Presented at the 2018 Utah Human Resources State Council - Crossroads Conference - Sept. 19, 2018 - Provo, Utah

1. 2018 Utah Human Resources State Council Crossroads Conference
Susan Baird Motschiedler
801.536.6923
smotschiedler@parsonsbehle.com
parsonsbehle.com
SEPTEMBER 18 – 19, 2018 | UTAH VALLEY CONVENTION CENTER | PROVO, UTAH
ADA: LEGAL UPDATES
AND REAL LIFE SCENARIOS

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To download a PDF version of Parsons Behle &
Latimer’s 2018 UHRSC Crossroads Conference
Handbook, please visit
http://parsonsbehle.com/employment-handbook

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 Wellness Programs
– District of D.C. remanded EEOC guidelines on Wellness
Programs under ADA and GINA back to the EEOC; indicated
might vacate
 Medical Marijuana
– Interaction with State Disability Laws
– Interaction between DOT and ADA
Updates: Looking Forward

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 Leave as a disability accommodation
– Seventh Circuit holding that – contrary to EEOC policy – long
term leave is not a reasonable accommodation under the ADA.
Severson v. Heartland Woodcraft Inc.
– Supreme Court will not review the 7th Circuit’s decision
– Until further guidance, Employers should continue to evaluate
such requests under normal ADA guidelines
Updates: Looking Forward

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Employer should continue to evaluate:
 Whether the employee’s current medical restrictions affect the employee’s ability to perform
the essential functions of the position;
 If so, are reasonable accommodations available that would enable the employee to perform
these functions;
 Whether vacant positions exist that the employee would be qualified to perform and could be
reassigned into;
 Whether the employer has a policy of creating light-duty positions for employees who are
occupationally injured and whether this benefit could be extended to the employee without
posing an undue hardship; and
 Whether the employee’s request for additional leave is definite in time and of a short
duration, and if this extended leave could be provided without posing an undue hardship.
Updates: Looking Forward

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Once an employer is made aware of a qualified individual's
physical or mental limitations, the employer must
communicate with the applicant or employee to determine if
there is a reasonable accommodation the employer can
provide, absent undue hardship, to overcome those
limitations.
Overview of the Interactive Process

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In searching for a reasonable accommodation, employers are
encouraged to "initiate an informal, interactive process" with the
employee to determine the appropriate reasonable accommodation.
This interactive process is "at the heart of the ADA's process"
and is critical for enabling individuals with disabilities to fully
integrate into the workplace.
(See Barnett v. U.S. Air Inc., 228 F.3d 1105, 1113 (9th Cir. 2000)).
Overview of the Interactive Process

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The goals are for the employer and qualified individual with
a disability to:
 Identify the precise limitations caused by the disability.
 Explore potential reasonable accommodations that could
overcome those limitations.
Overview of the Interactive Process

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How much dialogue is necessary?
 If the dialogue is “successful,” and the employer provides an accommodation which
enables the employee to continue working, the employee is unlikely to challenge the
employer's dialogue.
 However, if the employer concludes that it cannot reasonably accommodate the
employee's limitations, the employee may challenge the employer's dialogue efforts.
 The typical challenge is that the employer failed to sufficiently or appropriately
engage in the interactive process and, had it done so, it would have identified a
reasonable accommodation that would enable the employee to remain employed in
a position which the employee can perform.
Overview of the Interactive Process

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The 1991 Civil Rights Act (CRA) gave plaintiffs in federal
discrimination cases the ability to recover emotional distress and
punitive damages. It also gave employers a safe harbor when
dealing with failure to accommodate claims. An employer who fails
to provide a reasonable accommodation, but engages in the
interactive process in good faith, may avoid punitive and emotional
damages even where the employer cannot show that the proposed
accommodation is an undue hardship.
See 42 U.S.C. § 1981a(a)(3) and EEOC: Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, No. 915.002, Footnote 24 (Oct. 17, 2002).
Litigation Considerations

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 To take advantage of this safe harbor, the employer must
demonstrate good faith efforts, in consultation with the employee,
to identify and make a reasonable accommodation that would:
– Provide the individual with an equally effective opportunity.
– Not cause an undue hardship on the operation of the business.
 Eliminating potential emotional distress and punitive damages
may give an employer a strategic litigation advantage.
Litigation Considerations

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 Employee is a 23 year old restaurant worker with mediocre
performance and interpersonal issues with his manager.
Employee’s parents occasionally call HR to request that the
relationship with the manager be monitored or to request special
treatment for the Employee. HR has discussed these calls with
the manager, who is annoyed at the situation. Parents are in the
restaurant dining one day and say to the manager that their son
has been diagnosed with ADHD and it makes performing in the
restaurant environment difficult for Employee. They suggest that a
work coach would alleviate these issues.
Case Study: Interactive Process

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 Employee is a constant complainer and, on any given day, makes one
complaint about something in his work environment that could be
changed to make it better. He makes the following complaints:
– He can’t see and the lighting over his station needs to be brighter
– The belt on the machine next to him makes too much noise and the machine
should be moved
– His feet hurt from standing in one spot
– Employee works in a clean room and has repeatedly requested a water bottle at
his station. Makes numerous arguments about why that is better than a water
fountain. Employer installs water fountain at far back of room. Employee
continues to complain because he can’t use it. 3 months later, Employer
discovers that Employee has been diagnosed with diabetes.
Case Study: Interactive Process

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Employee requests reasonable accommodation of
additional intermittent leave to accommodate
endometriosis.
 Employee appears to be occasionally in severe pain;
claims is related to endometriosis
 Doctor’s note is from chiropractor
 Doctor’s note does not provide information regarding the
employee’s limitations
Case Study: Interactive Process

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 Long term employee works in industrial setting. His job
description requires that he be able to proficiently operate
all 20 machines in his work area. Employee’s disability
prevents him from operating 3 of the machines and he
requests an accommodation.
Case Study: Interactive Process

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 Long term well performing employee works in industrial
setting. The job descriptions for each employee in this
area require that they all be proficient in manually
operating the fire suppression system. There are normally
five people working in this area. Employee develops
disability that would prohibit him from operating the fire
suppression system and requests an accommodation to
be excused from that job requirement.
Case Study: Interactive Process

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 Accurate
 Identify “essential functions”
– Regular on-time attendance?
– Work in the office? Team work?
– Work well with others?
– Meet deadlines?
– Handle stress?
– Work extra hours? Weekends?
 Job description helps address if employee is “qualified”
and if requested accommodation is “reasonable”
IMPORTANCE OF JOB DESCRIPTION

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 Employer must make “reasonable accommodation” to a
“qualified” employee with a disability that would enable
the employee to perform the “essential functions” of the
job unless it would cause an undue hardship
 Employer must engage in “interactive process” with
employee over possible accommodations
Intermittent Leave

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 Reasonable accommodation may include leave and may
include intermittent leave—
– Not limited by FMLA’s 12 weeks
– Regardless of whether existing leave policy allows
– Regardless of whether offered to other employees
Intermittent Leave

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 Must provide leave on same basis as other employees
– Employer allows 4 days sick leave. Employee asks for 3 days due to
major depression which has flared up due to stress at work.
Supervisor asks her for a note from her psychiatrist because
“otherwise everyone will want time off due to work stress.” Sick
leave policy does not require accommodation for ordinary sickness.
– An employee with a disability asks for 6 days of paid sick leave.
employer’s policy requires a doctor’s note for sick leave over 3 days.
ADA LEAVE ON SAME BASIS

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 May also have to provide unpaid leave beyond what is
available to other employees
– Even if employer does not offer leave
– Even if employee is not eligible under leave policy
– Even if employee has exhausted employer leave and FMLA
leave
– Not required to provide paid leave
 Exception: undue hardship
ADA ADDITIONAL LEAVE

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 Employer provides 10 day of paid annual leave and 4 days of
paid sick leave per year for employee who have worked fewer
than 3 years.
 After three years, employer provides 15 days of paid annual
leave and 8 days of paid sick leave.
 Employee has only worked there 2 years. Has used 10 days
of paid annual leave. Now requests 6 days of paid sick leave
for treatment for his disability.
ADA LEAVE SCENARIO

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 Employer’s leave policy does not cover employees until
they have worked 6 months. Employee has worked for
three months and requests 4 weeks of leave for treatment
for a disability.
ADA LEAVE SCENARIO

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Employee in wheelchair has never asked for
accommodation because the work environment was built to
accommodate wheelchairs. Employee previously took
public transportation, but now has car with hand controls
and requests a dedicated parking space close to the
entrance of the building. HR discovers that Employee is in a
movie regarding people who have an identified mental
disorder that causes them to portray themselves as
disabled, but are not.
“Fake” Disabilities

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Long-term employee with good record suffers from intensified depression
and cannot maintain normal work schedule. Employee misses significant
work time; worked unscheduled hours to make up missed time;
completed all work assignments. However, Supervisor values face-time
and thought Employee should buck up and quit complaining and did not
allow employee to work after 6:00 pm, denied the Employee’s request to
telecommute, and denied request for additional sick leave. Supervisor
suggests that Employee take long term disability and tells HR that
Employee needs help with taking advantage of long term disability
insurance to take care of this issue.
CASE STUDY:
EMPLOYEE WITH SEVERE DEPRESSION

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 Requested flexible work schedule might be reasonable
– Employee worked modified schedule earlier under different
supervisor
– Individualized assessment required—not done
 Physical presence at work at specific time not shown to
be necessary, i.e., an essential function
 Telecommute might not interfere with essential functions
of job
CASE STUDY:
EMPLOYEE WITH SEVERE DEPRESSION

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 Employee’s job
– “Managed employees”
– “Worked closely with partners and suppliers,” and
– Responsible for “employee development”
 Employer claimed maintaining a regular and predictable
work schedule was an essential function of the job
CASE STUDY:
EMPLOYEE WITH MIGRAINES

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 Court said “Maintaining a regular and predictable work
schedule” normally an essential job function, but “regular
and predictable attendance at the workplace is not per se
an essential function of all jobs”
 Employer conceded “vast majority of plaintiff’s job is
accomplished over the computer and phone which does
not require physical presence in the office”
CASE STUDY:
EMPLOYEE WITH MIGRAINES

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 Employee has been granted an accommodation of
intermittent leave due to an ovarian cyst condition.
 Employee planned a week long vacation in Seattle and traded
shifts to avoid penalties under employer’s absence policy.
 During her time off, the employer could not find her shift trade
request, and the employee was told she would have to take a
personal day, which would accumulate negative attendance
mark.
CASE STUDY: “VACATION”

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 Employee responded that she wanted to take ADA leave that
day.
 Employee later claimed she was on bed rest for her cyst
condition.
 But her Facebook page showed photos of Seattle and an
update that read “So, had a nap, about to get in the hot tub
and watch the bonfire. Straight chillin’!”
 Employee discharged based on lying about ADA leave.
 Is the employer justified in its actions?
CASE STUDY: “VACATION”

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Employee has a diagnosis of Muscular Dystrophy and has
been a good performer. Employee moves to a
management position with far greater work responsibilities
and begins to have performance issues. Employee comes
to HR with a doctor’s note that is very similar to Employer’s
required paperwork and which states that Employee needs
the reasonable accommodation of time off to recuperate
and recharge in order to perform the essential functions of
the new position.
CASE STUDY:
“TIME OFF TO RECUPERATE”

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 An employer may decline to provide an accommodation if
such accommodation is:
– Unduly expensive
– Extensive
– Substantial
– Disruptive
– Would fundamentally alter the nature or operations of the
business
Undue Hardship

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 Employee is on intermittent leave for 6 months. After 6 months,
employer realizes employee is using far more leave than expected and
asks for medical documentation to explain the additional leave and
outlook for next 6 months. The documents state the employee could
need as much leave in the coming 6 months as he already used.
Because of the absences, employer has had to postpone meetings
necessary to complete a project for a client. Employer has had to
reallocate job duties resulting in increased workload which are
interfering with meeting the needs of other clients. Employer
determines that additional leave would be undue hardship.
Case Study: Undue Hardship

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 Employee is a pipe/conduit layer working for a company that exclusively digs
trenches to lay pipe and conduit. As part of his job, Employee must climb up and
down into the trench to lay pipe. Employee also occasionally operates trencher to
move it. Employee works on a team of four employees. Each has a specific task
(trenching, backfilling, pipe laying, etc.) and the foreman acts as the trencher and
foreman. There are no job descriptions for any of the crew positions.
 Employee has severe hip issues and needs a hip replacement. However, the hip
issues are related to an old workers’ compensation injury and the worker is trying to
get coverage for the surgery. Employee has exhausted his vacation. He has severe
pain from climbing in and out of the ditch, cannot perform the task quickly anymore,
and is noticeably slowing down the job. The foreman wants to fire him.
Case Study: Undue Hardship

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Employer has a strict attendance policy and requires everyone to
adhere to the same schedule. The Employer has never allowed an
employee to arrive later than the required start time. Employees are
diligent about reporting coworkers who arrive late to work and
demand that they be written up. Employee with sleep phase
disorder requests an accommodation of altering work hours to start
an hour later and work an hour longer.
Case Study: Undue Hardship

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 An employer does not have to tolerate a direct threat.
 A Direct threat is a “significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation.”
 Does the employee pose a “direct threat”?
– What is the risk posed by the employee?
– Is there a significant risk of substantial harm to
• the employee
• others
Direct Threat

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 Employers should assess the existence of a direct threat based on
objective evidence, not subjective judgment or speculation about the
risk involved.
 The employer should be able to:
– Identify the specific risk posed and for mental or emotional problems, the
specific behavior that poses the threat.
– Produce objective documentation of the existence of a disability and the
potential harm it poses.
– Identify the potential consequences if the employee is allowed to work in spite
of the threat.
– An individualized assessment is required.
Direct Threat

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 Factors to be considered by the employer include:
– The duration of the risk
– The nature and severity of the potential harm
– The likelihood that the potential harm will occur
– The imminence of the potential harm
Determining “Direct Threat”

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 A direct threat is grounds for termination ONLY if there is
no reasonable accommodation that would remove the
threat entirely or abate it to a manageable level.
 The ADA does not require employers to ignore safety
issued caused by a disabled person when the issues
cannot be avoided.
Accommodating the Unsafe Employee

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Employee is legally deaf and works with a furnace. The
Employer has accommodated the employee for years
providing a visual alert system, written materials in all
meetings, etc. The employee is considering getting a
cochlear implant. However, the Employee’s surgeon says
that the implant cannot be used near equipment that
operates at certain frequencies. The Employee comes to
HR and states he may need an accommodation to get the
implant.
Case Study: Direct Threat

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 Susan Baird Motschiedler
801.536.6923
smotschiedler@parsonsbehle.com
Thank You

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To download a PDF version of Parsons Behle &
Latimer’s 2018 UHRSC Crossroads Conference
Handbook, please visit
http://parsonsbehle.com/employment-handbook