ADA Update - Job Accommodation Network

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ADA Update
Jeanne Goldberg, Senior Attorney Advisor, EEOC
and
Linda Carter Batiste, J.D., JAN Principal Consultant
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
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ADA Update
Overview
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ADAAA Case Update
Scenarios
ADA Implications
Best Practices
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ADA Update
ADAAA Case Update
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ADA Update
When considering if an individual who has requested
accommodation has an impairment that “substantially limits a
major life activity” or has a record of same-remember changes:
 Definition of disability “shall be construed broadly” and “should
not demand extensive analysis”
 Need not be a “severe” limitation or “significantly restricted”
 e.g., court cases rejecting employer reliance on pre-ADAAA cases
and outcomes
 e.g., post-ADAAA, courts have found “substantially limited” in cases
involving impairments such as: carpal tunnel, depression, cancer,
“cancer free,” HIV, hepatitis C, kidney disease, PTSD, sleep apnea,
heart disease, back and disc impairments, monocular vision, morbid
obesity, multiple sclerosis, stuttering, two broken femurs, Graves
Disease, etc.
 But “not every impairment will constitute a disability” under this
definition
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ADA Update
 Major life activities include “major bodily functions”
 e.g., court cases have applied to cancer (normal cell
growth), HIV (immune system), back impairments
(musculoskeletal), non-cancerous masses (cell growth
and endocrine functions), and Kidney disease (bladder
function)
 Norton – “cancer at any stage” substantially limits
normal cell growth
 Ameliorative effects of mitigating measures not considered
 e.g., court cases have applied to pain medication,
magnifying devices, learned behavioral modifications,
and following a specific eating regimen
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ADA Update
 Impairments that are “episodic” or “in remission” are
substantially limiting if they would be when active
 e.g., court cases have applied to cancer, hepatitis C,
back impairments, multiple sclerosis, stuttering, and
depression
 Revised regulations and appendix at 29 C.F.R. Part 1630,
including 9 rules of construction
 Rule of construction #9 – no minimum duration
 e.g., cancer and other “episodic or in remission” cases;
Fleck (mini-stroke causing 2 weeks off of work)
 But not everything is covered: court cases finding limitations too
minor and short-term (H1N1 virus, torn-ACL, post-colonoscopy
discomfort, etc.) and cases finding insufficient evidence of
limitations
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ADA Update
Recognizing Accommodation Requests
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ADA Update
Scenario
A long-term employee starts having performance
problems. When her employer talks to her about the
problems, she responds that she is very stressed
and is having difficulty handling her job duties. The
employer doesn’t know if this is an accommodation
request and is afraid to ask for clarification for fear of
violating the ADA’s rules about making medical
inquiries.
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ADA Update
 ADAAA has not changed the legal rules regarding when and
how much medical information employers can request.
 If you believe that a medical condition is causing a
performance or conduct problem, you may ask the employee
how you can help to solve the problem and even may ask if
the employee needs a reasonable accommodation.
 If accommodation is requested, “interactive process” may
involve determining whether the requester has a disability,
whether requested accommodation is needed, and/or what
accommodations are possible.
 If disability or need for accommodation is not obvious or
already known, employer may request reasonable medical
documentation from appropriate health care provider, and
clarify. E.g., verifying diagnosis and limitations, determining
what accommodation might be effective, etc.
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ADA Update
“Tips” For Recognizing Requests
 Accommodation request is a request for some sort of
change for a medical reason
 Request need not be in writing and need not contain
any “magic words”
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ADA Update
Processing Accommodation Requests
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ADA Update
Scenario
HR for a state government agency developed new
procedures for processing accommodation requests
after the ADAAA went into effect. The agency
included in-house forms and layers of people to sign
off on each step. After the new process was in place,
an employee made a written request for an
accommodation by turning in a note from his doctor
that described his medical condition, limitations, and
need for accommodation. The doctor did not use the
employer’s forms. The employer refused to accept
the request and told the employee he would have to
have his doctor fill out the agency’s ADA forms.
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ADA Update
Recent Case Law
Sufficient Notice:
 Individual does not have to call medical condition a
“disability”; inadequate notice is when employee does not say
enough for employer to know a medical condition is at issue.
Syndnor v. Fairfax County, Va., 2011 WL 836948 (E.D. Va.
Mar. 3, 211).
 Oral request for accommodation okay despite contrary
company policy. Kravits v. Shinseki, 2012 WL 604169 (W.D.
Pa. Feb. 24, 2012).
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ADA Update
Insufficient Notice:
 Employee’s request for “home time” because he needed time
with his family and statement that he was leaving work “to
see his doctor” were not requests for reasonable
accommodation because he did not say either request was
because of his HIV. EEOC v. CR England, Inc., 644 F.3d
1028 (10th Cir. 2011).
 Plaintiff notified employer of panic disorder and agoraphobia
but never requested any accommodation, stating that “if [the
employer] believed that I needed certain accommodations . . .
[it] would come to me and say so.” Garner v. Chevron Phillip
Chemical Co., 2011 WL 5967244 (S.D. Tex. Nov. 29, 2011).
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ADA Update
Consequences of employer’s failure to communicate
and clarify:
 Employer’s failure to tell employee that request submitted on
wrong form or to provide time to return paperwork can be
evidence of employer “bad faith” in the interactive process.
Cox v. Wal-Mart Stores, Inc., 441 Fed. Appx. 547 (9th Cir.
2011).
 Employer’s denial of request on ground that information
provided was not specific enough, without advising employee
and asking for the additional details needed, can render the
employer responsible for the breakdown in the interactive
process. Valle-Acre v. Puerto Rico Ports Auth., 651 F.3d 190
(1st Cir. 2011).
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ADA Update
“Tips” For Engaging In And
Documenting The Interactive Process
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ADA Update
Essential Job Functions
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ADA Update
Scenario
A machine operator works for a large company. There
are several machine operators and in their job
descriptions it says they each have to be able to
operate every machine in the factory. Most of them
work on only one or two machines and have never
had to do all machines. The employee has a back
injury and cannot work on one particular machine. He
has never been asked to work on this machine in the
20 years he’s been employed with the company, but
decides to let his employer know about his
restrictions anyway. The employer tells him that he
will be fired if he cannot work all machines.
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ADA Update
To be qualified, an individual must:
 Meet the basic skill, education, training, and other job-related
requirements; and
 Be able to perform the essential (i.e. fundamental) functions
of a position with or without reasonable accommodation
Relevant information in determining whether a function is
essential may include:
 Employer’s judgment
 Terms of a written position description
 Terms of a collective bargaining agreement
 Experience of current or past employees
 Amount of time spent performing the function
 Consequences of not performing the function
Recent case illustration: Miller v. Illinois Dep’t of Transportation,
643 F.3d 190 (7th Cir. 2011).
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ADA Update
Tips:
 Primary consideration should be given to the
employee’s choice.
 If accommodation requested involves removing a
duty, is it an essential function? If so, it need not be
removed, but can employee be accommodated to
perform it? If not, can the employee be reassigned?
 Employer may ultimately choose from among equally
effective accommodations, as long as the one
provided is effective.
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ADA Update
Co-worker Morale
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ADA Update
Scenario
An employee requests a schedule change for daily
medical treatment for three months. The employee's
medical documentation supports the request, but the
employer does not want to grant the request because
other employees – many of whom have requested
similar schedules for non-disability related reasons,
but have been denied – will be resentful. The
employer is aware that under the ADA medical
confidentiality rules it cannot tell co-workers that the
employee has been granted the schedule change as
an accommodation.
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ADA Update
Dealing With Co-Worker Morale
 Employer cannot deny accommodation because co-workers
may be resentful. Carter v. Pathfinder Energy, 662 F.3d 1134
(10th Cir. 2011).
 Sometimes reasonable accommodation may require providing
a change that the employer denies to other employees who
request for non-medical reasons. Ekstrand v. School Dist. Of
Somerset, 2012 WL 2382313 (7th Cir. June 26, 2012).
 Special rule for seniority systems: US Airways, Inc. v. Barnett
 Employer discretion to choose among equally effective
accommodations where there is more than one possibility.
 Accommodation does not require lowering performance or
production standards (pro-rate for time off granted due to
disability).
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ADA Update
 If requestor only knows the problem, not the solution,
employer must search for possible accommodations.
 If requestor specifies particular accommodation but it is
one that legally need not be provided (e.g. request to lower
production standards), employer must offer an alternative
accommodation if one exists that would not pose an undue
hardship -- search for and consider alternative
accommodations.
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ADA Update
Tips:
 Respond to requests promptly, as undue delay may
constitute a denial of accommodation
 Engage in good faith in the interactive process
 Construe “disability” broadly
 Individualized assessment: Do not assume that individuals
with the same disability have the same limitations or need
the same accommodation
 Gather information about possible accommodations
 If denying any reasonable accommodation, clearly
communicate the reasons
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ADA Update
Questions?
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ADA Update
Contact
EEOC
Jeanne Goldberg
 (202)663-4693 (V) & (202)663-7026 (TTY)
 www.eeoc.gov
JAN
 (800)526-7234 (V) & (877)781-9403 (TTY)
 AskJAN.org & [email protected]
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