ACCOMMODATING WORKERS WITHDISABILITIES

Presented by:Michael H. Bowling, Esquire

Bell & Roper, P.A.2707 E. Jefferson Street

Orlando, FL 32803Telephone: (407) 897-5150

E-mail: mbowling@bellroperlaw.com

ELIGIBILITY FOR ACCOMMODATION UNDER ADAAA

Expansion under ADAAA Large majority of ADAAA cases are

getting past disability to other aspects of the case

Accommodations not available for "regarded as"

INITIATING REQUEST FOR ACCOMMODATION

Employee asks explicitly Employee asks but does not use the

magic words Employee demonstrates need Guaranteed leave exhausted and medical

provider states additional accommodations are necessary

INITIATING REQUEST FOR ACCOMMMODATION

Tips for Employees: Be clear about ability to perform essential

functions as well as your limitations Be flexible Follow up Be aware of what you need to reveal

about underlying medical condition

REASONABLE ACCOMMODATION POLICY

Overview of RA accommodation obligation Examples of RA

Advise employees how to request RA (HR not supervisors) Encourage but don't require written request

Alert employees medical documentation may be required

Alert employees they may receive an effective alternative accommodation

Alert employees to a RA in the LOA policy

SCENARIO

Spouse calls supervisor rather than Human Resources per policy and says husband is having anxiety attacks and can't keep up with new increased production requirements.

What should the supervisor do? What should Human Resources do?

DETERMINING ESSENTIAL JOB FUNCTIONS

A job function may be essential because: The reason the job exists is to perform that function

There are a limited number of employees available among whom the performance of that function can be distributed and/or

The function is highly specialized

Employers are the best judges of whether a function is essential, but the best time to do it is before a disability claim.

Take control by updating job descriptions and other materials defining essential functions

DETERMINING ESSENTIAL JOB FUNCTIONS

Essential vs. marginal job function analysis Amount of time spent performing the function Consequences of not performing the function How past incumbents worked in same job Experience of current incumbents in same or

similar jobs EJFs for the same position may vary depending on

the location or business unit where the individual works

Functions that are not essential are considered "marginal" functions of the position

REASONABLE ACCOMMODATION

Three categories of reasonable accommodation: Modifications/adjustments to a job application process Modifications/adjustments to the work environment or

adjustments in how and when a job is performed. Modifications/adjustments that enable an employee to

enjoy equal benefits and privileges of employment

REASONABLE ACCOMMODATION EXAMPLES

Examples of reasonable accommodations: Job restructuring

Essential functions do not have to be eliminated Part-time or modified work schedules Leaves of absence Working from home Acquiring or modifying equipment Changing tests, training materials or policies Reassignment to a vacant position for which the

employee is otherwise qualified

REQUIRING MEDICAL DOCUMENTATION

An employer may require medical documentation verifying the disability, restrictions and need for accommodation

Job related and consistent with business necessity

Limited to specific condition at issue Employee has duty to cooperate Certain circumstances where employer

cannot ask for documentation

WHICH HEATH CARE PROVIDER?

Employee's healthcare providerv.

Employer's healthcare providerv.

Independent health care provider

EMPLOYEE’S FAILURE TO COOPERATE

Employee's failure to cooperate How many chances do you have to give an employee Documenting the employee's lack of cooperation

SCENARIO

The medical documentation states the employee has an anxiety disorder that impacts his ability to concentrate. Employee says if production standard were lowered to 50 rather than 60 files per hour, he thinks he could succeed. All employees are held to a production standard of 60 per hour. Human Resources knows ADA doesn't require an employer to lower production standards and closes employee's RA request.

THE INTERACTIVE PROCESS

Individualized assessment Act promptly; unnecessary delays can result in

a violation of the ADA Do not use as an excuse to demote, fire

or any other adverse action

THE INTERACTIVE PROCESS

Dialogue, dialogue, dialogue Never say never at the beginning of this

conversation Think out of the box Consider an effective alternative

accommodation Document, document, document

Follow-up during and after Follow-up to determine if accommodation

works and is still needed

REASONABLE ACCOMMODATION PRIMER

Undue hardship Significant difficulty or expense

Financial difficulty almost always a loser Better to focus on whether the reasonable

accommodation is unduly disruptive or fundamentally alters the nature or operation of the business Negative impact on morale and

employee's/customer's fears doesn't support undue hardship

Case-by-case determination

DOCUMENTING THE INTERACTIVE PROCESS

Document, document, document Following a routine process doesn't

mean it's not individualized does it? Pitfalls

Consider interactive process notes and RA log

HANDLING REQUESTS FOR LEAVE

Look to employer's leave policy If leave under policy is inadequate, then

look to FMLA if applicable and ADA Generally, leave should be treated as

reasonable accommodation when: More is needed than employer would

usually provide and/or Leave is needed for a purpose for which

employer generally does not provide it

LEAVE AND ATTENDANCE POLICIES

No fault attendance policies -- employee can have a certain number of unplanned absences during a year, after which the employee is disciplined

No fault leave policies -- apply to extended leave and limit amount, after which employee can be terminated Both may have to be modified as a reasonable

accommodation

SCENARIO

Employee who has migraine headaches that result in intermittent absences from the office is disciplined under an attendance policy when she exceeds the limit of five unplanned absences in a 12-month period.

SCENARIO: CONSIDERATIONS

Did employee ever request reasonable accommodation? If accommodation was not requested, may

employer proceed with discipline? If accommodation was requested, either before

or after discipline, what should employer do? Assuming timely request is made, are

employee's migraine headaches a disability within the meaning of the ADA?

What are possible accommodations?

INTERMITTENT LEAVE CONSIDERATION

Nature of the job Ability of other employees to take on

work Consequences to the employer if work

does not get done Frequency, duration, unpredictability of

leave

LEAVE AND THE INTERACTIVE PROCESS

Employer and employee both must engage in good faith in the interactive process during a period of leave

Employer can get documentation if disability and need for accommodation (including additional leave) aren't obvious

Good idea for an employer to provide notice before period of extended leave expires

Employer can ask for periodic updates if leave has not been granted for a specific period of time

FACTORS TO CONSIDER WHEN EXTENDING LEAVE IS REQUESTED

Can employee give any indication of whether or when she will be able to return?

Length of the leave The nature of the job What happens to the employee's work

during the period of leave (e.g., are there burdens on other employees?)

Ability to fill the position on a temporary basis if work can't be done otherwise

PRINCIPLES CONCERNING REASSIGNMENT

Accommodation of last resort There must be a vacant position (one that

is available or will become available within a reasonable amount of time)

The employee must be qualified for the new position, though not necessarily best qualified

PRINCIPLES CONCERNING REASSIGNMENT (cont.)

Must be equivalent position or as close as possible to original position

Does not have to be a promotion, though employee may compete for a promotion

Generally, employer need not reassign an employee as an accommodation where a more senior employee is entitled to the position, though "special circumstances" may require reassignment in some instances

BELL & ROPER, P.A.

2707 E. Jefferson StreetOrlando, FL 32803

Telephone: (407) 897-5150Facsimile: (407) 897-3332

www.bellroperlaw.com