Recap: ADA Provisions that Apply to All Applicants and Employees - PDF document

Reasonable Accommodation Update DBTAC 8/18/15 Jeanne Goldberg, Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission 1 Recap: ADA Provisions that Apply to Individuals with Disabilities • Disparate treatment based on disability (permissible if CP not qualified or posed direct threat to safety) • Use of a qualification standard that screens out based on disability (permissible if job-related and consistent with business necessity) • Harassment • Denial of reasonable accommodation (permissible if would have posed undue hardship) 2 Recap: ADA Provisions that Apply to All Applicants and Employees • Retaliation • Improper Disability-Related Inquiries or Medical Exams • Disclosure of Confidential Medical Information 3 1

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 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 accommodationrequest? • 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 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. 2

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 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 “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 short- term/temporary conditions can now be “substantially limiting” • Example: Back impairment that causes 20-pound lifting restriction lasting several months. 3

Don’t Rely on Pre -ADAAA Case Law on Definition of Disability Revised EEOC ADA regulations : 29 C.F.R. Part 1630 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_ business.cfm 10 Pregnancy-Related Impairments • Pregnancy itself is NOT an impairment under the ADA, but pregnancy-related medical conditions are impairments. If accommodation sought, determine if it is a substantially limiting impairment, and if so, whether reasonable accommodation was requested and could have been provided without undue hardship. • Note: Pregnancy Discrimination Act prohibits pregnancy discrimination, and requires – for both pregnancy itself and any related limitations -- the same treatment afforded those “similar in their ability or inability to work.” 11 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 12 4

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) 13 Actions Never Required as Reasonable Accommodation • Lowering production or performance standards (though pro-rate production requirements for period of leave as an 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) 14 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 15 5

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. 16 Employee Must Cooperate in Interactive Process Ward v. McDonald , __ F.3d __, 2014 WL 3906299 (D.C. Cir. Aug. 12, 2014). Employee refused to provide clarifying information requested by the employer. After receipt of internist’s letter referring to home treatments that could take 1-3 hours for symptom flare-ups, employer sought additional information from doctor to explain how requested telework would be possible. Employee refused to provide the clarifying information requested by employer, and since the information was legitimately sought by the employer, employee failed to engage in the interactive process and could not prevail on denial of accommodation claim. 17 Employer Discretion to Choose Among Equally Effective Alternatives • Yovtcheva v. City of Philadelphia Water Dept. , 2013 WL 1877311 (3d Cir. 2013). • Employer offered reasonable alternative but employee refused to try it, so employee could not prevail on denial of accommodation claim. 18 6

Format for the Interactive Process is Flexible • Horn v. Knight Facilities Management-GM, Inc., 2014 WL 715711 (6th Cir. Feb. 25, 2014). Employer modified janitor’s cleaning route to accommodate her initial medical restriction limiting exposure to bathroom cleaning chemicals by assigning her to only some bathrooms and mostly offices. • When her physician changed the restriction to require no exposure to bathroom cleaning chemicals at all, the employer had follow-up conversations with employee's physician and the employee to explore any alternative accommodations, but there were none. • Held: the interactive process does not have to follow a particular format. Employer’s separate conversations with employee, her treating physician, and union representative were sufficient to meet its obligations, and it did not need to include the employee in conversations with others as she asserted. 19 Equipment and Schedule Changes • Gleed v. AT&T Mobility Services, 2015 WL 3505399 (6th Cir. June 4, 2014). Retail sales consultant requested two reasonable accommodations: (1) sitting as needed during the work day, due to 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. 20 Equipment and Schedule Changes (cont’d) 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. 21 7