Americans with Disabilities Act Best Practices in Reasonable Accommodation: Back to the Basics Back to the Basics Karen Iezzi Michael, Esq. Vice President SunTrust Banks, Inc. April, 2003 1
AGENDA AGENDA � Corporate Commitment to Disability- Related Issues � ADA Compliance Issues � Sample Case Studies 2
The Origins of Corporate Best Practices � BLN � Individual(s) dedicated to promoting disability-friendly policies � Seminars for management/other organizations related to disability best- practices � Centralized “reasonable accommodation” funding � DRS and other agency partnerships 3
Getting to a Reasonable Accommodation � Before even considering “reasonable accommodation,” first ask whether this is an ADA issue. � Even if it isn’t, you might still want to provide the accommodation, but you need to know what your obligations are, and then what you want to do voluntarily. 4
Why It Matters if You Have an ADA Issue � Prevents fraud � Encourages consistency with the law � Enables eligible employees to receive the accommodation they are entitled to � For the same reason that law-makers limited how many people can be covered by employer obligations, most companies need to do the same thing. 5
How to Determine If You Have an ADA Issue � Relevant portions of the ADA require: � an employer; � to provide reasonable accommodation; � to qualified individuals; � with disabilities; � who are employees or applicants for employment; � unless to do so would cause undue hardship. 6
For Each Employee -- Go Back to the Basics! � Does the individual have a Disability ? � Is the individual Qualified ? � Is the accommodation needed Reasonable ? 7
What is a Disability? A “disability” is a physical or mental impairment that substantially limits a major life activity . 8
Impairment � Is there an impairment? � How do you know? � Obtain written information from the employee regarding the alleged impairment; � Obtain written medical verification from health care provider. 9
Is a “Major Life Activity” Impacted? � What are major life activities? � “Major” means “important” � “Life activities” means activities that are of central importance to daily life. � Eating, Sleeping, Walking, Talking, Thinking, Breathing, etc. 10
Is a “Major Life Activity” Impacted? � “Working” in a specific job is not a “major life activity”. � The “disability” must extend outside of the occupational tasks to those manual tasks central to the ordinary person’s daily life outside of the workplace. � See Toyota Motors v. Williams (S. Ct. 2002) 11
Is a “major life activity” significantly impacted? � Just because one has trouble breathing, doesn’t mean he is disabled. He must be significantly impacted in the ability to breathe. � “Substantially” means “considerable” or “to a large degree.” � Impairments that interfere only in a minor way with the performance of manual tasks precludes ADA protection. 12
Is a “major life activity” significantly impacted? � “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.” � This is a “case by case” determination. � Toyota Motors v. Williams 13
There are Some “Impairments” that are Excluded from the ADA’s Reach Transvestism Transexualism Kleptomania Pedophilia Pyromania Exhibitionism Voyeurism Gender Identity Disorders Compulsive Gambling Current Illegal Drug Addiction Sexual Behavior Disorders 14
Is the Individual “Otherwise Qualified” � Only “qualified” disabled employees are covered by the ADA. � Ask: � What are all the job-related qualifications? � Are they all listed on the job description? � What steps were taken to ensure that each qualification is actually job-related? � Did you use all screening tools to disqualify on a non-disability-related basis (ie: criminal history and drug tests). 15
Now Consider Reasonable Accommodations.. � Three types of “accommodations” � (1) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; 16
Categories of Reasonable Accommodation (cont.) � (2) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or 17
Categories of Reasonable Accommodation (cont.) � (3) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 18
Examples of Workplace Barriers � Physical Obstacles � inaccessible facilities � equipment that needs modification � Procedures or Rules � when work is performed � when breaks are taken � how essential or marginal functions are performed 19
Examples of Accommodations � Making existing facilities accessible; � Job restructuring; � Part-time or modified work schedules � Acquiring or modifying equipment; � Changing tests, training materials or policies; 20
Examples of Accommodations (cont.) � Light duty � Shift Changes � Work-at-Home � Providing qualified readers, interpreters or asst. � Reassignment to a vacant position � Unpaid Leave 21
Examples of Accommodations that are Not Reasonable � Eliminating essential functions of the job � Lowering production standards � Personal use items (ie: prosthetic limb, eyeglasses, hearing aids, wheelchair, hot pot or refrigerator) � Creating a job � Promoting an employee into a vacant job � Bumping an employee from his/her job 22
Examples of Accommodations that are Not Reasonable � Placing a disabled applicant in job for which he/she did not specifically apply � Placing a disabled individual into a job if doing so would create a direct threat to the health or safety of the individual or others � Maintaining the salary of an employee reassigned from a higher-paying job to a lower-paying one if the employer does not do so for non-disabled. 23
What Satisfies Accommodation What Satisfies Accommodation Required? Required? � Don’t have to give accommodation sought by employee � Accommodation must be EFFECTIVE � must enable the employee to perform the essential functions of the job; � must enable applicant with a disability to have an equal opportunity to participate in the application process; and � must enable employee to enjoy privileges and benefits of employment. 24
Undue Hardship Undue Hardship � Quantitative � Financial � Other Limitations � unduly extensive � substantial � disruptive � those that would fundamentally alter the nature or operation of the business 25
Undue Hardship Considerations � Nature and cost of the accommodation needed; � Overall financial resources of the facility making the accommodation, number of persons employed and the effect on expenses and resources of the facility; � Overall financial resources, size, number of employees, type and location of facilities of employer; 26
Undue Hardship (cont.) Undue Hardship (cont.) � Impact of the accommodation on the operation of the facility; � Type of operation of the employer, including: � structure and functions of the workforce � geographic separateness � administrative or fiscal relationship of facility involved in making accommodation. 27
How An Individual How An Individual Requests Accommodation Requests Accommodation � Individual must let company know that an adjustment or change at work is needed for a medical condition. � The Request is the First Step in the “informal, interactive process between the individual and the employer” � can be made by others (family member, friend) � Does not need to be in writing 28
Best Practices to Handling Best Practices to Handling Requests Requests � “How can I help you?” � Engage in informal process to clarify what person needs � Ask questions � Document everything you do � Seek documentation where needed � Use JAM and other resources, even the EEOC � Try to be creative in finding solutions 29
Don’t Forget... � Even employees who are not currently “disabled” can sue under the ADA for: � Being “regarded” as a person with a disability or � Being discriminated against due to a history of having a disability. 30
Case Studies Reasonable Accommodations 31
Scenario 1 Scenario 1 Your company arranges for one of its employees to provide a program titled “Balancing work and family,” offered to all employees for two hours from noon to 2:00pm. This program is optional. A deaf employee wishes to take the training and requests a sign language interpreter. Must/Should the company provide an accommodation? 32
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