ADA AND TERROR

1. ADA AND TERROR

2. ADA and Terror Case Study • Prior to September 11th, Sam’s essential job functions included frequently meeting with clients in cities across America, sometimes visiting two or three cities per week. Given the distances involved, flying has always been the only practical way to accomplish this. Sam seeks psychological treatment following the attacks and provides his employer with a medical note stating he is suffering from posttraumatic stress disorder.

3. ADA and TerrorCase Study • Sam, with his psychologist’s support, requests the following accommodations: • (i) “temporary” elimination of travel requiring flying • (ii) the use of software that allows internet-based video meetings through which he believes he can effectively communicate with his clients

4. ADA and Terror Case Study • Is Sam a qualified individual with a disability (“QIWD”) ? • or in other words • Is Sam an individual with a physical or mental impairment who, with or without reasonable accommodation, can perform the essential functions of the employment position he holds?

5. ADA and Terror Case Study • Is Sam a qualified individual with a disability? Evaluate #1: Whether Sam has a protected impairment Evaluate #2: If so, whether flying is an essential function of his job Evaluate #3: If so, whether a reasonable accommodation exists that would allow Sam to perform the essential functions of his job

6. ADA and Terror Case Study • Question #1: • Does Sam Have A Protected Disability?

7. Post Traumatic Stress Disorder Defined • Exposure to a traumatic event in which the following is experienced or witnessed: • Actual or threatened death or serious injury; or • A threat to the physical integrity of oneself or others; and • Feeling intense fear, helplessness or horror.

8. Post Traumatic Stress Disorder Defined • The traumatic event is persistently re-experienced (e.g., recollections, dreams); • The stimuli associated with the trauma are avoided; • Persistent symptoms are experienced, such as difficulty sleeping, angry outbursts, difficulty concentrating, or hypervigilance.

9. ADA and Terror Case Study • Question #2: • Is Flying an Essential Function of Sam’s Job?

10. Flying As Essential Function? • Air Travel Was An Essential Function Of The Job For An Auditor Of Universities In 10 States Because Effective Auditing Required Access To Records And Employees For Interviews At Audited Sites. • Wells v. Shalala (10th Cir. 2000)

11. Flying As Essential Function? • Flying Is An Essential Function For A Vice President Of Sales Required To Frequently Fly To Visit Customers. • Connolly v. Bidermann Industries (SDNY 1999)

12. Flying As Essential Function? • Consider the following: • Written Job Description • Current Work Experience of Other Incumbents • Consequences of Not Flying

13. ADA and Terror Case Study • Question #3: • Does A Reasonable Accommodation Exist That Will Enable Sam To Perform The Essential Functions of His Job?

14. Does Reasonable Accommodation Exist? • Q.Will Internet-Based Video Meetings Enable Sam To Perform His Essential Functions? A. Depends on purpose of client meetings, prior history, etc.

15. ADA and Terror - Reasonable Accommodation? • Q.Can the Company Require Sam to Travel By Train, Rather Than Fly, In Lieu of the Accommodation He Requested? A. Probably, if travel by train will enable Sam to perform the essential functions of his job - meeting with his client on a timely basis. Versus

16. Work at Home Case Study • Assume Sam is not required to fly for his job, but is afraid to return to work at his job on the 45th floor of the Empire State Building. In fact, he refuses to work above the second floor of any building and instead requests to work from his home. If Sam has a protected disability, must his employer accommodate this request? Versus

17. Work At Home • EEOC: Employer Must Allow As Reasonable Accommodation Unless It Would Not Be Effective and Would Impose Undue Hardship. Considerations Include: • Ability to Supervise Employee Adequately • Need for Personal Contact • Need for Interaction or Coordination • Employee’s Need To Work With Certain Equipment or Tools Unavailable At Home

18. Work At Home • Courts Generally Disfavor “Home Work” As A Reasonable Accommodation • Claims Adjuster’s Duties As Advisor to Call Center Staff Often Require “On-the-Spot Collaborative Efforts” Among Employees, Particularly Due to His High Level of Technical Expertise • Kvorjak v. Maine (1st Cir. 2001)

19. Work At Home • Work at Home Is Not A Reasonable Accommodation for Software Systems Designer Where Personal Contact and Coordination with Staff Members, As Well As Working Under Severe Time Restraints, Were Required in Plaintiff’s Line of Work • Misek-Falkoff v. IBM Corp. (2d Cir. 1995)

20. Leave of Absence Case Study • As time goes on, Sam finds he is sleeping less than 2 hours every night, he is hardly eating and he can’t concentrate on his work. While he is more productive working at home, he still is barely contributing to his team. Sam advises his employer that, based on his psychiatrist’s diagnosis, he is totally disabled and cannot work, for now, even from home. He requests an indefinite leave of absence. Sam’s doctor certifies that Sam is disabled but cannot provide any indication of how long Sam will need to be out on leave. Must Sam’s employer accommodate his request for a leave of absence or can it terminate his employment?

21. Leave of Absence • Leave of Absence Is Generally Reasonable Accommodation • In Contrast, Unpredictable Leave Resulting in Erratic Attendance Is Not Reasonable

22. Leave of Absence • Request for indefinite leave is: • EEOC — Reasonable Absent Undue Hardship • Courts — Generally Unreasonable Especially Where Employee Has Previously Been Provided Substantial Leave

23. Leave of Absence • Open-ended Leave Request By Plaintiff Due To Panic Attacks And Fear of Stress Was Not A Reasonable Accommodation • “An Employer Is Not Required To Wait Indefinitely For . . . [the Disabled Employee’s] Recovery.” • Smith v. Blue Cross Blue Shield, Inc.(10th Cir. 1996)