Obligations Under The Americans - PowerPoint Presentation

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Obligations Under The Americans With Disabilities Act

Melissa L. Shingles

June 2, 2017Slide2

Melissa L. Shingles

Associate

Littler

, Phoenix

2Slide3

AGENDA

ADA Overview

Compliance: Accommodation and the Interactive ProcessSlide4

What the ADA Requires

No Discrimination

Employers must not discriminate against a qualified individual with a disability

Disability means an individual:

Has a disability, has a record of having a

disability

, or is regarded or perceived as being disabled;

Has the skills and qualifications for his/her job; and

Can perform the essential functions of the job despite the disability, either with or without reasonable accommodation.

Protection applies in recruiting

, hiring, placement, training, job assignment, promotions, pay increases, application of

policies, other facets of employment Slide5

What the ADA Requires

No

Harassment

Consider what you know about other forms of harassment—sex, race, religion, age—same principles apply

Includes comments, jokes, cartoons, e-mails, images, and more

Mistreatment by co-workers of an associate who is being accommodated in some waySlide6

Who Is Protected?

A job applicant or employee with

a “

disability

”...

Who can perform the

essential functions of the current job

(or

a suitable, vacant, equivalent alternative)...

 W

ith or without

reasonable accommodation

.

**Must fulfill all three criteria for protection.Slide7

What the ADA

Requires

Reasonable

Accommodation

Reasonable accommodations...

For qualified individuals...

With known disabilities...

To enable them to perform the essential functions of the job...

“Essential function” means:

The position exists to perform that function

There are a limited number of employees who can do it

It is highly specialized and the person is hired for that expertise

Accommodation does not poses an undue hardship on employer (difficult standard to meet).Slide8

Defining “Disability”

A physical or mental impairment that substantially limits a major life activity.Slide9

“Disability": Past Present Future

Three possibilities:

(1) Actual impairment:

Substantially limits major life activity; OR

(2) Record of:

Such an impairment; OR

(3) Regarded as:

Having such an impairmentSlide10

“Major Life Activities”

Caring for oneself

Breathing

Learning

Performing

manual tasks

Walking

Reading

Seeing

Standing

Concentrating

Hearing

Sitting

Thinking

Speaking

Reaching

Communicating

Eating

Lifting

Interacting with others

Sleeping

Bending

Working Slide11

ADA Disability?

Not a demanding standard; broadly construed to expand coverage

Focus is whether impairment substantially limits compared to most in general population, but must ignore mitigating measures (exception for ordinary eyeglasses)

For episodic impairments – covered even when inactive

Need only limit one major life activitySlide12

Employer Says: How Is That A Disability?!

“The primary object of attention”

should be on interacting and identifying reasonable accommodation, not “whether the individual meets the definition of disability.”

EEOC

Focus

should be on whether the company: (1) has fulfilled its obligation to provide a reasonable accommodation and (2) met its responsibilities with respect to the “interactive process.”Slide13

What this Means for Employers

Less of an emphasis on

the actual condition

/ impairment

Moving

almost directly to the interactive

process—in other words, an extremely

individualized

analysis—it’s all about

accommodationSlide14

A Job Function Might Be “Essential” If....

The

job exists to perform it

The employee spends a significant amount of time performing it

Its duties cannot be reassigned to another employee without changing the fundamental nature of the jobSlide15

A

Job Function Is Not “Essential” If...

The employee never or rarely actually performs it or it can easily be assigned to another

employeeSlide16

Reasonable Accommodation Defined

A modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity

Allows performance

of essential job functionsSlide17

Four General Categories Of AccommodationSlide18

Accommodation Examples

There are many forms of accommodation, including:

Ergonomic (equipment, work space)

Job changes (such as schedule changes or task modifications)

Leaves of absence (intermittent or block)—yes, really

The burden is on the employer to respond when the need for accommodation arises, so THE INTERACTIVE PROCESS IS CRITICAL!!!Slide19

Accommodation May Include:

Providing special equipment

Modifying work schedule

Removing barriers to performance

Restructuring job

duties

Reassigning nonessential tasks

Exchanging nonessential assignments with

other employees

Redesigning procedures for as long as employee is disabled and requires accommodationSlide20

Reasonable Accommodation:

Reassignment to a Vacant Position

Duty of reasonable accommodation includes

reassignment

to a vacant position for which employee is qualified (without considering his disability)

Employee cannot be required to “compete” for vacant position if employee can perform essential functions of position, with or without reasonable accommodationSlide21

Leave is a form of accommodation if necessitated by the disability Leave may be granted on a continuous or intermittent basis

Lave may be granted even if the employee is not eligible for leave under the FMLA and is an exception to Sharp’s standard leave policyIf an employee is granted leave as an accommodation, he or she:

Cannot be penalized for such absences

Must be returned to the same position unless holding open the position would impose an undue hardship

Leave As A Reasonable Accommodation

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No-Fault Attendance Policies

“If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must

modify its ‘no-fault’ leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies,

including leave policies

,

is a form of reasonable accommodation.” EEOC,

Enforcement Guidance: Reasonable Accommodation and Under Hardship Under the Americans with Disabilities Act

, question 17 (2002). Slide23

What Is The Interactive Process?

Individualized process involving:

Exchanging information about employee’s

work restrictions

Identifying the appropriate workplace accommodations

Reaching a mutually satisfactory

decision about the reasonable

accommodation to be providedSlide24

So What About Undue Hardship?

General Rule:

High Standard

Basic Undue Hardship Factors

The

nature and cost of the accommodation;

The

overall financial resources of the

organization;

The

overall number of individuals employed by the

employer;

The

effect the accommodation would have on the resources of the

organization; and

The

impact the accommodation would have

on the organization.Net result? Tough burden for employer to meetSlide25

and don’t forget . . .

“Substantially limits” is an easy standard to meet

There is no required duration—even short-term impairments can qualify

Inactive

conditions are viewed as

active (ex: conditions which are in remission)

Mitigating

measures

cannot be consideredSlide26

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