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ACCOMMODATING WORKERS WITHDISABILITIES
Presented by:Michael H. Bowling, Esquire
Bell & Roper, P.A.2707 E. Jefferson Street
Orlando, FL 32803Telephone: (407) 897-5150
E-mail: mbowling@bellroperlaw.com
ELIGIBILITY FOR ACCOMMODATION UNDER ADAAA
Expansion under ADAAA Large majority of ADAAA cases are
getting past disability to other aspects of the case
Accommodations not available for "regarded as"
INITIATING REQUEST FOR ACCOMMODATION
Employee asks explicitly Employee asks but does not use the
magic words Employee demonstrates need Guaranteed leave exhausted and medical
provider states additional accommodations are necessary
INITIATING REQUEST FOR ACCOMMMODATION
Tips for Employees: Be clear about ability to perform essential
functions as well as your limitations Be flexible Follow up Be aware of what you need to reveal
about underlying medical condition
REASONABLE ACCOMMODATION POLICY
Overview of RA accommodation obligation Examples of RA
Advise employees how to request RA (HR not supervisors) Encourage but don't require written request
Alert employees medical documentation may be required
Alert employees they may receive an effective alternative accommodation
Alert employees to a RA in the LOA policy
SCENARIO
Spouse calls supervisor rather than Human Resources per policy and says husband is having anxiety attacks and can't keep up with new increased production requirements.
What should the supervisor do? What should Human Resources do?
DETERMINING ESSENTIAL JOB FUNCTIONS
A job function may be essential because: The reason the job exists is to perform that function
There are a limited number of employees available among whom the performance of that function can be distributed and/or
The function is highly specialized
Employers are the best judges of whether a function is essential, but the best time to do it is before a disability claim.
Take control by updating job descriptions and other materials defining essential functions
DETERMINING ESSENTIAL JOB FUNCTIONS
Essential vs. marginal job function analysis Amount of time spent performing the function Consequences of not performing the function How past incumbents worked in same job Experience of current incumbents in same or
similar jobs EJFs for the same position may vary depending on
the location or business unit where the individual works
Functions that are not essential are considered "marginal" functions of the position
REASONABLE ACCOMMODATION
Three categories of reasonable accommodation: Modifications/adjustments to a job application process Modifications/adjustments to the work environment or
adjustments in how and when a job is performed. Modifications/adjustments that enable an employee to
enjoy equal benefits and privileges of employment
REASONABLE ACCOMMODATION EXAMPLES
Examples of reasonable accommodations: Job restructuring
Essential functions do not have to be eliminated Part-time or modified work schedules Leaves of absence Working from home Acquiring or modifying equipment Changing tests, training materials or policies Reassignment to a vacant position for which the
employee is otherwise qualified
REQUIRING MEDICAL DOCUMENTATION
An employer may require medical documentation verifying the disability, restrictions and need for accommodation
Job related and consistent with business necessity
Limited to specific condition at issue Employee has duty to cooperate Certain circumstances where employer
cannot ask for documentation
WHICH HEATH CARE PROVIDER?
Employee's healthcare providerv.
Employer's healthcare providerv.
Independent health care provider
EMPLOYEE’S FAILURE TO COOPERATE
Employee's failure to cooperate How many chances do you have to give an employee Documenting the employee's lack of cooperation
SCENARIO
The medical documentation states the employee has an anxiety disorder that impacts his ability to concentrate. Employee says if production standard were lowered to 50 rather than 60 files per hour, he thinks he could succeed. All employees are held to a production standard of 60 per hour. Human Resources knows ADA doesn't require an employer to lower production standards and closes employee's RA request.
THE INTERACTIVE PROCESS
Individualized assessment Act promptly; unnecessary delays can result in
a violation of the ADA Do not use as an excuse to demote, fire
or any other adverse action
THE INTERACTIVE PROCESS
Dialogue, dialogue, dialogue Never say never at the beginning of this
conversation Think out of the box Consider an effective alternative
accommodation Document, document, document
Follow-up during and after Follow-up to determine if accommodation
works and is still needed
REASONABLE ACCOMMODATION PRIMER
Undue hardship Significant difficulty or expense
Financial difficulty almost always a loser Better to focus on whether the reasonable
accommodation is unduly disruptive or fundamentally alters the nature or operation of the business Negative impact on morale and
employee's/customer's fears doesn't support undue hardship
Case-by-case determination
DOCUMENTING THE INTERACTIVE PROCESS
Document, document, document Following a routine process doesn't
mean it's not individualized does it? Pitfalls
Consider interactive process notes and RA log
HANDLING REQUESTS FOR LEAVE
Look to employer's leave policy If leave under policy is inadequate, then
look to FMLA if applicable and ADA Generally, leave should be treated as
reasonable accommodation when: More is needed than employer would
usually provide and/or Leave is needed for a purpose for which
employer generally does not provide it
LEAVE AND ATTENDANCE POLICIES
No fault attendance policies -- employee can have a certain number of unplanned absences during a year, after which the employee is disciplined
No fault leave policies -- apply to extended leave and limit amount, after which employee can be terminated Both may have to be modified as a reasonable
accommodation
SCENARIO
Employee who has migraine headaches that result in intermittent absences from the office is disciplined under an attendance policy when she exceeds the limit of five unplanned absences in a 12-month period.
SCENARIO: CONSIDERATIONS
Did employee ever request reasonable accommodation? If accommodation was not requested, may
employer proceed with discipline? If accommodation was requested, either before
or after discipline, what should employer do? Assuming timely request is made, are
employee's migraine headaches a disability within the meaning of the ADA?
What are possible accommodations?
INTERMITTENT LEAVE CONSIDERATION
Nature of the job Ability of other employees to take on
work Consequences to the employer if work
does not get done Frequency, duration, unpredictability of
leave
LEAVE AND THE INTERACTIVE PROCESS
Employer and employee both must engage in good faith in the interactive process during a period of leave
Employer can get documentation if disability and need for accommodation (including additional leave) aren't obvious
Good idea for an employer to provide notice before period of extended leave expires
Employer can ask for periodic updates if leave has not been granted for a specific period of time
FACTORS TO CONSIDER WHEN EXTENDING LEAVE IS REQUESTED
Can employee give any indication of whether or when she will be able to return?
Length of the leave The nature of the job What happens to the employee's work
during the period of leave (e.g., are there burdens on other employees?)
Ability to fill the position on a temporary basis if work can't be done otherwise
PRINCIPLES CONCERNING REASSIGNMENT
Accommodation of last resort There must be a vacant position (one that
is available or will become available within a reasonable amount of time)
The employee must be qualified for the new position, though not necessarily best qualified
PRINCIPLES CONCERNING REASSIGNMENT (cont.)
Must be equivalent position or as close as possible to original position
Does not have to be a promotion, though employee may compete for a promotion
Generally, employer need not reassign an employee as an accommodation where a more senior employee is entitled to the position, though "special circumstances" may require reassignment in some instances
BELL & ROPER, P.A.
2707 E. Jefferson StreetOrlando, FL 32803
Telephone: (407) 897-5150Facsimile: (407) 897-3332
www.bellroperlaw.com
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