Transcript Disability Discrimination Claim Triage

Engaging Supervisors and Employees in
the Reasonable Accommodation Process
Mark Maxin, Esq.
Office of the General Counsel
Nuclear Regulatory Commission
Purpose of the Rehabilitation Act
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Remove unnecessary workplace barriers for
individuals with disabilities.
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Physical obstacles
Obstacles in the form of unnecessary rules or
procedures
The accumulated myths and fears about a medical
condition are as disabling as the physical
limitations that flow from actual impairment.
Arline v. Nassau County, 480 U.S. 273 (1987)
Definition of Individual With a Disability
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Individual with a disability means:
 Physical or mental impairment
 That substantially limits
 A major life activity. 29 CFR 1630.2(g).
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See also:
Record of disability
Regarded as disabled
ADA Amendments Act of 2008
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directs EEOC to revise that portion of its regulations defining the
term "substantially limits”-current EEOC definition of
“significantly restricts” MLA is to demanding
expands the definition of "major life activities" by including
two non-exhaustive lists:
the first list includes many activities that the EEOC has
recognized (e.g., walking) as well as activities that EEOC has
not specifically recognized (e.g., reading, bending, and
communicating);
the second list includes major bodily functions (e.g., "functions
of the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions");
states that mitigating measures other than "ordinary
eyeglasses or contact lenses" shall not be considered in
assessing whether an individual has a disability;
ADA Amendments Act (Cont)
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clarifies that an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
active;
changes the definition of "regarded as" so that it no longer
requires a showing that the employer perceived the individual to
be substantially limited in a major life activity, and instead says
that an applicant or employee is "regarded as" disabled if he or
she is subject to an action prohibited by the ADA (e.g., failure to
hire or termination) based on an impairment that is not
transitory and minor;
provides that individuals covered only under the "regarded as"
prong are not entitled to reasonable accommodation.
Scenario: Is the Employee an Individual
with a Disability?
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GG-6 Receptionist with Carpal Tunnel is unable to type for more
than a few minutes at a time, has difficulty climbing stairs
because she is unable to hold onto the rail, difficulty dressing
because of numbness in her hands, and tends to drop things,
like a plate or glass, if she looks away and does not concentrate
on them.
GG-13 Nuclear Systems Engineer in NSIR with a back
impairment is unable to lift more than 15 pounds.
GG-12 Attorney with depression has difficulty concentrating
while drafting legal pleadings and focusing during lengthy
meetings.
Broken limbs that heal normally, sprained joints, concussions,
appendicitis, and seasonal or common influenza
Qualified Individual With A Disability
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An individual with a disability who, with
or without reasonable accommodation,
can perform the essential functions of
the position the individual holds or
desires. 42 U.S.C. 12102(8); 29 CFR
1630.2(m).
Qualified Individual With a Disability
Essential Functions
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Removal of function would fundamentally
alter the position
Evidence that function is essential may
include:
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Written job descriptions
Amount of “on the job time” function consumes
Consequences if function not performed
Experience of past and current employees
Reasonable Accommodation
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RA means any change in the work
environment or the way things are
customarily done that enables an individual
with a disability to enjoy equal employment
opportunities. 29 CFR1630.2(o)
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Application process
Performance of essential functions of job
Benefits and privileges of the workplace
Reasonable Accommodation
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Examples of RA:
 making existing facilities readily accessible and
usable by individuals with disabilities;
 job restructuring, leave, part-time or modified
work schedules, reassignment to a vacant position
(reassignment is an accommodation of last resort)
acquisition or modification of equipment or
devices, appropriate adjustment or modifications
of examinations, training materials or policies;
interpreters; and
 providing interpreter during job interview
Scenario: Should the Agency Grant the
Reasonable Accommodation Request?
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GG-13 Computer Programmer suffers from
depression and has difficulty working in her
cubicle when exposed to normal office noise
levels. The employee requests to work at
home for 4 days a week.
Receptionist with Carpal Tunnel is unable to
type and requests that all her typing duties
be assigned to the other 3 office clerk typists.
Hearing impaired employee requests an
interpreter to attend an office party.
What’s Not a Reasonable
Accommodation?
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Don’t have to eliminate essential function
Don’t have to provide a perfect
accommodation, just reasonable effective
accommodation
Don’t have to lower essential
performance requirements
Has There Been a Request for RA?
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Don’t need “magic” words
Has the employee said that s/he needs
an adjustment or change at work for a
reason related to his/her medical
condition?
Scenario: Is There a Request for RA?
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An employee tells her supervisor, "I'm having
trouble getting to work at my scheduled
starting time because of medical treatments
I'm undergoing."
An employee tells his supervisor, "I need six
weeks off to get treatment for a back
problem."
An employee tells his supervisor “I would like
a new chair because this present one is
uncomfortable.”
Don’t Ignore Reasonable
Accommodation Requests
What Supervisor Should Do Upon
Receipt of a Request for RA
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Make minimal inquiry into request
Contact the RAC and discuss request
Discuss agency RA procedures
Discuss whether to grant/deny/offer alternative RA
Prepare for interactive dialogue
Need for additional medical doc.
Need for NRC doctor advice
Need for NRC (Dr.)-employee (Dr.) consult
Utilize agency tools e.g. CAP program, JAN (Job
Accommodation Network)
The RAC:Engaging the Supervisor
and Employee in the RA Process
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Listen to both parties
Understand the essential functions of the position in question
Understand the nexus between the requested accommodation
and the medical condition
Is there sufficient medical documentation
Be prepared to explain the agency RA process
Keep an open mind
Discuss the role of medical information/confidentiality
Document Document Document
Emphasize the importance of the interactive dialogue
Discuss CAP or JAN as appropriate
Address the possibility of alternative accommodations
Interactive Process
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29 CFR 1630.2(o)(3): To determine the
appropriate reasonable accommodation
it may be necessary for the employer to
initiate an informal, interactive process
with the qualified individual with a
disability in need of the
accommodation.
Medical Documentation
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Additional documentation may be
required if the medical condition or
need for accommodation is not obvious
Employee refusal to provide such
medical justifies denying the RA
No additional medical if disability/RA is
obvious
Reassignment as a RA
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An employee cannot do their job…is he
a qualified individual with a disability?
Confidentiality Issues
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Any and all information associated with
an accommodation request may be
discussed only with those who need to
know
Misconduct or Poor Performance
Must an employer
withhold discipline
or termination of an
employee who,
because of a
disability, violated a
rule of conduct or is
performing
unacceptably even
with an RA?
Scenario: How Should the Supervisor
Handle this Conduct Issue?
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Employee arrives late to work at least twice a week
for more than an hour at a time. This has been
going on for months. You have warned the
employee that this behavior is unacceptable but the
misconduct persists. You call the employee into your
office to hand him a proposed 10 day suspension
when he informs you, for the first time, that he has
depression. He subsequently provides medical
documentation from his psychiatrist establishing that
his tardiness was caused by his depression and that
he needs to take off two months of leave and receive
intensive daily therapy. What do you do?
Misconduct
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General Rule: “Neither the Rehabilitation Act
nor the ADA immunizes disabled employees
from being disciplined for misconduct, provided
the employer would impose the same penalty
on a nondisabled employee” Williams (MSPB
2000)
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Rule is job-related re: the position
Rule is consistent with business necessity
Rule is uniformly applied
May be required to discipline and then
accommodate to allow employee to meet
conduct rule(s) in the future
Hiring Issues
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RA may be required in application process
During the hiring process and before a
conditional offer is made, an employer
generally may not ask an applicant whether
s/he needs a reasonable accommodation for
the job.
Exceptions to merit staffing for filling
positions with targeted disabilities, contact
Peggy Etheridge for more information
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