Disability Accomodation: A Practical Approach 2012

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Richard Lentini of Ryan Swanson & Cleveland PLLC's presentation on Disability Accomodation

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Disability Accomodation: A Practical Approach 2012

  1. 1. Disability Accommodation: A Practical Approach Richard P. Lentini
  2. 2. What is a Disability? Federal Americans with Disabilities Act  An individual with a disability is one who:  Has a physical or mental impairment that substantially limits one or more major life activities (caring for self, walking, seeing, hearing, speaking, working, etc.)  Has a record of such an impairment; or  Is regarded as having such an impairment ©2012 by Ryan, Swanson & Cleveland, PLLC 2
  3. 3. What is a Disability? Federal Americans with Disabilities Act  Exclusions: Homosexuality, bisexuality, gender identity disorders, sexual behavior disorders, compulsive gamblers, kleptomaniacs, pyromaniacs, those currently engaged in the use of illegal drugs ©2012 by Ryan, Swanson & Cleveland, PLLC 3
  4. 4. What is a Disability? Federal Americans with Disabilities Act  Those who are participating or have participate in a supervised drug rehabilitation program or have otherwise been successfully rehabilitated are protected ©2012 by Ryan, Swanson & Cleveland, PLLC 4
  5. 5. What is a Disability? Washington Law Against Discrimination  Disability is the presence of a sensory, mental or physical condition which is:  Medically cognizable  Exists as a record or history; or  Is perceived to exist, whether or not it exists in fact ©2012 by Ryan, Swanson & Cleveland, PLLC 5
  6. 6. When Does an Employer Have to Accommodate?  When the employer is aware of a disability (abnormal condition)  The employee needs accommodation to perform the essential functions of the job  The employer is obligated to take the initiative to address the issue of accommodation  Employee need not make a formal or written request for accommodation ©2012 by Ryan, Swanson & Cleveland, PLLC 6
  7. 7. When Does an Employer Have to Accommodate?  Before hiring – May not refuse to hire because of a disability which requires accommodation Tip: Are you having any problems performing your job that we should know about? ©2012 by Ryan, Swanson & Cleveland, PLLC 7
  8. 8. How Does an Employer Decide How to Accommodate?  Interactive Exchange: Inquire to determine the nature and extent of the disability and its impact on job duties:  Involves employer, employee, and physician  Open exchange of information relating to disability, job duties and functions, and accommodations  Employer may require a reasonable documentation and/or a medical examination, if insufficient information is provided  Employer may not seek information not pertinent to the condition or accommodation ©2012 by Ryan, Swanson & Cleveland, PLLC 8
  9. 9. What is the Scope of the Duty?  Take reasonable steps to accommodate the employee’s limitations to enable them to perform the essential functions of the job  Good faith efforts to provide reasonable accommodation is at least a defense to punitive and certain compensatory damages ©2012 by Ryan, Swanson & Cleveland, PLLC 9
  10. 10. What is Reasonable Accommodation? Any accommodation that does not impose an “undue hardship” on the conduct of the employer’s business. An accommodation imposes undue hardship if it presents a significant difficulty or expense. ©2012 by Ryan, Swanson & Cleveland, PLLC 10
  11. 11. What is Reasonable Accommodation?  Considerations include:  The nature and cost  Employer’s financial resources  Number of persons employed  Impact upon operations  Size of employer’s business  Number, type and location of facilities  Type of operation, including the composition, structure and functions of workforce  Geographic, administrative and fiscal considerations ©2012 by Ryan, Swanson & Cleveland, PLLC 11
  12. 12. What is Reasonable Accommodation?  Duty is limited to accommodations necessary to enable the employee to perform the essential functions of the job  An employer may choose among reasonable accommodation options, as long as it is effective ©2012 by Ryan, Swanson & Cleveland, PLLC 12
  13. 13. What is Reasonable Accommodation?  An employee who refuses an offer of effective reasonable accommodation is no longer a qualified person with a disability and thus not entitled to further accommodation ©2012 by Ryan, Swanson & Cleveland, PLLC 13
  14. 14. How does an Employer Accommodate? Modifications that enable the employee to perform their regular job  Examples:  Modify facility  Restructure job  Modify schedule or other conditions  Modification or acquisition of equipment or devices  Adjustment or modification of application, examinations, training materials, or policies  Provision of readers or interpreters ©2012 by Ryan, Swanson & Cleveland, PLLC 14
  15. 15. How does an Employer Accommodate? Reassignment to other jobs  Take initiative in finding another job  Notify employee of openings  Assist with application  Capabilities testing  Training ©2012 by Ryan, Swanson & Cleveland, PLLC 15
  16. 16. How does an Employer Accommodate? Modifications to allow employee to enjoy equal benefits and privileges of employment After discharge  Inform employee of openings for which they are qualified ©2012 by Ryan, Swanson & Cleveland, PLLC 16
  17. 17. What is NOT a Reasonable Accommodation?  Need not eliminate essential functions  Need not lower performance standards  Need not offer the precise accommodation requested  Need not displace another worker  Need not create a new job  Need not prefer employee with disability over a more qualified applicant  Need not provide accommodation that is not medically necessary (employee’s perception) ©2012 by Ryan, Swanson & Cleveland, PLLC 17
  18. 18. Thank you! Richard P. Lentini Ryan, Swanson & Cleveland lentini@ryanlaw.com (206) 654-2231

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