1. Americans with Disabilities Act (ADA) & Reasonable Accommodations
Webinar Wednesdays
Americans with Disabilities Act (ADA) & Reasonable Accommodations
Trisha Gibo, Esq.
August 9, 2017

2. Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

3. Determining who is protected
DISCUSSION TOPICS
Determining who is protected
Understanding the “interactive reasonable accommodation process”
Working with health care professionals
“Direct threats” and other special situations
Differences between federal and state laws
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November 30, 2018

4. Individuals protected by disability laws
WHO IS PROTECTED?
Individuals protected by disability laws
Qualified person with a current impairment
Qualified person with a record of impairment
Qualified person erroneously regarded as impaired
Individuals entitled to reasonable accommodation
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November 30, 2018

5. ADA Amendment Act expanded definition of “major life activity”
WHO IS PROTECTED?
“Disability” defined as a significant impairment of a major life activity
ADA Amendment Act expanded definition of “major life activity”
List of bodily functions (e.g. immune, circulatory, respiratory, neurological, endocrine, reproductive systems, etc.)
List of activities (e.g. walking, seeing, hearing, speaking, breathing, thinking, learning, working, etc.)
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

6. “Reasonable Accommodation” is an interactive process
WHO IS PROTECTED?
No longer take “mitigating measures” into consideration in determining disability
Exception for eye glasses and contact lenses
“Reasonable Accommodation” is an interactive process
Use the acronym “I – D – E – A” to identify QIDs
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November 30, 2018

7. IDENTIFYING A “QID” “I” is for Impairment
Question is whether the individual has a physiological, mental or psychological disorder or condition
Environmental, cultural, social & economic disadvantages are excluded
Employers may require medical documentation from a licensed health care professional verifying the impairment
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November 30, 2018

8. IDENTIFYING A “QID” “D” is for Disabling
Whether the impairment substantially limits either the individual’s performance of a major life activity or a bodily function
Generally permanent or chronic conditions
Activities are of central importance to daily life
Activities may be physical, mental or both
Impairment must prevent or severely restrict the activity or bodily function
Use agency lists of activities & bodily functions
Verification by a health care professional is key
Involves an “individualized” inquiry
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November 30, 2018

9. “E” is for Essential Function
IDENTIFYING A “QID”
“E” is for Essential Function
Question is whether the disability prevents the QID from performing an essential function of the job
Employer must be able to identify the essential job functions of the position
Then seek advice of health care professional to identify essential functions that cannot be performed by the QID
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November 30, 2018

10. “A” is for Accommodation
IDENTIFYING A “QID”
“A” is for Accommodation
If the answer is “yes” to impairment, “yes” to disability, and “yes” to essential function, then you must reasonably accommodate
Goal is to enable QID to perform the essential job functions
“Reasonable accommodation” selected must enable QID to perform the essential job function
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November 30, 2018

11. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
Interactive Process
QID asks for accommodation
Employer, QID & doctor identify precise job-related limitations
Employer, QID & doctor identify possible accommodations
QID indicates preference, but employer makes ultimate decision
Employer must grant request unless it creates undue hardship
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

12. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
Never Assume Disability Status
Assume employees are capable of performing work unless they ask for accommodation
Employees do not have to use “magic words” like “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
Managers must contact HR & work with them
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

13. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
Ask For Medical Verification From Health Care Professional
Send written request to QID’s treating physician asking for information
HIPAA should not be a problem if employee asks treating physician to provide information
If employee refuses to cooperate, consider sending employee to appropriate health care professional retained by Company
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

14. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
Be Specific With Health Care Professional
Tell them what type of opinion you need
Provide them detailed information about job & essential functions
Give them a written job description
Describe work environment & performance standards
Provide reasonable accommodation regulations
Check EEOC website
Check HCRC website
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

15. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
Written Verification From Professional 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
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

16. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
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
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

17. INTERACTIVE REASONABLE ACCOMMODATION PROCESS
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
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November 30, 2018

18. DIRECT THREAT & OTHER SPECIAL SITUATIONS
Grounds For Refusing An Accommodation Or Rejecting “QID”
Person is not otherwise qualified
Impairment cannot be accommodated
Federal law prohibits hiring/retention
QID refuses the accommodation
Undue hardship
Direct threat
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November 30, 2018

19. DIRECT THREAT & OTHER SPECIAL SITUATIONS
“Direct Threat” Defense
“Direct threat” refers to a significant risk of substantial injury to self and/or others that cannot be mitigated by reasonable accommodation
Requires medical judgment based on:
Current knowledge & objective evidence
Individualized assessment of present ability
Imminence of risk and severity of probable harm
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November 30, 2018

20. DIRECT THREAT & OTHER SPECIAL SITUATIONS
QID Should Be Examined By Company Selected Health Care Professional
Ask for written opinion
Provide detailed information about job
Similar to information provided when seeking “accommodation opinion”
Give details on work environment and work rules
Provide copy of federal and state regulations defining direct threat
Can get them from the websites
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November 30, 2018

21. DIRECT THREAT & OTHER SPECIAL SITUATIONS
Written Opinion Should:
Identify physical or mental impairment
Nature & severity of impairment
Expected duration of impairment, including permanent or long-term impact
Specify whether the impairment poses a risk to the individual and/or others
Describe nature, extent & imminence of the risk
Describe the severity of the probably harm
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

22. DIRECT THREAT & OTHER SPECIAL SITUATIONS
Written Opinion Should:
Explain whether the risk can be mitigated
If so, describe the possible mitigation
If not, explain why not
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November 30, 2018

23. DIFFERENCES: BURDEN OF PROOF
Federal
Burden is on the employee to prove that he/she is a QID
Federal courts may grant summary judgment if employee cannot meet burden of proof
State
Burden is on the employer to prove the individual is not disabled
Whether an individual is a QID is a question of fact for jury; summary judgment may not be granted in most cases
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November 30, 2018

24. DIFFERENCES: JOB DESCRIPTIONS
Federal
Job descriptions are useful to determine the “essential job functions,” but not required
State
Regulations require an employer to provide the examining health care professional with a copy of the employee’s job description
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November 30, 2018

25. DIFFERENCES: UNDUE HARDSHIP
Federal
Undue hardship includes:
Financial impact
Operational impact
State
Undue hardship limited to financial impact
HCRC will trace the “money trail” up to the parent corporation level
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November 30, 2018

26. DIFFERENCES: DAMAGES Federal State
Compensatory and punitive damages are capped based on size of employer
<100: $50,000
100 < 249: $100,000
250 < 499: $200,000
500+: $300,000
State
Compensatory and punitive damages are unlimited
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November 30, 2018

27. State courts will place burden of persuasion on Hawaii employers
FINAL THOUGHTS
State courts will place burden of persuasion on Hawaii employers
Employers need documentation to meet the burden of proof and persuasion
When in doubt, seek advice
Failure to follow statutory and regulatory procedures could result in significant liability for employer
Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018

28. If you have follow up questions, email us: aes@esandalaw.com
ANY QUESTIONS?
If you have follow up questions, us:
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Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary
November 30, 2018