Employees with Disabilities: A Panel Review of Challenging - PDF document

9/27/2016 Employees with Disabilities: A Panel Review of Challenging Scenarios 2016 Idaho Employment Law Conference Idaho State Council of SHRM September 30, 2016 Panel Presenters Linda Goodman , Administrator John Stanley , Attorney Idaho Human Rights Commission EEOC Seattle Field Office Linda.goodman@labor.idaho.gov john.stanley@eeoc.gov 208-334-2873 206-220-6882 Erika Birch , Attorney John Ashby , Attorney Strindberg & Scholnick Hawley Troxell erika@idahojobjustice.com jashby@hawleytroxell.com 208-336-1788 208-388-4844 Kara Heikkila , Attorney Hawley Troxell kheikkila@hawleytroxell.com 208-388-4984 Disability Discrimination Trends in Idaho IHRC Charges (FY 2016) EEOC ID (ALL US) (2015) • Disability 42% • Disability 51% (30%) – Harassment 24% • Retaliation 40% (44.5%) – Failure to Hire 6% • Age 27% (22.5%) – Discharge 79% • Sex 31% (30%) – Accommodation 43% • Religion 8% (4%) • Sex 35% • National Origin 7.5% (11%) • Retaliation (all) 27% • Race 11.5% (35%) • Age 17% • National Origin 9% • Race 6% • Religion 6% 1

9/27/2016 Hypothetical One - Sofia • Sofia is software engineer for BLS, which employs 200 individuals and has yet to turn a profit • She has bipolar disorder (affecting concentration, judgment, impulse control) controlled by medication • Sofia works on a 5-member team in an open-sided cubicle, but work is done independently with just one weekly team meeting • She has been employed since 2014 and has had positive evaluations • At a team meeting, she criticized a teammate, saying his programming skills “sucked” and he was a “drag on the team” • She received a counseling notice for unprofessional conduct for that remark, and in a meeting with HR disclosed her bipolar disorder and advised she “might need help” Hypothetical One - Sofia • Sofia’s psychiatrist sent a note to HR saying she had an ADA condition and requested a privacy screen on the open side of the cubicle to help with concentration issues • HR advised this was a vague request, that she had good performance, and that she merely had a personality dispute with her teammate • HR declined the privacy screen request, and requested more medical documentation • The psychiatrist responded with a statement that her condition affects her ability to interact and her ability to concentrate • HR offered Sofia noise-cancelling headphones, which Sofia believed were ineffective and interfered with her work • HR then offered her a move to a vacant cubicle with the same equipment, far removed from her team Hypothetical One - Sofia • Sofia responded that she “didn’t want to be sent to Siberia, shit! What does it take to get a stupid screen?” • The cost of the screen was $200, with a $500 installation • HR disciplined her for the comments about the screen • Sofia remains employed, but HR expects to hear more about this and is getting frustrated • HR representative have discussed whether Sofia is really a good fit 2

9/27/2016 Sofia, Questions • What should BLS do? • Was the request for a privacy screen reasonable, and should that request be granted? Does it matter that BLS is not profitable? • Were the alternative accommodations reasonable? • What if instead of a screen, Sofia’s psychiatrist advises that she should telecommute, and come in once a week for the team meeting? • Can granting limited telecommuting opportunities be used against the company when they deny similar requests to other employees? • What are the common mistakes that employers make when it comes to psychiatric or mental disabilities? • What if Sofia’s conduct escalates to threats of physical violence? Hypothetical Two - Tom • Tom works for CSA as a financial analyst • He is diagnosed with MS, which is accommodated as the disease progresses with automated doors, work station modifications, and word recognition software • Years later he requires use of an electric wheelchair and assistance with daily living tasks • Tom received high performance ratings, but then his evaluations were regularly delayed and began to reflect lower ratings • His most recent performance evaluation noted that his accommodations were an undue hardship and that aid provided by coworkers was a “potential health and safety threat” Hypothetical Two - Tom • Tom was given the choice of disciplinary action, or FMLA as a continuing accommodation followed by a medical layoff • At that point, Tom requested another accommodation that might have addressed the performance and safety concerns, but CSA believed it had done enough over many years to accommodate him • Tom opted for the FMLA and then medical layoff after 26 years of employment 3

9/27/2016 Tom, Questions • Was Tom a qualified employee under the ADA at the end of his employment? • Could Tom be reasonably accommodated at the end of his employment, without undue hardship? • What should CSA have done with respect to the interactive process when Tom requested an additional accommodation at the end of his employment? • When has an employer provided enough reasonable accommodation? • What if Tom applied for Social Security Disability benefits after his employment ended? Can he still claim he is a qualified employee able to complete his job? Hypothetical Three - John • John applies as a part-time care giver for Acme Group Homes, a residential facility caring for individuals with physical and intellectual disabilities • The job requires the ability to physically lift, transfer, bath, and ambulate residents, but no lifting requirement is set out in the advertising or in any job description • The application form requests workers’ compensation and disability information for the applicant, which John answers with information about his PTSD, scars, and SSDI benefits • John is offered the job, and on his first day of work completes a health history, which requests information on medications that would limit his physical ability to complete the job or safely care for the residents, or whether he has a communicable disease, and John answers “no” to these questions Hypothetical Three - John • A month later, John takes a random drug test, which shows positive for a series of drugs including OxyContin • Acme requests additional information, and John provides several prescription bottles • Because the OxyContin is not among the prescriptions John brought in, Acme requests a list of all medications he is taking and the reason he is taking them • John’s medical provider writes a note that verifies he takes OxyContin for chronic knee pain, a condition he did not disclose on the health screen. However, there remained confusion about the prescription for OxyContin, which was written by an ER doctor • John is discharged for making false statements on his application, for failing to provide a valid prescription for the OxyContin, for failing to disclose a knee injury that might limit his ability to perform his job, and for failure to disclose prescriptions that might impair his ability to care for the residents 4