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Americans with Disabilities Act

Best Practices in Reasonable Accommodation:

Back to the BasicsBack to the Basics

Karen Iezzi Michael, Esq.Vice President

SunTrust Banks, Inc.April, 2003

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AGENDA

Corporate Commitment to Disability-Related IssuesADA Compliance IssuesSample Case Studies

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The Origins of Corporate Best Practices

BLNIndividual(s) dedicated to promoting disability-friendly policiesSeminars for management/other organizations related to disability best-practicesCentralized “reasonable accommodation” fundingDRS and other agency partnerships

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Getting to a Reasonable Accommodation

Before even considering “reasonable accommodation,” first ask whether this is an ADA issue.Even if it isn’t, you might still want to provide the accommodation, but you need to know what your obligations are, and then what you want to do voluntarily.

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Why It Matters if You Have an ADA Issue

Prevents fraudEncourages consistency with the lawEnables eligible employees to receive the accommodation they are entitled toFor the same reason that law-makers limited how many people can be covered by employer obligations, most companies need to do the same thing.

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How to Determine If You Have an ADA Issue

Relevant portions of the ADA require:an employer;to provide reasonable accommodation;to qualified individuals;with disabilities;who are employees or applicants for employment;unless to do so would cause undue hardship.

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For Each Employee -- Go Back to the Basics!

Does the individual have a Disability?

Is the individual Qualified?

Is the accommodation needed Reasonable?

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What is a Disability?

A “disability” is a physical or mentalimpairment that substantially limits a

major life activity.

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Impairment

Is there an impairment?How do you know?

Obtain written information from the employee regarding the alleged impairment;Obtain written medical verification from health care provider.

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Is a “Major Life Activity” Impacted?

What are major life activities?“Major” means “important”“Life activities” means activities that

are of central importance to daily life. Eating, Sleeping, Walking, Talking,

Thinking, Breathing, etc.

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Is a “Major Life Activity” Impacted?

“Working” in a specific job is not a “major life activity”. The “disability” must extend outside of the occupational tasks to those manual tasks central to the ordinary person’s daily life outside of the workplace. See Toyota Motors v. Williams (S. Ct. 2002)

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Is a “major life activity” significantly impacted?

Just because one has trouble breathing, doesn’t mean he is disabled. He must be significantly impacted in the ability to breathe.“Substantially” means “considerable” or “to a large degree.”Impairments that interfere only in a minor way with the performance of manual tasks precludes ADA protection.

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Is a “major life activity” significantly impacted?

“an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long term.”This is a “case by case” determination.Toyota Motors v. Williams

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There are Some “Impairments” that are Excluded from the ADA’s

Reach

TransvestismTransexualism KleptomaniaPedophilia PyromaniaExhibitionismVoyeurismGender Identity DisordersCompulsive GamblingCurrent Illegal Drug Addiction Sexual Behavior Disorders

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Is the Individual “Otherwise Qualified”

Only “qualified” disabled employees are covered by the ADA.Ask:

What are all the job-related qualifications?Are they all listed on the job description?What steps were taken to ensure that each qualification is actually job-related?Did you use all screening tools to disqualify on a non-disability-related basis (ie: criminal history and drug tests).

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Now Consider Reasonable Accommodations..

Three types of “accommodations”(1) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires;

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Categories of Reasonable Accommodation (cont.)

(2) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

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Categories of Reasonable Accommodation (cont.)

(3) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

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Examples of Workplace Barriers

Physical Obstaclesinaccessible facilitiesequipment that needs modification

Procedures or Ruleswhen work is performedwhen breaks are takenhow essential or marginal functions are performed

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Examples of Accommodations

Making existing facilities accessible;Job restructuring;Part-time or modified work schedulesAcquiring or modifying equipment;Changing tests, training materials or policies;

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Examples of Accommodations(cont.)

Light dutyShift ChangesWork-at-HomeProviding qualified readers, interpreters or asst.Reassignment to a vacant positionUnpaid Leave

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Examples of Accommodations that are Not Reasonable

Eliminating essential functions of the jobLowering production standardsPersonal use items (ie: prosthetic limb, eyeglasses, hearing aids, wheelchair, hot pot or refrigerator)Creating a jobPromoting an employee into a vacant jobBumping an employee from his/her job

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Examples of Accommodations that are Not Reasonable

Placing a disabled applicant in job for which he/she did not specifically applyPlacing a disabled individual into a job if doing so would create a direct threat to the health or safety of the individual or othersMaintaining the salary of an employee reassigned from a higher-paying job to a lower-paying one if the employer does not do so for non-disabled.

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What Satisfies Accommodation Required?

Don’t have to give accommodation sought by employeeAccommodation must be EFFECTIVE

must enable the employee to perform the essential functions of the job;must enable applicant with a disability to have an equal opportunity to participate in the application process; andmust enable employee to enjoy privileges and benefits of employment.

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Undue Hardship

QuantitativeFinancialOther Limitations

unduly extensivesubstantialdisruptivethose that would fundamentally alter the nature or operation of the business

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Undue Hardship Considerations

Nature and cost of the accommodation needed;Overall financial resources of the facility making the accommodation, number of persons employed and the effect on expenses and resources of the facility;Overall financial resources, size, number of employees, type and location of facilities of employer;

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Undue Hardship (cont.)

Impact of the accommodation on the operation of the facility;Type of operation of the employer, including:

structure and functions of the workforcegeographic separatenessadministrative or fiscal relationship of facility involved in making accommodation.

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How An Individual Requests Accommodation

Individual must let company know that an adjustment or change at work is needed for a medical condition.The Request is the First Step in the “informal, interactive process between the individual and the employer”

can be made by others (family member, friend)Does not need to be in writing

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Best Practices to Handling Requests

“How can I help you?”Engage in informal process to clarify what person needsAsk questionsDocument everything you doSeek documentation where neededUse JAM and other resources, even the EEOCTry to be creative in finding solutions

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Don’t Forget...

Even employees who are not currently “disabled” can sue under the ADA for:

Being “regarded” as a person with a disability orBeing discriminated against due to a history of having a disability.

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Case Studies

Reasonable Accommodations

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Scenario 1

Your company arranges for one of its employees to provide a program titled “Balancing work and family,” offered to all employees for two hours from noon to 2:00pm. This program is optional. A deaf employee wishes to take the training and requests a sign language interpreter. Must/Should the company provide an accommodation?

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Scenario 2

You have an employee who advises you that, due to a mental disability, she can no longer handle the stress of her current job. She asks to be accommodated. The manager tells her that every job is stressful and refuses to have further discussions with her. It doesn't even occur to the manager that the employee might have a qualified disability and/or be entitled to accommodations under the law. How can companies be more prepared to understand employee's rights and needs? How should the manager have handled the situation?

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Scenario 3You hire an employee into a job on the night shift. Working the

day shift is competitive and based on a seniority system, although occasionally under special circumstances someone can get into the day shift depending on the circumstances. Two days after the employee starts working the night shift you receive a doctor's note indicating that the employee cannot work the night shift due to a sleep disorder. The doctor indicates that the employee needs a reasonable accommodation to be moved to the day shift. To move her to the day shift at the next opening would enable her to leap ahead of six more senior employees who are on the list to move to the day shift at the next available opening. What should you do?

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Scenario 4

An employee works as a manager in a retail store. Part of her essential job duties include opening the store at 8:00am each day. The employee suffers from a disability and cannot be at the store until 10:00am each day. What should the company do?

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Scenario 5

An employee works as a customer service representative, but cannot now perform the essential functions of her job due to a disability. She seeks another position in a different department which requires a certain license, that she would like the company to help her obtain. What are the company’s obligations? Assume she has the license, but others are more qualified. What are the company’s obligations?

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Scenario 6

An employee with major depression is often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9-5, but he arrives at 9, 9:30, 10 or 10:30 on any day. His job responsibilities involve telephone contact with sales reps, who need him to answer urgent questions. The manager disciplines him for his tardiness, and he then states it is due to a disability. Must the discipline be retracted? What to do going forward?

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Scenario 7

Eric applies for a job at your company. He formerly worked for a competitor and you learn in your background check that he was terminated from his previous job for workplace violence. He apparently threatened to kill another co-worker with a knife. You ask the employee about his one month gap in employment and he explains that he has been in full-time anger management treatment and has been released to full duty. You have had previous workplace violence problems at your company and feel strongly that you do not want to hire the person. What do you do?

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Scenario 8

On a routine investigation of your computer system, you find an employee using the internet excessively for gambling purposes. When you approach the employee, he tells you that he has an addiction to gambling and asks for an accommodation. What are your legal obligations to the employee? What about other addictions?

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Scenario 9

You hire an employee into a full time job. Three months after she arrives you receive a note from her doctor advising you that the employee has a mental disorder that requires her to work only 20 hours per week. What are your obligations under the ADA?