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Lorman Seminar presentation by Chris Wangsgard on November 9, 2012 in Provo, Utah.

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  2. 2. 2
  3. 3. Let’s Look at Accommodation42 USC 12112(b) “Discriminate” Includes The term “discriminate” includes notmaking reasonable accommodations tothe known physical or mental limitations ofan otherwise qualified individual with adisability. . .3
  4. 4. KnownLimitations4
  5. 5. Not DisabledEnough• NotQualified toPerformEssentialJobElementsTooDisabledACCOMODATIONQualified with Disability• Impairments assessed withoutregard to mitigating measures(other than eyeglasses)• Construe “disability” broadlyrather than strictlyIncreasing Severity of Impairment5
  6. 6. Qualified WithoutReasonable AccommodationEssential Job Elements(Requirements)EmployeeCapabilities6
  7. 7. Not Qualified WithoutReasonable Accommodation7
  8. 8. Qualified WithReasonable Accommodation8
  9. 9. Not Qualified (Even With)Reasonable Accommodation9
  10. 10.  Who decides whether the employer hasmet its reasonable accommodation duty?10
  11. 11. ADA Jury InstructionReasonable Accommodation: General InstructionUnder the ADA, to “accommodate” a disability is to make some changethat will let a person with a disability perform the job. Anaccommodation is “reasonable” if it is effective and its costs are notclearly disproportionate to the benefits that it will produce.A reasonable accommodation may include a change in such things asordinary work rules, facilities, conditions, or schedules, but does notinclude elimination or change of essential job functions, assignment ofessential job functions to other employees, or lower productivitystandards.11
  12. 12. ADA Jury InstructionInteractive ProcessOnce an employer is aware of an [employee’s/applicant’s]disability and an accommodation has been requested, theemployer must discuss with the [employee/applicant] [or, ifnecessary, with his doctor] whether there is reasonableaccommodation that will permit him to [perform/apply for]the job. Both the employer and the [employee/applicant]must cooperate in this interactive process in good faith.12
  13. 13.  Because an employee’s limitations andconcomitant need for accommodation areoften not known to an employer until theemployee requests an accommodation, thereasonable accommodation requirement ofthe ADA usually does not apply unlesstriggered by a request from the employeeKeeler v. Florida Dept. of Health559 F. Supp 2d 129813
  14. 14. Keeler continued: The employee’s request must be sufficientlydirect and specific, giving notice that sheneeds a special accommodation and therequest must explain how theaccommodation requested is linked to herdisability14
  15. 15.  Where employee’s limitations and necessaryreasonable accommodations are notopen, obvious and apparent to employer, theinitial burden rests primarily on the employeeto suggest a reasonable accommodationHusinga v. Federal-Mogul Ignition519 F. Supp 929 (2007)15
  16. 16. Mr. Dortch:“…my spondylitis condition worsened recently.”Tommy Holly:“You know, it’s going to be extremely difficult forme to do this, with my problems I have.”16
  17. 17. Big, Big AccommodationTakeaways Preparing to explain an accommodation to a juryshould happen during the decision making – notwhen the decision is challenged later Don’t pretend the jury won’t hear from the lowerlevel people closest to the facts Assume jurors will ask themselves:– how would my company have handled this?– how would I feel if I were treated like this?17
  18. 18. Conditional Accommodation In a close case, the company will lookbetter to a jury if it has tried anaccommodation. If the accommodationdoes not work the company will haveevidence showing:1. It wanted to help the employee2. Why the accommodation didn’t work18
  19. 19. Two Big AccommodationTakeaways1. An ADA accommodation is a change inhow we do things2. An ADA accommodation is something wedo not do for other employees19
  20. 20. 1. An employee makes an ambiguous statementimplying something is wrong with them? OR2. A supervisor observes that something seems wrongabout the employee?What if:20
  21. 21. Can you see a way to respond which:1. Meets the company’s duty to conductinteractive dialogueAND2. Would not violate the ADA even if ADAlimitations were later deemed not to havebeen made known21
  22. 22. “Can you do this job?”OR“What part of the job do you think youmay have trouble doing?”How about something like:22
  23. 23. Requesting ReasonableAccommodation Plain English – Common Sense Making known a limitation Requesting some help23
  24. 24. Employer’s Response: Informal process Clarify what individual needs Identify appropriate, reasonableaccommodations24
  25. 25. Employee’s Responsibilities: Identify functional limitations Describe problems performing job duties Provide suggestions regarding effectiveaccommodations Allow employer to submit specific questions toappropriate, health care professional Cooperate in responding to reasonableemployer requests for documentation (mayinclude signing limited release of medicalconfidentiality)25
  26. 26. Possible ReasonableAccommodations Include 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; and Reassignment to a vacant position26
  27. 27. Accommodations Related to JobPerformance, Job Restructuring Reallocating or redistributing marginal jobfunctions an employee is unable toperform because of disability Altering when/how functions, whetheressential or marginal, are performed27
  28. 28.  Note: The employer never has to eliminateessential functions as a reasonableaccommodation, but employer must provethe functions it will not reallocate areessential28
  29. 29. What Do We Not Have To DoTo Accommodate?You don’t have to: Eliminate an essential function Lower uniform production standards Provide personal use items needed both onand off job Create a position or bump an employee tocreate a vacancy Provide employee with a new supervisor29
  30. 30. . . . And The Ultimate Don’t Have ToDo It – Undue HardshipRelevant factors: Nature and cost of accommodation Impact of accommodation on operation offacility Overall financial resources, size, numbers ofemployees of the employer EEOC Enforcement Guidance:“Generalized conclusions will not suffice tosupport a claim of undue hardship.”30
  31. 31. Summary Accommodation is not immunity from discipline It’s prospective It starts when limitations are made known Accommodation requests can be subtle – andinformal Employer’s duty to consider and discusaccommodations covers all reasonable options– not just the employee’s first choice31
  32. 32.  Accommodation means changing the waythings are customarily done Accommodation requires doing things fordisabled employees which you don’t do forother employees You probably won’t enjoy the comfort of aclear rule declaring your accommodationsdecision reasonableSummary32
  33. 33.  A jury will decide whether your decision wasreasonable So you’re not ready to make an accommodationdecision until you’re comfortable with the riskinvolved in explaining the decision to a jury And that person with the most personalknowledge of the job duties and the impairmentswill be the most important witness regardless ofcorporate positionSummary33
  34. 34.  Chris Wangsgarddirect: (801) 536-6782email: cwangsgard@parsonsbehle.comThank You34