Recap: ADA Provisions that Apply to All Applicants and Employees - - PDF document

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Reasonable Accommodation Update

DBTAC 8/18/15 Jeanne Goldberg, Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission

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Recap: ADA Provisions that Apply to Individuals with Disabilities

• Disparate treatment based on disability

(permissible if CP not qualified or posed direct threat to safety)

• Use of a qualification standard that screens out

based on disability (permissible if job-related and consistent with business necessity)

• Harassment
• Denial of reasonable accommodation

(permissible if would have posed undue hardship)

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Recap: ADA Provisions that Apply to All Applicants and Employees

• Retaliation
• Improper Disability-Related Inquiries or

Medical Exams

• Disclosure of Confidential Medical

Information

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Does the Individual Requesting Accommodation Have a Substantially Limiting Impairment?

• Employer is free to provide accommodations

to anyone, but simply be sure not to engage in disparate treatment.

• If employer has determined not to provide

accommodation unless individual is legally entitled to it, threshold issue is whether individual has or had an impairment that “substantially limits a major life activity,” and presently needs accommodation.

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Supporting Medical Information

• Accommodation request may be oral, and is simply a

request for some type of change due to a medical condition.

• Once accommodation request is made, when and

how much medical information can the employer ask for in support of the accommodationrequest?

• ADAAA has not changed the rule: If not obvious or

already known, an employer may obtain reasonable documentation that an employee has a disability and needs the accommodation requested.

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Supporting Medical Information

• Employer

may ask employee to

• btain

the supporting medical information from employee’s treating health care provider, or ask employee to sign limited release allowing employer to contact the health care provider directly.

• For example, employer might seek to verify diagnosis

and limitations, follow up to clarify limitations as well as what accommodation might be effective, and for how long it may be needed.

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Assessing Medical Information

• Remember changes made by the ADA

Amendments Act of 2008 (ADAAA).

• ADAAA: Definition of disability “shall be

construed in favor of broad coverage” and “should not demand extensive analysis.”

• Definition much easier to meet.

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When it enacted the ADAAA, Congress made 4 changes to “substantially limited in a major life activity”:

• -Need not prevent, or significantly or severely

restrict, a major life activity

• -Major

life activities include “major bodily functions”

• -Ameliorative effects of mitigating measures not

considered

• -Impairments that are “episodic” or “in remission”

are substantially limiting if they would be when active

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“Substantially Limits” (cont’d)

• No minimum duration: impairment can be

“substantially limiting” even if lasts or is expected to last fewer than 6 months. 29 C.F.R. § 1630.2(j)(1)(ix).

• Duration is a relevant factor, but even short-

term/temporary conditions can now be “substantially limiting”

• Example: Back impairment that causes 20-pound

lifting restriction lasting several months.

4 Don’t Rely on Pre-ADAAA Case Law on Definition of Disability

Revised EEOC ADA regulations: 29 C.F.R. Part 1630 Notice of Rights Under the ADAAA: www.eeoc.gov/laws/types/adaaa_notice_of_rights. cfm Question and Answer Guide: www.eeoc.gov/laws/regulations/adaaa_qa_small_ business.cfm

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Pregnancy-Related Impairments

• Pregnancy itself is NOT an impairment under the ADA,

but pregnancy-related medical conditions are

• impairments. If accommodation sought, determine if it

is a substantially limiting impairment, and if so, whether reasonable accommodation was requested and could have been provided without undue hardship.

• Note: Pregnancy Discrimination Act prohibits

pregnancy discrimination, and requires – for both pregnancy itself and any related limitations -- the same treatment afforded those “similar in their ability or inability to work.”

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Most Common Examples of Accommodation

• Physical modifications
• Sign language interpreters and readers
• Assistive technology and modification of equipment
• r devices
• Modified work schedules
• Making exceptions to policies
• Job restructuring (swapping or eliminating marginal

functions)

• Changing supervisory methods

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Examples (cont’d)

• Allowing job coach
• Telework
• Leave
• Reassignment to a vacant position (must be

provided by employer as accommodation of last resort if available without undue hardship)

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Actions Never Required as Reasonable Accommodation

• Lowering production or performance standards

(though pro-rate production requirements for period of leave as an accommodation)

• Excusing violations of conduct rules that are job-

related and consistent with business necessity

• Removing an essential function
• Monitoring an employee’s use of medication
• Providing personal use items
• Changing someone’s supervisor (though changing

supervisory methods may be required)

• Actions that would result in undue hardship (i.e.

significant difficulty or expense)

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Undue Hardship Considerations

• Nature and cost of the accommodation

(“significant difficulty or expense”)

• Resources available to the employer overall

(not just individual division or department)

• Impact of the accommodation on operations

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6 Keys to the Interactive Process

• Communicate, exchange information, search for

solutions, consult resources as needed

• If requestor only knows the problem, not the solution,

employer is still obligated to provide an accommodation if available. Search for possible accommodations.

• If requestor asks for a particular accommodation, but

it is one that legally need not be provided (e.g., request to lower production standards), employer must provide an alternative if available. Search for and consider alternative accommodations.

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Employee Must Cooperate in Interactive Process

Ward v. McDonald, __ F.3d __, 2014 WL 3906299 (D.C. Cir.

• Aug. 12, 2014). Employee refused to provide clarifying

information requested by the employer. After receipt of internist’s letter referring to home treatments that could take 1-3 hours for symptom flare-ups, employer sought additional information from doctor to explain how requested telework would be possible. Employee refused to provide the clarifying information requested by employer, and since the information was legitimately sought by the employer, employee failed to engage in the interactive process and could not prevail on denial of accommodation claim.

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Employer Discretion to Choose Among Equally Effective Alternatives

• Yovtcheva v. City of Philadelphia Water Dept.,

2013 WL 1877311 (3d Cir. 2013).

• Employer offered reasonable alternative but

employee refused to try it, so employee could not prevail on denial of accommodation claim.

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7 Format for the Interactive Process is Flexible

• Horn v. Knight Facilities Management-GM, Inc., 2014 WL

715711 (6th Cir. Feb. 25, 2014). Employer modified janitor’s cleaning route to accommodate her initial medical restriction limiting exposure to bathroom cleaning chemicals by assigning her to only some bathrooms and mostly offices.

• When her physician changed the restriction to require no

exposure to bathroom cleaning chemicals at all, the employer had follow-up conversations with employee's physician and the employee to explore any alternative accommodations, but there were none.

• Held: the interactive process does not have to follow a

particular format. Employer’s separate conversations with employee, her treating physician, and union representative were sufficient to meet its obligations, and it did not need to include the employee in conversations with others as she asserted.

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Equipment and Schedule Changes

• Gleed v. AT&T Mobility Services, 2015 WL 3505399

(6th Cir. June 4, 2014). Retail sales consultant requested two reasonable accommodations: (1) sitting as needed during the work day, due to vascular dysfunction, and psoriasis in his legs and feet; and (2) a four- to six-week schedule modification, for daily IV antibiotic infusions to treat a serious infection in his leg.

• AT&T denied his request to sit as needed, although at the

same time it allowed a pregnant coworker to sit in a chair

• n the sales floor as needed, and denied request for

schedule change that would have enabled him to work during infusions, instead offering only unpaid leave.

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Equipment and Schedule Changes (cont’d)

Appellate court ruled that the employer was not entitled to summary judgment on denial of the request to use a chair to sit as needed. The court held that this request was reasonable on its face, particularly given that standing caused Gleed great pain, and increased his risk of skin infections. The court rejected AT&T’s argument that if Gleed was physically capable of doing his job (no matter the pain or risk to his health), then it had no obligation to provide him with any accommodation. But court affirmed summary judgment for the employer on the denied schedule modification, reasoning that the employee should have further discussed the matter with the employer rather than

• quit. Presumably, this might have entailed Gleed explaining to the

employer how it would be possible for him to continue working while receiving treatment if the schedule change was granted.

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Qualified

• Employer never has to retain an employee in a position if

not “qualified.”

• To be qualified, an individual must:

– Meet the basic skill, education, training, and other job- related requirements; and – Be able to perform the essential functions of a position

• Employer never has to eliminate an essential function of

a job as an accommodation. But an individual can be qualified even if he needs an accommodation in order to be able to perform the essential functions of the job.

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Qualified

• Dispute over “qualified” arises most often when:
• CP requested to be excused from job duty due to

medical condition (e.g., CP asks to be excused from lifting boxes on loading dock due to back problem)

• Employer believed CP not able to perform job duty

due to medical condition (e.g., employer excluded CP from job due to back impairment); or

• Employer believed CP not fit for job because could

not meet qualification standard (e.g., employer excluded CP from job because CP could not meet 70- pound lifting requirement due to medical condition).

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Relevant Facts in Determining if a Job Duty is an “Essential Function”

• Employer’s judgment
• Terms of a written position description
• Terms of a collective bargaining agreement
• Experience of current or past employees
• Amount of time spent performing the function
• Consequences of not performing the function

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What if employee requests to be excused from performing job duty due to medical condition?

– If it’s a marginal function – can it be swapped or eliminated without undue hardship? – If it’s an essential function, it need not be removed, but can employee be accommodated to perform it? – If employee cannot be accommodated in position, he could still be qualified for a position to which he could be reassigned…is there a vacant position for which he is qualified (the accommodation of last resort)?

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Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562 (4th Cir. 2015).

• Deputy court clerk’s duties were mainly filing
• 4 or 5 out of 30 deputy clerks were assigned to perform

back-up front counter duty

• Job description listed counter duty as one possible task

among many

• Jury could conclude plaintiff -- who could not perform

counter duty due to disability -- could be accommodated by assigning counter duty, a “marginal function,” to other employees and assigning plaintiff to another task instead.

• Proposed accommodation did not require employer to

increase co-workers’ workload, but merely to change which deputy clerk among many was assigned to which of many tasks.

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Shell v. Smith 2015 WL 3649612 (7th June 15, 2015).

• Plaintiff's hearing and vision impairments prevent

him from obtaining a commercial driver’s license, but he worked for twelve years in mechanic’s helper position without a CDL and without driving a bus.

• When new general manager was appointed, he

informed plaintiff that his employment would be terminated unless he obtained a CDL, as the job description required it.

• Jury question existed as to whether driving a bus

was an “essential function” of mechanic's helper.

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What is a “qualification standard”?

• A “qualification standard” is an attribute or

quality the employer requires people to possess in order to hold a certain job.

• Examples of qualification standards:

– must have 20/20 vision without glasses – must be able to run a 6-minute mile – must be able to lift 70 pounds

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Roadmap: Analyzing if CP is “Qualified” Where Dispute is About Whether CP Meets a Qualification Standard

• If employer rejects applicant or removes employee from

position because of not meeting a qualification standard, determine: (1) did CP not meet the standard because of a disability (i.e., was “screened out” because of the disability); and if so, (2) is the qualification standard job-related and consistent with business necessity (JRCBN).

• If the standard is JRCBN, the employer was allowed to

exclude CP for not meeting the standard (unless CP could meet the standard or perform the job with accommodation).

• If the standard is not JRCBN, determine if CP could perform

the essential functions of the job. if so, CP was qualified.

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Special Rule for Vision-Related Qualification Standards

• Under the ADA as amended, ALL vision-

related qualification standards must be job- related and consistent with business necessity.

• Therefore, any applicant or employee can

challenge a vision standard, regardless of whether he or she has a disability.

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11 Special Requirement for Safety-Based Qualification Standards

• Safety-related qualification standards (i.e.,

qualification standards that an employer seeks to justify for safety reasons) must meet the “direct threat” defense. In other words, as part of proving that the standard is job-related and consistent with business necessity, the employer’s evidence must show that the standard is needed due to a significant risk of substantial harm.

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What if Employee Asks to Have His Poor Performance or Misconduct Excused as an Accommodation?

• Employer is not required to lower production
• r performance standards, or to modify

performance appraisal, as an accommodation.

• Employer is not required to excuse violations
• f uniformly-applied conduct rules that are

job related and consistent with business necessity

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Performance and Conduct (cont’d)

• But if employee who requests and needs

accommodation has a substantially limiting impairment and will continue to be employed (i.e., result of poor appraisal or discipline is not termination), the employer must offer an alternative prospective accommodation, if available, absent undue hardship.

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Performance and Conduct (cont’d)

• If penalty was not termination, was there an

accommodation employer could have provided to assist the employee to meet the standard in the future?

• If accommodation was provided but problems

continued, were they because of the disability (e.g., the accommodation provided was not effective, and a different accommodation or reassignment must be considered), or was it for reasons unrelated to the disability?

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What if Employee Requests Telework as a Reasonable Accommodation?

• As a reasonable accommodation for an

individual with a substantially limiting impairment, an employer may need to permit more frequent telework than is otherwise allowed under its regular telework policy.

• Fact-specific determination based on

particulars of position and workplace. Teleworkas accommodation need not be granted as an accommodation if not feasible

• r poses an undue hardship.

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Examples of Relevant Facts to Consider in Determining if Telework is Feasible

• Employer's ability to supervise the employee

adequately

• Whether any duties require use of certain equipment
• r tools that cannot be replicated at home
• Whether there is a need for face-to-face interaction

and coordination of work with other employees

• Whether in-person interaction with outside

colleagues, clients, or customers is necessary

• Whether the position requires the employee to have

immediate access to documents or other information located only in the workplace

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Management Considerations

• NOTE: Teleworking employees can be held to same

performance and production standards as working

• n-site. Managers can require daily accomplishment

reports or use other management methods with respect to all employees.

• More information: Work From Home/Telework as a

Reasonable Accommodation, www.eeoc.gov/facts/telework.html

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What if Telework Was Not Possible?

• McNair v. District of Columbia, 2014 WL 242913

(D.D.C. Jan. 23, 2014).

• Although essential functions of hearing examiner

job could only be performed in the office, precluding requested accommodation of telework three days per week, employer failed to follow up as part of the interactive process to

• ffer alternative available accommodations that

would have permitted work to be done in the

• ffice.

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What if the Employee Cannot Be Accommodated in Her Current Position?

• You must consider reassignment as the

accommodation of last resort

• Reassignment search looks for a position equal

in terms of pay, status, etc., or as close as possible

• Not limited geographically; any “vacant” position

(not yet filled)

• Employee must be qualified for the new

position, but does NOT have to be best qualified and does NOT have to compete for it.

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Reassignment (cont’d)

• Vacant means that the position is available or will

become available within a reasonable time

• Employer does not have to reassign to a position that

would be a promotion

• Employer does not have to bump another employee

to create a vacancy, or create a new position

• Reassignment that would violate seniority system

generally is not reasonable unless the employer makes

• ther exceptions
• Employer does not have to pay cost of relocation,

unless it does so for other employees who transfer voluntarily

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Contact Information

Jeanne Goldberg Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission 131 M Street, NE Washington, DC 20507 (202) 663-4693 jeanne.goldberg@eeoc.gov

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