Presented by:

Presented by:Natalie Ivey, MBA, SPHR

How to Determine What is a

Reasonable Accommodation

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Current Issues2011: EEOC received the most discrimination

claims in its 46-year historyRetaliation and disability claims were the two

highest instances of discrimination claimsCase law involving employer’s failure to grant

reasonable accommodations:EEOC v. Mercy HospiceTaylor v. Phoenixville School DistrictBultemeyer v. Fort Wayne Community SchoolsEEOC v. Verizon

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Paid $20 million to settle a disability discrimination case after the EEOC claimed Verizon’s “no fault” absenteeism policy discriminated against disabled workers. Because Verizon did not make exceptions to the policy --and disabilities were responsible for employee absences—the EEOC claimed that the company didn’t provide reasonable accommodations for people with disabilities

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The ADAAA

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Effective 1/1/2009; regs issued 3/25/2011 and effective 5/24/2011

Reverses Supreme Court rulingsCourts to “broadly” construe definition of disability in

favor of ADA coverageExcept for eyeglasses or contacts, mitigating measures no

longer consideredExpanded definitions of:

Substantially limitsMajor life activitiesRegarded as

ADA Amendments Act (ADAAA)

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EEOC, citing legislative history, emphasizes that, “The primary purpose of the Amendments Act was to make it easier for people with disabilities to obtain protection under the ADA.” 29 C.F.R. Part 1630, Appendix §1630.1(c)

Congress wants employers and the Courts to focus their attention on the meritsEngaging in the interactive process; whether

there is a reasonable accommodation; whether the employer engaged in discrimination

Purpose Of The ADAAA6

EEOC estimates that 12 to 38.4 million more individuals will be protected under the ADAAA Generating 400,000 to 1 million more accommodations per year

The cost of these additional accommodations is estimated at $60-183 million, not including training and legal costs

EEOC calculates that the individual, productivity, and societal benefits will be far greater

Effect Of The ADAAA

Source: EEOC.gov

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Assume that any employee with a physical or mental condition might be covered by the ADA, and shift your focus to

the merits rather than coverage

ADAAA Best Practice8

Defining a Disability

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A physical or mental impairment that substantially limits one or more of a person’s major life activities

A record of having such an impairment Being regarded as having such an impairment42 U.S.C. §12102

What Is A “Disability”?10

Physical Impairment:“…any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1)

What Is An “Impairment”?11

Mental Impairment:“…any mental and psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.”29 C.F.R. § 1630.2(h)(2)


Keyword “any” makes the definitions extremely broad

Lists are not exhaustive


Must be a mental condition recognized as valid by mental health professionals

Diagnostic and Statistical Manual (DSM IV) is the standard reference guide

For example: paranoid schizophrenia, bi-polar affective disorder, depression, anxiety neurosis, panic disorder, post-traumatic stress disorder

Mental Impairment 14

XPhysical characteristics like eye color, hair color, etc. are not impairments

XPersonality traits like bad temper, etc. XEnvironmental, cultural, and economic characteristics

(poverty, lack of education, illiteracy, or a prison record)

Not Impairments 15

XPregnancy is not an impairment, however…XPregnancy-related impairments are potentially

covered under all three prongs if other requirements are met

XAdvanced age is not an impairment, however…XVarious medical conditions commonly associated

with age such as hearing loss, osteoporosis, and arthritis are impairments

Not Impairments 16

Caring for oneselfPerforming manual tasksSeeingHearingEatingSleepingWalkingStandingLifting

Major Life Activities:The List Expands

Bending Speaking Breathing Learning Reading• Concentrating• Thinking• Communicating• Working• Interacting with others

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Job Descriptions

Affirmative defense for employers!

Clarify the “non-negotiable” Essential Job Duties that must be performed

Without clarifying the Essential Job Duties, the accommodation issues become increasingly challenging to handle

Clear, concise, well-written job descriptions facilitate sound decision-making and minimize risk of litigation

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Big Change with ADAAA:

Major Bodily Functions

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ADAAA’s non-exhaustive list includes: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions

EEOC regs add special sense organs and skin; as well as cardiovascular, hemic, lymphatic, musculoskeletal functions

Operation of a major bodily function includes the operation of an individual organ within a body system

Major Life Activities:Major Bodily Functions

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Before the ADAAA, courts looked at the following factors:Nature and severity of the impairmentDuration or expected duration of the impairmentPermanent or long-term impact, or the expected permanent or long-term impact, of - or resulting from - the impairment

Substantial Limitation 21

Congress found that the EEOC’s prior definition of “substantially limits” as “significantly restricted” set too high a standard

Under the ADAAA, “substantial limitation” is:Less than “severe” or “significant” but…Greater than “moderate”

Substantial Limitation 22

EEOC has set out nine rules to use in interpreting the ADAAA:1.“Substantially limits” is not a demanding concept, and “shall be construed broadly in favor of expansive coverage”2.An impairment must substantially limit just one major life activity “as compared to most people in the general population”3.Determining disability “should not demand extensive analysis”

The primary focus is on the employer’s obligations

ADAAA’s Nine RulesOf Construction

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4. The determination must be an individualized assessment, but requires a lower degree of functional limitation than before the ADAAA

5. The comparison to the general population will usually not require scientific, medical, or statistical evidence

6. Do not consider the ameliorative effects of mitigating measures

Except for ordinary eyeglasses or contact lenses


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7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

8. An impairment that substantially limits one major life activity need not substantially limit other major life activities

9. The six month “transitory” definition does not apply to actual disability or record of cases

The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting


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EEOC says these nine rules should:Lead to more “predictable, consistent, and workable assessments” Provide more generous coverage and application of the ADA’s prohibition on discrimination

Why The Nine Rules?26

Temporary, non-chronic conditions of short duration that have little or no long-term or permanent impact are typically NOT impairmentsFor example: flu, pneumonia, broken bones,

appendicitis, sprained joints, concussions, etc. Under ADAAA, must last for several months to be

considered “substantially limiting”

Temporary OrIntermittent Conditions

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A Temporary or Intermittent condition is an impairment that is “episodic or in remission is a disability if it would substantially limit a major life activity when active” e.g., cancer, epilepsy, lupus, asthma

Temporary OrIntermittent Conditions

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Don’t nit-pick whether the condition is a disability — it probably is

Focus on accommodationsRequest documentation from qualified medical personnel

before making accommodationsKeep an open mind in the interactive processEvery employee request and every adverse job action

based upon a medical condition should be considered as a potential ADA claim

ADAAA Best Practices29

Defining Reasonable

Accommodations

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Making existing facilities accessible to individuals with disabilities

Job restructuringPart-time or modified work schedulesReassignment to a vacant positionAcquisition or modification of equipment or devicesAppropriate adjustment or modification of examination, training

materials, or policiesThe provision of qualified readers or interpretersGranting additional time off from work

What Is A Reasonable Accommodation?

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EEOC v. Mercy Hospice, Case No. 2:12CV13803), filed in U.S. District Court for the Eastern District of Michigan

Charged that Mercy Hospice in Bloomfield Hills, MI, terminated Patricia Barriger when she tried to return to work from a medical leave of absence.

Instead of providing her with a reasonable accommodation, the company discharged her because, according to the company, she was an inactive employee who was not entitled to an accommodation.

Reasonable Accommodation Case

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XCreating a new jobXBumping another employeeXPromoting the disabled workerXProviding personal equipment (wheelchair, hearing aid,

etc.)XEliminating essential functionsXLowering production or performance standardsXExcusing misconduct

Not Reasonable Accommodations

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Be creativeConsider past practices

How has the company handled similar situations in the past?Consider present effects

CostImpact on other employees and operations

Consider future impactCreation of a precedent: Is the company willing to provide

the same accommodation in the future?

Job Restructuring34

Examples of technological modifications:Special phones, recorders, clocks, computers, etc.

Examples of modifications to facilities:Seating, storage, work stations, emergency/disaster

preparednessExamples of modifications to equipment:

Information displays, communication devices, controls

Facilities And Equipment 35

Allowed only if employee cannot be accommodated in current job

Employee must be qualifiedPosition must be vacant

Bumping not requiredEmployer entitled to follow internal policy and bidding

procedure to select best candidatePreferential treatment not required

Reassignment36

Consider past practiceHow has the company handled similar situations in the

past?Consider present effect

CostImpact on other employees and operations

Consider future impactCreation of a precedent: Is the company willing to provide

the same accommodation in the future?Raspa v. Office of the Sheriff of the County of Gloucester

decision (N.J. 2007)

Light Duty And Leaves 37

Is attendance an essential function?How long must an employer hold a position open?Is a part-time schedule an accommodation?Shift change because of commuting difficulties may be

reasonable accommodationColwell v. Rite Aid Corp., 3d Cir. 2010

Location, Schedule, Process38

The burden is on the employer to recognize an accommodation request

No formalities are requiredAccommodation requests need not come directly from

the employeeSpouseParentPhysicianJob coach

What Is A RequestFor Accommodation?

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Employers should be proactiveTrain managers on how to recognize accommodation

requests and how to handle themRefer to HR, Occupational Health, or other

appropriate official

What Is A RequestFor Accommodation?

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Bultemeyer v. Fort Wayne Community SchoolsThe 7th Circuit recognized that the communication

process in requesting accommodations "becomes more difficult" for people with mental disabilities. (100 F3d 1281, 1285 (7th Cir. 1996)

Accommodating Mental Disabilities

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Taylor v. Phoenixville School District184 F.3d 296 (3d Cir. August 18, 1999)

The U.S. Court of Appeals for 3rd Circuit ruled that the employer was liable for not "engaging in the interactive process" with an employee with biploar disorder.

The employee had not provided sufficient details regarding her condition... The court explained that "an employee with a mental illness may have difficulty effectively relaying medical information about his or her condition, particularly when the symptoms are flaring and reasonable accommodations are needed."


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Greater burden on the employer to recognize accommodation requests

The word “accommodation” does not have to be used and no formalities are necessary to constitute a “request”

Supervisors must know to ask, “what can I do to help you with your performance?” so they initiate the interactive discussion and engage in dialogue to determine if an accommodation is needed

Leveraging HR to sit in on interactive discussions is a good idea, unless managers are well trained to handle


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Employers can still require documentation to support the claim of disability and the need for accommodationThe amount of medical evidence needed will be

lower than beforeThere must still be an individualized inquiry and

an interactive process to determine what accommodations are appropriate and needed

Accommodation Process Has Not Really Changed

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The Interactive Process

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Compare restrictions to essential functionsIdentify any essential functions that person cannot performConsult with in-house and outside experts to find out if

there is any technical assistance that could enable person to do essential functions

If not, look at all open positions to see if one is suitable, given medical restrictions—this is not required by ADA—but a good, best practice

Website Resource: Job Accommodation Network (JAN) http://askjan.org

Outline Of TheInteractive Process

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Get an expert determination regarding whether there is any technical assistance that could enable person to do essential functions of open positionsIf not, perhaps put person on leave for three to six

monthsKeep an eye out for new openings that might be suitableAt end of leave, if no change in medical restrictions,

terminate

Outline Of TheInteractive Process

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Responding should not be more complicated than necessary

May involve the employee and othersFamily membersCounselorUnion rep

A request for an accommodation allows the employer to make medical inquiries

Tip: Ask the employee how you can help him or her perform their job!

The Interactive Process48

Failure to engage in the interactive process has significant legal consequences

Some courts have held such failure is a per se ADA violationEEOC views this as a violation

Some courts have found that employers’ failure to engage in the interactive process constitutes evidence of bad faith

The Interactive Process49

Employer may require medical documentation:Specifying the existence of an ADA disabilityExplaining the need for reasonable

accommodationMedical exam must be:

Job-relatedConsistent with business necessityPaid for by employer

Medical Exams AndThe Interactive Process

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To what extent must the union be involved in the interactive process?

What if the employee approaches the employer directly?

What if the employee and the union disagree?Does an accommodation trump seniority rights?

Collective Bargaining Agreements

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Factors for consideration:Net cost - Taking into consideration the availability of tax credits and deductions and/or outside fundingType of business, financial resources, the number of persons employed, and the effect on expenses and resources Impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business

Defining An Undue Hardship 52

An employer must choose an effective accommodation

Failure to accept effective accommodation may classify an employee as “not a qualified individual”

Employees may refuse accommodations that are not effectiveEx: Deaf employee offered notetaker instead of ASL

interpreter (EEOC v. UPS, 9th Cir. 2010)

What if an EmployeeRefuses An Offered Accommodation?

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Employer must respond expeditiously to request for accommodation

In evaluating delay, courts look at:The length of the delayThe reasons for the delayWhether the employer has offered any

alternative accommodation while evaluating a particular request

Whether the employer has acted in good faith

Time Requirements54

If delay is beyond employer’s control, no violatione.g., 90-day delivery time for adaptive

equipment

Time Requirements 55

Establish time frames and stick to themEstablish responsibility for implementation and follow-

upMaintain confidentialityRe-evaluate the duty to accommodateCommunicate the purpose of the accommodation and

expectations

Implementing Accommodations After Agreement Is Reached

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Summary

The ADAAA has expanded the list of major life activities, to include major bodily functions

Many more employees will be able to request accommodations that ever before

Accommodation requests may now include time off for receiving Invitro Fertilization Treatments, as difficulty with reproduction is considered an impairment…

With the expanded list of major life activities—the instances of fraud and employees “gaming the system” are increasing

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Summary

Employers must have clear, concise job descriptions to provide a solid foundation for decision making

Goals, objectives, and job standards must become clearer to enable supervisors to act more consistently in holding employees accountable for performance and behaviorE.g. “Must clean 15 guest rooms according to quality

assurance standards, within an 8-hour shift”HR must take ownership of implementing leadership

development training to educate supervisors and managers on how to address and document employee performance issues—and how to engage in interactive discussions

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Questions?Natalie Ivey, MBA, SPHR

www.rpchr.com

Office: (561) 208-6480

Email: [email protected]

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Professional Development Resource for HR & Employee Relations’ Managers

Following is the link to my new book featured by SHRM in the August edition of HR Magazine: http://www.shrm.org/Publications/hrmagazine/books/Pages/default.aspx

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