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

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

3. 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

4. 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

5. 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”

6. 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

7. 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

8. 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”

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. DOMESTIC VIOLENCE/ABUSE VICTIMS
Accommodations outlined in statute (HRS Sections and )
Unpaid leave of absence (5 days for small employer, 30 days for larger)
Changing contact information for employee (telephone, fax, )
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

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