Americans With Disabilities Act and Absence as an Accomodation

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  • 1. AMERICANS WITH DISABILITIES ACT AND ABSENCE AS AN ACCOMMODATION Christina Jepson, Department Chair Parsons Behle & Latimer cjepson@parsonsbehle.com Lorman Education Seminar, Salt Lake City parsonsbehle.com
  • 2. 2 Overview Americans with Disabilities Act (ADA)  Overview of ADA  Navigating leave as an accommodation  Best practices
  • 3. 3 Overview of ADA ADA requires an employer to  Provide reasonable accommodations  To qualified individuals (employees or applicants)  Who have a disability  Unless it would cause the employer an undue hardship
  • 4. 4 What is a Disability under the ADA? Disability: A. A physical or mental impairment that substantially limits one or more major life activities; B. A record of such impairment or being regarded as having such an impairment. C. Substantially broadened with 2007 amendments
  • 5. 5 What Does Qualified Individual With a Disability Mean? A qualified individual: “An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
  • 6. 6 Essential Functions Only qualified individual(s) can claim an ADA accommodation  Qualified means can perform essential functions (with or without reasonable accommodation)  Perform essential functions generally requires being on the job  We will discuss absence or leave as an accommodation
  • 7. 7 Accommodations Accommodations include: “Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.” EEOC Guidance
  • 8. 8 Accommodations General types of accommodations (EEOC):  Making existing facilities accessible  Job restructuring  Part-time or modified work schedules  Acquiring or modifying equipment  Changing tests, training materials, or policies  Providing qualified readers or interpreters  Reassignment to a vacant position EEOC Guidance
  • 9. 9 Qualified Without Reasonable Accommodation Essential Job Elements (Requirements) Employee Capabilities
  • 10. 10 Not Qualified Without Reasonable Accommodation Essential Job Elements (Requirements) Employee Capabilities Impairment
  • 11. 11 Qualified With Reasonable Accommodation Essential Job Elements (Requirements) Employee Capabilities Employer’s Accommodation
  • 12. 12 Accommodations Holly v. Clairson Industries, 492 F.3d 1247 (11th Cir. 2007):  The very purpose of the reasonable accommodation provision is to require employers to treat disabled individuals differently in some circumstances when different treatment allows a disabled individual to perform the essential functions of his position by accommodating his disability
  • 13. 13 Accommodations  The term “discriminate” includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability unless (the employer) can demonstrate that the accommodation would impose an undue hardship on the operation of the business  This means: “Known limitations” are very important.
  • 14. 14 Requests for Accommodation  Employee: – Need not give written notice – Need not follow company procedure – Need not report claimed limitation to HR – Need not use legal terms  Request for time off may be how employee makes known some limitations
  • 15. 15 Requests for Accommodation  “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.”  “I need six week off to get treatment for a back problem.”  Employee’s spouse phones the supervisor to inform her that employee had a medical emergency, is in hospital, and needs time off EEOC Guidance
  • 16. 16 Requests for Accommodation Employer should initial the interactive process without being asked if the employer: 1. Knows employee has disability 2. Knows or has reason to know employee is experiencing work problems because of disability 3. Know or has reason to know that disability prevents employee from requesting If individual say she does not need accommodation, employer has fulfilled obligation EEOC Guidance
  • 17. 17 What if You Receive a “Request” Engage in the “interactive process”  Employer and individual should engage in an informal process to clarify what individual needs and appropriate accommodations  Employer may ask relevant question to help it make informed decision  May ask what type of accommodation is needed  Failure by employer to initiate or participate in an informal dialogue after receiving request may result in liability EEOC Guidance
  • 18. 18 What if You Receive a “Request” Documentation  When the disability and/or need for accommodation is not obvious, employer may ask individual for reasonable documentation about the disability and functional limitations  Employer is entitled to know the individual has a disability for which she needs an accommodation  Only what you need – not complete medical records  May require documentation from health care professional  May only require employee to see professional of employer’s choosing if documentation is insufficient EEOC Guidance
  • 19. 19 Absence or Leave We are going to focus on absences and/or leave as a reasonable accommodation  This is a hot area of law  The EEOC is pushing for broader accommodations  Employers are pushing back
  • 20. 20 Leave An employee may need leave for:  Medical treatment (surgery, psychotherapy, substance abuse treatment, rehabilitation services, or physical or occupation therapy)  Recuperating from illness or episodic symptoms of disability  Receiving training EEOC Guidance
  • 21. 21 Accrued Leave One type of reasonable accommodation is permitting the use of accrued paid leave or unpaid leave when necessitated by a disability  Do not have to provide paid leave beyond that which is provided to similarly situated employees  Employers should allow employee to exhaust accrued paid leave first and then provide unpaid leave EEOC Guidance
  • 22. 22 Accrued Leave Example: Employee has 10 days of accrued paid time off but needs 15 days of leave for medical treatment. The employer should allow the employee 10 days of paid leave and 5 days of unpaid leave. EEOC Guidance
  • 23. 23 No Fault Leave Policies EEOC says employer may not apply “no fault” leave policy to a disabled employee who needs additional unpaid leave  A no fault leave policy provides that an employee is automatically terminated after leave for a certain period of time  Modifying workplace policies is a form of reasonable accommodation EEOC Guidance
  • 24. 24 No Fault Leave Policies Tenth Circuit (our jurisdiction) disagrees. Hwang v. Kansas State University, (10th Cir. May 29, 2014)  EEOC has sued many employers alleging inflexible leave policies unlawful because disabled individuals may need more leave  In this case, Hwang was a professor who had cancer and had been granted six months of medical leave pursuant to employer’s leave policy which was capped at six months
  • 25. 25 No Fault Leave Policies Hwang v. Kansas State University, (10th Cir. May 29, 2014)  As her leave came to and end, he doctor advised her to seek more time off work  She requested more leave and was denied. The University arranged for her to receive LTD.  She sued and relied on the EEOC Guidance  The Tenth Circuit disagreed with the plaintiff and said it was not even a close question  “Perhaps it goes without saying that an employee who isn’t capable of working for six months isn’t an employee capable of performing a job’s essential functions”
  • 26. 26 No Fault Leave Policies Hwang v. Kansas State University, (10th Cir. May 29, 2014)  The Tenth Circuit said an inflexible policy can serve to protect the rights of the disabled by ensuring leave requests are singled out as can happen in a system with fewer rules
  • 27. 27 Return Date After Leave Sometimes an employer is required to provide leave with no fixed date of return. Return dates are usually approximate and sometimes set backs change date. However, if employer can show that lack of fixed return date is an undue hardship it can deny the leave. Employer can require periodic updates regarding return date. EEOC Guidance
  • 28. 28 Return After Leave An employer has to hold open a disable employee’s job as a reasonable accommodation  If the employee is granted leave as a reasonable accommodation, he is entitled to the same position unless employer shows undue hardship  If undue hardship, must consider a vacant, equivalent position EEOC Guidance
  • 29. 29 Use of Leave An employer cannot penalize an employee for work missed during leave taken as a reasonable accommodation  It would be retaliation and  It would make the employer liable for failure to accommodate  Example: Salesperson takes 5 months of leave as a reasonable accommodation. Any employee 25% below median sales is let go. The employer terminates the disabled employee without accounting for the leave. Violates ADA. EEOC Guidance
  • 30. 30 Use of Leave Overlap with ADA – Mark will discuss  Determine rights under each statute separately  Under ADA, employee may be entitled to more leave than FMLA leave  No duty to meet FMLA 1 year requirement or hours requirement  Must continue health insurance benefits if it does so for other employees in similar leave status
  • 31. 31 Part-Time or Modified Schedule Employer must allow a disabled employee to work a modified or part-time schedule if necessary as a reasonable accommodation and no undue hardship. Examples:  Altering arrival or departure times  Periodic breaks  Altering when functions are performed  Part-time schedule  Irregular schedule EEOC Guidance
  • 32. 32 Part-Time or Modified Schedule Employer need not modify the work hours of an employee with a disability if doing so would prevent other employee from performing their jobs Example: Crane operator (who operates with three other people) wants adjusted hours. The employer could only do this by requiring others to change their hours or do nothing. Undue hardship. EEOC Guidance
  • 33. 33 Part-Time or Modified Schedule Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 (9th Cir. 2012)  A neonatal nurse had a health condition that required unplanned absences and she requested an exception to the attendance policy – essentially an open-ended schedule  The Court found that given her job attendance was an essential function because it was difficult to provide replacements on short notice
  • 34. 34 Work at Home Employer must allow work at home as a reasonable accommodation if it is effective and not an undue hardship  Whether essential function can be performed at home – Cashier? Telemarketer? Proofreader?  Adequate supervision  Equipment and tools EEOC Guidance
  • 35. 35 Work at Home EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014)  Jane suffered from severe irritable bowel syndrome and would soil herself by simply standing up  She asked to work as resale steel buyer from home up to four days a week  Ford denied the request saying the position necessitated face-to-face interactions and that email and teleconferencing was insufficient for team problem solving
  • 36. 36 Work at Home EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014)  Ford terminated Jane for failing to meet job objective and she filed a charge. The EEOC filed suit against Ford.  EEOC argued that Ford could have accommodated her by eliminating the requirement that she be physically present and allow telecommuting  Court stated that: “When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and employer’s brick-and-mortar locations were synonymous.”  “Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere than an employee can perform her job duties.”
  • 37. 37 Work at Home EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr. 22, 2014)  The Court disagreed with Ford that physical attendance was critical to the group dynamic of the team  Jane did need to conduct occasional site visits with steel suppliers but could do so even if she primarily worked at home  The Court said that Ford should have done a better job engaging in the interactive process – it offered to either move her cubicle closer to the bathroom or move her to position more suitable for telecommuting. The Court said that was inadequate.  The Court did acknowledge that predictable attendance is an essential function for many jobs, but that telecommuting was no longer “extraordinary” or “unusual”
  • 38. 38 Best Practices 1. Review and Update Your Job Descriptions. Job descriptions are key in ADA cases. You use them when you are figuring out what are the essential functions of the job and can they be accommodated. You use them in charges and lawsuits when you are defending your decisions. You are in a bad position if you say being at work is an essential job function and it is not in your job description. 2. Implement a Policy. It is good to have an ADA policy and a specific policy for the interactive process. Describe the interactive process. Let employees know that if they request an accommodation, you will work with them to try to provide an accommodation.
  • 39. 39 Best Practices 3. Train Your Manager and Supervisors on Your Policy. Remember that a “request” can be very informal. It is often made to a supervisor not HR. Your supervisors need to recognize when they have a potential disability or request for accommodation so they can pass it on to HR or Legal. Train your supervisors not to ask questions about the medical condition or disability. 4. If You Get a Request Take It Seriously. Meet with the employee to discuss his limitations and what can be done to accommodate. Ask the employee for ideas about what you can do. You can also suggest solutions. Document this meeting!
  • 40. 40 Best Practices 5. Continue the Dialogue as Needed. The meeting is not the end of the interactive “process.” It is an ongoing process. Even if you implement an accommodation, you should check in with the employee periodically. Document your efforts! 6. Get More Information if Needed. During the process you may decide that you need information from the employee’s health care provider. If so, make sure you ask only the necessary questions and get a release from the employee. 7. If you have a really tricky situation, talk to legal counsel.