WALKING THE ADA TIGHTROPE DISABILITY … · 2018-04-24 · SUMMARY OF ADA & EMPLOYER’S O ......
Transcript of WALKING THE ADA TIGHTROPE DISABILITY … · 2018-04-24 · SUMMARY OF ADA & EMPLOYER’S O ......
WALKING THE ADA TIGHTROPE: DISABILITY DISCRIMINATION & REASONABLE ACCOMMODATION
March 20, 2018
Presented by: Jami Fenner
Associate General Counsel Hobby Lobby Stores, Inc.
for
SUMMARY OF ADA & EMPLOYER’S OBLIGATIONS
Employer shall not discriminate based on
disability Employer must not retaliate Employer must make reasonable
accommodation to qualified individual with a disability Unless employer can demonstrate undue burden on
operations Other requirements No improper disability-related inquiries No improper disclosure of confidential info
WHY WE CARE?
FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017Age 23.0 22.8 23.2 22.5 22.8 21.8Color 2.7 3.4 3.1 3.2 3.4 3.8Disability 26.5 27.7 28.6 30.2 30.7 31.9Equal Pay Act 1.1 1.1 1.1 1.1 1.2 1.2GINA 0.3 0.4 0.4 0.3 0.3 0.2National Origin 10.9 11.4 10.8 10.6 10.8 9.8Race 33.7 35.3 35.0 34.7 35.3 33.9Religion 3.8 4.0 4.0 3.9 4.2 4.1Retaliation - All Statutes 38.1 41.1 42.8 44.5 45.9 48.8Retaliation - Title VII only 31.4 33.6 34.7 35.7 36.2 38Sex 30.5 29.5 29.3 29.5 29.4 30.4
0.010.020.030.040.050.060.070.080.090.0
100.0EEOC: 2012 to Date
INDIVIDUAL WITH A DISABILITY Physical or mental impairment, record of
impairment or regarded as having impairment Must be viewed broadly & not extensively
analyzed Asymptomatic conditions are disabilities (e.g.
cancer) Temporary impairments covered No minimum duration if disability substantially
limits one or more major life activities
BE CAREFUL ABOUT ASSUMPTIONS RE: ABILITIES
WHAT IS AN ACCOMMODATION? Change
To job application process To work environment or processes that
enables individual to perform essential job functions That enables employee to enjoy benefits &
privileges of employment
WHO RAISES ACCOMMODATION ISSUE & HOW?
Generally not management or HR Supervisors should focus on performance and
conduct May make request orally Magic words not required May request at any time (not req’d to
disclose/reveal at commencement of employment)
Interactive Process
Information gathering process Flexible, informal & “interactive” Must occur promptly Must be individualized Confidential Discussions should be documented (date,
time, participants,…) Note: Do not begin interactive process if there’s a reason/need to terminate
More About Interactive Process
Goal is to permit employee to work, i.e. to perform essential job functions Analyze job functions at issue Look at nature, extent, severity & duration
of impairment(s) Identify possible accommodations that
would eliminate barriers May seek medical documentation about
impairment & functional limitations
MEDICAL DOCUMENTATION Seek only enough information to determine
whether disability exists (if not apparent) and to understand functional limitations Limited to condition at issue Medical records should be requested only if
initial information is unclear (must have authorization) EEOC has held that requiring medical
documentation unnecessarily is a violation
ESSENTIAL JOB FUNCTIONS
Occupational duties fundamental to position; individual cannot do job without performing them Factors: Job Descriptions Position exists specifically to perform function Amount of time actually spent performing function Consequences of not requiring incumbent to
perform function Work experience of incumbents in the job or similar
jobs
JOB TITLE NOT DETERMINATIVE
Roberson with the Thunder in 2017
No. 21 – Oklahoma City Thunder Position Shooting Guard/Small Forward
IDENTIFYING & GRANTING ACCOMMODATION
ADA does require preferential treatment Equal treatment not enough when it comes to
reasonable accommodation “no exception” policies are a problem ADA is superior to company policies
BUT, employer has right to choose any accommodation that eliminates barrier Does not have to be accommodation requested
Cannot require an employee to accept an accommodation
Examples of Accommodations
Job restructuring of marginal duties Modified or part-time schedule Tools, equipment, physical changes to the workplace Modifying workplace policies Frequent breaks & lengthening workday Telework
WHEN ACCOMMODATING, COMPANY DOES NOT HAVE TO . . .
Remove an essential job function Many supervisors believe they have to let
employees “follow doctor’s orders”
Create a job for an employee Remove or reduce production requirements
or performance standards Excuse inappropriate or wrongful conduct Withhold discipline
REASONS FOR DENIAL OF REQUEST
Undue Hardship Insufficient medical documentation Remember, must be limited; only need nature of
impairment (duration, severity, major life activity affected) & how accommodation will assist individual
Removes essential function Lowers Standards Standard should exist prior to request Direct threat
UNDUE HARDSHIP? Generalized conclusions not sufficient Need individualized assessment of circumstances
Factors to consider: Nature & cost of needed accommodation Resources, # of employees, and type & location Type of operation; structure of workforce Impact on operations, including ability of other
employees to perform their duties
Cannot base undue hardship on Fears or prejudices Negative impact on morale
DIRECT THREAT Tough to establish Significant risk of substantial harm to health
or safety of employee or others Accommodation will not eliminate or reduce
Must engage in individualized assessment based on medical documentation & objective evidence Decision cannot be based on assumptions,
unwarranted fears, generalizations, stereotypes or myths about particular disability
Leave As An Accommodation
Cannot require full-duty release But, if cannot perform EJFs, consider leave Beyond FMLA Need not be paid Indefinite not reasonable Says 10th Circuit & several others May require est. return date & indication employee
will be able to perform EJFs upon return
Inflexible leave policies not reasonable, But granting it may be an undue burden
REASSIGNMENT Accommodation of last resort Should be considered only if no other effective accommodation
available Provided to employee who, because of disability, can no longer
perform EJF of current position with or without accommodation Employee must be qualified Not required to create positon or bump an employee Shared burden in searching for position Competitive/Non-competitive? Now a split in the circuits
OTHER INTERESTING ISSUES
Service animals Treat like any other accommodation request Set appropriate boundaries Remember confidentiality Pregnancy Equal access to light duty Medical marijuana Oklahoma State Question 788, on 6/26/18 ballot Still illegal & AG Sessions rescinded Ogden Memo Many states medical marijuana laws say employers
can’t discriminate but need not accommodate Others are split on whether federal law preempts