One Size Does Not Fit All: Avoiding Common ADAAA Mistakes

1. One Size Does Not Fit All: Avoiding Common ADAAA Mistakes FERMA Conference July 2014

2. Speaker Sandy Johnson Disability and Productivity Consultant since 2010 Develops, promotes and implements Workplace Possibilities℠ program Joined The Standard in 1997 as a Vocational Case Manager. Prior to The Standard, assisted injured workers in returning to work, designed ergonomic training programs for supervisors and employees, and worked with clients in substance abuse program Certified Rehabilitation Counselor since 1984. Master’s degree in Guidance and Counseling from the University of Idaho

3. Obnoxious Legal Disclaimer The information contained in the following slides are for general information purposes, and should not be relied upon or treated as legal advice or substitute as advice for any particular circumstance. The examples presented may have been modified to fit the format and time allotted for this presentation. The accommodations selected and discussed are not the “right” accommodations but those that fit the particular facts and circumstances of the situations presented. Opinions expressed throughout this presentation are the opinions of Sandy and do not reflect the opinions of The Standard, which accepts no liability for any consequences or actions taken on the basis of the information provided.

4. Agenda • Overview “One Size Does Not Fit All” • Most Common ADAAA Mistakes • Case Study Examples • EEOC Settlements • Case Law Examples • Exercise—You Decide

5. Overview • The top ADAAA mistakes made by employers include: • Enforcing restrictive policies • Believing accommodations are expensive • Staying inside the box • Devaluing an aging workforce • Not using 3rd party consultants

6. Case Study Examples

7. Mistake: Enforcing Restrictive Policies

8. Solution: Modified Duty

9. What Could Have Happened… • “Interstate Distributor Company to Pay Nearly $5 Million to Settle EEOC Disability Suit” • Nationwide trucking firm had 2 restrictive policies: 1) Maximum leave policy 2) “No restrictions” policy • EEOC said this settlement shows a need for employers to have policies permitting paid or unpaid leave as a reasonable accommodation.

10. Mistake: Believing Accommodations are Expensive

11. Solution: Graduated RTW With Assistive Devices

12. What Could Have Happened… • Proving “undue hardship” under ADAAA in court: • Fact-specific • Little case law on point since the amendments to ADA (which means it is unclear what the courts will say) • Employer has the burden of proving “undue hardship” • Regulations say employer must also consider outside sources of funding, including available tax credits/deductions

13. Mistake: Devaluing An Aging Workforce

14. Solution: Amplification & Voice-Activated Software

15. What Could Have Happened… • “DuPriest and Sons to Pay $24,000 to Silk-Screener Fired Because of Disability” • Family-owned silk screening company fired employee of 38 years after he notified the company that he needed dialysis. • EEOC said: “The ADA isn’t just about hiring qualified persons who may have some limited health conditions, it is also about retaining and accommodating employees who may develop impairments while working….”

16. Mistake: Staying Inside the Box

17. Solution: Modified Work Schedule

18. What Could Have Happened… • EEOC v. Resources for Human Development, Inc. • Severely obese employees can qualify as disabled (or regarded as disabled) under the ADA • Circuits differ on this issue (some haven’t addressed it): -5th Circuit – obesity is probably a disability -1st Circuit – obesity can be a disability -2nd & 6th Circuits – a physiological condition related to obesity can be a disability

19. What Else? • EEOC Guidance about Modifying Workplace Policies: • Specific example used by EEOC relate to policy prohibiting employees from eating or drinking at their desks. • Restrictive policies about eating and drinking need to be modified for a disabled employee. • Don’t be a target for the EEOC!

20. Mistake: Not Using Third Party Consultants

21. Solution: Support & Guidance

22. What Could Have Happened… • Criado v. IBM Corp. – leave as a reasonable accommodation for depression, anxiety, and attention deficit disorder • EEOC even suggests using outside resources to identify and provide reasonable accommodations. • Mental health impairments are prevalent.

23. Additional Outside Resources • EEOC Primer for Small Businesses: www.eeoc.gov/facts/adahandbook.html • Job Accommodation Network: https://askjan.org • International Association of Rehabilitation Professionals: http://www.rehabpro.org

24. Exercise

25. What Would You Do?

26. Choose 1 of the 4 Options:

27. Choices A & B:

28. Choices C & D:

29. Summary • One Size Does Not Fit All • Each situation is different. • Avoid the mistake of thinking one size fits all when assessing reasonable accommodations. • Take some action and apply these best practices: • Allow flexible policies • Price out accommodation options • Be creative / think outside the box • Value your aging workforce • Utilize 3rd party consultants & resources