Employers and employees working together under ADA guidelines (Part 3 of 4)

The Americans With Disabilities Act (ADA) has been a topic of discussion for HR professionals since it was implemented in 1990. Initially, the act did not give clear guidelines, but included information about expectations for employers and employees working together to create accommodations for employees when necessary

The original act left employers with a lot of questions and we are now receiving clarification on key points. One of the expectations when accommodations are needed, is that it be an interactive process.  This means that the employee and the employer must work together, establishing the best approach that doesn’t put undue hardship on the employer and allows the employee to maintain an active employment status with the company.

For the interactive process to be successful, both employee and employer should be open to varied ideas and be willing to work together. Managers may need training in this area as to what are acceptable and not acceptable questions regarding accommodations.

Sometimes the employee has an idea about how they want to be accommodated, but this may not be reasonable for the employer. For example, an employee may want to work from home, but the employer does not have employees that telecommute or the essential job functions cannot be done from home. This would not be a reasonable request.  If an employee makes such a request, it is always appropriate for the manager to offer other suggestions. We recommend that employers be open to ideas and, if the accommodation is not available, be willing to explain why their request can’t be handled in that way.

Employees may not always know what accommodations are available to them. Sometimes accommodations require a little bit of creativity, like allowing space for an employee to do stretching for an injured back, or bringing in a freezer to keep ice packs cold. For this to happen however, the employee needs to provide information about why they can’t perform certain job duties. One suggestion is that the employee fill out a “request for reasonable accommodation.”  This type of request needs to include information about the impairment and how it impacts the employee’s ability to perform and what the employer may be able to do to help. A request like this is a great way to start the interactive process between employee and employer.

Every ADA situation will be different and it is important for both employee and the employer to maintain good communication throughout the process.. Employers should carefully consider every request and employees must notify their employer as soon as a need arises.

BCN Services is prepared to assist in the entire ADA process and encourage our clients to reach out to us with any questions or concerns. Please see the following case studies for examples of how ADA decisions have affected other employers:

ADA Case studies from www.ADA.gov:

Marytza Golden v. Indianapolis Housing Agency

Marytza Golden alleges that Indianapolis Housing Agency (“IHA”) violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), when IHA denied her request for additional, unpaid leave to complete her cancer treatment and terminated her upon expiration of 16 weeks of medical leave (including 12 weeks of Family and Medical Leave Act (FMLA) leave).  IHA maintains that, under its medical leave policy, it is proper to terminate all employees who are unable to return to work after taking 16 weeks of medical leave regardless of whether an employee may need additional leave because of a disability.  IHA also maintains that, because Ms. Golden was unable to perform the essential functions of her job at the end of 16 weeks of leave, she was no longer “qualified” for the position and termination was permissible.

The United States respectfully submits this Statement of Interest to clarify the proper interpretation of Section 504 and the Americans with Disabilities Act (“ADA”) with respect to an employer’s obligation to consider a request for additional, unpaid leave as a reasonable accommodation and its obligation to evaluate whether an employee who seeks an accommodation is qualified.

The United States files this brief to help clarify the appropriate standard to determine whether Ms. Golden is a qualified individual with a disability entitled to a reasonable accommodation under the law.  The appropriate standard is to assess whether Ms. Golden is able to perform the essential functions of the job as of the end of the requested leave period that is found to be a reasonable accommodation—not during the time period she was on disability-related leave.

Settlement agreement between the United States and 360 Credit Union

  1. The United States initiated its investigation of THE CREDIT UNION after receiving a complaint made by an individual who is deaf or hard of hearing. The complainant alleged that THE CREDIT UNION is in violation of title III of the ADA because it maintains a policy against accepting third party calls, including relay calls.
  2. The United States has concluded that THE CREDIT UNION violated title III of the ADA. THE CREDIT UNION denies that it violated title III of the ADA or any other law.
  3. The Attorney General of the United States is authorized to enforce title III of the ADA by seeking monetary relief for aggrieved persons, civil penalties, and full compliance with title III’s provisions, such as requiring public accommodations to make reasonable modifications to policies, practices, and procedures and provide auxiliary aids and services, 42 U.S.C. § 12188(b); 28 C.F.R. § 36.504. The Attorney General may commence a civil action to enforce title III in any situation where he has reasonable cause to believe that a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. §
  4. Title III of the ADA and the title III implementing regulation prohibit discrimination on the basis of disability by public accommodations. 42 U.S.C. § 12182; 28 C.F.R. § 36.201. Specifically, title III requires public accommodations to provide auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. Title III also requires public accommodations to make reasonable modifications to policies, practices, or procedures when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

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Kari Stanley, HR Generalist

Employer Responsibilities under the Americans with Disabilities Act (ADA) (Part 2 of 4)

The U.S. Supreme Court has ruled that when determining an ADA disability, an employer must consider whether the person is substantially limited in performing a major life activity when using a mitigating measure.

A mitigating measure could be, for example, an employee’s medication to alleviate the effects of an impairment.

This means that if a person has little or no difficulty performing any major life activity because he/she uses a mitigating measure, then that person will not meet the Americans With Disabilities first definition of “disability.”

Following the Supreme Court’s ruling, whether a person has an ADA disability is determined by taking into account the positive and negative effects of mitigating measures used by the individual.

The ADA makes it unlawful to discriminate against a qualified individual with a disability in all employment practices such as:  recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits, all other employment related activities.  The ADA also outlaws discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications.  An employer may not retaliate against an applicant or employee for asserting his/her rights under the ADA.  The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.

What are Essential Functions?

Essential functions are basic job duties that an employee must be able to perform, with or without reasonable accommodation.  Carefully examine each job to determine which ones are essential to performance.  This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing.

Factors to consider in determining if a function is essential include:

  • Does the position exist to perform that function?
  • How many other employees are available to perform the function (or among whom the performance of the function can be distributed)?
  • What is the degree of expertise or skill required to perform the function?

Your judgment as to which functions are essential and a written job description prepared before advertising or interviewing for a job will be considered by the Equal Employment Opportunity Commission (EEOC) as evidence of essential functions.  Other kinds of evidence the EEOC will consider include:

  • The actual work experience of present or past employees in the job,
  • The time spent performing a function,
  • The consequences of not requiring that an employee perform a function, and
  • The terms of a collective bargaining agreement.

An Employer is obligated to provide reasonable accommodations

Reasonable accommodation means any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.

Examples may include:  acquiring or modifying equipment or devices, job restructuring, part-time or modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials or policies, providing readers and interpreters and making the workplace readily accessible to and usable by people with disabilities.

Reasonable accommodation must also be made so that an individual with a disability may participate in the application process and enjoy benefits and privileges equal to those of other employees.

An employer that fails to provide reasonable accommodation to a known physical or mental limitation of a qualified individual with a disability is violating the ADA, unless doing so would impose an undue hardship on the operation of your business.  Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.

How to identify a reasonable accommodation

Many times, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is apparent.  When it is not apparent, the employer must make a reasonable effort to identify one.  The best way to do this is to consult informally with the applicant or employee about potential accommodations that would enable the individual to participate in the application process or perform the essential functions of the job.

Reasonable accommodations and undue hardship

A reasonable accommodation is not required if doing so would cause an undue hardship. Factors to consider are the cost of accommodation, the employer size, financial resources and the nature and structure of its operation.

If there is an undue hardship, try to identify another accommodation option.  If cost is the undue hardship, consider whether funding is available from an outside source, such as a vocational rehabilitation agency, and whether the cost can be offset by state or federal tax credits or deductions.  You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.

Other things to consider

You can ask an applicant questions about his or her ability to perform job-related functions as long as the questions are not phrased in terms of a disability.  You can also ask an applicant to describe, or to demonstrate how, the applicant will perform job-related functions with or without reasonable accommodation.

After a job offer is made and prior to employment  start, you may require an applicant to take a medical examination if others working in the job category must also take the examination.

Once you have hired an applicant, you cannot require a medical examination or ask an employee questions about disability unless you can show these requirements are job related and necessary for the conduct of your business.  Results of all medical examinations or information from inquiries about disability must be kept confidential, and maintained in a separate medical file.

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Debbie Strahle, Partnership Manager

 

American with Disabilities Act compliance still an issue for employers Part 1 of 4

Twenty-five years after passage of the American with Disabilities Act (ADA), the complexity of compliance continues to plague employers.  For years, the U.S. Equal Employment Opportunity Commission (EEOC) has offered little guidance about the law and employee discrimination claims have continued to increase. Following are a few examples:

In EEOC v. Kaufman Container, a long-term machine operator was awarded $120,000 in monetary relief after the company failed to reasonably accommodate her when she became visually impaired as a result of complications related to her diabetes.  In EEOC v. Starbucks, a barista with a mental impairment who required extra training and support was awarded $75,000 after a new manager stopped accommodating her.  And, in EEOC vs Sears, Roebuck & Co., $6.2 million was awarded to 235 employees involved in a class-action lawsuit based on the company’s policy of leave exhaustion.

Over the next three weeks we’ll blog about the following key components of ADA and how to keep from jumping through hoops while staying compliant.

Here are the topics that all employers should understand:

  • Their responsibility under the ADA
  • The need to enter into the interactive process with employees and/or
  • The decision to offer a leave of absence as a possible accommodation for an employee.

We encourage you to call BCN’s professional HR associates to assist as you navigate the process of employee accommodation and leave requests.

 

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Sue Kester, HR Manager