Twisting and Turning Through th the ADA: ADA One Size Does Not - - PowerPoint PPT Presentation
Twisting and Turning Through th the ADA: ADA One Size Does Not Fit All One Size Does Not Fit All March 13, 2014 , Fred J. Bissinger Total Number of Charges Filed arges Filed 100000 tal Number of Ch 90000 Tot 80000 70000 1999 2000
March 13, 2014 , Fred J. Bissinger
100000 arges Filed 90000 tal Number of Ch 70000 80000 Tot 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
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30000 40000 r of n Charges 20000 Number All Retaliation 10000 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
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30000 es 20000 mber of imination Charge 10000 Num Disability Discr 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
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Definition of Impairment Definition of Impairment
mental or physiological disorder
disability if it would substantially limit a major life activity disability if it would substantially limit a major life activity when active
(medicine, prosthetics, assistive technology, etc.) – Except with respect to corrective glasses or contact lenses lenses
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Whate er the sit ation remember that the
definition of disability “shall be construed in favor of broad coverage of individuals” favor of broad coverage of individuals
not whether a condition is a disability
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Duration
his left leg and opined he could not walk normally for about 7 months
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Duration
working part-time remotely
temporary, they rendered him immobile for more than seven months and that was severe enough to qualify seven months and that was severe enough to qualify as a disability
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Duration
Holding Court clarified that the EEOC’s regulations stated that
“the effects of an impairment lasting or expected to last fewer than 6 months can be substantially limiting” for proving a disability
are typically not covered unless “sufficiently severe” are typically not covered unless sufficiently severe
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Intellectual Disabilities
both functioning and in adaptive behavior that affect many everyday social and practical skills G ll di d h i ID h
– Person’s intellectual functioning is below 70-75; – Person has significant limitations in adaptive skills areas Person has significant limitations in adaptive skills areas (i.e., conceptual, social, and practical skills), and – Disability originated before 18 years of age
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Intellectual Disabilities
by Gallup and the Univ. of Massachusetts at Boston):
labor force. This is compared to 83% of working- age adults w/o disabilities who are in the labor age adults w/o disabilities who are in the labor force
The unemployment rate for adults with ID is more than twice as high w/o disabilities
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Intellectual Disabilities
by Gallup and the Univ. of Massachusetts at Boston):
had a job. 62% f di bl d l h k i titi
setting have been there for 3 years or more, showing that they can work and stay with it. showing that they can work and stay with it.
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adults are obese in the U.S.
adopted a policy that officially labeled obesity as a disease “requiring a range of medical interventions to advance obesity treatment and prevention ” and prevention.
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Guideline stated that severe or morbid obesity was an impairment but that obesity, alone, rarely is
the language indicating that obesity “rarely” would be a disability would be a disability.
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2011 WL 6091560 (E.D. La. Dec. 2011):
disability, severe obesity. She was 5’2 and weighed 500 pounds when she was fired
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and that it qualifies as a disability regardless of and that it qualifies as a disability regardless of whether it is caused by a physiological disorder. The court stated that proving a physiological cause was
the normal range. The parties settled for $125,000
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y p
underlying physiological condition
stated that obesity is an impairment when it is caused by an underlying physiological condition
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y p by an underlying physiological condition
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veterans returning from the Iraq and Afghanistan wars
OEF/OIF troops are likely to have PTSD when they return home
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Courts have explained that standing alone, a diagnosis of PTSD is not enough -- the plaintiff must go farther and demonstrate that his/her PTSD substantially affects major life activities
apply!
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2013 WL 4042663 (E.D. Mich. 2013)—employee who suffered a cognitive deficiency following a stroke was incapable of keeping up with processing endor in oices and th s as not processing vendor invoices, and thus, was not qualified for his accounts payable clerk job
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determining what reasonable accommodations are available to allow a person to perform his/her essential job functions
both parties
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may offer alternative suggestions for reasonable d ti d di th i ff ti i accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability individual with a disability
we make you successful? y
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interactive process is triggered, the employee must t th l ti th t h / h h put the employer on notice that he/she has a disability*
accommodation?
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(7th Cir. 2014):
sleeping at work. This occurred on at least 3 different occasions. Plaintiff received a final warning notice with regard to her sleeping on the job job
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(7th Cir. 2014):
performance issues might be related to a medical
the Plaintiff’s doctor to complete. After Plaintiff received the paperwork, she requested time of to determine the extent of her medical issues The same day the HR extent of her medical issues. The same day the HR manager gave the Plaintiff the paperwork, he recommended in an email that the company terminate the Plaintiff
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(7th Cir. 2014):
the company take the “aggressive approach” and the company take the aggressive approach and terminate the Plaintiff. The HR manager stated that the company engaged in the interactive process during the progressive disciplinary process
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(7th Cir. 2014):
the interactive process because it did not seek f th l ifi ti f ith th Pl i tiff h further clarification from either the Plaintiff or her doctor; and disregarded the medical evaluation altogether
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(7th Cir. 2014):
The Court noted, however, that an employer s failure to engage in the interactive process alone is not an independent basis for liability but is actionable if it t id tifi ti f i t prevents identification of an appropriate accommodation for a qualified individual
, gg accommodation was readily available--Plaintiff needed further medical testing and a prescription to control her narcolepsy narcolepsy
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accommodation if it poses an undue hardship
p oye s do
a e to p o de t e equested accommodation
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accommodation if the individual is not qualified for the job
functions, create new jobs, or lower production standards as an accommodation
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leave of absence)
functions
station; employee has diabetes and keeps a candy bar
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(E.D.N.Y 2011)—employee alleged that the employer refused to make reasonable accommodations by denying employee’s request for handicapped parking denying employee s request for handicapped parking pass near his post. Court stated that there was nothing inherently unreasonable about requiring an employer to accommodate by providing a reserved parking to accommodate by providing a reserved parking
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723 (W.D. Ky. 2013)—accommodation proposed by l h ff d f C h ’ di d employee, who suffered from Crohn’s disease and IBS, namely, work from home option on standing basis was not objectively reasonable accommodation, as employee’s job responsibilities were time-sensitive and team-oriented
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city employee’s suggested accommodations for his disability of schizophrenia, which required him to take medication making his drowsy and sluggish in the morning, which often resulted in late arrival at work, that he work through lunch and work late to “bank” time to apply against future late arrivals would not cause hardship to city, and thus were reasonable, as part of employee’s prima facie case of failure to accommodate under ADA related to his discipline for tardiness p
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1106 (D Miss 2011): employee’s request that his 1106 (D. Miss. 2011): employee’s request that his supervisors and co-workers not yell at him because
p g y his request to be transferred were not requests for reasonable accommodations—employer’s bli ti t k bl d ti
did not extend to providing an aggravation and stress-free environment stress free environment
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§12114(b) that makes the drug-use exclusion inapplicable to an otherwise qualified individual who:
(i) Has successfully completed a supervised drug (i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; or (ii) Is participating in a supervised rehabilitation program, but is not engaging in such use (e.g., Narcotics Anonymous); or Anonymous); or
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ADA t i f h b i i i
§12114(b) that makes the drug-use exclusion inapplicable to an otherwise qualified individual inapplicable to an otherwise qualified individual who:
(iii) Is erroneously regarded as engaging in such (iii) Is erroneously regarded as engaging in such use, but is not engaged in such use
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Shi l P i i C t t C (5th Ci
2013): Individual who used illegal drugs in the weeks (or even months) preceding the adverse weeks (or even months) preceding the adverse employment action may be deemed “currently engaging” and is excluded from § 12114(a)’s g g g § ( ) protections
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A i di id l h h d ill l d i th
weeks (or even months) preceding the adverse employment action may be deemed “currently employment action may be deemed currently engaging” in that use.
Employers have the right to require an employee to submit to a drug test and obtain the results
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T t f ill l f d t di l
examinations under the ADAAA Current drug user held to same
performance/behavioral standards as all other employees employees
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ADAAA’ l ti § 12114( )(4) it
employer to “…hold an employee who . . . is an alcoholic to the same qualifications standards for alcoholic to the same qualifications standards for employment or job performance and behavior that such [employer] holds other employees, [ p y ] p y , even if unsatisfactory performance or behavior is related to . . . the alcoholism of such employee”
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I dditi l t l t th t if
employee engages in conduct or has performance issues that would justify termination performance issues that would justify termination, the employer can instead suspend the employee and require successful rehabilitation and q evaluation, prior to allowing the employee to return to work
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Th l diti l ’ t
to work upon his/ her compliance with special conditions not generally imposed on other conditions not generally imposed on other employees, such as periodic alcohol and/or drug testing
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O t ki C W F i ht I N 12 3800 Ostrowski v. Con-Way Freight, Inc.,No. 12-3800, 2013 WL 5814131 (3d Cir. 2013). The Third Circuit upheld an employer’s decision
to require an alcoholic driver to remain drug and alcohol free as a condition of returning to work alcohol free as a condition of returning to work
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Ostrowski v Con Way Freight Inc Facts Ostrowski v. Con-Way Freight, Inc. - Facts
The employer was subject to federal motor carrier safety p y j y regulations, which required it to maintain strict drug and alcohol screening programs for its employees. The plaintiff requested leave under the FMLA to enter a plaintiff requested leave under the FMLA to enter a rehabilitation program for the treatment of alcoholism. The employer granted the request and did not impose any discipline
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O t ki C W F i ht I
F t
Ostrowski v. Con-Way Freight, Inc. - Facts
required him to sign a “Return- to-Work Agreement ” required him to sign a Return- to-Work Agreement, in which he agreed to remain “free of drugs and alcohol (on company time as well as off company time) for the duration of his employment.”
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O t ki C W F i ht I F t Ostrowski v. Con-Way Freight, Inc. - Facts
the plaintiff again admitted himself into a center for the plaintiff again admitted himself into a center for the treatment of alcohol abuse after he suffered a
the sole reason being that he had consumed alcohol in violation of the Return-to-Work Agreement
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Ostrowski v Con Way Freight Inc Holding Ostrowski v. Con-Way Freight, Inc. - Holding
The Third Circuit held that the plaintiff failed to demonstrate that the employer used the Return-to-Work Agreement as a pretext for disability discrimination.
ADAAA merely by entering into return-to-work agreements that impose employment conditions different agreements that impose employment conditions different from those of other employees
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Ostrowski v Con Way Freight Inc Holding Ostrowski v. Con-Way Freight, Inc. - Holding
than other employees who did not sign a return- to-work p y g agreement, the difference results from the terms of the agreement rather than disability discrimination S h t l l t th d t (d i ki
alcohol), prohibiting employees subject to its terms from doing so g
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EEOC v Old Dominion Freight Line Inc No 11 2153 EEOC v. Old Dominion Freight Line, Inc., No. 11-2153, 2013 WL 3230670 (W.D. Ark. 2013): Employer’s unwritten policy that it would not allow a driver who self- discloses an alcohol problem ever to return to driving violated the ADAAA
driving of a commercial vehicle to an alcoholic, given the possibility of relapse and the difficulties of supervising an l h f hi j b d ti l employee who performs his job duties alone
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EEOC v Old Dominion Freight Line Inc Holding EEOC v. Old Dominion Freight Line, Inc., - Holding
an alcoholic driving a commercial vehicle is served by the g y referral/evaluation/treatment, but it would serve no purpose if there were no possibility that it could result in accommodating the disability of alcoholism accommodating the disability of alcoholism
constitute a direct threat failed because the Employer did not engage in an individualized assessment
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A l d t h t id
reasonable accommodation that would cause an "undue hardship" to the employer undue hardship to the employer
individualized assessment of current individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense
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Th t d t f th d ti d d
the reasonable accommodation; the number of the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
employees, and type and location of facilities of the l (if h f ili i l d i h bl employer (if the facility involved in the reasonable accommodation is part of a larger entity);
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Th t
f ti f th l i l di
the structure and functions of the workforce, the geographic separateness and the administrative geographic separateness, and the administrative
making the accommodation to the employer; and g p y ;
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An individual is not qualified under the ADAAA if she
presents a direct threat to her own health and safety or that of others
the most current medical knowledge and/or the best il bl bj ti id d l available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safety perform the essential functions of the y y p
(2002) (citing 29 CFR § 1630.2(r))
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Th d ti f th i k
Lik lih d th t th t ti l h ill d
* Safety Sensitive v. Non-Safety Sensitive Positions
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Slidi S l
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Inp t from Emplo ee
A l V i R A il bl
regarding How to Accommodate
Reasonable Accommodation
Documentation
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Fred J. Bissinger fbissinger@wimberlylawson.com
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