Clearing the Road for Employees With Disabilities: Remove Any ADA Hazards and Enjoy the Trip!

1. Clearing the Road for Employees With Disabilities: Remove Any ADA Hazards and Enjoy the Trip! Kathleen R. Barrow, Rapid City Office 510 9th Street, Suite 200 Rapid City, SD 57701 605-791-3602 Barrowk@jacksonlewis.com

2. THE AMERICANS WITH DISABILITIES ACT (“ADA”): LAYING THE FOUNDATION

3. ADA BASICS: • Who is covered. • Prohibits discrimination against “qualified individuals with a disability.” • Prohibits discrimination in the context of hiring, firing, advancement, training, compensation, and other terms and conditions of employment. • A “qualified individual with a disability” is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job.

4. ADA AMENDMENTS ACT (ADAA) • Signed September 25, 2008; • Compromise legislation that overturns Supreme Court decisions that limited the ADA’s coverage; • Excludes consideration of mitigating measures (i.e. medication or prosthesis); • Establishes new list of major life activities; • Broadens construction; and • Authorizes regulations.

5. 29 CFR 1630.2 • “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”

6. KEY CONCEPTS UNDER THE ADA • “QUALIFIED” INDIVIDUALS • “ESSENTIAL” JOB FUNCTIONS • “REASONABLE” ACCOMMODATIONS • PHYSICAL MODIFICATIONS • REASSIGNING TASKS • SCHEDULE OR BREAK ADJUSTMENTS • “UNDUE HARDSHIP” • “DIRECT THREAT”

7. WHO IS A “PERSON WITH A DISABILITY?” • . A person with a physical or mental impairment that substantially limits one or more major life activities • . A person who has a record of such impairment; or • . A person who is regarded as having such impairment. • It does not include: • some temporary disabilities • environmental, cultural or economic disadvantages

8. MAJOR LIFE ACTIVITIES:

9. WHO IS A “PERSON WITH A DISABILITY?” • Remember: Now the determination of a disability “shall be made without regard to the ameliorative effects of mitigating measures,” so you cannot consider medication, prosthetics, hearing aids or mobility devices (except for glasses and contact lenses). • Remember: Episodic/temporary impairments may be a disability where they substantially limit a major life activity when active. For example, a person whose diabetes or seizures is controlled by medication or a person whose cancer is in remission may be a qualified individual with a disability now.

10. WHAT ARE:“ESSENTIAL FUNCTIONS?” • FACTORS TO CONSIDER: • Job description—skills, education, physical and mental requirements of the job • Work experience of others • Amount of time spent performing function • Consequences of not requiring the employee to perform function

11. REASONABLE ACCOMMODATIONS • A reasonable accommodation is any change in the work environment or in the way things are customarily done that would enable a qualified individual with a disability to enjoy equal employment opportunities. • Employer has the duty to reasonably accommodate an employee’s disability if the employer knows or reasonably should know that the employee is disabled.

12. Types of Reasonable Accommodation • Accessible facilities • Job restructuring • Part-time or modified work schedules • Reassignment to a vacant position • Acquisition or modification of equipment or devices • Modification of examinations, training materials or policies • Providing qualified readers or interpreters • Providing leave for treatment of disabilities • Providing reserved parking spaces • Use of supported employment programs

13. Good Faith in the Interactive Process: • Meet with the employee; • Request information about the condition and what limitations the employee may have; • Ask the employee what he or she specifically wants; • Consider the employee’s request; • Discuss available alternatives if the request is too burdensome; and • Document entire process.

14. Medical Inquiries under the ADA • Employer entitled to medical documentation needed to evaluate ADA coverage, particularly the nature and degree of limitations and identification of possible reasonable accommodations; • May request only relevant, job-related medical information necessary to assess the ability of an individual to perform essential job functions or to be accommodated; • If insufficient information is provided, employer may request evaluation by a designated health professional of the employer's choice; • Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation; • The EEOC asserts that employers should first explain insufficiencies and allow an opportunity to provide the missing information ; and • CAUTION – employer’s requests for additional medical information may be deemed retaliatory

15. Clearing the ADA Hazards (Kathy Barrow) • Perception • My group health plan costs will rise • My workers’ compensation costs will rise • My workforce turnover will go up • The disabled workers will take more sick leave • The disabled workers’ reasonable accommodations are too costly • Reality • No evidence health insurance premiums higher • No evidence disabled workers have more workplace accidents or injuries • Turnover goes down, not up • Disabled workers have 1.24 days less scheduled absences and 1.13 days more unscheduled absences per year • 15% of accommodations cost $0; 51% cost $1-$500; only 22% cost more than $1000

16. REASONABLEACCOMMODATION UNDUEHARDSHIP • FACTORS • 1. Cost • 2. Financial resources of company • 3. Type of business • Impact on operation (including resources and expenses) • 5. Impact on other employees

17. ADA – Is Open-Ended Leave a Reasonable Accommodation? • ADA does not require indefinite leave of absence as accommodation of employee with a prolonged illness • Leave is “reasonable” when it will allow employee to perform the essential functions of the job in the near future • The expected duration of the impairment, rather than the expected duration of the leave, is controlling

18. Guidance from the Courts • Indefinite unpaid leave after holding job open 8 ½ months is not a reasonable accommodation, particularly in light of the employer’s small size (20 employees) • Where an employer’s leave policies are generous, some courts have ruled that leave up to and including a year is not unreasonable • Indefinite leave is not per se unreasonable in the case of: • a very large employer • high turnover • many fungible employees • insignificant expense to maintain in employed status

19. Analyzing Additional Leave as Reasonable Accommodation

20. The BIG POSITIVES • Dependable and reliable workers • Positive attitude toward co-workers—positive attitudes by co-workers to disabled workers • Positive perception about company in the community

21. Financial Incentives • Work Opportunity Tax Credit • American Taxpayer Relief Act of 2012 extended credit for qualified veterans and other targeted groups hired before January 1, 2014 • * WOTC is a business credit applied directly to income tax on business tax return • * Credit applies to • -Qualified veteran-a person serving on active duty for more than 180 days or released for service-connected disability; and not having an active duty period of more than 90 days during the 60 days before hiring date • -Vocational Rehabilitation Referral –under written employment plan developed under state plan for vocational rehabilitation or veterans rehabilitation services • * Maximum credit is $2,400 per worker working a minimum of 400 hours or more

22. Other Assistance • Tax Credits for Removal of Access Barriers, etc. • Tax Incentives for Assistance with Reasonable Accommodations • Various Private and Federal Grants

23. Biggest Mistakes Under the ADA • Not identifying and documenting essential job functions. • Not documenting adequately performance or conduct deficiencies. • Not engaging in an interactive process to identify possible accommodation. • Incorrect or insufficient analysis of safety issues under the direct threat standard. • Not having a mechanism to adequately acquire and analyze medical information.

24. Biggest Mistakes, Cont…. • Not considering reassignment or additional unpaid leave with job restoration as a reasonable accommodation. • Making inappropriate written or verbal comments creating ADA “regarded as” disability status. • Not managing disability cases to set clear expectations and limits. • Providing unrestricted “light duty.” • Not considering impact of ADA on disability benefits.

25. Doing It Right and Enjoying the Ride • Not discriminating means removing barriers so that all persons have an equal opportunity for employment • There is a difference between equal employment opportunity and affirmative action • Affirmative action means taking affirmative steps to draw in applicants for employment and advancement in job opportunities—this is permitted only as a matter of state and federal law for contractors and subcontractors and via court order where historical discrimination has been determined • Equal employment opportunity means taking the time to put assure all applicants and employees are treated equally and that the playing field in employment is “neutral”

26. Creating Neutrality • Job Descriptions: • Description of essential functions of the job • Skills and education necessary to the job • Physical and mental requirements of the job • Process of Employment: • Offers/Advertisements in wide variety of locations • Applications with EEO statements • Reasonable accommodation invitation in the application process • Conditional offer of employment • Post-conditional offer, focused job-related testing ( incl. medical examinations) to show potential employee is able to perform essential functions of the job • Reasonable accommodation communication process

27. Neutrality in On-going Employment • Focus on the job performance, not the person • Investigate, and remove barriers to employment for ALL individuals in advance (this includes physical barriers) • Keep employment-evaluation comments performance-related, not disability-oriented • Utilize concurrent-evaluation—both positive and negative vs. annual evaluations • Provide notice to employee when job-performance threatens employment position • Manage and coordinate ADA, FMLA, workers’ compensation leave • Set procedures and boundaries for leaves of absence in advance of individual circumstances

28. ANY QUESTIONS? Kathleen Barrow barrowk@jacksonlewis.com