JAN is a service of the U.S. Department of Labors Office of Disability Employment Policy. ADA UPDATE JAN welcomes Jeanne Goldberg, Senior Attorney Advisor, from the U.S. Equal Employment Opportunity Commission. 1

See earlier JAN webcasts reviewing recent ADA case law: October 9, ADA Update: April 3, Best Practices in the Employment of People with Disabilities in the Federal Government: Mar13 Mar13 ADA Update

Protections for individuals with disabilities No disparate treatment or harassment based on a physical or mental impairment (as long as not both transitory and minor) Reasonable accommodation absent undue hardship (for impairments that substantially limit a major life activity) Qualification standards that screen out an individual based on disability must be job- related and consistent with business necessity 3 Basic Provisions

Protections for all applicants and employees of covered entities: Rules about when employer can ask for medical information, and how much (disability-related inquiries and medical exams) Medical information kept confidential No retaliation 4 Basic Provisions

Employer never has to retain an employee in a position if not qualified. To be qualified, employee must satisfy the requisite skill, experience, education, and other job-related requirements, and be able to perform the essential (or fundamental) functions of a position (with accommodation, if needed). 5 Qualified

This issue most often arises when: Employee requests to be excused from performing job duty due to medical condition; or Employer believes employee is not able to perform job duty due to medical condition Qualified 6

Employer never has to eliminate an essential function of a job as an accommodation. Employer never has to or lower production standards (quantity or quality) as an accommodation. Individualized assessment: Do not make assumptions about what an applicant or employee can or cannot do based on their medical condition. 7 Qualified

But remember: Employee can be qualified even if needs accommodation to perform the job. 8 Qualified

Relevant information in determining whether a function is essential may include: Employers judgment Terms of a written position description Terms of a collective bargaining agreement Experience of current or past employees Amount of time spent performing the function Consequences of not performing the function 9 Essential Functions

If accommodation requested involves removing a duty, is it an essential function? If so, it need not be removed, but can employee be accommodated to perform it? If employee cannot be accommodated in current position, can he be reassigned to a vacant position for which he is qualified (the accommodation of last resort)? 10 Essential Functions

Direct Threat: An employer may reject a job applicant or exclude an employee with a disability from a particular position if the person poses a direct threat to health or safety (i.e., a significant risk of substantial harm to self or others) NOTE: An individual is not a direct threat if there is a reasonable accommodation the employer could provide absent undue hardship that would reduce the risk below this level 11 Safety and Fitness Concerns

What to consider: The particular applicant's or employee's present ability to safely perform the essential functions of the job based on objective evidence and reasonable medical judgment The duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm 12 Assessing Direct Threat

Majors v. General Electric Co. (7th Cir. April 16, 2013) (employee with lifting restrictions not qualified because she could not lift heavy objects, which the court found to be an essential function of her auditor position; because it was an essential function, it would not be a reasonable accommodation to have another person perform the task for her). Recent Case Illustrations 13

Keith v. County of Oakland (6th Cir. Jan. 10, 2013) -- deaf individual who passed employers own life guard training and certification program may be qualified as life guard with accommodations; county may have violated the ADA by rescinding its conditional offer of employment based on recommendation of doctor it hired to conduct post-offer medical exam, who without an individualized assessment stated hes deaf; he cant be a lifeguard -- expert witnesses explained that in noisy swimming areas, recognizing a potential problem is almost completely visually based -- testimony was also offered by an associate professor from Gallaudet University who had certified 1,000 deaf lifeguards through American Red Cross programs, and who noted that the world record for most lives saved by a lifeguard is held by a deaf man, who saved over 900 lives in his lifeguarding career 14 Recent Case Illustrations

Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013) (in light of uncontrolled frequent seizures notwithstanding employers attempted accommodations, plaintiff was not qualified to work as mammography technologist, which included operating sophisticated medical machinery and tending to the physical and emotional needs of patients). EEOC v. Western Trading Co. (jury verdict of $109,000 entered March 10, 2013) (employer discriminated against new retail employee when it refused to allow him to return to work following a seizure at work and one during off-duty hours, notwithstanding repeated releases from his doctors). 15 Recent Case Illustrations

Szarawara v. County of Montgomery, 2013 WL (E.D. Pa. June 27, 2013). -- application of amended EEOC regulations -- plaintiff's diabetes likely a substantially limiting impairment -- qualified: job description requirement to work various shifts and rotating schedules does not automatically mean working night shift is essential function -- accommodation: employee did not have to exhaust other health measures before asking for accommodation at work 16 Recent Case Illustrations

Koessel v. Sublette County Sheriffs Dept. (10th Cir. May 14, 2013) (patrol officer who had stroke was not qualified due to cognitive limitations that became apparent after he returned to work). McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012) (…under the ADA, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment, even when such misconduct is related to a disability. A requested accommodation that simply excuses past misconduct is unreasonable as a matter of law.) 17 Recent Case Illustrations

Recognizing Accommodation Requests: Accommodation request is a request for some sort of change for a medical reason; request need not be in writing and need not contain any magic words Tips for recognizing requests 18 Accommodation Requests

Request may be made at any time during the application process or during employment, including if the employee is having performance difficulties But accommodation is always prospective – request is too late once performance or conduct warrants termination An employee does not lose the right to request an accommodation because he did not do so during the application stage Employees may make more than one request for reasonable accommodation Timing of Requests 19

Does the Requesting Employee Have a Disability? When considering if an individual who has requested accommodation has an impairment that substantially limits a major life activity or has a record of same, remember the changes made by the ADA Amendments Act of 2008 Now the definition of disability shall be construed broadly and should not demand extensive analysis 20 Disability

Congress Made 4 Changes To Substantially Limited in a Major Life Activity: 1.Need not be a severe limitation or significantly restricted 2.Major life activities include major bodily functions 3.Ameliorative effects of mitigating measures not considered 4.Impairments that are episodic or in remission are substantially limiting if they would be when active 21 Disability

Dont Rely on Pre-ADAAA Case Law on Coverage See EEOC revised ADA regulations 29 C.F.R. Part 1630 and Q & A: mall_business.cfm See webinar handout with examples of post- ADAAA case law 22 Pre-ADAAA Case Law

When and How Much Medical Information Can the Employer Ask for in Support of An Accommodation Request? ADAAA has not changed the legal rules regarding when and how much medical information employers can request if accommodation is requested. If not obvious or already known, an employer may obtain reasonable documentation that an employee has a disability and needs the accommodation requested. 23 Medical Information

Employer may ask employee to obtain information from treating health care provider, or ask employee to sign limited release allowing employer to contact doctor directly. For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations as well as what accommodation might be effective, and for how long it may be needed. Medical Information 24

Physical modifications Sign language interpreters and readers Assistive technology and modification of equipment or devices Modified work schedules Making exceptions to policies Job restructuring (swapping or eliminating marginal functions) Changing supervisory methods Job coach Telework Leave Reassignment to a vacant position (last resort) Examples of Accommodations 25

Lowering production or performance standards (but pro- rate production requirements for period of leave as an accommodation, and provide accommodation if requested to meet the standards) Excusing violations of uniform conduct rules that are job- related and consistent with business necessity (but provide accommodation if requested to meet the standard) Removing an essential function Monitoring an employees use of medication Providing personal use items Changing someones supervisor (though changing supervisory methods may be required) Actions that would result in undue hardship (i.e., significant difficulty or expense) Actions Not Required as an Accommodation 26

Factors: Nature and cost of the accommodation (significant difficulty or expense) Resources available to the employer overall (not just individual department) Impact of the accommodation on operations Undue Hardship 27

Employer should engage in an interactive process with the individual asking for the accommodation. May involve determining (1) whether the requester has a disability, (2) whether requested accommodation is medically needed, and/or (3) what accommodations are possible. Implications of good faith provision in 42 U.S.C. Section 1981a. Interactive Process 28

If employee only knows the problem, not the solution, employer must search for possible accommodations If employee specifies particular accommodation but it is one that legally need not be provided (e.g., request to lower production standards), employer must offer an alternative accommodation if one exists that would not pose an undue hardship -- search for and consider alternative accommodations 29 Keys to the Interactive Process

McMillan v. City of New York (2d Cir. March 4, 2013) (employees request for flexible arrival time and departure times could be reasonable and would not pose an undue hardship in light of the nature of the job and his work history). Goonan v. Federal Reserve Bank of New York, 2013 WL (S.D.N.Y. Jan. 7, 2013) (denying employers motion to dismiss, court ruled that claim for ADA violation could proceed based on allegations that employer denied telework accommodation on ground that employee had poor performance, and failed to consider alternatives when put on notice that the alternative accommodations it provided instead of telework were ineffective). 30 Recent Case Illustrations

Employer has discretion to choose among equally effective accommodations where there is more than one possibility. Respond to requests promptly, as undue delay may constitute a denial of accommodation. 31 Selecting an Accommodation

Cloe v. City of Indianapolis (7th Cir. April 9, 2013) (employer complied with the ADA by providing alternative reasonable accommodations rather than exactly what employee requested; employer acted with reasonable speed to come up with another accommodation when it learned that something it provided was insufficient; but possible retaliatory termination). Yovtcheva v. City of Philadelphia Water Dept. (3d Cir. May 7, 2013) (employer offered reasonable alternative but employee refused to try it, so employee could not prevail on claim). 32 Recent Case Illustrations

Dont make assumptions about the individuals limitations, what jobs can be performed, or what accommodations are possible without undue hardship. Communicate, exchange information, search for solutions, consult resources as needed. AskJAN.org Keys to the Interactive Process 33

Jeanne Goldberg Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission (202) Contact Information 34

ADA Update Contact (800) (V) (877) (TTY) AskJAN.org & (304) via Text janconsultants via Skype 35