Labor & Employment Annual Seminar

EXPANDING WAYS DISABILITY
IMPACTS THE WORKPLACE
Suzzanne W. Decker | Deborah K. St. Lawrence Thompson

April 26, 2012

April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE 2

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.


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.


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?


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?


Common Sense
 Does the site avoid blinking, marquee, or other
auto-scrolling text which might trigger epileptic
seizures?


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.


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.


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?

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.
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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?


What Should You Do?

1. Fire her.
2. She’s got a doctor’s note
so we cannot do
anything.
3. Counsel her on the
performance issue.

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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?


What Should You Do?

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%

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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.


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.


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.


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.


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.


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.


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.

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.

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?


What Should You Do?

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.
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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.


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.


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).


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).


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).


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 employer's 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 employer's
medical leave plan provided to nondisabled employees (which was 1
year). Criado v. I.B.M. Corp., 145 F.3d 437 (1st Cir. 1998).

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. Commc'ns, Inc., 143 F.3d 1324 (10th Cir.
1998).


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?

What Should You Do?

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%

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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.

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.


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).


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.


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?

What Should His Boss Do?

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.

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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.


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.


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.


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?

What Should The Employer Do?

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.

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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 defendant's 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.


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.


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.


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.


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.


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
employee's 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.


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.


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.


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.


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.


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?


What Should Selina Do?

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%

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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?


What Can She Do?

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.
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