ADA Update Jeanne Goldberg, Senior Attorney Advisor, EEOC and

1. ADA Update • Jeanne Goldberg, Senior Attorney Advisor, EEOC • and • Linda Carter Batiste, J.D., JAN Principal Consultant

2. ADA Update • Overview • ADAAACase Update • Scenarios • ADA Implications • Best Practices

3. ADAAA Case Update ADA Update

4. ADA Update When considering if an individual who has requested accommodation has an impairment that “substantially limits a major life activity” or has a record of same-remember changes: • Definition of disability “shall be construed broadly” and “should not demand extensive analysis” • Need not be a “severe” limitation or “significantly restricted” • e.g., court cases rejecting employer reliance on pre-ADAAA cases and outcomes • e.g., post-ADAAA, courts have found “substantially limited” in cases involving impairments such as: carpal tunnel, depression, cancer, “cancer free,” HIV, hepatitis C, kidney disease, PTSD, sleep apnea, heart disease, back and disc impairments, monocular vision, morbid obesity, multiple sclerosis, stuttering, two broken femurs, Graves Disease, etc. • But “not every impairment will constitute a disability” under this definition

5. ADA Update • Major life activities include “major bodily functions” • e.g., court cases have applied to cancer (normal cell growth), HIV (immune system), back impairments (musculoskeletal), non-cancerous masses (cell growth and endocrine functions), and Kidney disease (bladder function) • Norton – “cancer at any stage” substantially limits normal cell growth • Ameliorative effects of mitigating measures not considered • e.g., court cases have applied to pain medication, magnifying devices, learned behavioral modifications, and following a specific eating regimen

6. ADA Update • Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active • e.g., court cases have applied to cancer, hepatitis C, back impairments, multiple sclerosis, stuttering, and depression • Revised regulations and appendix at 29 C.F.R. Part 1630, including 9 rules of construction • Rule of construction #9 – no minimum duration • e.g., cancer and other “episodic or in remission” cases; Fleck (mini-stroke causing 2 weeks off of work) • But not everything is covered: court cases finding limitations too minor and short-term (H1N1 virus, torn-ACL, post-colonoscopy discomfort, etc.) and cases finding insufficient evidence of limitations

7. Recognizing Accommodation Requests ADA Update

8. ADA Update • Scenario A long-term employee starts having performance problems. When her employer talks to her about the problems, she responds that she is very stressed and is having difficulty handling her job duties. The employer doesn’t know if this is an accommodation request and is afraid to ask for clarification for fear of violating the ADA’s rules about making medical inquiries.

9. ADA Update • ADAAA has not changed the legal rules regarding when and how much medical information employers can request. • If you believe that a medical condition is causing a performance or conduct problem, you may ask the employee how you can help to solve the problem and even may ask if the employee needs a reasonable accommodation. • If accommodation is requested, “interactive process” may involve determining whether the requester has a disability, whether requested accommodation is needed, and/or what accommodations are possible. • If disability or need for accommodation is not obvious or already known, employer may request reasonable medical documentation from appropriate health care provider, and clarify. E.g., verifying diagnosis and limitations, determining what accommodation might be effective, etc.

10. ADA Update • “Tips” For Recognizing Requests • Accommodation request is a request for some sort of change for a medical reason • Request need not be in writing and need not contain any “magic words”

11. Processing Accommodation Requests ADA Update

12. ADA Update • Scenario HR for a state government agency developed new procedures for processing accommodation requests after the ADAAA went into effect. The agency included in-house forms and layers of people to sign off on each step. After the new process was in place, an employee made a written request for an accommodation by turning in a note from his doctor that described his medical condition, limitations, and need for accommodation. The doctor did not use the employer’s forms. The employer refused to accept the request and told the employee he would have to have his doctor fill out the agency’s ADA forms.

13. ADA Update • Recent Case Law • Sufficient Notice: • Individual does not have to call medical condition a “disability”; inadequate notice is when employee does not say enough for employer to know a medical condition is at issue. Syndnor v. Fairfax County, Va., 2011 WL 836948 (E.D. Va. Mar. 3, 211). • Oral request for accommodation okay despite contrary company policy. Kravits v. Shinseki, 2012 WL 604169 (W.D. Pa. Feb. 24, 2012).

14. ADA Update • Insufficient Notice: • Employee’s request for “home time” because he needed time with his family and statement that he was leaving work “to see his doctor” were not requests for reasonable accommodation because he did not say either request was because of his HIV. EEOC v. CR England, Inc., 644 F.3d 1028 (10th Cir. 2011). • Plaintiff notified employer of panic disorder and agoraphobia but never requested any accommodation, stating that “if [the employer] believed that I needed certain accommodations . . . [it] would come to me and say so.” Garner v. Chevron Phillip Chemical Co., 2011 WL 5967244 (S.D. Tex. Nov. 29, 2011).

15. ADA Update • Consequences of employer’s failure to communicate and clarify: • Employer’s failure to tell employee that request submitted on wrong form or to provide time to return paperwork can be evidence of employer “bad faith” in the interactive process. Cox v. Wal-Mart Stores, Inc., 441 Fed. Appx. 547 (9th Cir. 2011). • Employer’s denial of request on ground that information provided was not specific enough, without advising employee and asking for the additional details needed, can render the employer responsible for the breakdown in the interactive process. Valle-Acre v. Puerto Rico Ports Auth., 651 F.3d 190 (1st Cir. 2011).

16. ADA Update • “Tips” For Engaging In And Documenting The Interactive Process

17. Essential Job Functions ADA Update

18. ADA Update • Scenario A machine operator works for a large company. There are several machine operators and in their job descriptions it says they each have to be able to operate every machine in the factory. Most of them work on only one or two machines and have never had to do all machines. The employee has a back injury and cannot work on one particular machine. He has never been asked to work on this machine in the 20 years he’s been employed with the company, but decides to let his employer know about his restrictions anyway. The employer tells him that he will be fired if he cannot work all machines.

19. ADA Update • To be qualified, an individual must: • Meet the basic skill, education, training, and other job-related requirements; and • Be able to perform the essential(i.e. fundamental) functions of a position with or without reasonable accommodation • Relevant information in determining whether a function is essential may include: • Employer’s judgment • Terms of a written position description • Terms of a collective bargaining agreement • Experience of current or past employees • Amount of time spent performing the function • Consequences of not performing the function • Recent case illustration: Miller v. Illinois Dep’t of Transportation, 643 F.3d 190 (7th Cir. 2011).

20. ADA Update • Tips: • Primary consideration should be given to the employee’s choice. • If accommodation requested involves removing a duty, is it an essential function? If so, it need not be removed, but can employee be accommodated to perform it? If not, can the employee be reassigned? • Employer may ultimately choose from among equally effective accommodations, as long as the one provided is effective.

21. Co-worker Morale ADA Update

22. ADA Update • Scenario An employee requests a schedule change for daily medical treatment for three months. The employee's medical documentation supports the request, but the employer does not want to grant the request because other employees – many of whom have requested similar schedules for non-disability related reasons, but have been denied – will be resentful. The employer is aware that under the ADA medical confidentiality rules it cannot tell co-workers that the employee has been granted the schedule change as an accommodation.

23. ADA Update • Dealing With Co-Worker Morale • Employer cannot deny accommodation because co-workers may be resentful. Carter v. Pathfinder Energy, 662 F.3d 1134 (10th Cir. 2011). • Sometimes reasonable accommodation may require providing a change that the employer denies to other employees who request for non-medical reasons. Ekstrand v. School Dist. Of Somerset, 2012 WL 2382313 (7th Cir. June 26, 2012). • Special rule for seniority systems: US Airways, Inc. v. Barnett • Employer discretion to choose among equally effective accommodations where there is more than one possibility. • Accommodation does not require lowering performance or production standards (pro-rate for time off granted due to disability).

24. ADA Update • If requestor only knows the problem, not the solution, employer must search for possible accommodations. • If requestor specifies particular accommodation but it is one that legally need not be provided (e.g. request to lower production standards), employer must offer an alternative accommodation if one exists that would not pose an undue hardship -- search for and consider alternative accommodations.

25. ADA Update • Tips: • Respond to requests promptly, as undue delay may constitute a denial of accommodation • Engage in good faith in the interactive process • Construe “disability” broadly • Individualized assessment: Do not assume that individuals with the same disability have the same limitations or need the same accommodation • Gather information about possible accommodations • If denying any reasonable accommodation, clearly communicate the reasons

26. Questions? ADA Update

27. ADA Update • Contact • EEOC Jeanne Goldberg • (202)663-4693 (V) & (202)663-7026 (TTY) • www.eeoc.gov • JAN • (800)526-7234 (V) & (877)781-9403 (TTY) • AskJAN.org & jan@askjan.org