Transcript ADA Update 2015 JAN welcomes Jeanne Goldberg, Senior Attorney Advisor, Office of Legal Counsel, U.S.

ADA Update 2015
JAN welcomes Jeanne Goldberg, Senior Attorney
Advisor, Office of Legal Counsel, U.S. Equal
Employment Opportunity Commission.
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
1
ADA Update 2015
Roadmap: ADA Provisions that Apply to
Individuals with Disabilities




Disparate treatment based on disability (permissible
if individual not qualified or posed direct threat to
safety) or association with an individual with a
disability
Use of a qualification standard that screens out
based on disability (permissible if job-related and
consistent with business necessity, unless could
meet standard or perform job with accommodations)
Harassment
Denial of reasonable accommodation (permissible if
would have posed undue hardship)
2
ADA Update 2015
Roadmap: ADA Provisions that Apply to All
Applicants and Employees



Retaliation
Improper Disability-Related Inquiries or Medical
Exams
Disclosure of Confidential Medical Information
3
ADA Update 2015
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.
4
ADA Update 2015
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 accommodation request?
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.
5
ADA Update 2015
Supporting Medical Information


Employer may ask employee to obtain 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.
6
ADA Update 2015
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.
7
ADA Update 2015
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
8
ADA Update 2015
“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 shortterm/temporary conditions can now be “substantially
limiting”
Example: Back impairment that causes 20-pound
lifting restriction lasting several months.
9
ADA Update 2015
Don’t Rely on Pre-ADAAA Case Law on
Definition of Disability

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_busi
ness.cfm
10
ADA Update 2015
Most Common Examples of Accommodation







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
11
ADA Update 2015
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)
12
ADA Update 2015
Actions Never Required as Reasonable
Accommodation







Lowering production or performance standards (though
pro-rate production requirements for period of leave as
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)
13
ADA Update 2015
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
14
ADA Update 2015
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.
15
ADA Update 2015
Employee Must Cooperate in Interactive Process
Ward v. McDonald, __ F.3d __, 2014 WL 3906299 (D.C. Cir. Aug.
12, 2014).
 Employee sought telework due to condition that affected
mobility. After receipt of internist’s letter that made reference
to home treatments that could take 1-3 hours for symptom
flare-ups, the employer sought additional information from the
doctor to explain how the employee would be able to work
even at home given the symptoms and treatment needs as
described.
 Employee refused to provide the clarifying information
requested by the employer, and the court ruled the information
was legitimately sought by the employer. Because the
employee therefore failed to engage in the interactive process,
she could not prevail on denial of accommodation claim.
16
ADA Update 2015
Employer Should Not Just Go Through the
Motions
Goonan v. Federal Reserve Bank, 2014 WL 3610990
(S.D.N.Y. July 22, 2014).
 “the interactive process of the ADA demands active
participation by both parties in creating a reasonable
accommodation, not just occasional employer
reactions as a mentally ill employee works his way
through the resources structure”
 a jury could find that the agency “was merely
attempting to placate Goonan rather than making
good faith reasonable efforts to accommodate him”
17
ADA Update 2015
Accommodations for Symptoms or Treatment While
Continuing to Work
Gleed v. AT&T Mobility Services, 2015 WL 3505399
(6th Cir. June 4, 2014)


Retail sales consultant requested two reasonable
accommodations for his physical impairments: (1) sitting as
needed during the work day, due to chronic cellulitis (skin
infection), 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 on 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.
18
ADA Update 2015
 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.
19
ADA Update 2015
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)?
20
ADA Update 2015
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 backup 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.
21
ADA Update 2015
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.
22
ADA Update 2015
Stern v. St. Anthony's Health Center, 2015 WL 2499838 (7th Cir.
June 4, 2015).




Chief psychologist for acute-care facility was terminated based on medical
evaluation finding short-term memory deficiencies rendered him unfit for duty
Held: Clinical practice, supervision, and administration were essential functions
of his position; there was only one chief psychologist at the facility, and
moreover, if supervision was eliminated he would no longer be the chief, and if
the clinical practice was eliminated, he would no longer be functioning as a
psychologist.
If a particular job function is an essential function, then it is irrelevant whether
the employer could have someone else perform the function without undue
hardship.
“[j]ob restructuring includes modifications such as: reallocating or redistributing
marginal job functions that an employee is unable to perform because of a
disability; and altering when and/or how a function, essential or marginal, is
performed” ... “[a]n employer never has to reallocate essential functions as a
reasonable accommodation, but can do so if it wishes.” EEOC, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the ADA,
www.eeoc.gov/policy/docs/accommodation.html
23
ADA Update 2015
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. Telework as accommodation
need not be granted as an accommodation if not
feasible or poses an undue hardship.
24
ADA Update 2015
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
or 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
25
ADA Update 2015
Management Considerations
NOTE: Teleworking employees can be held to same
performance and production standards as
working on-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
26
ADA Update 2015
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 offer alternative available
accommodations that would have permitted work to be
done in the office.
27
ADA Update 2015
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.
28
ADA Update 2015
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 other exceptions
Employer does not have to pay cost of relocation,
unless it does so for other employees who transfer
voluntarily
29
ADA Update 2015
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
[email protected]
30
ADA Update 2015
Contact




(800)526-7234 (V) & (877)781-9403 (TTY)
AskJAN.org & [email protected]
(304)216-8189 via Text
janconsultants via Skype
31