Train the Trainer Materials: The Fundamentals of Managing Employees Under the ADA

1. Train the Trainer Materials: The Fundamentals of Managing Employees Under the ADA

2. Roadmap • Introduction • A few preliminary remarks • ADA general summary • Part I: Who has a disability? • Part II: What is qualified under the ADA? • Part III: What are and are not reasonable accommodations? • Part IV: What is an undue hardship? • Part V: What is required under the interactive process? • Part VI: Various forms of discrimination • Part VII: Medical Inquiries and Examinations • Part VIII: Direct Threat • Part IX: Drug Testing and the ADA • Part X: Some California Disability Distinctions

3. The ADA’s Basic Rule The American’s with Disabilities Act (ADA) states: No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

4. The ADA’s “Primary Purpose” “The statute seeks to diminish or to eliminate the stereotypical thought processes, the thoughtless actions, and the hostile reactions that far too often bar those with disabilities from participating fully in the Nation’s life, including the workplace. These objectives demand unprejudiced thought and reasonable responsive reaction on the part of employers and fellow workers alike. They will sometimes require affirmative conduct to promote entry of disabled people into the workforce. They do not, however, demand action beyond the realm of the reasonable.” - Supreme Court Justice Stephen Breyer, US Airways v. Barnett (2002)

5. In other words: r words: • Don’t prejudge the abilities of people with disabilities • Individually assess an individual’s abilities based on: • The essential functions of the particular job held or desired • Potential reasonable accommodations that might enable them to overcome job-related barriers

6. What Does the ADA Require? • Cannot discriminate • Cannot make medical inquiries, except in limited circumstances: • Pre-employment/post-offer • Job related and consistent with business necessity • Voluntary • Must keep medical information confidential • Must accommodate

7. Part I – Who has a disability?

8. Who is Eligible: the ADA’s Definition of “Disability” • The ADA applies to “qualified individuals with a disability.” • “Qualified” means that the employee can perform the essential job functions of the position he/she holds or desires, with or without a reasonable accommodation. • The ADA’s definition of “disability” is not the same as the definition of disability under other laws, such as state workers’ compensation laws, or federal social security law.

9. Three-Part Definition of Disability Individuals are protected by the ADA if they have: • A physical or mental impairment that substantially limits one or more of the major life activities of such individual; • A record of such an impairment; or are • Being regarded as having such an impairment.

10. Who is Eligible: the ADA’s Definition of “Disability” • Under the ADA Amendments Act (ADAAA) the term “disability” “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]” • As a result, it is no longer very useful to analyze whether an employee is “disabled” under the ADA, except in very marginal cases. • Employee Coverage? No length of service requirement for employees to be eligible – employees have protection under the ADA on Day 1!

11. Which Disabilities are Covered Under the ADA? • There is no list of conditions that are or are not ADA disabilities. • Conditions that are “temporary” or “minor” might still be covered ADA disabilities. • TIP: All injuries or illnesses that result in medical or FMLA leave should be considered potentially covered ADA disabilities, including many work-related injuries resulting in lost work time.

12. Illnesses/ Injuries Likely to Be ADA Disabilities • Deafness • Blindness • Intellectual disabilities (formerly termed mental retardation) • Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair • Autism • Cancer • Cerebral palsy • Diabetes • Fibromyalgia • Irritable Bowel Syndrome • Epilepsy • Human Immunodeficiency Virus (HIV) infection • Multiple sclerosis • Muscular dystrophy • Major depressive disorder • Bipolar disorder • Post-traumatic stress disorder • Obsessive compulsive disorder • Schizophrenia

13. Part II: What is qualified under the ADA?

14. Determining if a Disabled Applicant or Employee is “Qualified” for a Position Sought or Held Engage in a Two-Step Process: First, determine if the applicant or employee is “otherwise qualified” – whether they possess the objective education, experience, training or skills required for the position. Second, determine if the applicant or employee can perform, with or without reasonable accommodations, the essential functions of the position.

15. Can the Applicant Perform the Essential Job Functions? – Step Two Essential functions are “fundamental” job duties of a position. Essential Functions do not include duties that are marginal. Essential functions are those functions that the individual who holds the position must be able to perform unaided or with the assistance of a reasonable accommodation. Accurate job descriptions are critical

16. Factors to Consider in Determining Whether a Function is Essential Whether the position exists to perform the function (e.g., it is essential for a “cashier” to operate a cash register); The degree of expertise or skill required to perform the function; The amount of time spent on the job performing the function; The consequences of not requiring the employee to perform the function; The employer's judgment as to which functions are essential; The work experience of past employees in the job; and/or The current work experience of employees in similar jobs.

17. Part III: reasonable accommodations

18. The ADA’s “Reasonable Accommodation” Requirement • Employers must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … ” • “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” - EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship • Basic Rule? Provide accommodation unless there is undue hardship or direct threat. Let’s discuss reasonable accommodation first…

19. Accommodation: Requests for Accommodation An employee may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation” when requesting an accommodation. Any time an employee indicates s/he is having a problem at work and the problem is related to a medical condition, consider whether the employee is making a request for accommodation. A written request is not required, but the employer may ask the employee to confirm in writing what accommodations are sought.

20. What are Reasonable Accommodations? • In general, a reasonable accommodation is any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability. • Reasonable accommodations can cover most things that enable an individual to: • apply for a job; • perform a job; • have equal access to the workplace and employee benefits such as kitchens, parking lots, and office events.

21. Reasonable Accommodation “Accommodations” may include: • making facilities accessible; • job restructuring, part-time or modified work schedules; • medical leave; • acquiring or modifying equipment; • changing tests, training materials, or policies; • providing qualified readers or interpreters; • reassignment to a vacant position.

22. Examples of Requests For Accommodation Light duty Reallocating marginal job functions Service animals Reassignment to vacant positions • Leaves of absence • Excused intermittent absences • Work at home • Modified equipment • Modified work schedule

23. What is NOT A Reasonable Accommodation? • Creating a new job • Bumping another employee • Promoting the disabled worker • Providing personal equipment (wheelchair, hearing aid, etc.) • Eliminating essential functions • Lowering production or performance standards • Excusing misconduct • Creating a light-duty position

24. Types of Accommodations: Modified Workplace Policies Modified Workplace Policies May continue to apply the policy to all other employees. Example: Prohibiting employees from eating or drinking at their workstations except for employee with insulin-dependent diabetes who must immediately eat a candy bar or drink fruit juice.

25. Types of Accommodations: Job Performance - Reassignment “Reassignment to a vacant position“ is a form of reasonable accommodation. Consider providing to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation. An employee must be "qualified" for the new position. The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment. Must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, reassign the employee to a vacant lower level position for which the individual is qualified.

26. Types of Accommodations – Change in Supervisor An employer does not have to provide an employee with a new supervisor as a reasonable accommodation. The ADA may require that supervisory methods be altered as a form of reasonable accommodation (for example, that supervisors provide instructions or assignments in writing instead of orally)

27. Types of Accommodations – Work at Home An employer must modify its policy concerning work at home if such a change is needed as a reasonable accommodation. Only if this accommodation would be effective and would not cause an undue hardship. Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. If other employees in the same or similar position are permitted to work from home for reasons unrelated to a disability, it may be difficult to deny work from home as a disability accommodation.

28. Workplace Adjustment vs. Leave Accommodation • Generally helpful to consider requests for workplace accommodations separate from requests for leave as an accommodation • With requests for leave as an accommodation - three step process. • 1. Is employee entitled to be absent with job protection (e.g. FMLA)? • 2. Has the Company committed to providing additional job protected leave (e.g. company leave policies)? • 3. Is additional leave a reasonable accommodation?

29. Leave Accommodation Analysis • How much more leave is needed? • Find out by communicating with employee and/or the employee’s doctor • Is the additional leave sought for a definite or indefinite duration? • What operational hardship is/has been being experienced due to the employee’s current absence? • Will operational hardship change if employee stays on leave? (and how long have you accommodated so far?) • Will employee be able to return to work performing all of essential job functions? • What work restrictions will exist? • Do restrictions impact essential or marginal job functions? • Can restrictions be accommodated?

30. Part iV: What is AN UNDUE HARDSHIP?

31. Undue Hardship • An employer does not have to provide a reasonable accommodation that would cause an "undue hardship." • Generalized conclusions will not suffice. • Requires “significant difficulty or expense.”

32. Undue Hardship • Factors for consideration: • Net cost • Consider availability of tax credits/deductions and/or outside funding • Type of business • Financial resources • Number of persons employed • Effect on expenses and resources • Impact of accommodation on operation of the facility 32

33. Part V: What is required under the interactive process?

34. What Triggers the Interactive Process? Interactive Process is Triggered When: Employee or applicant requests reasonable accommodation. Employer has notice, due to undisputed background information, that employee/applicant “might have a disability.” Employee with a disability exhausts the leave provided under some other law (e.g., FMLA) and remains unable to return to work.

35. Basics of Interactive Process • Four-step interactive process: • Determine the job’s essential functions. • Establish the individual’s limitations. • Explore potential accommodations. • Select the most appropriate accommodation • Failure to engage in the process can be deemed an ADA violation. • An employer does not have to choose the “best” accommodation or the employee’s first choice, so long as the accommodation is effective.

36. The Interactive Process is a “Two Way Street” • Both employer and employee have a duty to participate. • An employee’s failure to participate in good faith could bar a failure to accommodate claim. • E.g. employee/doctor does not respond or response is incomplete. • Follow-up: advise the employee of his/her obligation to participate in the interactive process in good faith and the consequences if he/she does not. • Document everything!

37. Part VI: disability discrimination and retaliation

38. Disability “Discrimination” Includes: Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the accommodation would impose an undue hardship on business operations; or Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is because of the need to make reasonable accommodation to the physical or mental impairments of the employee or applicant. Employees also may claim retaliation for adverse actions (discipline, failure to promote, etc.) because they asserted ADA rights.

39. Two Types of ADA Cases 1. Discrimination cases (wrongful employment action) • Typical Scenarios: • Adverse employment action because of medical condition • Adverse employment action because of performance related to medical condition • Negative treatment after employer learns of medical condition • Fitness for duty exams • Adverse action based on fear of behavior associated with condition/medication • Comments: “crazy,” “psycho,” “gimp,” “crippled”

40. Two Types of ADA Cases Discrimination cases (wrongful employment action) • Merits often will turn on: • Whether the individual was “qualified.” Could he/she perform the essential job functions? • Whether employer had knowledge • Employer’s legitimate reason

41. Two Types of ADA Cases 2. Reasonable accommodation cases • Typical Scenarios: • Employee’s requested “accommodation” is denied • Employee quits (is constructively discharged) because of medical condition • Adverse employment action because of performance related to medical condition • Failure to provide more leave after FMLA ends

42. Two Types of ADA Cases Reasonable accommodation cases • Merits often will turn on: • Interactive dialogue • Whether employee has actual disability or a record of disability • Defenses including undue hardship

43. Part VII: Medical Inquiries and Examinations

44. Medical Inquiries Employers and supervisors cannot make medical inquiries, except in limited circumstances: • Pre-employment/post-offer • Job Related and consistent with business necessity • Voluntary

45. Pre-Employment Inquiries • Employers cannot ask disability-related questions or require medical exams until after an applicant has been given a conditional job offer • No questions about: • Nature or severity of disability • Condition causing disability • Prognosis • Treatment 45

46. Medical Examinations & Inquiries─ Job Applicants ─ Pre-Offer • Medical inquiries/exams are forbidden • May Inquire pre-offer about ability to perform job-related functions 46

47. Medical Examinations & Inquiries─ Job Applicants ─ Post-Offer • Medical inquiries/exams can be required only if: • Job-related and consistent with business necessity • Required for all new hires for that position • Results can be used to deny job only if job-related, consistent with business necessity, AND no reasonable accommodation is possible

48. Medical Information – Reasonable Accommodation Requests If existence of disability or need for reasonable accommodation is not obvious: DO Request description of physical limitation that affects a major life activity DORequest reasonable documentation including: • Health care provider’s name and credentials • Confirmation of physical or mental condition that limits a major life activity • Description of why individual needs a reasonable accommodation DON’T Request entire medical history or diagnosis or contact the employee’s health care provider directly. Best practice is for the employee to get this information due to privacy concerns.

49. Medical Examinations & Inquiries • Conclusions of general medical studies about work restrictions for people with certain disabilities will not be sufficient evidence • They do not relate to a particular individual • They do not consider reasonable accommodation 49

50. Medical Information • Keep Separate from Personnel File • Can Be Shared with: • Supervisors and managers: work restrictions and necessary reasonable accommodations • First aid and safety personnel: where appropriate, that a condition may require treatment • Government officials: investigation into regulation compliance