©2017 Jackson Lewis P.C. 1 - CBIA...• Accrual formula: 1 hour PSL for every X hours worked. •...

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

[email protected]| 860-522-0404


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


TRENDING: Continued Development Of Paid Sick Leave Laws


TRENDING: Continued Development Of Paid Sick Leave Laws-KIBOSH States


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


• 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


• 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


• 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


• 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


• 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


• 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


https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=0ahUKEwj2-PDvtpTVAhWlrlQKHaQ0B-0QjRwIBw&url=https://www.bringyourdogtoworkday.co.uk/&psig=AFQjCNH5EM-yi6oTxYjeBnmgaMlVJEU8dQ&ust=1500522127440481

Trending: Emotional Support andComfort Animals At Work


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


• 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


• 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


● 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


• “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


• 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


QUESTIONS?

©2017 Jackson Lewis P.C. 1 - CBIA...• Accrual formula: 1 hour PSL for every X hours worked. •...

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