Accommodating HR Through the World of the ADA & ADAAAc.ymcdn.com/sites/ · Accommodating HR Through...
Transcript of Accommodating HR Through the World of the ADA & ADAAAc.ymcdn.com/sites/ · Accommodating HR Through...
Accommodating HR
Through the World of
the ADA & ADAAA
2015 PHRA Annual ConferenceMario R. Bordogna, Steptoe & Johnson
PLLC
Accommodating HR: A Roadmap
• Fundamentals of the ADA
• How the ADAAA changed the landscape
• The interactive process
• Specific challenges
• A parting gift
Fundamentals of the ADA
Employers w/15 or more employees
prohibited from discriminating against
otherwise qualified employees or
applicants with a “disability” in hiring, firing,
compensation, training, or other terms,
conditions or privileges of employment
Fundamentals of the ADA
Definition of a “disability”:
• Physical or mental impairment which
substantially limits 1 or more major life
activities;
• Having a record of such an impairment; or
• Being regarded as having such an
impairment
Fundamentals of the ADA
Definition of a “qualified employee”:
A person who can perform the essential
job functions or requirements with or
without a reasonable accommodation
Fundamentals of the ADA
Battleground used to be over whether
employee was actually disabled
“Substantially limits” was strictly construed
by the Courts (Sutton, etc.), as was “major
life activity”
Result? --- >> Little ADA coverage
How the ADAAA Changed the
Landscape
Generally
Overturned several U.S. Supreme Court decisions
which had narrowly interpreted “disability”
“Substantially limits” no longer needs to severely or
significantly restrict a major life activity
Mitigating measures – except glasses – don’t matter
How the ADAAA Changed the
Landscape
Specifically
Major life activities include not just things like
walking, breathing, and thinking, but the operation
of major bodily functions, like digestive and
immune systems
Temporary conditions lasting < 6 months can be
substantially limiting
The side effects of medication may be considered
How the ADAAA Changed the
Landscape
Specifically
“Regarded as” no longer requires regarding an
employee’s condition as substantially limiting, but
employers can still defend one of these claims on
the ground that the condition lasts < 6 months, and
employees claiming this prong of coverage are not
required to be provided a reasonable
accommodation
How the ADAAA Changed the
Landscape
The Bottom Line
The EEOC is on record as stating that the focus
should no longer be on whether an employee has
a disability, and that because the ADAAA
significantly broadened the meaning of that term
(& coverage under the ADA), it should be on
reasonable accommodation
Courts have followed the agency’s lead
The Interactive Process
Generally
Once an accommodation is requested (or obvious),
working together with your employee in good-faith
by
having an interactive, back-and-forth exchange
about his
or her limitations and needs in order to determine
whether or not a reasonable accommodation exists
for the employee to work in his or her present job, or
possibly in another position
The Interactive Process
Step-By-Step
• Understanding an employee’s
limitations/restrictions
- Get information from the employee individually
- Get information from the employee’s physician* BE SPECIFIC IN PROVIDING INFORMATION ABOUT THE ESSENTIAL
DAY-TO-DAY JOB FUNCTIONS TO THE EMPLOYEE’S MEDICALPROFESSIONAL
The Interactive Process
Step-By-Step
• Get input from the employee on what he or she
feels is needed as an accommodation in order to
perform the work
The Interactive Process
Step-By-Step
• Examine the essential and non-essential functions
of the employee’s position to determine whether or
not his or her limitations can be accommodated
Have these specifically listed in a job
description!
The Interactive Process
High points of determining whether modifications are feasible
- Modifications to job functions (duties, timing)
- Changes to work environment (seating, location, etc)
- Alterations to hiring process (applications, interview
process, etc)
- Transfer to an open position for which the employee is
qualified
The Interactive Process
What employers DON’T have to do:
- Create a position for the employee
- Move other employees to accommodate the disabled
employee in an existing position/in connection with a
transfer
- Violate seniority or similar provisions in a CBA
- Hire other employees or work other employees harder or
longer
- Grant the employee’s preferred accommodation
- Change, alter or eliminate essential job functions
The Interactive Process
UNDUE HARDSHIP
EEOC: Undue hardship requires “significant
difficulty or expense”
Considers the nature and cost of business
resources, the number of employees, etc.
Because the employer is almost always going to be
looked at as having meaningful resources, beware
hanging your hat only on financial hardship
The Interactive Process
Direct Threat
If providing the employee with a reasonable accommodation
would leave them a direct threat to themselves or co-
workers, accommodation is not required
- Considers duration of risk, nature/severity/likelihood of
harm
Be careful employing this as a justification for not being able
to provide a reasonable accommodation
Reliance on this basis must be clear and not speculative
The Interactive Process
Step-By-Step
4) Notify your employee of your review and
conclusions, and give the employee an opportunity
to respond in good-faith, documenting your
message and the response
The Interactive Process
Step-By-Step
• If you must sever the relationship because
accommodations are not feasible, notify the
employee of that in writing and briefly explain why
- MAKE SURE YOU CAN’T BE LOOKED AT AS HOLDING THEBAG BEFORE YOU DO!
Specific Challenges
• Mental Health Conditions
• Leave as an Accommodation
• Telecommuting
• Pregnancy
Specific Challenges
HYPOTHETICAL
You have an employee who does a lot of work on
team projects. Recently, she has had continuing
difficulty getting along with her co-workers, with 3
warnings in the last 4 months for loud outbursts
alone. At her review, the employee says she has
been diagnosed as having a form of social anxiety
disorder, and blames her difficulty with
interpersonal relationships on that condition. Can
you discipline her for another outburst? Is a
reasonable accommodation required?
Specific Challenges
Mental Health Conditions
1 in 4 people deal with a mental health disorder
each year according to the National Alliance for
Mental Illness
Depression is the leading cause of disability for
people between 15-44 in the United States
Specific Challenges
Mental Health Conditions
DSM V: Recognized conditions like Caffeine
Withdrawal and Social Communication Withdrawal
as medical disorders
Conditions like these are being considered
disabilities under the ADA/ADAAA more and more
frequently
Specific Challenges
Mental Health Conditions
Tips on managing:
1) Take them as seriously as physical disabilities;
2) List less tangible functions like
communication, teamwork, interpersonal
communication, attendance, and getting along
among your essential job functions
3) Focus objectively on job performance
4) Think outside the box on accommodations
(e.g., reducing distractions, combining breaks,
Specific Challenges
HYPOTHETICAL
Your employee breaks his foot in an off-work
incident. He is not eligible for FMLA. He takes all
the medical leave your policies permit him to take,
including 2 weeks of paid leave & 2 weeks of
unpaid leave. On the eve of his return to work, his
doctor says his break hasn’t healed yet and he’ll
need 6 more weeks off with the possibility of
surgery thereafter. Must you grant him additional
unpaid leave as a reasonable accommodation?
Specific Challenges
Leave as an Accommodation
Accommodation issue most in the spotlight
EEOC/Courts recognizing additional unpaid leave
as a potential accommodation
- 6/9 months have been recognized
Specific Challenges
Leave as an Accommodation
When is additional leave an undue hardship?
No bright line rules apply
Don’t forget this analysis for post-FMLA situations
Specific Challenges
HYPOTHETICAL
Your employee buys parts for you – a job that
requires interaction with suppliers/co-workers. Her
attendance and performance have been spotty, but
recently she was diagnosed w/IBS and has had
increasing difficulty w/digestive control. You offered
to move her closer to the restroom, or give her a
different position she is qualified for. She rejected
those options and asked to work from home. Is
that a reasonable accommodation?
Specific Challenges
Telecommuting
Factors to consider:
1) Is face-to-face interaction required?
2) Can the employee be supervised remotely?
3) Is interaction with other employees required?
4) What technology is available?
Specific Challenges
Telecommuting
EEOC v. Ford Motor Co. (6th Cir panel, 4-22-14)
- In overturning dismissal of ADA claim 4 employer:
1) Employer business judgment claiming
presence in workplace required isn’t enough
2) Technology changing where workplace is
3) Requiring attendance is ok, but doesn’t
mean it must be at brick-and-mortar location
Sept ‘14, decision vacated; full court
reconsidered
Specific Challenges
Telecommuting
EEOC v. Ford Motor Co. (6th Cir FULL Court, 4-10-
15)
- Panel decision reversed; Judgment for employer:
1) Employer business judgment supported
here
2) Disabled employees not entitled to set
schedule
3) Requiring attendance on-site for teamwork
& interaction is ok, part of employer discretion, &
Specific Challenges
Pregnancy
Not just an FMLA issue; ADA implicated, too
Unfortunately, legal confusion is everywhere right
now:
1) EEOC released new guidance 7/14/14 (last in
‘84)
2) U.S. Supreme Court heard Young v. UPS in
3/2015
(4th Cir first, 1-9-14; 4th Cir remand 4-10-15)
3) State/local laws
Specific Challenges
Pregnancy
Where do accommodations fit in?
EEOC takes the position you must treat employees
temporarily unable to perform their job due to
pregnancy the same as you would treat other
temporarily disabled employees not able to work
EEOC also takes the position that impairments due
to pregnancy may require reasonable
accommodation
Specific Challenges
Pregnancy
How about Young v. UPS?
Plaintiff was a UPS package delivery driver; job
required her to lift 70 lbs. When she became
pregnant, she was given a 20 lb lifting restriction.
UPS didn’t allow her to return to work because
lifting was an essential function of her job, and it
treated the pregnancy the same as any other non-
work injury. Ultimately, it discharged her.
4th Circuit upheld District Court’s denial of PDA claim
Specific Challenges
Pregnancy
Will the EEOC’s position or Young even matter?
Many state laws provide more protection than the
ADA, including requiring employers to provide
reasonable accommodations for pregnant
employees
Pennsylvania doesn’t have a statewide law on this,
but Pittsburgh has one if you work for the City
(passed fall 2014)
A Parting Gift
There is a distinction between claims brought
under the ADA-ADAAA and claims brought
under the PHRA
The definition of disability under the PHRA is still
judged under the pre-ADAAA standard (Riley v.
St. Mary’s Medical Ctr., M.D. Pa. 5-27-14)
Translation?: Continues to be harder to prove
existence of disability on claims under the PHRA
THANK YOU
Mario Bordogna: 304-598-8165 (Direct)
http://www.sjlaboremploymentblog.com
Twitter: @SJEmpEssentials