Transcript Recent Case Illustrations - Job Accommodation Network

ADA UPDATE
JAN welcomes Jeanne Goldberg, Senior Attorney Advisor,
from the U.S. Equal Employment Opportunity Commission.
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
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ADA Update
See earlier JAN webcasts reviewing recent
ADA case law:
October 9, 2012 - ADA Update:
http://askjan.org/Webcast/archive/index.htm
April 3, 2013 - Best Practices in the Employment
of People with Disabilities in the Federal
Government:
http://askjan.org/webcast/archive/indexfed.htm#
Mar13
Basic Provisions
Protections for individuals with disabilities
 No disparate treatment or harassment based
on a physical or mental impairment (as long
as not both transitory and minor)
 Reasonable accommodation absent undue
hardship (for impairments that substantially
limit a major life activity)
 Qualification standards that screen out an
individual based on disability must be jobrelated and consistent with business
necessity
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Basic Provisions
Protections for all applicants and employees
of covered entities:
 Rules about when employer can ask for
medical information, and how much
(“disability-related inquiries and medical
exams”)
 Medical information kept confidential
 No retaliation
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Qualified
 Employer never has to retain an employee in
a position if not “qualified.”
 To be “qualified,” employee must satisfy the
requisite skill, experience, education, and
other job-related requirements, and be able
to perform the essential (or fundamental)
functions of a position (with accommodation,
if needed).
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Qualified
This issue most often arises when:
 Employee requests to be excused from
performing job duty due to medical condition;
or
 Employer believes employee is not able to
perform job duty due to medical condition
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Qualified

Employer never has to eliminate an essential
function of a job as an accommodation.

Employer never has to or lower production
standards (quantity or quality) as an
accommodation.

Individualized assessment: Do not make
assumptions about what an applicant or
employee can or cannot do based on their
medical condition.
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Qualified
But remember:
Employee can be “qualified” even if needs
accommodation to perform the job.
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Essential Functions
Relevant information in determining whether
a function is essential may include:
 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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Essential Functions
If accommodation requested involves
removing a duty, is it an essential function?
 If so, it need not be removed, but can
employee be accommodated to perform it?
 If employee cannot be accommodated in
current position, can he be reassigned to a
vacant position for which he is qualified (the
accommodation of last resort)?
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Safety and Fitness Concerns
Direct Threat: An employer may reject a job
applicant or exclude an employee with a
disability from a particular position if the person
poses a direct threat to health or safety (i.e., a
significant risk of substantial harm to self or
others)
NOTE: An individual is not a “direct threat” if
there is a reasonable accommodation the
employer could provide absent undue hardship
that would reduce the risk below this level
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Assessing Direct Threat
What to consider:
 The particular applicant's or employee's
present ability to safely perform the essential
functions of the job based on objective
evidence and reasonable medical judgment
 The duration of the risk, the nature and
severity of the potential harm, the likelihood
that the potential harm will occur, and the
imminence of the potential harm
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Recent Case Illustrations
Majors v. General Electric Co. (7th Cir. April 16,
2013) (employee with lifting restrictions not
qualified because she could not lift heavy
objects, which the court found to be an essential
function of her auditor position; because it was
an essential function, it would not be a
reasonable accommodation to have another
person perform the task for her).
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Recent Case Illustrations
Keith v. County of Oakland (6th Cir. Jan. 10, 2013)
-- deaf individual who passed employer’s own life guard training
and certification program may be qualified as life guard with
accommodations; county may have violated the ADA by rescinding
its conditional offer of employment based on recommendation of
doctor it hired to conduct post-offer medical exam, who without an
individualized assessment stated “he’s deaf; he can’t be a
lifeguard”
-- expert witnesses explained that in noisy swimming areas,
recognizing a potential problem is almost completely visually based
-- testimony was also offered by an associate professor from
Gallaudet University who had certified 1,000 deaf lifeguards
through American Red Cross programs, and who noted that the
world record for most lives saved by a lifeguard is held by a deaf
man, who saved over 900 lives in his lifeguarding career
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Recent Case Illustrations
Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013)
(in light of uncontrolled frequent seizures notwithstanding
employer’s attempted accommodations, plaintiff was not
qualified to work as mammography technologist, which
included operating sophisticated medical machinery and
tending to the physical and emotional needs of patients).
EEOC v. Western Trading Co. (jury verdict of $109,000
entered March 10, 2013) (employer discriminated against
new retail employee when it refused to allow him to return to
work following a seizure at work and one during off-duty
hours, notwithstanding repeated releases from his doctors).
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Recent Case Illustrations
Szarawara v. County of Montgomery, 2013 WL 3230691
(E.D. Pa. June 27, 2013).
-- application of amended EEOC regulations -- plaintiff's
diabetes likely a substantially limiting impairment
-- qualified: job description requirement to work “various
shifts” and “rotating schedules” does not automatically
mean working night shift is “essential function”
-- accommodation: employee did not have to exhaust
other health measures before asking for
accommodation at work
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Recent Case Illustrations
Koessel v. Sublette County Sheriff’s Dept. (10th Cir.
May 14, 2013) (patrol officer who had stroke was
not qualified due to cognitive limitations that
became apparent after he returned to work).
McElwee v. County of Orange, 700 F.3d 635 (2d Cir.
2012) (“…under the ADA, workplace misconduct is
a legitimate and nondiscriminatory reason for
terminating employment, even when such
misconduct is related to a disability. A requested
accommodation that simply excuses past
misconduct is unreasonable as a matter of law.”)
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Accommodation Requests
Recognizing Accommodation Requests:
Accommodation request is a request for some
sort of change for a medical reason; request
need not be in writing and need not contain any
“magic words”
“Tips” for recognizing requests
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Timing of Requests
 Request may be made at any time during the
application process or during employment,
including if the employee is having performance
difficulties
 But accommodation is always prospective –
request is too late once performance or conduct
warrants termination
 An employee does not lose the right to request
an accommodation because he did not do so
during the application stage
 Employees may make more than one request for
reasonable accommodation
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Disability
Does the Requesting Employee Have a
Disability?
 When considering if an individual who has
requested accommodation has an
impairment that “substantially limits a major
life activity” or has a record of same,
remember the changes made by the ADA
Amendments Act of 2008
 Now the definition of disability “shall be
construed broadly” and “should not demand
extensive analysis”
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Disability
Congress Made 4 Changes To “Substantially
Limited in a Major Life Activity”:
1. Need not be a “severe” limitation or
“significantly restricted”
2. Major life activities include “major bodily
functions”
3. Ameliorative effects of mitigating measures
not considered
4. Impairments that are “episodic” or “in
remission” are substantially limiting if they
would be when active
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Pre-ADAAA Case Law
Don’t Rely on Pre-ADAAA Case Law on
Coverage
 See EEOC revised ADA regulations 29
C.F.R. Part 1630 and Q & A:
 www.eeoc.gov/laws/regulations/adaaa_qa_s
mall_business.cfm

See webinar handout with examples of postADAAA case law
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Medical Information
When and How Much Medical Information
Can the Employer Ask for in Support of An
Accommodation Request?
 ADAAA has not changed the legal rules
regarding when and how much medical
information employers can request if
accommodation is requested.
 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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Medical Information
 Employer may ask employee to obtain
information from treating health care provider,
or ask employee to sign limited release
allowing employer to contact doctor 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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Examples of Accommodations
 Physical modifications
 Sign language interpreters and readers
 Assistive technology and modification of equipment or
devices
 Modified work schedules
 Making exceptions to policies
 Job restructuring (swapping or eliminating marginal
functions)
 Changing supervisory methods
 Job coach
 Telework
 Leave
 Reassignment to a vacant position (last resort)
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Actions Not Required as an
Accommodation
 Lowering production or performance standards (but prorate production requirements for period of leave as an
accommodation, and provide accommodation if requested
to meet the standards)
 Excusing violations of uniform conduct rules that are jobrelated and consistent with business necessity (but provide
accommodation if requested to meet the standard)
 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
Factors:
 Nature and cost of the accommodation
(“significant difficulty or expense”)
 Resources available to the employer overall
(not just individual department)
 Impact of the accommodation on operations
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Interactive Process
 Employer should engage in an interactive
process with the individual asking for the
accommodation.
 May involve determining (1) whether the
requester has a disability, (2) whether
requested accommodation is medically
needed, and/or (3) what accommodations are
possible.
 Implications of “good faith” provision in 42
U.S.C. Section 1981a.
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Keys to the Interactive Process
 If employee only knows the problem, not the
solution, employer must search for possible
accommodations
 If employee specifies particular
accommodation but it is one that legally need
not be provided (e.g., request to lower
production standards), employer must offer
an alternative accommodation if one exists
that would not pose an undue hardship -search for and consider alternative
accommodations
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Recent Case Illustrations
McMillan v. City of New York (2d Cir. March 4, 2013)
(employee’s request for flexible arrival time and departure
times could be reasonable and would not pose an undue
hardship in light of the nature of the job and his work history).
Goonan v. Federal Reserve Bank of New York, 2013 WL
69196 (S.D.N.Y. Jan. 7, 2013) (denying employer’s motion to
dismiss, court ruled that claim for ADA violation could proceed
based on allegations that employer denied telework
accommodation on ground that employee had poor
performance, and failed to consider alternatives when put on
notice that the alternative accommodations it provided
instead of telework were ineffective).
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Selecting an Accommodation
 Employer has discretion to choose among
equally effective accommodations where
there is more than one possibility.
 Respond to requests promptly, as undue
delay may constitute a denial of
accommodation.
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Recent Case Illustrations
Cloe v. City of Indianapolis (7th Cir. April 9, 2013)
(employer complied with the ADA by providing
alternative reasonable accommodations rather than
exactly what employee requested; employer acted
with reasonable speed to come up with another
accommodation when it learned that something it
provided was insufficient; but possible retaliatory
termination).
Yovtcheva v. City of Philadelphia Water Dept. (3d
Cir. May 7, 2013) (employer offered reasonable
alternative but employee refused to try it, so
employee could not prevail on claim).
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Keys to the Interactive Process
 Don’t make assumptions about the
individual’s limitations, what jobs can be
performed, or what accommodations are
possible without undue hardship.
 Communicate, exchange information, search
for solutions, consult resources as needed.
 AskJAN.org
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Contact Information
Jeanne Goldberg
Senior Attorney Advisor
Office of Legal Counsel
U.S. Equal Employment Opportunity Commission
[email protected]
(202)663-4693
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ADA Update
Contact
 (800)526-7234 (V)
(877)781-9403 (TTY)
 AskJAN.org & [email protected]
 (304)216-8189 via Text
 janconsultants via Skype
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