REASONABLY ACCOMMODATING EMPLOYEES Webinar Wednesdays REASONABLY ACCOMMODATING EMPLOYEES Anna Elento-Sneed April 2017

Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary May 15, 2019

DISCUSSION TOPICS Accommodation Obligations, In General Accommodating Religion Accommodating Disabilities Accommodating Pregnancy Accommodating Victims of Domestic Violence or Sexual Abuse Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary May 15, 2019

ACCOMMODATION OBLIGATIONS What is “Reasonable Accommodation”? Process mandated by federal and state law for certain protected classifications Accommodations are supposed to “level the playing field” to enabled the individual to perform the essential functions of the job Protected Classifications Entitled to Reasonable Accommodation Religion Disability Pregnancy Victim of domestic violence or sexual abuse

ACCOMMODATING RELIGION Interactive Process Employee must make employer aware of need for accommodation Employer must then offer accommodation that reasonably accommodates religious practice Employee must cooperate as long as accommodation is effective Failure to accommodate only excused for “undue hardship”

ACCOMMODATING RELIGION Examples of Accommodation Flexible scheduling Start and end times Floating or optional holidays Flexible work breaks Working lunch in exchange for early departure Make up time lost due to religious observance Voluntary substitutes and swaps of shifts, assignments, etc. Lateral transfer and/or change of job assignment Modifying workplace practices, policies and/or procedures

ACCOMMODATING RELIGION Defenses to Failure to Accommodate Undue hardship Competing rights of other protected classifications (new) Documents to Keep (part of employee file) Job description Request for accommodation Correspondence on interactive process Final decision on accommodation Memorandum/log of all accommodations provided

ACCOMMODATING DISABILITIES Who is Protected by the ADA & State Disability Law? There are different definitions of “disability” under federal and state laws Only persons who have a current and significant impairment of a major life function/activity are protected List of bodily functions include immune, circulatory, respiratory, neurological, endocrine, reproductive systems, etc.) List of activities include walking, seeing, hearing, speaking, breathing, thinking, learning, working, etc. Mitigating measures are ignored when determining disability status Exception: Eye glasses and contact lenses Never assume disability status – stick to the “interactive reasonable accommodation process”

ACCOMMODATING DISABILITIES What is the Interactive Reasonable Accommodation Process? QID asks for accommodation & provides medical verification Employer, QID & doctor identify precise job-related limitations Employer, QID & doctor identify possible accommodations QID indicates preference, but employer makes ultimate decision

ACCOMMODATING DISABILITIES 1a. QID Asks for Accommodation Assume employees are capable of performing work unless they ask for accommodation Employees do not have to specifically say “reasonable accommodation” If employer knew or should have known employee may need accommodation, knowledge is imputed Knowledge of supervisors & managers = company knowledge Once you know or should know the employee may be seeking accommodation, then you must act Train managers & supervisors to contact HR

ACCOMMODATING DISABILITIES 1b. Employer Asks for Medical Verification from Health Care Professional Send written request to QID’s treating physician asking for information Tell doctor you need ADA opinion Provide detailed information about job & essential functions Give doctor written job description Describe work environment & performance standards Provide doctor with federal & state regulations on reasonable accommodation

ACCOMMODATING DISABILITIES 2a. Written Verification from Doctor should: Identify physical or mental impairment Describe nature & severity of impairment Specify duration or expected duration of impairment, including permanent or long-term impact Identify the essential job functions that cannot be performed due to the impairment Identify possible accommodations that will enable the QID to perform the essential job functions

ACCOMMODATING DISABILITIES 2b. Review Verification -- Use “I-D-E-A” “I” is for Impairment Whether the individual has a physical or mental impairment “D” is for Disabling Whether the impairment is permanent or chronic “E” is for Essential Function Whether the impairment affects the individual’s ability to perform the essential functions of his/her job “A” is for Accommodation Obligation to accommodate

ACCOMMODATING DISABILITIES Examples of Accommodation Making facilities accessible PT or modified work schedules Acquisition of equipment or devices Adjustment or modification of exams, training materials or policies Providing qualified readers, interpreters & other attendants Permitting use of accrued leaves or providing additional unpaid leaves Reserved parking spaces Allowing individual to use his/her own equipment, aids or services Job restructuring by reallocating or redistributing non-essential functions Reassignment to vacant position

ACCOMMODATING DISABILITIES Discuss & Select Reasonable Accommodation QID may indicate preference QID may offer to bring his/her own equipment QID may offer to cost share Ultimate decision is for employer Selected accommodation must enable QID to perform essential job functions

ACCOMMODATING DISABILITIES Defenses to Failure to Accommodate Person not otherwise qualified Individual cannot perform essential functions “Undue hardship” Individual refuses reasonable accommodation Conflicting federal laws and/or regulations Individual poses “direct threat” “Direct Threat” Defense Refers to a significant risk of substantial injury to self and/or others than cannot be mitigated by reasonable accommodations Requires medical verification Must send “direct threat” regulations to doctor and require written opinion

ACCOMMODATING DISABILITIES Documents to Keep (Confidential Medical File) Job description Request for accommodation Correspondence on interactive process Medical opinions and records Final decision on accommodation Memorandum/log of all accommodations provided

ACCOMMODATING DISABILITIES Remember Disabilities Change Verification & interactive reasonable accommodation process should be periodically updated Document the process Changes in the nature and extent of the disability Changes in accommodation requests Changes in reasonable accommodations provided

ACCOMMODATING PREGNANCY DISABILITIES Process is similar to other disabilities Employee informs employer accommodation is needed Employer, employee & doctor identify precise job-related limitations Employer, employee & doctor identify possible accommodations Employee indicates preference, but employer makes ultimate decision Failure to accommodate only excused for “undue hardship” “Direct threat” is not a defense Accommodations will change over time … and end, in most cases Documentation should be kept

DOMESTIC VIOLENCE/ABUSE VICTIMS Accommodations outlined in statute (HRS Sections 378-72 and 378-81) Unpaid leave of absence (5 days for small employer, 30 days for larger) Changing contact information for employee (telephone, fax, email) Screening telephone calls Restructuring job functions Changing work location Installing locks and other security devices Allowing employee to work flexible hours Defenses Undue hardship Documentation should be kept

ANY QUESTIONS? Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary May 15, 2019