What Are Reasonable Accommodations Under the Amended ADA?

Sponsored by: ADA Minnesota and Minnesota Vocational Rehabilitation October 19-20, 2009 Presented by: Barry Taylor, Legal Advocacy Director and Alan Goldstein, Senior Attorney atEquip for Equality Materials Prepared Under a Grant from the DBTAC: Great Lakes ADA Center What Are Reasonable Accommodations Under the Amended ADA?

Overview • Introduction to the ADA • ADA Amendments Act Changes • Reasonable Accommodation Overview • Types of Reasonable Accommodations • The Reasonable Accommodation Process • Resources

Introduction to the ADA as Amended The ADA in the Workplace

Protected Individuals An person is protected under the ADA if: • They have a physical or mental impairment that substantially limits one or more major life activities; • They have a “record of” a disability; • They are “regarded as” having a disability. • Discrimination is also prohibites based on an “association” with a person with a disability. The definition of disability is more broadly construed under the ADA Amendments Act of 2008. 42 U.S.C. §§ 12102(2), 12102(B)(4), 1211229; 29 C.F.R. § 1630.2(g).

The ADA and Section 504 of the Rehabilitation Act • The ADA used the same definition of disability as found in the Rehabilitation Act. • Under Section 504, the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), interpreted the definition of disability very broadly and “acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” • Under the Rehabilitation Act, there are no reported cases of individuals found not to meet the definition of disability.

Court Interpretations Narrow ADA Coverage Unfortunately, ADA goals have not been met due to restrictive court decisions: • Sutton “Trilogy” – mitigating measures ruling restricted definition of disability • Toyota v. Williams – established that definition of disability should be “interpreted strictly” to create a “demanding standard.”

Lower Court Decisions Finding No ADA Disability Under Sutton and Williams, no ADA disability was found in cases where people had impairments of: • Intellectual Disability – Littleton v. Wal-Mart…, (11th Cir. 2007) • Epilepsy – Todd v. Academy Corp., (S.D. Tex. 1999) • Diabetes – Orr v. Wal-Mart Stores, Inc., (8th Cir. 2002) • Bipolar Condition – Johnson v. North Carolina Dep’t of Health and Human Services, (M.D.N.C. 2006) • Multiple Sclerosis – Sorensen v. Univ. of Utah Hosp., (10th Cir. 1999) • Hard of Hearing– Eckhaus v. Consolidated Rail Corp., (D.N.J. 2003) • Back Injury – Wood v. Crown Redi-Mix, Inc., (8th Cir. 2003)

Lower Court Decisions Finding No ADA Disability • Vision in Only One Eye – Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) • Post-Traumatic Stress Disorder – Rohan v. Networks Presentations LLC, (4th Cir. 2004) • Heart Disease – Epstein v. Kalvin-Miller Intern., Inc., (S.D.N.Y. 2000) • Depression – McMullin v. Ashcroft, (D. Wyo. 2004) • HIV Infection – Cruz Carrillo v. AMR Eagle, Inc., (D.P.R. 2001) • Asthma – Tangires v. Johns Hopkins Hosp., (D. Md. 2000) • Cancer – Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir. 2006)

ADA Amendments Act: Purposes • “Reject” the reasoning in the Sutton & Toyota cases and reinstate reasoning from Arline; • Ensure that a primary focus in ADA cases is whether entities have complied with their obligations; Convey that whether a person’s impairment is an ADA disability should not demand extensive analysis; and • Make clear Congress expects that the EEOC will revise its current regulations that defines the term “substantially limits” as “significantly restricted.” • Notice of Proposed Rule Making (NPRM) Issued by EEOC Sept. 23, 2009 at: http://edocket.access.gpo.gov/2009/E9-22840.htm.

ADA Amendments Act: Major Life Activities caring for oneself walking & standing seeing lifting hearing learning eating speaking sleeping breathing performing manual tasks concentrating & thinking working (type of work) reading (new in ADAAA) bending (new in ADAAA) communicating (ADAAA) Interacting with others (Very New - Not in ADAAA) List is Not Exhaustive - no negative implication by omission

ADAAA New Category: Major Bodily Functions In ADAAA Added in NPRM immune system neurological special sense organs & skin normal cell growth brain genitourinary digestive respiratory cardiovascular bowel circulatory hemic bladder endocrine lymphatic reproductive functions musculoskeletal EEOC NPRM contains three lists: 1. Impairments that should consistently be a disability, 2. Impairments that may be disabling for some but not others, & 3. Impairments that are usually not disabilities .Prop. Rule 1630.2(h)

EEOC Proposed Regulations • An impairment is a disability … if it ``substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population. • An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability. Note: EEOC NPRM comments suggest that people now covered under the ADAAA will not require extensive or expensive accommodations. NPRM also contains a nice survey or reasonable accommodation research. NPRM 29 C.F.R. § 1630.2 (j)(1).

“Regarded As” Prong • The bill broadens coverage under the ADA’s “regarded as” prong of the definition of disability. • This prong may apply “whether or not the impairment limits or is perceived to limit a major life activity.” • No reasonable accommodations for people who are only covered under the “regarded as” prong. • Exception – Impairments that are “both transitory (lasting or expected to last for six months or less) and minor.” • Sprains, fractures that heal completely, mild intestinal virus,… • Exception to the Exception: According to EEOC NPRM comments, transitory conditions may be covered under the actual disability prong of the definition of disability

Additional Provisions • The definition of disability “shall be construed in favor of broad coverage” … “to the maximum extent permitted…” • Episodic conditions are examined when active. • No cause of action for “reverse discrimination.” • Mitigating measures are not examined (except ordinary eye glasses and contact lenses). • Note: Comments to Proposed EEOC Regulations state people who use eyeglasses may be “regarded as” being disabled if they must take a vision test without glasses or contacts.

Additional Provisions EEOC NPRM: Mitigating measures may include: • Medication, medical supplies, equipment, or appliances, low-vision devices,… prosthetics …, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; • Use of assistive technology; • Reasonable accommodations or “auxiliary aids or services” • Learned behavioral or adaptive neurological modifications; or • Surgical interventions, except for those that permanently eliminate an impairment.

Additional Provisions • Employers cannot use “qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision that are not “job-related … and consistent with business necessity.” • EEOC Proposed Regulations note that this issue may be raised by a person without a disability. • The effective date of the law is January 1, 2009.

ADAAA Ramifications • More coverage for people with: • “Episodic conditions” • “Mitigating measures” (except glasses/lenses) • Limiting conditions that do not meet the old standard • Who are “regarded as” being disabled (no RA) • Emphasis will be on employer’s conduct rather than employee’s medical condition. • Make sure job criteria meets “business necessity” test. • Having training on the new requirements, periodic ADA training, and reevaluating ADA policies may be helpful.

Title I of the ADA Overview on Reasonable Accommodation

Workplace Protections Discrimination is prohibited in any facet of employment, including: • Job application procedures • Hiring • Benefits and Compensation • Advancement • Training • Discipline / Termination • Company events • Any terms, conditions, or privileges of employment 42 U.S.C. § § 12112(b)

Reasonable Accommodation General Requirements Discrimination under the ADA may include: • Not providing a reasonable accommodation for known limitations caused by a disability. • Discrimination does not have to be intentional. • Policies or actions that have the effect of discriminating against an employee with a disability may also constitute discrimination under the ADA. 42 U.S.C. § § 12112(b)(5)(A),(B);

What are Reasonable Accommodations? EEOC Regulations define reasonable accommodations as: • Modifications or adjustments to the work environment, or • to the manner or circumstances under which the position … is customarily performed, • that enable a qualified individual with a disability to perform the essential functions of that position … or … • enjoy equal benefits and privileges of employment. 29 C.F.R. § 1630.2(o)(1)

Essential Job Functions “Essential Functions” • Fundamental Job Duties • Employers are not required to reallocate essential functions but may chose to do so anyway. • Job descriptions may be used as evidence but are not necessarily determinative, • If they are outdated; and/or • Do not accurately reflect the job duties. 29 C.F.R. § 1630.2(n); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship.

What are Reasonable Accommodations? Employees often use the following accommodations: • Job restructuring • Part- time or modified work schedules • Reassignment to a vacant position • Appropriate adjustment or modifications of examinations, training materials or policies This List is Not Exhaustive 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)

Reasonable Accommodation Other possible accommodations “may include”: • Acquisition or modification of equipment or devices • The provision of qualified readers or interpreters • Making the workplace accessible • Providing auxiliary aids and services • Other similar accommodations This List is Not Exhaustive 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)

Reasonable Accommodation Limitations An Accommodation does not have to be provided if it: • Is unreasonable • Requires reallocation of essential job functions • Will not enable the employee to be qualified • Causes an undue hardship to the employer; or • Results in a direct threat to the health or safety of the employee or others; 29 C.F.R. §1630.2(o)

Reasonable Accommodation Limitations “Undue hardship” “Significant difficulty or expense.. in light of”: • “The nature and net cost of the accommodation…” • “the impact … upon the operation of the facility, including…” • “the impact on the ability of other employees to perform their duties and • the impact on the facility's ability to conduct business.” 29 C.F.R. §1630.2(p).

Reasonable Accommodation Limitations “Direct threat” • “A significant risk of substantial harm to the health or safety of the individual or others… • that cannot be eliminated or reduced byreasonable accommodation.” • Requires an an “individualized assessment…” • “based on a reasonable medical judgment that relies on… • the most current medical knowledge and/or • on the best available objective evidence.” 29 C.F.R. §1630.2(r).

Title I of the ADA The Reasonable Accommodation Process

Reasonable Accommodation:The First Step The reasonable accommodation process usually starts with a request from the employee • The request need not be in writing but employees may want to do so anyway • Employers can follow-up an accommodation request with a written confirmation. • There is no specific language that must be used. • Another person may request an accommodation on the employee’s behalf. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship.

The Request for a Reasonable Accommodation • The request should describe: • The nature of the disability and resulting limitations • The need for an accommodation • A requested accommodation, if known • Note: In limited circumstances, employers may have a duty to investigate accommodations absent a specific request from the employee. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship. See also, Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996).

Requirements of the Accommodation Request • Employers are only required to reasonably accommodate known limitations and disabilities. • An employee was not entitled to an accommodation prior to being diagnosed with depression. Estades-Negroni v. Assoc. Corp. of N. America, 377 F.3d 58 (1st Cir. 2004). ----------------------------------------------------------- • The request must relate to an employee’s disability. • An employee with depressive disorder and anxiety was not entitled to a change in his shift time to accommodate his daughter’s school schedule. Boutin v. Home Depot U.S.A., Inc., 490 F.Supp.2d 98 (D.Mass. 2007).

Accommodation Request:Case Examples • Employee with bipolar disorder stated: “I need to leave and I need to leave right now” before leaving early. • This was not a reasonable accommodation request as she did not mention a medical basis for her statement. Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003). ----------------------------------------------------------- • An employee disclosed bipolar disorder requesting a “reduction in…objectives” and “lessening of…pressure.” • This was not a reasonable accommodation request as no limitations were disclosed. Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5th Cir. 1996); But See, Bultemeyer (next slide).

Accommodation Request:Case Example - Bultemeyer • A custodian’s psychiatrist requested a “less stressful” environment. • Court said: • The psychiatrist’s letter can be seen as requesting that accommodations previously in place be reinstated. • Employer should have engaged in interactive process. • This decision, from what is considered a conservative circuit, contains empathetic language concerning people with mental illness. Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996).

Bultemeyer – Court Quote O’ the Day Court’s Quote “The employer has to meet the employee half- way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help. ‘[T]he employer must make a reasonable effort to determine the appropriate accommodation.’[internal citation omitted]. Bultemeyer at 1285 - 1286.

Accommodation Request – Yay or Nay • An employee tells her supervisor, "I'm having trouble getting to work on time due to my medical treatments.” • An employee's spouse phones the employee's supervisor and says that the employee had a medical emergency due to his MS and needs to be hospitalized. • An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. • An employee who has been out of work for six months with a WC injury is released to return to work, but with certain work restrictions. EEOC Enforcement Guidance on Reasonable Accommodation, and Undue Hardship.

The Interactive Process:Medical Information • Employers may request medical information if the disability and/or need for accommodation is not obvious. • The request must be “job-related” and “consistent with business necessity.” • The request should be limited in scope, related to the accommodation request. • Employees must comply with reasonable requests. • Employers should seek clarification if the information seems vague, incomplete, or contradictory. 42 U.S.C. §12112(d)(4)(A); EEOC Enforcement Guidance on Disability-Related Inquiries…; EFE Disability Disclosure FAQ

Medical Information • In most cases, “an employer cannot ask for an employee’s complete medical records.” • All medical information must be kept confidential. • In a separate location • Only staff who “needs to know” should have access. • Other federal or state confidentiality laws may also apply, e.g., HIPAA. • As discrimination can only be found for known disabilities, employers may not want extraneous medical information. 42 U.S.C. §12112(d)(4)(C); EEOC Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

Title I of the ADA Specific Reasonable Accommodations

Identifying Reasonable Accommodations The four main categories of possible reasonable accommodations are: • Job restructuring • Part-time or modified work schedules • Reassignment, and • Reasonable modifications of the work environment and/or policies. The Job Accommodation Network (JAN) is a useful Resource,www.jan.wvu.edu.

Job Restructuring – In General Job restructuring may include: • Reassigning non-essential functions (reallocating essential job functions is not required, although employers may choose to do so). • Work at home / Telework • Altering the time or manner in which a job function is performed • Interpersonal interaction changes among employees or between an employee and a supervisor. 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630 app. §§ 1630.2(o), 1630.9; EEOC Enforcement Guidance on Reasonable Accommodation…

Job Restructuring – Interpersonal Interactions Reasonable modifications in interpersonal interactions depend on the situation involved and may include: • Providing for regular or informal meetings • Modifying the manner in which expectations are communicated, (using written means instead of oral communication or vice versa) • Utilizing checklists, and • Redirecting activity when necessary JAN’s Searchable Online Accommodation Resource on Psychiatric Impairments,www.jan.wvu.edu/soar/psych.html.

Job Restructuring – Work at Home / Telework • The ADA does not require that employers create a teleworking policy if none exists. • If a telework program does exist, people with disabilities should be able to participate. • If there is no teleworking policy, employers must still consider it as a possible reasonable accommodation. • Some courts have found working at home is a reasonable accommodation. • Other courts have strictly interpreted these types of reasonable accommodation requests. EEOC Fact Sheet: Work At Home/Telework as a Reasonable Accommodation

Job Restructuring –Work at Home / Telework Cases • Work at home not reasonable where physical attendance at the administration center was an essential function of the service coordinator position, a low-level position requiring supervision and teamwork. Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004). ----------------------------------------------------------- • Working from home was not reasonable as presence at the workplace was necessary for meetings & mediations. • Accommodation of a distraction free environment was effective. Mobley v Allstate Insurance Company, 2006 WL 2735906 (S.D. Ill. Sept. 22, 2006)

Job Restructuring – CaseWork at Home / Telework • Working at home, (or leave), might be a reasonable accommodation for a medical transcriptionist with obsessive-compulsive disorder (OCD). • Allowed for others in the same position • Employee had previously been provided a flexible start time as an accommodation but it proved ineffective. Humphrey v. Memorial Hospitals Association, 239 F.3d 1128, (9th Cir. 2001).

Part-Time or Modified Work Schedules – In General May be need by someone who requires active treatment or whose stamina is limited due to their disability or medication. • Leave for a period of time • Intermittent leave • Extra break time • Modifying shifts • Flexible work schedules 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o). SeeJAN’s Searchable Online Accommodation Resource.

Part-Time or Modified Work Schedules – Leave • Leave may involve the ADA and Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et. seq. (1993). • FMLA provides up to twelve weeks of leave per year • ADA provides for reasonable amount of leave • May apply at expiration of FMLA leave • If both ADA & FMLA apply, the law providing the “broadest protection to the employee” applies. • Under the ADA, it is best to specific a period of leave • Requests for indefinite leave may be unreasonable (though still requiring an “interactive process.”) EEOC Fact Sheet: The FMLA, the ADA, and Title VII of the Civil Rights Act

Part-Time or Modified Work Schedules – Leave Cases • Medical leave of 4-5 months for treatment for an employee with PTSD was reasonable as the employer’s other leave policies provided up to one year of leave. Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998). ----------------------------------------------------------- • A request for “extended,” indefinite leave may not be reasonable where the employee could not show it would enable him to become qualified to perform the essential job functions. Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003).

Reassignment – In General • Reassignment to a vacant position for which the employee is qualified may be an appropriate accommodation under the ADA . • Reassignment may be useful for an employee has limitations in handling a heavy workload, workplace stress, or who needs periodic leave. • Reassignment is generally not reasonable where it is sought to obtain a new supervisor or to escape certain co-workers. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship; See, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002); Gile v. Untied Airlines, 213 F. 3d 365 (7th Cir. 2000).

Barnett – Reassignment and Seniority Policies U.S. Airways v. Barnett, 535 U.S. 391 (2002) • Reassignment may be available to a cargo handler despite a policy granting vacant positions by seniority. • However, a person must show the seniority provision was not strictly followed in other cases in order to prevail. • Otherwise, the seniority policy trumps reassignment. • Of Note: • Refers to reasonable accommodations as “special” and “preferential.”

Reasonable Modifications – In General Reasonable modifications may involve policies for: • Attendance • Working from home • Leave • Training • Service animals • Personal assistants • Job coaches 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)

What Are Reasonable Accommodations Under the Amended ADA?