Reasonable Accommodation: - PowerPoint Presentation

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Reasonable Accommodation:

A Practical Guide to Accommodation and the Interactive ProcessSlide2

Agenda

Introduction.

What is a Reasonable Accommodation?The Interactive Process. Legal Issues with Granting/Denying Requests. Impact of ADAAA Regulations.Case Studies.Questions.

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Introduction

Preliminary Remarks.

Questions – hold all questions until the end of presentation. Presentation Will Focus on Work Environment.

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Key Terms

Reasonable Accommodation.

42 U.S.C. § 12111 (9); 29 C.F.R. § 1630.2(o)Undue Hardship on Employer.

42 U.S.C. § 12111 (10); 29 C.F.R. § 1630.2(p)

Essential Functions of the Job.

42 U.S.C. § 12111 (8); 29 C.F.R. § 1630.2(n)

Interactive Process.

29 C.F.R § 1630.9 app.

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What is an Accommodation

Purpose is to remove

workplace barriers.Not For Personal Use. Is Effective, i.e., assists the Employee in Meeting Performance Standards.

Is a Preference for a Disabled Employee.

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What is Reasonable

Helps Employee Perform Essential Functions.

Addresses Known Physical/Mental Limitations.Seems Reasonable, i.e., Feasible “In the Run of Cases.”Takes into Account Cost/Benefit.

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Undue Hardship

Focus Is on Hardship Imposed on Employer.

Hardship is Compared to Employer Resources, Not to Employee’s Salary or Job Status. Undue Hardship Must Take into Account Offsetting Resources, Tax Credits, Etc.

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Undue Hardship - Factors

Nature and Cost of Accommodation.

Financial Resources of Employer, the Size of the Business, Number of Employees, Etc. Number of Employees at Facility. 8Slide9

Undue Hardship – Factors (Cont’d)

Impact on Business Operations.

The Type of Business Operations. The Composition, Structure and Functions of the Workforce. 9Slide10

Essential Functions

First Inquiry is Whether Employee Actually Is Required to Perform Function at Issue.

Second Inquiry is Whether Removing Function Fundamentally Changes the Job. 10Slide11

Essential Function - Factors

Primary Factor is Employer Judgment.

- Job Descriptions Good Evidence of Employer Judgment. Amount of Time Spent Performing Function. 11Slide12

Essential Function – Factors (Cont’d)

Consequences of Not Requiring Employee to Perform Function.

Work Experience of Prior Incumbents in Job. Current Work Experience of Incumbents in Similar Jobs. 12Slide13

Interactive Process

Purpose of Interactive Process is to Identify the Precise Limitations Resulting from the Disability and Potential Reasonable Accommodations That Could Overcome Those Limitations.

Process Must Be Initiated by Employee. 13Slide14

Interactive Process (Cont’d)

The Regulations Recommend a Four-Step Process:

(1) Analyze Job and Essential Functions. (2) Consult with Employee to Determine Precise Limitations of Disability and How Limitations Can be Overcome with an Accommodation.

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Interactive Process (Cont’d)

Employer and Employee Work to Identify Potential Accommodations and the Effectiveness of Each in Allowing Employee to Perform Essential Functions.

Consider Preferences of Employee and Select the Accommodation That is Most Appropriate for both Employer and Employee. 15Slide16

Interactive Process (Cont’d)

Employee Must Make Known that Workplace Modification is Needed Due to a Disability, i.e., Explain to Employer That Requested Adjustment to Working Conditions Because of Medical Reasons.

Employee Need Not Reference the ADA or Reasonable Accommodation, e.g., Asking for Continued Employment May Be Sufficient. Where Need for Accommodation of a Potential Disability is Apparent to Employer, Employer Must Initiate Interactive Process.

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Interactive Process (Cont’d)

No Interactive Process Required if Employee States No Accommodation is Necessary.

Ambiguity from Employee About the Nature of Disability or the Request for Accommodation Does Not Relieve Employer from Engaging in Interactive Process. 17Slide18

Issues With Interactive Process

If More Than One Reasonable Accommodation, Employer May Choose.

No Obligation of Employer to Engage in Interactive Process If No Reasonable Accommodation Exists. 18Slide19

Issues (Cont’d)

Employer Response to a Request for Accommodation Must Be “Expeditious.”

Delay in Providing Accommodation is Evaluated in Light of the Reasons for Delay, the Length of Delay, the Complexity of the Accommodation, What the Employer Did to Mitigate the Delay, and Who Is Responsible for the Delay. 19Slide20

Issues (Cont’d)

Employers Have Right to Request Medical Documentation to Confirm Disability and Functional Limitations.

Employer May Require Independent Medical Examinations. Employee Responsible if Employee Doctor Does Not Provide Sufficient Documentation. 20Slide21

Typical Accommodations

Job Restructuring.

Modified Work Schedules.Assignment to an Open Position. Modifications to Work Environment. Providing Readers/Interpreters. Time Off Work/Leave.

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Job Restructuring

Employer Does Not Have to Reallocate or Distribute Essential Functions.

Employer Does Not Have to Alter Quality or Quantity Performance Standards. Previous Modification of Essential Functions Does Not Require Employer To Do So Again.

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Job Restructuring (Cont’d)

No Obligation to Create Job; No Obligation to Create a Light-Duty Job.

However, If Employer Has Altered Essential Functions for Other Employees, e.g., for Employees Injured on the Job, the Employer May Have to Alter Essential Functions for Disabled Employees. 23Slide24

Modified Work Schedules

Modifying Work Schedules, e.g., Shift Change, May Be Required.

Additional Breaks, Flexible Start Times, Flexible Schedules, May Be Reasonable. Allowing Employee to Return to Work Part-Time While Recovering May Be Reasonable. Allowing Employee to Obtain Treatment During Work Hours May Be Reasonable.

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Reassignment

Reassignment an Accommodation of Last Resort For When No Reasonable Accommodation Exists in Current Job.

Reassignment Not Required Unless a Position (for which employee is qualified) is Open. Employer Has to Consider Positions It Knows Will Become Vacant Within a Reasonable Time.

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Reassignment (Cont’d)

Promotion Not Required; Demotion May Be a Reasonable Accommodation.

Disabled Employee Entitled to Vacant Position and Cannot Be Required to Compete for Position. Reassignment Not Required If Contrary to Terms of a Collective Bargaining Agreement. 26Slide27

Modifications To Work Environment

Reasonable Accommodations Often Include Modifications to Lights, Special Air Filters, Use of Handicapped Parking Spaces, Quiet Work Area.

Accommodations Can Include Equipment, e.g., Screen-Enlargement Software, Ergonomic Furniture, Lifting Devices, Etc. 27Slide28

Readers/Interpreters

Readers and Interpreters Are Identified As Reasonable Accommodations in the ADA.

Employer Is Not Required to Hire Two People to Do Job of One. Employer Obligation is to Hire Another to Assist With a Portion of the Job.

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Leave

Leave for Medical Treatment, Recovery, Repairs to Needed Equipment, Temporary Adverse Conditions at Work (A/C Breakdowns, etc.), Training for Braille or Sign Language, Etc., Is Reasonable.

Indefinite Leave is Not Reasonable. Extensions of Finite Leave Not Reasonable. 29Slide30

Leave (Cont’d)

Leave For Sporadic Absences Not Reasonable Unless Covered by FMLA.

EEOC Regulations Require Employer to Hold Job Open for Employee on Leave Unless an Undue Hardship. Leave As An Accommodation Should Be Exception to No-Fault Attendance Policy. 30Slide31

Accommodation Issues

It is Not a Reasonable Accommodation If the Accommodation Requires Other Employees to Work Harder.

Hardship Is Always On Employer to Prove That Requested Accommodation is Not Reasonable. Obligation to Provide Reasonable Accommodation is a Continuing One and Employer Must Be Aware What is Required May Change Over Time.

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Accommodation Issues (Cont’d)

No Obligation to Provide a Futile Accommodation.

Accommodations Provided in the Past Are Evidence of What is Reasonable (and What Is Not an Undue Hardship). Employer Satisfies Its Obligations Under ADA if Offers a Reasonable Accommodation That Employee Rejects.

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Impact of ADAAA

ADAAA Does Not Significantly Change Regulations Relating to Accommodations.

ADAAA Did Clarify That Employees Regarded as Disabled are NOT Entitled to Reasonable Accommodation. 33Slide34

Avoid Pitfalls

Cost as Undue Hardship.

Assumptions About Medical Limitations or Job Requirements. Incomplete Medical Information. Ask Employee to Pay for Some or All of Accommodation before Deny Accommodation.

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Pitfalls (Cont’d)

List Attendance as Essential Function.

How other Employees Treated, e.g., for Workers Compensation, is Evidence of What is Reasonable. Cannot Discipline Employee for Absence Nor Low Productivity That is Accommodation.

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Case Studies

Work at Home As Reasonable Accommodation.

Requests for More Leave Than FMLA Leave.Request for Accommodation During Discipline.

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Resources

Fact Sheets Available at

www.eeoc.gov: The FMLA, the ADA and Title VII. Applying Performance and Conduct Standards to Employees with Disabilities.

Workers Compensation and the ADA.

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Dan S. Cross

Dan S. Cross has practiced in the fields of labor and employment law and labor litigation since his admission to the practice of law in 1979. He is a cum laude graduate of Duke University (B.A., Public Policy Studies), and Mr. Cross is a graduate of the University of Denver Sturm College of Law. For six years, Mr. Cross was Senior Human Resources Counsel at the phone company. Now the managing partner with The Cross Law Firm, Mr. Cross has built a successful practice representing businesses of all sizes. Mr. Cross has been selected as a "Super Lawyer" by 5280 Magazine and identified as a “Go-To" lawyer by Fortune Magazine

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Disclaimer

THIS OUTLINE IS INTENDED TO PROVIDE GENERAL INFORMATION ONLY, AND IS NOT LEGAL ADVICE. ANYONE WITH SPECIFIC QUESTIONS SHOULD OBTAIN LEGAL ADVICE REGARDING THE APPLICATION OF TOPICS DISCUSSED IN THIS OUTLINE. 39