that interfere only in a minor way with the performance of manual tasks precludes ADA protection.

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Is a “major life activity” significantly impacted?

“an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily

• lives. The impairment’s impact must also

be permanent or long term.” This is a “case by case” determination. Toyota Motors v. Williams

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There are Some “Impairments” that are Excluded from the ADA’s Reach

Transvestism Transexualism Kleptomania Pedophilia Pyromania Exhibitionism Voyeurism Gender Identity Disorders Compulsive Gambling Current Illegal Drug Addiction Sexual Behavior Disorders

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Is the Individual “Otherwise Qualified”

Only “qualified” disabled employees are covered by the ADA. Ask:

What are all the job-related qualifications? Are they all listed on the job description? What steps were taken to ensure that each qualification is actually job-related? Did you use all screening tools to disqualify

• n a non-disability-related basis (ie: criminal

history and drug tests).

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Now Consider Reasonable Accommodations..

Three types of “accommodations” (1) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires;

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Categories of Reasonable Accommodation (cont.)

(2) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

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Categories of Reasonable Accommodation (cont.)

(3) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

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Examples of Workplace Barriers

Physical Obstacles

inaccessible facilities equipment that needs modification

Procedures or Rules

when work is performed when breaks are taken how essential or marginal functions are performed

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Examples of Accommodations

Making existing facilities accessible; Job restructuring; Part-time or modified work schedules Acquiring or modifying equipment; Changing tests, training materials or policies;

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Examples of Accommodations (cont.)

Light duty Shift Changes Work-at-Home Providing qualified readers, interpreters or asst. Reassignment to a vacant position Unpaid Leave

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Examples of Accommodations that are Not Reasonable

Eliminating essential functions of the job Lowering production standards Personal use items (ie: prosthetic limb, eyeglasses, hearing aids, wheelchair, hot pot or refrigerator) Creating a job Promoting an employee into a vacant job Bumping an employee from his/her job

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Examples of Accommodations that are Not Reasonable

Placing a disabled applicant in job for which he/she did not specifically apply Placing a disabled individual into a job if doing so would create a direct threat to the health or safety of the individual or

• thers

Maintaining the salary of an employee reassigned from a higher-paying job to a lower-paying one if the employer does not do so for non-disabled.

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What Satisfies Accommodation What Satisfies Accommodation Required? Required?

Don’t have to give accommodation sought by employee Accommodation must be EFFECTIVE must enable the employee to perform the essential functions of the job; must enable applicant with a disability to have an equal opportunity to participate in the application process; and must enable employee to enjoy privileges and benefits of employment.

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Undue Hardship Undue Hardship

Quantitative Financial Other Limitations

unduly extensive substantial disruptive those that would fundamentally alter the nature or operation of the business

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Undue Hardship Considerations

Nature and cost of the accommodation needed; Overall financial resources of the facility making the accommodation, number of persons employed and the effect on expenses and resources of the facility; Overall financial resources, size, number of employees, type and location

• f facilities of employer;

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Undue Hardship (cont.) Undue Hardship (cont.)

Impact of the accommodation on the

• peration of the facility;

Type of operation of the employer, including:

structure and functions of the workforce geographic separateness administrative or fiscal relationship of facility involved in making accommodation.

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How An Individual How An Individual Requests Accommodation Requests Accommodation

Individual must let company know that an adjustment or change at work is needed for a medical condition. The Request is the First Step in the “informal, interactive process between the individual and the employer”

can be made by others (family member, friend) Does not need to be in writing

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Best Practices to Handling Best Practices to Handling Requests Requests

“How can I help you?” Engage in informal process to clarify what person needs Ask questions Document everything you do Seek documentation where needed Use JAM and other resources, even the EEOC Try to be creative in finding solutions

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Don’t Forget...

Even employees who are not currently “disabled” can sue under the ADA for:

Being “regarded” as a person with a disability

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Being discriminated against due to a history

• f having a disability.

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Case Studies

Reasonable Accommodations

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Scenario 1 Scenario 1

Your company arranges for one of its employees to provide a program titled “Balancing work and family,” offered to all employees for two hours from noon to 2:00pm. This program is optional. A deaf employee wishes to take the training and requests a sign language interpreter. Must/Should the company provide an accommodation?

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Scenario 2 Scenario 2

You have an employee who advises you that, due to a mental disability, she can no longer handle the stress of her current job. She asks to be

• accommodated. The manager tells her that every

job is stressful and refuses to have further discussions with her. It doesn't even occur to the manager that the employee might have a qualified disability and/or be entitled to accommodations under the law. How can companies be more prepared to understand employee's rights and needs? How should the manager have handled the situation?

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Scenario 3 Scenario 3

You hire an employee into a job on the night shift. Working the day shift is competitive and based on a seniority system, although occasionally under special circumstances someone can get into the day shift depending on the circumstances. Two days after the employee starts working the night shift you receive a doctor's note indicating that the employee cannot work the night shift due to a sleep disorder. The doctor indicates that the employee needs a reasonable accommodation to be moved to the day shift. To move her to the day shift at the next opening would enable her to leap ahead of six more senior employees who are on the list to move to the day shift at the next available opening. What should you do?

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Scenario 4 Scenario 4

An employee works as a manager in a retail store. Part of her essential job duties include opening the store at 8:00am each day. The employee suffers from a disability and cannot be at the store until 10:00am each day. What should the company do?

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Scenario 5 Scenario 5

An employee works as a customer service representative, but cannot now perform the essential functions of her job due to a disability. She seeks another position in a different department which requires a certain license, that she would like the company to help her obtain. What are the company’s obligations? Assume she has the license, but others are more qualified. What are the company’s obligations?

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Scenario 6 Scenario 6

An employee with major depression is often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9-5, but he arrives at 9, 9:30, 10 or 10:30 on any day. His job responsibilities involve telephone contact with sales reps, who need him to answer urgent

• questions. The manager disciplines him for his

tardiness, and he then states it is due to a

• disability. Must the discipline be retracted?

What to do going forward?

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Scenario 7

Eric applies for a job at your company. He formerly worked for a competitor and you learn in your background check that he was terminated from his previous job for workplace violence. He apparently threatened to kill another co-worker with a knife. You ask the employee about his one month gap in employment and he explains that he has been in full-time anger management treatment and has been released to full duty. You have had previous workplace violence problems at your company and feel strongly that you do not want to hire the person. What do you do?

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Scenario 8

On a routine investigation of your computer system, you find an employee using the internet excessively for gambling purposes. When you approach the employee, he tells you that he has an addiction to gambling and asks for an accommodation. What are your legal obligations to the employee? What about other addictions?

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Scenario 9

You hire an employee into a full time job. Three months after she arrives you receive a note from her doctor advising you that the employee has a mental disorder that requires her to work only 20 hours per week. What are your obligations under the ADA?