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

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

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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.

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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.

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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.”

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KEY CONCEPTS UNDER THE ADA

“QUALIFIED” INDIVIDUALS

“ESSENTIAL” JOB FUNCTIONS

“REASONABLE” ACCOMMODATIONS

PHYSICAL MODIFICATIONS

REASSIGNING TASKS

SCHEDULE OR BREAK ADJUSTMENTS

“UNDUE HARDSHIP” “DIRECT THREAT”

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WHO IS A “PERSON WITH A DISABILITY?”

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1 . A person with a physical or mental impairment that substantially limits one or more major life activities

2 . A person who has a record of such impairment; or

3 . A person who is regarded as having such impairment.

It does not include:

some temporary disabilities

environmental, cultural or economic disadvantages

MAJOR LIFE ACTIVITIES:

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Care for oneself Bending

Performing manual tasks Speaking

Seeing Breathing

Hearing Learning

Eating functions Reading

Sleeping Concentrating

Walking Thinking

Standing Communicating

Lifting Working

The operation of bodily functions (functions of the immune system, normal cell growth, digestive, bowl, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions)

Major depressionBipolar disorderPost-traumatic stress disorder

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.9

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

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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.

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Types of Reasonable Accommodation

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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

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.

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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

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Clearing the ADA Hazards (Kathy Barrow)

PerceptionMy 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

RealityNo 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

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UNDUEHARDSHIP

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REASONABLEACCOMMODATIO

N

FACTORS

1. Cost

2. Financial resources of company

3. Type of business

4. Impact on operation (including resources and expenses)

5. Impact on other employees

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

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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

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Guidance from the Courts

Analyzing Additional Leave as Reasonable Accommodation

Leave Sought for Indefinite Duration

• Likely not reasonable

• Document operational hardship caused by absence

• Document any argument that employee is not disabled

Leave Sought for Definite but Long

Duration

• Questionable

• Consider letter to doctor seeking to clarify that leave extension is indefinite

• Document operational hardship

• Document any basis for believing employee is not disabled

Leave Sought for Definite and Short

Duration

• Likely reasonable

• Document operational hardship caused by absence

• Confirm date employee is expected to return to work

• Recommend employee provide in writing any request for additional extension with doctor’s note explaining inability to return as planned

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

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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 more21

Other Assistance

Tax Credits for Removal of Access

Barriers, etc.

Tax Incentives for Assistance with

Reasonable Accommodations

Various Private and Federal Grants

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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.

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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.

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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”

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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

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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 circumstances27

ANY QUESTIONS?

Kathleen Barrow

barrowk@jacksonlewis.com

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