Presented by:

1. How to Determine What is a Reasonable Accommodation Presented by: Natalie Ivey, MBA, SPHR

2. Current Issues 2011: EEOC received the most discrimination claims in its 46-year history Retaliation and disability claims were the two highest instances of discrimination claims Case law involving employer’s failure to grant reasonable accommodations: EEOC v. Mercy Hospice Taylor v. Phoenixville School District Bultemeyer v. Fort Wayne Community Schools EEOC v. Verizon

3. Paid $20 million to settle a disability discrimination case after the EEOC claimed Verizon’s “no fault” absenteeism policy discriminated against disabled workers. Because Verizon did not make exceptions to the policy --and disabilities were responsible for employee absences—the EEOC claimed that the company didn’t provide reasonable accommodations for people with disabilities

4. The ADAAA

5. ADA Amendments Act (ADAAA) • Effective 1/1/2009; regs issued 3/25/2011 and effective 5/24/2011 • Reverses Supreme Court rulings • Courts to “broadly” construe definition of disability in favor of ADA coverage • Except for eyeglasses or contacts, mitigating measures no longer considered • Expanded definitions of: • Substantially limits • Major life activities • Regarded as

6. Purpose Of The ADAAA • EEOC, citing legislative history, emphasizes that, “The primary purpose of the Amendments Act was to make it easier for people with disabilities to obtain protection under the ADA.” 29 C.F.R. Part 1630, Appendix §1630.1(c) • Congress wants employers and the Courts to focus their attention on the merits • Engaging in the interactive process; whether there is a reasonable accommodation; whether the employer engaged in discrimination

7. Effect Of The ADAAA Source: EEOC.gov • EEOC estimates that 12 to 38.4 million more individuals will be protected under the ADAAA • Generating 400,000 to 1 million more accommodations per year • The cost of these additional accommodations is estimated at $60-183 million, not including training and legal costs • EEOC calculates that the individual, productivity, and societal benefits will be far greater

8. ADAAA Best Practice Assume that any employee with a physical or mental condition might be covered by the ADA, and shift your focus to the merits rather than coverage

9. Defining a Disability

10. What Is A “Disability”? A physical or mental impairment that substantially limits one or more of a person’s major life activities A record of having such an impairment Being regarded as having such an impairment 42 U.S.C. §12102

11. What Is An “Impairment”? Physical Impairment: “…any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1)

12. What Is An “Impairment”? Mental Impairment: “…any mental and psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h)(2)

13. What Is An “Impairment”? Keyword “any” makes the definitions extremely broad Lists are not exhaustive

14. Mental Impairment Must be a mental condition recognized as valid by mental health professionals Diagnostic and Statistical Manual (DSM IV) is the standard reference guide For example: paranoid schizophrenia, bi-polar affective disorder, depression, anxiety neurosis, panic disorder, post-traumatic stress disorder

15. Not Impairments • Physical characteristics like eye color, hair color, etc. are not impairments • Personality traits like bad temper, etc. • Environmental, cultural, and economic characteristics (poverty, lack of education, illiteracy, or a prison record)

16. Not Impairments • Pregnancy is not an impairment, however… • Pregnancy-related impairments are potentially covered under all three prongs if other requirements are met • Advanced age is not an impairment, however… • Various medical conditions commonly associated with age such as hearing loss, osteoporosis, and arthritis are impairments

17. Major Life Activities:The List Expands • Bending • Speaking • Breathing • Learning • Reading • Concentrating • Thinking • Communicating • Working • Interacting with others Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting

18. Job Descriptions Affirmative defense for employers! Clarify the “non-negotiable” Essential Job Duties that must be performed Without clarifying the Essential Job Duties, the accommodation issues become increasingly challenging to handle Clear, concise, well-written job descriptions facilitate sound decision-making and minimize risk of litigation

19. Big Change with ADAAA: Major Bodily Functions

20. Major Life Activities:Major Bodily Functions ADAAA’s non-exhaustive list includes: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions EEOC regs add special sense organs and skin; as well as cardiovascular, hemic, lymphatic, musculoskeletal functions Operation of a major bodily function includes the operation of an individual organ within a body system

21. Substantial Limitation Before the ADAAA, courts looked at the following factors: Nature and severity of the impairment Duration or expected duration of the impairment Permanent or long-term impact, or the expected permanent or long-term impact, of - or resulting from - the impairment

22. Substantial Limitation • Congress found that the EEOC’s prior definition of “substantially limits” as “significantly restricted” set too high a standard • Under the ADAAA, “substantial limitation” is: • Less than “severe” or “significant” but… • Greater than “moderate”

23. ADAAA’s Nine RulesOf Construction EEOC has set out nine rules to use in interpreting the ADAAA: • “Substantially limits” is not a demanding concept, and “shall be construed broadly in favor of expansive coverage” • An impairment must substantially limit just onemajor life activity “as compared to most people in the general population” • Determining disability “should not demand extensive analysis” • The primary focus is on the employer’s obligations

24. ADAAA’s Nine RulesOf Construction • The determination must be an individualized assessment, but requires a lower degree of functional limitation than before the ADAAA • The comparison to the general population will usually not require scientific, medical, or statistical evidence • Do not consider the ameliorative effects of mitigating measures • Except for ordinary eyeglasses or contact lenses

25. ADAAA’s Nine RulesOf Construction • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active • An impairment that substantially limits one major life activity need not substantially limit other major life activities • The six month “transitory” definition does not apply to actual disability or record of cases • The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting

26. Why The Nine Rules? EEOC says these nine rules should: Lead to more “predictable, consistent, and workable assessments” Provide more generous coverage and application of the ADA’s prohibition on discrimination

27. Temporary OrIntermittent Conditions • Temporary, non-chronic conditions of short duration that have little or no long-term or permanent impact are typically NOT impairments • For example: flu, pneumonia, broken bones, appendicitis, sprained joints, concussions, etc. • Under ADAAA, must last for several months to be considered “substantially limiting”

28. Temporary OrIntermittent Conditions • A Temporary or Intermittent condition is an impairment that is “episodic or in remission is a disability if it would substantially limit a major life activity when active” • e.g., cancer, epilepsy, lupus, asthma

29. ADAAA Best Practices Don’t nit-pick whether the condition is a disability — it probably is Focus on accommodations Request documentation from qualified medical personnel before making accommodations Keep an open mind in the interactive process Every employee request and every adverse job action based upon a medical condition should be considered as a potential ADA claim

30. Defining Reasonable Accommodations

31. What Is A Reasonable Accommodation? Making existing facilities accessible to individuals with disabilities Job restructuring Part-time or modified work schedules Reassignment to a vacant position Acquisition or modification of equipment or devices Appropriate adjustment or modification of examination, training materials, or policies The provision of qualified readers or interpreters Granting additional time off from work

32. Reasonable Accommodation Case EEOC v. Mercy Hospice,  Case No. 2:12CV13803), filed in U.S. District Court for the Eastern District of Michigan Charged that Mercy Hospice in Bloomfield Hills, MI, terminated  Patricia Barriger when she tried to return to work from a medical leave of absence.  Instead of providing her with a reasonable accommodation, the company discharged her because, according to the  company, she was an inactive employee who was not entitled to an accommodation.

33. Not Reasonable Accommodations • Creating a new job • Bumping another employee • Promoting the disabled worker • Providing personal equipment (wheelchair, hearing aid, etc.) • Eliminating essential functions • Lowering production or performance standards • Excusing misconduct

34. Job Restructuring • Be creative • Consider past practices • How has the company handled similar situations in the past? • Consider present effects • Cost • Impact on other employees and operations • Consider future impact • Creation of a precedent: Is the company willing to provide the same accommodation in the future?

35. Facilities And Equipment • Examples of technological modifications: • Special phones, recorders, clocks, computers, etc. • Examples of modifications to facilities: • Seating, storage, work stations, emergency/disaster preparedness • Examples of modifications to equipment: • Information displays, communication devices, controls

36. Reassignment • Allowed only if employee cannot be accommodated in current job • Employee must be qualified • Position must be vacant • Bumping not required • Employer entitled to follow internal policy and bidding procedure to select best candidate • Preferential treatment not required

37. Light Duty And Leaves • Consider past practice • How has the company handled similar situations in the past? • Consider present effect • Cost • Impact on other employees and operations • Consider future impact • Creation of a precedent: Is the company willing to provide the same accommodation in the future? • Raspa v. Office of the Sheriff of the County of Gloucester decision (N.J. 2007)

38. Location, Schedule, Process • Is attendance an essential function? • How long must an employer hold a position open? • Is a part-time schedule an accommodation? • Shift change because of commuting difficulties may be reasonable accommodation • Colwell v. Rite Aid Corp., 3d Cir. 2010

39. What Is A RequestFor Accommodation? • The burden is on the employer to recognize an accommodation request • No formalities are required • Accommodation requests need not come directly from the employee • Spouse • Parent • Physician • Job coach

40. What Is A RequestFor Accommodation? • Employers should be proactive • Train managers on how to recognize accommodation requests and how to handle them • Refer to HR, Occupational Health, or other appropriate official

41. Accommodating Mental Disabilities Bultemeyer v. Fort Wayne Community Schools The 7th Circuit recognized that the communication process in requesting accommodations "becomes more difficult" for people with mental disabilities.   (100 F3d 1281, 1285 (7th Cir. 1996)

42. Accommodating Mental Disabilities Taylor v. Phoenixville School District184 F.3d 296 (3d Cir. August 18, 1999)  The U.S. Court of Appeals for 3rd Circuit ruled that the employer was liable for not "engaging in the interactive process" with an employee with biploar disorder.   The employee had not provided sufficient details regarding her condition...   The court explained that "an employee with a mental illness may have difficulty effectively relaying medical information about his or her condition, particularly when the symptoms are flaring and reasonable accommodations are needed."  

43. Accommodating Mental Disabilities Greater burden on the employer to recognize accommodation requests The word “accommodation” does not have to be used and no formalities are necessary to constitute a “request” Supervisors must know to ask, “what can I do to help you with your performance?” so they initiate the interactive discussion and engage in dialogue to determine if an accommodation is needed Leveraging HR to sit in on interactive discussions is a good idea, unless managers are well trained to handle

44. Accommodation Process Has Not Really Changed • Employers can still require documentation to support the claim of disability and the need for accommodation • The amount of medical evidence needed will be lower than before • There must still be an individualized inquiry and an interactive process to determine what accommodations are appropriate and needed

45. The Interactive Process

46. Outline Of TheInteractive Process • Compare restrictions to essential functions • Identify any essential functions that person cannot perform • Consult with in-house and outside experts to find out if there is any technical assistance that could enable person to do essential functions • If not, look at all open positions to see if one is suitable, given medical restrictions—this is not required by ADA—but a good, best practice Website Resource: Job Accommodation Network (JAN) http://askjan.org

47. Outline Of TheInteractive Process • Get an expert determination regarding whether there is any technical assistance that could enable person to do essential functions of open positions • If not, perhaps put person on leave for three to six months • Keep an eye out for new openings that might be suitable • At end of leave, if no change in medical restrictions, terminate

48. The Interactive Process • Responding should not be more complicated than necessary • May involve the employee and others • Family members • Counselor • Union rep • A request for an accommodation allows the employer to make medical inquiries Tip: Ask the employee how you can help him or her perform their job!

49. The Interactive Process • Failure to engage in the interactive process has significant legal consequences • Some courts have held such failure is a per se ADA violation • EEOC views this as a violation • Some courts have found that employers’ failure to engage in the interactive process constitutes evidence of bad faith

50. Medical Exams AndThe Interactive Process • Employer may require medical documentation: • Specifying the existence of an ADA disability • Explaining the need for reasonable accommodation • Medical exam must be: • Job-related • Consistent with business necessity • Paid for by employer