Accommodating HR Through the World of the ADA & ADAAAc.ymcdn.com/sites/ · Accommodating HR Through the World of the ADA & ADAAA ... Specific Challenges Telecommuting EEOC v. Ford

Accommodating HR

Through the World of

the ADA & ADAAA

2015 PHRA Annual ConferenceMario R. Bordogna, Steptoe & Johnson

PLLC

Accommodating HR: A Roadmap

• Fundamentals of the ADA

• How the ADAAA changed the landscape

• The interactive process

• Specific challenges

• A parting gift

Fundamentals of the ADA


Employers w/15 or more employees

prohibited from discriminating against

otherwise qualified employees or

applicants with a “disability” in hiring, firing,

compensation, training, or other terms,

conditions or privileges of employment


Definition of a “disability”:

• Physical or mental impairment which

substantially limits 1 or more major life

activities;

• Having a record of such an impairment; or

• Being regarded as having such an

impairment


Definition of a “qualified employee”:

A person who can perform the essential

job functions or requirements with or

without a reasonable accommodation


Battleground used to be over whether

employee was actually disabled

“Substantially limits” was strictly construed

by the Courts (Sutton, etc.), as was “major

life activity”

Result? --- >> Little ADA coverage

How the ADAAA Changed the

Landscape


Landscape

Generally

Overturned several U.S. Supreme Court decisions

which had narrowly interpreted “disability”

“Substantially limits” no longer needs to severely or

significantly restrict a major life activity

Mitigating measures – except glasses – don’t matter


Landscape

Specifically

Major life activities include not just things like

walking, breathing, and thinking, but the operation

of major bodily functions, like digestive and

immune systems

Temporary conditions lasting < 6 months can be

substantially limiting

The side effects of medication may be considered


Landscape

Specifically

“Regarded as” no longer requires regarding an

employee’s condition as substantially limiting, but

employers can still defend one of these claims on

the ground that the condition lasts < 6 months, and

employees claiming this prong of coverage are not

required to be provided a reasonable

accommodation


Landscape

The Bottom Line

The EEOC is on record as stating that the focus

should no longer be on whether an employee has

a disability, and that because the ADAAA

significantly broadened the meaning of that term

(& coverage under the ADA), it should be on

reasonable accommodation

Courts have followed the agency’s lead

The Interactive Process


Generally

Once an accommodation is requested (or obvious),

working together with your employee in good-faith

by

having an interactive, back-and-forth exchange

about his

or her limitations and needs in order to determine

whether or not a reasonable accommodation exists

for the employee to work in his or her present job, or

possibly in another position


Step-By-Step

• Understanding an employee’s

limitations/restrictions

- Get information from the employee individually

- Get information from the employee’s physician* BE SPECIFIC IN PROVIDING INFORMATION ABOUT THE ESSENTIAL

DAY-TO-DAY JOB FUNCTIONS TO THE EMPLOYEE’S MEDICALPROFESSIONAL


Step-By-Step

• Get input from the employee on what he or she

feels is needed as an accommodation in order to

perform the work


Step-By-Step

• Examine the essential and non-essential functions

of the employee’s position to determine whether or

not his or her limitations can be accommodated

Have these specifically listed in a job

description!


High points of determining whether modifications are feasible

- Modifications to job functions (duties, timing)

- Changes to work environment (seating, location, etc)

- Alterations to hiring process (applications, interview

process, etc)

- Transfer to an open position for which the employee is

qualified


What employers DON’T have to do:

- Create a position for the employee

- Move other employees to accommodate the disabled

employee in an existing position/in connection with a

transfer

- Violate seniority or similar provisions in a CBA

- Hire other employees or work other employees harder or

longer

- Grant the employee’s preferred accommodation

- Change, alter or eliminate essential job functions


UNDUE HARDSHIP


UNDUE HARDSHIP

EEOC: Undue hardship requires “significant

difficulty or expense”

Considers the nature and cost of business

resources, the number of employees, etc.

Because the employer is almost always going to be

looked at as having meaningful resources, beware

hanging your hat only on financial hardship


Direct Threat

If providing the employee with a reasonable accommodation

would leave them a direct threat to themselves or co-

workers, accommodation is not required

- Considers duration of risk, nature/severity/likelihood of

harm

Be careful employing this as a justification for not being able

to provide a reasonable accommodation

Reliance on this basis must be clear and not speculative


Step-By-Step

4) Notify your employee of your review and

conclusions, and give the employee an opportunity

to respond in good-faith, documenting your

message and the response


Step-By-Step

• If you must sever the relationship because

accommodations are not feasible, notify the

employee of that in writing and briefly explain why

- MAKE SURE YOU CAN’T BE LOOKED AT AS HOLDING THEBAG BEFORE YOU DO!

Specific Challenges

Specific Challenges

• Mental Health Conditions

• Leave as an Accommodation

• Telecommuting

• Pregnancy

Specific Challenges

Mental Health Conditions

Specific Challenges

HYPOTHETICAL

You have an employee who does a lot of work on

team projects. Recently, she has had continuing

difficulty getting along with her co-workers, with 3

warnings in the last 4 months for loud outbursts

alone. At her review, the employee says she has

been diagnosed as having a form of social anxiety

disorder, and blames her difficulty with

interpersonal relationships on that condition. Can

you discipline her for another outburst? Is a

reasonable accommodation required?

Specific Challenges


1 in 4 people deal with a mental health disorder

each year according to the National Alliance for

Mental Illness

Depression is the leading cause of disability for

people between 15-44 in the United States

Specific Challenges


DSM V: Recognized conditions like Caffeine

Withdrawal and Social Communication Withdrawal

as medical disorders

Conditions like these are being considered

disabilities under the ADA/ADAAA more and more

frequently

Specific Challenges


Tips on managing:

1) Take them as seriously as physical disabilities;

2) List less tangible functions like

communication, teamwork, interpersonal

communication, attendance, and getting along

among your essential job functions

3) Focus objectively on job performance

4) Think outside the box on accommodations

(e.g., reducing distractions, combining breaks,

Specific Challenges

Leave as an Accommodation

Specific Challenges

HYPOTHETICAL

Your employee breaks his foot in an off-work

incident. He is not eligible for FMLA. He takes all

the medical leave your policies permit him to take,

including 2 weeks of paid leave & 2 weeks of

unpaid leave. On the eve of his return to work, his

doctor says his break hasn’t healed yet and he’ll

need 6 more weeks off with the possibility of

surgery thereafter. Must you grant him additional

unpaid leave as a reasonable accommodation?

Specific Challenges


Accommodation issue most in the spotlight

EEOC/Courts recognizing additional unpaid leave

as a potential accommodation

- 6/9 months have been recognized

Specific Challenges


When is additional leave an undue hardship?

No bright line rules apply

Don’t forget this analysis for post-FMLA situations

Specific Challenges

Telecommuting

Specific Challenges

HYPOTHETICAL

Your employee buys parts for you – a job that

requires interaction with suppliers/co-workers. Her

attendance and performance have been spotty, but

recently she was diagnosed w/IBS and has had

increasing difficulty w/digestive control. You offered

to move her closer to the restroom, or give her a

different position she is qualified for. She rejected

those options and asked to work from home. Is

that a reasonable accommodation?

Specific Challenges

Telecommuting

Factors to consider:

1) Is face-to-face interaction required?

2) Can the employee be supervised remotely?

3) Is interaction with other employees required?

4) What technology is available?

Specific Challenges

Telecommuting

EEOC v. Ford Motor Co. (6th Cir panel, 4-22-14)

- In overturning dismissal of ADA claim 4 employer:

1) Employer business judgment claiming

presence in workplace required isn’t enough

2) Technology changing where workplace is

3) Requiring attendance is ok, but doesn’t

mean it must be at brick-and-mortar location

Sept ‘14, decision vacated; full court

reconsidered

Specific Challenges

Telecommuting

EEOC v. Ford Motor Co. (6th Cir FULL Court, 4-10-

15)

- Panel decision reversed; Judgment for employer:

1) Employer business judgment supported

here

2) Disabled employees not entitled to set

schedule

3) Requiring attendance on-site for teamwork

& interaction is ok, part of employer discretion, &

Specific Challenges

Pregnancy

Specific Challenges

Pregnancy

Not just an FMLA issue; ADA implicated, too

Unfortunately, legal confusion is everywhere right

now:

1) EEOC released new guidance 7/14/14 (last in

‘84)

2) U.S. Supreme Court heard Young v. UPS in

3/2015

(4th Cir first, 1-9-14; 4th Cir remand 4-10-15)

3) State/local laws

Specific Challenges

Pregnancy

Where do accommodations fit in?

EEOC takes the position you must treat employees

temporarily unable to perform their job due to

pregnancy the same as you would treat other

temporarily disabled employees not able to work

EEOC also takes the position that impairments due

to pregnancy may require reasonable

accommodation

Specific Challenges

Pregnancy

How about Young v. UPS?

Plaintiff was a UPS package delivery driver; job

required her to lift 70 lbs. When she became

pregnant, she was given a 20 lb lifting restriction.

UPS didn’t allow her to return to work because

lifting was an essential function of her job, and it

treated the pregnancy the same as any other non-

work injury. Ultimately, it discharged her.

4th Circuit upheld District Court’s denial of PDA claim

Specific Challenges

Pregnancy

Will the EEOC’s position or Young even matter?

Many state laws provide more protection than the

ADA, including requiring employers to provide

reasonable accommodations for pregnant

employees

Pennsylvania doesn’t have a statewide law on this,

but Pittsburgh has one if you work for the City

(passed fall 2014)

A Parting Gift

A Parting Gift

There is a distinction between claims brought

under the ADA-ADAAA and claims brought

under the PHRA

The definition of disability under the PHRA is still

judged under the pre-ADAAA standard (Riley v.

St. Mary’s Medical Ctr., M.D. Pa. 5-27-14)

Translation?: Continues to be harder to prove

existence of disability on claims under the PHRA

THANK YOU

Mario Bordogna: 304-598-8165 (Direct)

[email protected]

http://www.sjlaboremploymentblog.com

Twitter: @SJEmpEssentials

Documents

Accommodating HR Through the World of the ADA & ADAAAc.ymcdn.com/sites/ · Accommodating HR Through the World of the ADA & ADAAA ... Specific Challenges Telecommuting EEOC v. Ford