Presented by:
Michael H. Bowling, Esquire
Bell & Roper, P.A.
2707 E. Jefferson Street
Orlando, FL 32803
Telephone: (407) 897-5150
E-mail: mbowling@bellroperlaw.com
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Expansion under ADAAA
Large majority of ADAAA cases are getting
past disability to other aspects of the case
Accommodations not available for "regarded
as"
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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
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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
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Overview of RA accommodation obligation
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Advise employees how to request RA (HR not
supervisors)
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Examples of RA
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
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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?
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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
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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
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Essential vs. marginal job function analysis
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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
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Three categories of reasonable accommodation:
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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
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Examples of reasonable accommodations:
Job restructuring
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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
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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
Employee's healthcare provider
v.
Employer's healthcare provider
v.
Independent health care provider
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Employee's failure to cooperate
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How many chances do you have to give an employee
Documenting the employee's lack of cooperation
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.
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Individualized assessment
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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
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Dialogue, dialogue, dialogue
Never say never at the beginning of this
conversation
 Think out of the box
 Consider an effective alternative accommodation
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Document, document, document
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Follow-up during and after
Follow-up to determine if accommodation
works and is still needed
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Undue hardship
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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
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Case-by-case determination
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Document, document, document
Following a routine process doesn't mean it's
not individualized does it?
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Pitfalls
Consider interactive process notes and RA log
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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
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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
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Both may have to be modified as a reasonable
accommodation
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.
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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?
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Assuming timely request is made, are
employee's migraine headaches a disability
within the meaning of the ADA?
What are possible accommodations?
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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
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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
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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
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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
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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
2707 E. Jefferson Street
Orlando, FL 32803
Telephone: (407) 897-5150
Facsimile: (407) 897-3332
www.bellroperlaw.com