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10/10/2015
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THE AMERICANS WITH DISABILITIES ACTAaron Konopasky, J.D., Ph.D.Senior Attorney-Advisor, Office of Legal Counsel, EEOC
Presenter
Aaron Konopasky Senior Attorney Advisor
ADA/GINA Policy Division
Office of Legal Counsel Draft regulations and guidance
Perform outreach
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Main Idea for Today
The ADA has expanded. It may be relevant in any situation in which someone at work has a medical condition
Instead of thinking about the ADA last (after Workers’ Compensation, short and long term disability, and SSDI), you should think about it first.
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How It Affects You
The employer is ultimately responsible for complying with the ADA
However, if part of your role is to make employers aware of potential legal issues, or if you are asked questions that may have legal implications, you should at least be minimally familiar with ADA rules
Even if just to know when not to provide an opinion)
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How It Helps Employees/Patients
The ADA helps people who have medical conditions to work at full productivity and to stay employed
Can help prevent progression injury or re-injury, worsening of chronic conditions, and other causes of lost time
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Background6
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EEOC7
Mission: Eliminate discrimination based on race, color, national origin, religion, sex, age, disability, and genetic information through enforcement of federal anti-discrimination laws
Workers should be judged on their abilities, not their demographics
Activities
Explain the laws through regulation, guidance, and training
Required to investigate all allegations of discrimination
Conciliate, mediate disputes
Bring cases on behalf of charging parties and the public interest
ADA Overview8
A Civil Rights law
Based partly on Title VII of the Civil Right Act of 1964
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ADA Overview9
Prohibits discrimination on the basis of a medical condition
Bias
Stereotypes and assumptions
Fears out of proportion to actual risk
Limits employers’ access to medical information, and imposes confidentiality requirements
ADA Overview10
Provides a right to “reasonable accommodations” – tools and flexibilities needed to be fully productive at work Policies, facilities, equipment designed against a
background assumption of average function & ability
Not always fair to people who have medical conditions who can do the job, but who need a different setup E.g., lower desks for people in wheelchairs
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ADA Overview
The Key Idea Is Reasonable Accommodation
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Reasonable Accommodation12
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The ADA Amendments13
As of 2009, many medical conditions, including some that are not severe or long-term, are ADA “disabilities”
Many people have a right to reasonable accommodation
Definition of “Disability”
Functional definition
Functional limitations do not need to be severe or permanent
Mitigating measures are ignored A condition can be a disability even if it can easily be
treated, or is being treated E.g., someone with major depression who is able to
function normally with antidepressants and therapy
Episodic conditions are evaluated during a flare-up
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Applying the Definition
Condition can still be evolving; does not need to be stable or reach MMI
Some conditions can easily be determined to be disabilities , e.g., cancer, epilepsy, diabetes, HIV infection, major depression, PTSD 29 CFR 1630(j)(3)(iii) Many others will be disabilities as well
Many people with a “disability” are still able to: work (compare: SSDI) do the job in question (compare: fitness for duty) pull their weight (with accommodation they are “full duty”)
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Reasonable Accommodations 16
A change in the way things are normally done that enables the person to: Apply for a job
Do a job
Enjoy the benefits and privileges of employment
Examples Assistive technology Flexible scheduling Additional leave Telework
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Limits on Employer Obligation
Things that employer does not have to provide as a reasonable accommodation:
Changes that would cause “undue hardship” (significant difficulty or expense )
Permission to do less work for the same payEliminating an essential job functionLowering production or quality standardsCaveat: temporary unpaid leave, reassignment
may be reasonable accommodations
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Rights, Not Benefits
A person with a disability has a right to a reasonable accommodation, unless it would impose significant operational difficulty or expense on the employer
Not a special work status – someone can have a reasonable accommodation and still be on “full duty”
Not a “benefit” Think of it as modified terms/conditions of employment The employee can require the modification, absent
undue hardship
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When to think about the ADA
1: “Requests” for Accommodation19
Triggers for the Interactive Process
Very easy to do
Whenever the employee makes the employer aware that he/she is experiencing difficulty at work because of a medical condition Employer does not need to know whether the condition
is a “disability”
Employee does not need to use “magic words”
No need to have an accommodation in mind
If the doctor is an agent of the employer, then telling the doctor triggers the process
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Interactive Process21
Once triggered, the employer now has a legal obligation
Process does not have to be formal or involve lawyers
Order of Operations
0. Disability?
1. Need for accommodation?
2. Accommodation available? 1. Remain on the job?
2. Temporary Transfer?
3. Unpaid leave? a) Voluntary alternative: Transitional work assignment
4. Reassignment?
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Step Zero: Disability?
Is it worthwhile to spend a lot of time on this question? What would happen if we just assume disability? The less serious the medical condition is, the easier it is to
accommodate
The more serious the condition, the more likely it is to be disability
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Doctor’s Role in Establishing Disability
If the disability is not obvious, the employer may request limited medical information Verification of a real medical condition/diagnosis
(“impairment”)
Describe functional impairments in the absence of treatment No need to be comprehensive – describe the ones that
affect the job
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Doctor’s Role in Establishing Disability
Examples of other types of functional impairments (“limitations in major life activities”) Communicating, Concentrating, Eating, Sleeping, Caring
for oneself, Interacting with others, Learning, Thinking, Performing manual tasks, Walking, Sitting, Standing, Lifting, Bending, Seeing, Hearing, Reaching
Brain, neurological, immune, reproductive, lymphatic, musculoskeletal, endocrine, bladder, hemic, circulatory, respiratory, and bowel functions
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Establishing Disability
Example:
“[Patient] is diagnosed with PTSD. In the absence of ongoing treatment, [Patient] would have significant difficulty thinking and concentrating in the presence of loud noises.”
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Employer’s Responsibility27
Ultimately, it is the employer’s responsibility to determine whether the person: Has an ADA “impairment”
Is “substantially limited in a major life activity”
Has an ADA “disability”
Employer disability assessment forms or questionnaires have no legal significance If the employer is provided sufficient medical
information, the ADA imposes the accommodation obligation regardless whether the doctor has filled out a form or reached the legal issue
1. Need for Accommodation
The person has a medical condition – but is it affecting the job?
Doctor’s role is to verify that there is a connection between the medical condition and the problems experienced at work No need to determine whether better treatment or
treatment compliance would eliminate the need for reasonable accommodation
No need to determine the cause or whether there are other contributing factors
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Establishing Need for Accommodation
Example:
“As a result of hyper-vigilance, [Patient] becomes distracted in environments that are noisy or contain a lot of visual stimulation. He is therefore having some difficulty completing assignments in his current office, which is located next to the factory floor and which has an open doorway.”
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2. Accommodation Available?
Once disability and the need for accommodation are established, the employer and employee are supposed to work together to develop an effective accommodation that does not impose undue hardship Employee brings knowledge of disability Employer brings knowledge of resources
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Order of Preference
1. Accommodation that would allow the person to remain on the job
2. Temporary transfer
3. Unpaid leave a) Voluntary alternative: Transitional work assignment
4. Permanent reassignment
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Doctor’s Role in Choosing an Accommodation
Very minor: ultimately, it is the employer’sresponsibility to determine whether there is an accommodation that would fit the employee’s needs, but would not cause undue hardship
Doctor may suggest certain accommodations
Doctor may be asked whether a particular accommodation would be effective
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When to think about the ADA
2: Fitness-For-Duty33
Getting Info: Timing
Fitness-for-duty exam allowed in 2 circumstances: After conditional offer of employment but, before
employment
Reasonable belief, based on objective evidence, that the individual cannot do the job, or would pose a direct threat to safety, because of a medical condition
Testing cannot be justified by stereotypes (e.g., age 50 – also age discrimination under ADEA), slim evidence (e.g., falling asleep), or mere performance problems (e.g., making errors)
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If an employee with a disability is having trouble performing essential job functions, or doing so safely, do not immediately assume that the disability is the reason. Poor job performance is often unrelated to a medical condition and, when this is the case, it should be handled in accordance with your existing policies concerning performance (e.g., informal discussions with the employee, verbal or written warnings, or termination where necessary).
Practice Tip for Employers35
Getting Info: Post-Offer
Exam can be comprehensive
Except: Employer cannot request, require, or receive genetic information Genetic Information Nondiscrimination Act (GINA)
Genetic information includes all family medical history
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Getting Info: Existing Employees
Limited scope Tailored to the specific problem triggering the exam
Again, no genetic information or family medical history
Narrowly-tailored periodic testing may be permitted for safety-sensitive positions
Test for illegal use of drugs is not a “medical examination”
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Assessment: Ability
An employer can only exclude someone based on a disability if doing so is “job related and consistent with business necessity”
Need a reasonable belief based on objective evidence that the person is unable to do the job Cannot rely on stereotypes or assumptions
Must look at actual duties of specific position in question
Must consider the possibility of reasonable accommodation
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Assessment: Ability
Example: Cannot exclude someone from an advice nurse position (manning telephones) based on the fact that s/he needs a wheelchair Look to specific job
Example: Cannot exclude a deaf individual from a medical technician position because he or she can’t the buzz of a timer, necessary for a specific laboratory test, if it would not cause undue hardship to install an indicator light Consider possibility of reasonable accommodation
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Direct Threat: You may reject a job applicant or exclude an employee with a disability from a particular position if the person poses a direct threat to health or safety (i.e., a significant risk of substantial harm to self or others)
Must consider the possibility of a reasonable accommodation that would reduce the risk
Assessment: Safety40
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Examples of what to consider: Particular person's present ability to safely perform the
essential functions of the job, based on objective evidence and reasonable medical judgment
Consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm
Assessment: Safety41
Example: You cannot automatically prohibit someone with epilepsy from working around machinery Some forms of epilepsy are more severe than others or
are not well-controlled
Some people with epilepsy know when a seizure will occur in time to move away from potentially hazardous situations
Sometimes seizures occur only at night, making the possibility of a seizure on the job remote.
Assessment: Safety42
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Example: A deaf mechanic cannot be denied employment based on the fear that he has a high probability of being injured by vehicles moving in and out of the garage if an accommodation would enable him to perform the job duties with little or no risk E.g., allowing him to work in a corner of the garage
facing outward so that he can see any moving vehicles.
Assessment: Safety43
Drugs & Alcohol
The ADA does not prohibit adverse action taken on the basis of current illegal use of drugs Marijuana is still illegal under federal law
Employees may ask for reasonable accommodations related to alcoholism or past drug addition E.g., schedule changes to accommodate AA meetings
BUT: employers are permitted to enforce rules of workplace conduct involving the use of drugs and alcohol
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Qualification Standards
A “qualification standard” is an attribute or quality the employer requires people to possess in order to hold a certain job.
Examples of qualification standards: must be able to lift 70 pounds
cannot have epilepsy
Achieving a score on a psychological assessment
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ADA Still Applies
Just because an employer has stated something generally (“reject everyone with epilepsy”), doesn’t mean it’s legal
Employer is exposed to ADA liability if it rejects someone who doesn’t meet a qualification standard because of a disability, but who can do the job with a reasonable accommodation
When a disability is involved, employer should make an individualized determination of ability to do the job, taking the possibility of reasonable accommodation into account
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Safety-Based Qualification Standards
Safety-related qualification standards (i.e., qualification standards that an employer seeks to justify for safety reasons) must meet the “direct threat” defense. Evidence must show that the standard is needed due to
a significant risk of substantial harm
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When to think about the ADA
Leave & Light Duty48
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Interactions with Other Programs
The ADA process runs alongside FMLA, Workers’ Compensation (WC), annual leave, sick leave, etc. Reasonable accommodation may be required at any
time
These different programs can’t be used against one another
Under the ADA, unpaid leave may be a reasonable accommodation
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Discretionary Leave
If an employee with a disability is eligible for FMLA leave, then he or she must be allowed to use it according to the terms of the law The ADA can’t be used to take FMLA leave away
If an employee with a disability has accrued sick or annual leave, then he or she must be allowed to use it consistent with the employer’s policy ADA requires equal benefits and privileges of
employment
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Workers’ Compensation
Events that occur during the Workers’ Compensation process may trigger the interactive process Employee must make the employer aware that he or
she is having trouble at work because of a medical condition
When determining whether an injured person can work at full capacity, consider the possibility of reasonable accommodation
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Can the Person Work?52
If the person has a disability, and can work with a reasonable accommodation (a special schedule, assistive equipment, etc.), then the answer is “yes”
To make this determination, the employer must know what the person’s limitations actually are “No work 6 weeks” is not helpful
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“Light Duty” 53
This term does not appear in the ADA
A reduced workload or elimination of an essential function is not considered a reasonable accommodation
Allowing injured workers to fall below ordinary productivity requirements is going “above and beyond” what the ADA requires Employers can terminate these types of allowances at
any time (assuming no discrimination)
Alternatives to Light Duty54
Other modifications, like provision of assistive equipment, special shift assignments, elimination of marginal job functions, or more frequent breaks, can be reasonable accommodations May be required
Cannot be terminated absent undue hardship or inability to do the job (may be required indefinitely)
“Needs light duty” may not be helpful Especially if there is no traditional light duty available!
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Returning from Leave55
Danger Zone
Return an individual with a disability to “full duty” when able to perform the essential functions of the job safely, with a reasonable accommodation
Example: A reporter sustains a hand injury that meets the
definition of “disability,” and cannot type now. Return to full duty when able to meet writing duties— When she recovers sufficient hand function to type, OR When a reasonable accommodation (e.g., word
recognition software, one-handed keyboard, transcription, ...) would enable her to do assignments
Coming Off of Light Duty56
Danger Zone
Must return an individual with a disability to “full duty” if able to perform the essential functions of the job safely with a reasonable accommodation
Example: A retail worker sustains a back injury that is a disability
and is put on light duty Light duty runs out Return to full duty if— Recovery is sufficient to allow work as usual, OR A reasonable accommodation (e.g., permission to sit at
the register) would allow performance of essential job functions
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Unable to Return57
Danger Zone
If an employee is unable to return even with a reasonable accommodation, but is out of FMLA leave, accrued leave, and temporary disability benefits, still may be able to accommodate Provide additional unpaid leave if there is a real
reason to expect improvement, until doing so becomes an undue hardship
Reassign to another job that the individual can do “Last resort” Only if position is open and employee is qualified
Wrap-Up58
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EEOC Online Resources59
http://www.eeoc.gov/laws/types/disability_guidance.cfm
Reasonable accommodation*
Disability related inquiries and medical exams (2)*
http://www.eeoc.gov/laws/types/disability.cfm
Performance and conduct*
Information on the new definition of “disability”
Telework as a reasonable accommodation*
* not yet updated to reflect the amendments
Other Online Resources60
Job Accommodation Network (JAN) A free consulting service providing individualized
accommodation solutions and information on the ADA and services related to employment for people with disabilities
www.askjan.org
Center for Psychiatric Rehabilitation A research, training, and service organization with
information on reasonable accommodation and other topics related to recovery
http://cpr.bu.edu/
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Contact61
Aaron Konopasky, J.D., Ph.D.Senior Attorney-Advisor ADA/GINA Policy DivisionOffice of Legal CounselEqual Employment Opportunity Commission131 M Street NEWashington, DC 20507
Phone: (202) 663-4127email: [email protected]
