Labor & Employment Annual Seminar

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In this presentation we highlight the impact of the 2009 Amendments to the ADA, and the EEOC\'s investigation of inflexible leave policies and their impact on employees and employers.

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Labor & Employment Annual Seminar

  1. 1. EXPANDING WAYS DISABILITYIMPACTS THE WORKPLACESuzzanne W. Decker | Deborah K. St. Lawrence ThompsonApril 26, 2012
  2. 2. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 2
  3. 3. Government Pushing Employers to Make Websites Accessible for Disabled Applicants and Employees  The OFCCP issued an Accessibility of Online Application Systems directive in July 2008. ► Compliance evaluations now include a review of the contractor’s online application systems. ► Best practice to tell applicants near the beginning of the online application how to request a reasonable accommodation to complete it.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 3
  4. 4. Government Pushing Employers to Make Websites Accessible for Disabled Applicants and Employees  In July 2010, the Department of Justice issued Advanced Notice of Proposed Rule Making indicating that it was planning to issue regulations ensuring that disabled individuals could access employers’ websites.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 4
  5. 5. How to Ensure Website Accessibility: A Matter of Common Sense  Can you navigate the site with the keyboard only? Can you fill out and submit forms without using a mouse?  Do color contrast and text size look reasonable, even for someone who has low-vision? Can your mother/grandmother read the text?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 5
  6. 6. How to Ensure Website Accessibility: A Matter of Common Sense  Does the link text make sense on its own (i.e., not "read more" or "click here") for users who utilize screen reading software to navigate, such as those who are blind?  Do your videos have captions or transcripts for the hearing impaired?  Does the site rely on being able to distinguish colors?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 6
  7. 7. How to Ensure Website Accessibility: A Matter of Common Sense  Does the site avoid blinking, marquee, or other auto-scrolling text which might trigger epileptic seizures?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 7
  8. 8. Advanced Issues Often you can seek professional assistance with things like:  For images of text (which should be avoided if possible), alternate text should match the text in the image.  Evaluating the page structure.  Checking actual color contrast.  Ensuring things like data tables and timed responses are accessibly implemented on your site.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 8
  9. 9. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 9
  10. 10. Telecommuting as a Reasonable Accommodation  According to the EEOC, employers must consider telecommuting as a possibility for a reasonable accommodation.  On the other hand, the federal courts are reluctant to impose telecommuting on employers. As one recent decision noted, it is a rather common sense idea that if one is not able to be at work, one cannot be a qualified individual.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 10
  11. 11. Telecommuting as a Reasonable Accommodation Scenario: Emily has lymphedema which causes a buildup of lymphatic fluids in her right leg. The swelling is painful and makes it very difficult to walk, thus affecting Emily’s ability to commute to work. She provides documentation from her doctor confirming that the lymphedema is a chronic condition that has worsened in the last few months, and that he does not expect any improvement in the next several months. As a reasonable accommodation, Emily requests that she be allowed to work from home three days a week. Much of her work involves writing and reviewing documents which she can do using a computer. She also can communicate with clients and colleagues through use of the phone and e-mail. The doctor’s letter explains that the three days working at home will ease the pain and make it tolerable for Emily to commute the other two days. What Should You Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 11
  12. 12. What Should You Do? Please make your selection...1. Terminate Emily. She is unable to perform her job duties.2. Politely refuse the request. Her job requires her to be in the office.3. Allow Emily to work from home.4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 12
  13. 13. Telecommuting as a Reasonable Accommodation Scenario: Emily is not accomplishing the tasks that she is supposed to be doing when working from home. What Should You Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 13
  14. 14. What Should You Do? Please make your selection...1. Fire her.2. She’s got a doctor’s note so we cannot do anything.3. Counsel her on the performance issue.4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 14
  15. 15. Too Bright Scenario: Doug gives you a doctor’s note saying that he suffers from migraines and that the lighting in your office is a trigger. The doctor suggests that Doug work from home 4 days a week. What Should You Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 15
  16. 16. What Should You Do? Please make your selection...1. Allow him to work from home. Once you receive a doctor’s note, there is too much potential liability if you refuse.2. Engage in a dialogue with Doug to discuss if there are other ways to reasonably accommodate his migraines while still working at the office.3. Provide Doug with paid time off as an accommodation.4. None of the above 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 16
  17. 17. What Should Employers Do?  Adopt and distribute a formal policy on telecommuting.  Re-examine existing job descriptions.  Avoid mechanical application of eligibility rules when a disabled employee asks to telecommute; engage in a dialogue.  Think of creative alternatives to telecommuting.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 17
  18. 18. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 18
  19. 19. EEOC Releases Two Guides for Disabled Veterans  In February 2012, the EEOC released a guide for employers on veterans and the ADA, and a separate guide for wounded veterans on understanding their ADA rights.  The EEOC noted that approximately 25% of recent veterans have a service-connected disability, compared to about 13% of all veterans, according to 2011 U.S. Bureau of Labor statistics.  The guide also states that some service-connected disabilities, such as deafness, blindness, missing limbs, mobility impairments, major depressive disorder and post-traumatic stress disorder will easily be concluded to be disabilities under the ADA.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 19
  20. 20. Hiring  Employers in the private sector may decide to give veterans with disabilities a hiring preference.  During a job interview, an employer may not ask about an injury. However, if it seems likely that the applicant will need a reasonable accommodation, an employer may ask if an accommodation is needed and, if so, what type. An employer may also ask to describe how the veteran would perform the job with or without an accommodation.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 20
  21. 21. Hiring  The EEOC reminded veterans that they can request an accommodation at any time during the application process or when they start working – even if the applicants did not ask for one when applying for a job or after receiving a job offer.  Also, the injured veteran might request a different or additional accommodation later if the disability and/or the job changes or if another accommodation becomes available.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 21
  22. 22. Recruiting  State on an advertisement that an employer is an equal opportunity employer and that individuals with disabilities, including disabled veterans and veterans with service-connected disabilities, are encouraged to apply.  Ensure that online recruiting information and application processes are accessible to individuals with disabilities, including disabled veterans.  Make written recruiting materials available in alternate formats such as Braille and large print, and assist disabled veterans in completing application materials when necessary.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 22
  23. 23. Recruiting Send vacancy announcements to, and ask for referrals from, government, community and military organizations and One Stop Career Centers that train and/or support disabled veterans. Post advertisements and vacancy announcements in publications for veterans. Attend job fairs and use online resume databases that connect veterans with employers.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 23
  24. 24. Reasonable Accommodations Written materials in accessible formats, such as large print, Braille and on computer disk. Recruitment fairs, interviews, tests and training in accessible locations. Modified equipment and devices, such as assistive technology, a glare guard for a computer monitor used by someone with a traumatic brain injury and a one-handed keyboard for a person missing an arm or hand.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 24
  25. 25. Reasonable Accommodations Physical modifications to the workplace, including adjusting the height of a desk or shelves for someone in a wheelchair. Leave for treatment, recuperation and training related to their disability. Reassignment to a vacant position when a disability prevents performance of the employee’s current job or where accommodating the employee in the current job would result in undue hardship.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 25
  26. 26. PTSD Scenario: You have hired a veteran who has PTSD. He was assigned to work in a cubicle in an office setting. Because of the cubicle’s placement, the employee had no choice but to have his back to the opening. He becomes startled each time a co-worker approached his cubicle, and has violent and loud flashbacks from when he was in combat. What Should You Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 26
  27. 27. What Should You Do? Please make your selection... 1. Tell him that his outbursts are distracting to his co-workers. Place him on a Performance Improvement Plan. 2. Engage in a dialogue with the employee. Accommodate him by attaching a mirror to his computer monitor so that he can see when co-workers enter his workspace. 3. Allow him to work from home, where he will not be startled by others. 4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 27
  28. 28. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 28
  29. 29. Employer Policies are the Subject of Increased Enforcement Activity  Over the past few years, the EEOC has aggressively targeted inflexible leave of absence policies and no-fault attendance policies.  There have been a number of multi-million dollar settlements against employers in 2011 alone. In July 2011, Verizon agreed to pay $20 million to employees who were fired or disciplined under the company’s No-Fault Attendance policy, the largest EEOC disability discrimination settlement in history.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 29
  30. 30. What are Inflexible Leave of Absence Policies and No-Fault Attendance Policies?  Inflexible leave of absence policies provide for the automatic termination of employees who cannot return to work after exhausting a fixed period of leave.  No-fault attendance policies charge an absence against an employee regardless of the reason for the absence. Thus, problems arise when the employer fails to recognize – and exclude from the policy – absences that relate to a disability or that fall under the FMLA.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 30
  31. 31. Medical Leave for Prolonged or Indefinite Periods are Generally Not Reasonable  Employer does not need to give bus driver with diabetes, hypertension, and a chronic heart condition indefinite leave to try to recover. Employee had received only 10 days of leave, but his condition indisputably made him unable to perform the job. The ADA does not require an employer to provide an accommodation in the hope that sometime in the future the disabled individual will become qualified for the position in question. Myers v. Hose, 50 F. 3d 278 (4th Cir. 1995).April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 31
  32. 32. Medical Leave for Prolonged or Indefinite Periods Are Generally Not Reasonable  Diabetic food service worker who could no longer stand because her feet were amputated was not entitled to one year of unpaid medical leave to become accustomed to a prosthetic device. One year medical leave is inherently unreasonable when such practices are not standard for all employees. Peyton v. Fred’s Stores of Arkansas, Inc., 561 F.3d 900 (8th Cir. 2009).April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 32
  33. 33. Medical Leave for Prolonged or Indefinite Periods Are Generally Not Reasonable  Supervisor with high blood pressure cannot take two months’ additional leave, where he had already taken ten months’ medical leave during which time his condition failed to improve. Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997).April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 33
  34. 34. Medical Absences for Definite Periods May Be Reasonable Accommodations… …Especially if the Length of the Leave Falls Within the Employer’s Leave Policies.  Where a disabled employee requests medical leave for a short and determinable period, the ADA requires the employer to allow such leave as reasonable accommodation, especially if the length of the leave falls within the maximum amount of time granted by the employers leave plan.  Sales representative with depression and anxiety was unfairly denied additional time off after he took one month’s leave. The court noted that the employee’s leave request was for less time than the employers medical leave plan provided to nondisabled employees (which was 1 year). Criado v. I.B.M. Corp., 145 F.3d 437 (1st Cir. 1998).April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 34
  35. 35. Medical Absences for Definite Periods May Be Reasonable Accommodations… …Especially if the Length of the Leave Falls Within the Employer’s Leave Policies.  Similarly, a network technician with PTSD was entitled to a four-to-five- month medical leave for an inpatient treatment program that his treating psychiatrist had recommended, even though he had already gotten 5 weeks of leave. Rascon v. US W. Commcns, Inc., 143 F.3d 1324 (10th Cir. 1998).April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 35
  36. 36. Attendance Policies Scenario: Good Heath Hospital believes in rewarding good behavior and awards bonuses to employees with perfect attendance over the course of a year. For employees with absences, there is a “no fault” system that grants employees five unplanned absences during a rolling 12-month period. Rachel is a neonatal intensive care unit nurse who has received numerous above average performance evaluations. Rachel suffers from fibromyalgia, a condition that causes body-wide pain and tenderness in the joints, muscles, tendons and other soft tissue of the body. In 2011, Rachel took five unplanned days of leave because of her condition. She has now requested as an accommodation for her deteriorating condition an unspecified number of unplanned absences. What Should You Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 36
  37. 37. What Should You Do? Please make your selection... 1. Award her a perfect attendance bonus for 2011 as she did have “perfect” attendance aside from her ADA-related absences. 2. Count Rachel’s days off against her five-day threshold of unplanned absences. 3. Politely refuse Rachel’s request. Her job as a neonatal intensive care nurse is exceptional and regular attendance, team coordination and continuity for this group of patients is an essential job function. 4. All of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 37
  38. 38. Compliance Strategies  Review your policies and practice to ensure that they communicate a willingness to consider excusing absences under the ADA and other similar laws.  Train your employees to understand to recognize situations that may implicate the ADA and FMLA, to refer leave of absences request to Human Resources for proper handling, and to understand the company’s legal obligations.  Ensure that attendance programs and policies are applied uniformly.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 38
  39. 39. Compliance Strategies  Confirm that ADA-protected absences are not counted against employees in performance reviews.  Engage in the interactive process – and document it.  Don’t forget about ADA employees on leave; develop documentation to show that you considered return-to-work options along the way.  Don’t be afraid to follow up with the employee when leave is unpredictable, chronic or more frequent than expected.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 39
  40. 40. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 40
  41. 41. Obesity: EEOC Enforcement  The EEOC’s position has always been that morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a physiological disorder are “disabilities” under the ADA.  In the past, courts have been split on whether the ADA covers morbid, or severe, obesity by itself, or if the obesity must be the result of some underlying physiological disorder (i.e., hypertension, diabetes, thyroid disorder).April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 41
  42. 42. Obesity: EEOC Enforcement  A federal court has recently found severe obesity, regardless of the cause, to be a disability under the ADA. E.E.O.C. v. Resources for Human Development, Inc., 2011 WL 6091560 (E.D. La. Dec 07, 2011). ► The plaintiff in that case weighed about 400 pounds when she was hired. The employer terminated the plaintiff when it found that her weight severely impaired her job performance. At the time of her termination, she weighed 527 pounds. ► The case recently settled for $125,000.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 42
  43. 43. Terminating a Morbidly Obese Employee Scenario: Robert is a morbidly obese employee who has been a forklift driver in a manufacturing company for many years. His boss saw him driving the forklift without a seatbelt, which is a safety violation, and requested that he wear one. Robert said that he could not wear the seatbelt because it was too tight. What Should His Boss Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 43
  44. 44. What Should His Boss Do? Please make your selection... 1. Provide Robert a seatbelt extender so that he can wear the seatbelt. 2. Terminate him. He cannot perform the essential functions of his job, which is safely driving a forklift. 3. Tell him to wear the seatbelt on the forklift. Giving a seatbelt extender would be preferential treatment. 4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 44
  45. 45. EEOC Lawsuit: ADA Discrimination Against Morbidly Obese Person This scenario is based on a lawsuit that the EEOC filed against BAE Systems on September 27, 2011, alleging that the company violated the ADA by firing a morbidly obese employee 2 weeks after he requested a seatbelt extender so that he could safely drive his forklift. In its complaint, the EEOC alleged that BAE terminated the employee, after telling him that it “had reached the conclusion that he could no longer perform his job duties because of his weight.” BAE denied the employee’s request to be moved to another position. It also allegedly made no attempt to discuss reasonable accommodations.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 45
  46. 46. Lack of High School Diploma as a Disability: EEOC Enforcement  On November 17, 2011, the EEOC issued an informal opinion letter stating that if an employer adopts a high school diploma requirement that “screens out” an individual who did not graduate because of a learning disability, the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity.  Due to the significant commentary and conjecture about the letter’s meaning and scope, the EEOC back-tracked and issued a “Q&A” document to clarify its position in March 2012.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 46
  47. 47. Lack of High School Diploma as a Disability: EEOC Enforcement  In this document, the EEOC stated that employers can still require job applicants to hold a high school diploma, but should allow the employee to demonstrate qualification for the job in some other way if the applicant didn’t receive the diploma due to a disability. Employers can require applicants to provide documentation showing that they have a disability and that the disability was what prevented them from obtaining a diploma.  Applicants who did not receive their diploma by choice rather than because of a disability are not protected by the ADA.  Even if a disabled applicant demonstrates that he or she meets the requirements by means other than possession of a diploma, the employer is still free to select the best qualified candidate.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 47
  48. 48. Can A High School Diploma Requirement Be Discriminatory? Scenario: A nursing home employer made a new requirement that nursing assistants needed to have high school diplomas. A nursing assistant who had worked successfully in the job for 4 years did not have her high school diploma. The employee tells her boss that she had tried to obtain her GED several times, but could not do so because of her disability. What Should The Employer Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 48
  49. 49. What Should The Employer Do? Please make your selection... 1. Work with the employee’s GED instructors to find an alternative way to assess the employee’s ability to do the job. 2. Revoke the high school diploma requirement. 3. Place the employee in a different job where a high school diploma is not required. 4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 49
  50. 50. EEOC Lawsuit: High School Diploma This scenario is based on an ADA lawsuit the EEOC filed in 2003. Nearly four years into her employment, a nursing facility notified an employee that she would be terminated unless she obtained her GED within 90 days. The employee had a full-scale IQ of 66. She completed the ninth grade of high school and was unable to pass the GED test despite 10 years of studying. She was licensed by the state as a certified nursing assistant based on her years of experience in the field and favorable job references. The employee’s GED instructor contacted defendants Executive Director to discuss alternative measures of job skills, and offered, at no cost, to perform alternative testing to measure employee literacy skills. Defendant refused to consider any alternatives and fired the employee because she was unable to pass the GED. The case settled for $80,000.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 50
  51. 51. Bottom Line  In the United States, approximately 34% of adults are obese.  Maryland has almost 613,640 adults without a high school diploma. In Baltimore City, 38% of adults are either unable to read or read below the fourth grade level, and over 142,000 adults do not have a high school diploma.  Employers should recognize obesity and a lack of a high school degree as potential disabilities that may require reasonable accommodation through the “interactive process” called for by the ADA.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 51
  52. 52. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 52
  53. 53. Boitnott v. Corning, Inc. – Employee’s Inability to Work Overtime is Not a Per Se Disability  In February 2012, the Fourth Circuit Court of Appeals concluded that the inability to work overtime is not, in and of itself a disability under the original version of the ADA.  The plaintiff was a maintenance engineer who was diagnosed with a mild form of leukemia that did not require medical treatment. However, his doctor limited him to eight hours of work per day due to fatigue related to the condition. Corning responded that the job required the ability to work overtime, and removed him from his position.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 53
  54. 54. Boitnott v. Corning, Inc. – Employee’s Inability to Work Overtime is Not a Per Se Disability  The plaintiff contended that his leukemia substantially interfered with the major life activity of working, in that it prevented him from working overtime.  The Fourth Circuit disagreed, holding that an inability to work overtime does not constitute a disability. An employee is not “substantially limited” if he or she can work a 40-hour workweek, but is unable to work overtime hours.  Numerous federal appellate courts previously have addressed the question of whether the inability to work overtime is a substantial limitation on the major life activity of working. The Fourth Circuit’s recent opinion comports with the law in the First, Third, Fifth, Sixth, and Eighth Circuits.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 54
  55. 55. The Decision’s Implications The Fourth Circuit was careful to make an individualized inquiry into the facts. Employers should not assume that the inability to work overtime can never support a successful ADA claim. This case was decided before the ADAAA. Under ADAAA, it is likely that the leukemia itself, even in the absence of significant symptoms, would qualify as an ADA disability. In addition, the ADAAA broadens the definition of restrictions that limit persons in their ability to work. The inability to work overtime may qualify as a restriction that would classify restricted employees as disabled under the ADA.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 55
  56. 56. The Decision’s Implications Post-ADAAA litigation in this area will shift from the threshold issue of disabled status to the reasonable accommodation question. Is the ability to work overtime an essential job function? If so, what steps can the employer take to allow an employee with hours restrictions to work some overtime? Can work schedules be changed to accommodate the employees medical restrictions? Can the disabled employee trade schedules with other employees to allow him to work within his medical restrictions? ► Most federal courts presented with this issue have concluded that the ability to work overtime is an essential function of the job, and employers are not required to provide the employee with a blanket exemption from overtime work.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 56
  57. 57. April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 57
  58. 58. The Challenge: A Disability In One Person May Not Be A Disability In Another A mental impairment which is considered disabling in one individual may not be considered disabling in another individual. Examples of such emotional or mental illnesses that may constitute “disabilities” under the ADA include major depression, bipolar disorder, anxiety disorders, schizophrenia, and personality disorders.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 58
  59. 59. The Challenge: A Disability In One May Not Be A Disability In Another However, not all mental disorders are disabilities, or even impairments, for purposes of the ADA. For example, various conditions listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders IV, including sexual behavioral disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs, are specifically excluded from the ADA’s definition of a disability.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 59
  60. 60. The Challenge: No Limit to Types of Accommodations There are many types of reasonable accommodations set forth in the ADA, regulations, and EEOC guidance. Examples include job restructuring, part- time or modified work schedules; reassignment to a vacant position; acquiring or modifying equipment or devices; providing additional unpaid leave; and changes to workplace policies, procedures or practices.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 60
  61. 61. The Challenge: No Limit to Types of Accommodations The employer has an ongoing responsibility to consider additional accommodations as circumstances change. The most important factor to remember is that reasonable accommodations must be examined on a case-by-case basis, and the employer must make a good faith effort to engage in the interactive process with the employee.April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 61
  62. 62. Scenario 1: Selina, who supervises Andrew, heard through the grapevine that Andrew might have an anxiety disorder and that some days he can’t get out of bed. Andrew asks Selina if he can have two weeks off of work. A big project is coming up, and Selina would like Andrew at work. What Should Selina Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 62
  63. 63. What Should Selina Do? Please make your selection... 1. She is free to deny the request. 2. Since she knows that he has a disability, she should grant his request. 3. Ask his co-workers if he really does have an anxiety disorder. 4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 63
  64. 64. Scenario 2: Keith is a “Team Leader” at a facility that cares for severely disabled people. He suffers from severe depression and has attempted suicide twice by overdosing on medication. His supervisor worries that he will hurt himself, and/or the patients he cares for since dispensing medication to patients is an important part of his job. What can she do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 64
  65. 65. What Can She Do? Please make your selection... 1. She cannot terminate him. 2. She can terminate him because he is a direct threat to others. Dispensing medication to patients is an essential function of his job, and there is an increased likelihood that he would mishandle medication or use drugs available to him at work for a third suicide attempt. 3. She should find another employee to dispense medication. 4. None of the above. 0% 0% 0% 0% 1 2 3 4April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 65

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