Post on 25-Oct-2020
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Americans with Disabilities Act Update
exploring accommodations, direct threat/safety concerns and the role of medical exams
Sally St. Onge, Esq.
Jackson Lewis P.C. | Hartford
Sally.StOnge@jacksonlewis.com| 860-522-0404
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AGENDA – Trends in Workplace Disability Leave and Health Management Law & Practice
• Paid Sick Leave• Leave as a Reasonable
Accommodation• Recent Accommodation
Developments• Medical Inquiries & Documentation• Direct Threat Analysis• Q&A
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TRENDING: Continued Development Of Paid Sick Leave Laws
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TRENDING: Continued Development Of Paid Sick Leave Laws-KIBOSH States
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Alabama
Arkansas
Arizona (also has state PSL)
Florida
Georgia
Indiana
Iowa
Kansas
Michigan
Missouri
Mississippi
North Carolina
Ohio
Oklahoma
Oregon (also has PSL)
South Carolina
Tennessee
Wisconsin
TRENDING: Continued Development Of Paid Sick Leave Laws
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• Eligible employees:• Employer size in city;• Work within city for certain number
of hours;• Regularly work in the city or
“occasional” worker.• Accrual formula: 1 hour PSL for every X
hours worked.• Common examples of Reasons for leave:
• Eligible employee or family member’s illness --defined broadly;
• Domestic violence or sexual assault.
All use a similar approach to CT PSL:
• Employer and employee notice requirements.
• Employer right to medical documentation to justify PSL use.
• Carry over: Many require carry over of accrued, unused time.
• Employer’s current PTO policies may satisfy if they meet all other elements of law (like accrual, carry over, uses of leave).
• Collective bargaining issues.• Pay at end of employment: Usually
not required.• Anti-retaliation provision.
TRENDING: Continued Development Of Paid Sick Leave Laws – Follow Your Process EVERY TIME in EVERY STATE
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• FMLA, State and Local Leave Entitlements
Is the employee “entitled” to be absent with job
protection?
• Consider your Collective Bargaining Agreement
• Evaluate policies and past practices (always provide what you say you will)
Has Company “committed” to
providing additional job-protected leave?
• Must consider impact of the ADA Amendments Act
• Many more people on STD and WC will receive leave as a reasonable accommodation
• PDA Issues?
Is additional leave required as a reasonable
accommodation for employees with
disabilities?
Trending: Leave as a Reasonable Accommodation
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• 7th Circuit Severson v. Heartland Woodcraft(decided 9/20/17)
• Circuit court held ADA does not require multi-month leave of absence
• Directly impacts employers in Illinois, Indiana, and Wisconsin
• Decision chips away at EEOC enforcement efforts and position on leave as an accommodation
Trending: Leave as a Reasonable Accommodation
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• 10th Circuit - Hwang v. Kansas State University (5/29/14)
• Authored by Justice Gorsuch before appointment to USSC
• Involved extension of employer’s six month LOA policy under Rehabilitation Act (similar to ADA)
• Like Severson, the decision takes position that is inconsistent with EEOC enforcement efforts and guidance on leave:
“Must an employer allow employees more than liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”
TRENDING: Leave as an Accommodation –Notes on EEOC Guidance
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• The EEOC has taken the position that, absent undue hardship, anemployer must modify a leave policy to allow for additional leaveto a disabled employee.
• Case law is mixed – but EEOC is watchdog agency.
• Address on individualized basis – focus on undue hardship arguments.
• Courts and EEOC tend to agree – no obligation to provideindefinite leave of absence; and consider whether multiple leaveextensions for definite periods amount to indefinite leave.
• EEOC says employer must ensure third party leave administrator iscompliant.
• EEOC seems to put burden of communication between short term/long term carrier, employer, and employee on the employer.
TRENDING: Leave as a Reasonable Accommodation – Follow Your Process EVERY TIME in EVERY STATE
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• FMLA, State and Local Leave EntitlementsIs the employee
“entitled” to be absent with job protection?
• Consider your Collective Bargaining Agreement
• Evaluate policies and past practices (always provide what you say you will)
Has Company “committed” to
providing additional job-protected leave?
• Must consider impact of the ADA Amendments Act
• Many more people on STD and WC will receive leave as a reasonable accommodation
• PDA Issues?
Is additional leave required as a reasonable
accommodation for employees with
disabilities?
Trending: Emotional Support and Comfort Animals at Work
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Trending: Emotional Support andComfort Animals At Work
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In March 2017, the EEOC filed suit in Floridafederal court on behalf of a truck driver whoseemployer refused to allow him to bring hisemotional support dog on his over the road truckroute as a reasonable accommodation. Theemployer refused the request based on its nopets in the truck policy. The driver is a veteranand his dog helps the driver control his anxietyand wake up from nightmares caused by PTSD.
Requesting Medical Documentation
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• Basic Rule: Requests for medical information from employees must be “job-related and consistent with business necessity.”
• ability to perform essential functions
poses a direct threat
• Per EEOC Guidance, an employee request for accommodation generally meets this standard.
• But –• Only when condition is not obvious• Do not request more information than is needed to
evaluate the request• Don’t speak with doctors or their offices – all
communications should be in writing
Requesting Medical Documentation –Key Points Regarding Reasonable Accommodation
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• Asking for a Doctor’s note • Only if the need for reasonable accommodation is not obvious;• Attach the job description;• Ask for the doctor’s opinion whether the employee can
perform the “essential duties of his position” as described in the job description with or without a reasonable accommodation;
• If with an accommodation, ask the doctor to suggest some accommodations for your consideration;
• Ask that the doctor to describe the employee’s limitations (if any) that affect the employee’s ability to perform essential functions;
• Depending on the circumstances, consider describing some recent performance issues.
Direct Threat Analysis
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● An employer need not hire or employ individuals with disabilities if they pose a “direct threat,” but this is a high standard and requires an individual assessment.
● A “direct threat” means a “significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation.”
● A finding of “direct threat” must be based on the best available objective medical evidence that relies upon the most current medical knowledge.
● Factors to consider include the likelihood, severity and imminence of harm.
Direct Threat Analysis
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• “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
• DO NOT RUSH TO JUDGMENT: The REQUEST FOR A MEDICAL EXAM and determination that an individual poses a direct threat must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical/specialized knowledge and/or the best available objective evidence (including asking the employee for evidence of their qualifications).
• Identify the specific behavior that would pose a direct threat.• A history of or being treated for a psychiatric disability does not,
alone, pose a “direct threat.”
Accommodation Takeaways
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• Have a detailed policy on reasonable accommodation • EEOC will look for it
• Train managers to recognize requests for accommodation and immediate next steps
• Establish an effective structure for handling the interactive process Identify who will participate and train all participants
• Know when to ask for medical documentation, what to ask for and how to evaluate it
• Adapt to each individual case
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QUESTIONS?