Disability as Defined by the ADA

1. The Reasonable Accommodations Coordinators Handbook: RevisedMyrtle Gregg-LaFayDept of Labor and Economic Growth&Toni McFarlandOSE/Employee Health Management

2. Disability as Defined by the ADA • Impairment • “Substantially Limits” • Major Life Activity • Mitigating Measures • “Qualified Employee”

3. Accommodations Decision Chart • “Disabled” ? • “Qualified” ? • “Reasonable” ?

4. Civil Service Regulation 1.04“Reasonable Accommodation” • C.S. Rule 1-7 EEO • C.S. Rule 1-8 Prohibited Discrimination • 1-8.2 Accommodation of Disabilities • Rule 3-1.4 Reasonable Accommodations in Testing • Standards

5. Disability Accommodation Request by Employee Form • CS1668 Form • Available in “Text Only” format also • Instructions

6. Response to Disability Accommodation Form (to be initiated by Reasonable Accommodation Coordinator) CS1669 Form

7. Reasonable Accommodation Process Flow Chart • Employee initiates w/CS1668 • RAC (walk thru) approval/denial • Supervisor - arranges for RA • RAC - evaluation

8. Staff Accommodation – Roles and Responsibilities • Employee • Departmental RAC • OHR Director • Immediate Supervisor

9. EHM “At Risk” Program Procedures • Referral made to EHM • EHM covers costs of evaluation only • Include with request • Disclosure statement • Medical that requests chair/ergonomic eval • Needs only to say there is a problem or pain

10. EHM Request for At Risk Assessment Form • Only accept forms submitted by RAC or their designee • This form is also used to request “WorkSmart” evaluations

11. State of Michigan “At Risk” Services Flow Chart

12. Referral Approvals • EHM staff reviews and approves • Then the request is sent to the DM-MRS staff for the evaluation to be completed

13. Purchase of Employee Accommodation Services & Equipment • DMB – Procurement of Commodities & Services – Procedure 0510.13 • DLEG – Sample Guidelines for • Purchasing Commodities • Purchasing Services • Print Requests • DMB –Form AS-1

14. Purchasing Equipment for Employees on Workers’ Compensation or LTD • Once the evaluation is complete EHM will receive a copy of the report and then order the equipment recommended. • EHM will work with the TPAs and the departments to coordinate the equipment purchases.

15. Space Renovation & Modification • DLEG Sample Language • State Owned Space • State Leased Space • DMB-123 Form • DMB Procedure 0210.03-Modular Furniture • DMB Procedure 0210.05-Space Modification

16. Staff Accommodations Needed to Participate in Training Organized By the Department (Samples) • Employee’s Responsibilities • Immediate Supervisor’s Responsibilities • Training Organizer’s Responsibilities

17. Training Programs Presented by Other Organizations (Samples) • Employee Responsibilities • Immediate Supervisor’s Responsibilities

18. Michigan Rehabilitation Services – Disability Management • Return to Work Services • At Risk Services • Training Services

19. Michigan Rehabilitation Services DM Request for Services Form

20. State Travel Accommodations • Air Transport • Assigned State Vehicle (Individual or Office) • Premium Mileage

21. Staff Accommodation Telephone Resource Sheet • DLEG Sample - Most Common Questions • Who to Call (updated)

22. Parking Policy-Draft

23. BREAK

24. Legal Case Review & Case StudiesCheryl Schmittdiel, OSE/CANToni McFarland, OSE/EHM

25. The Americans with Disabilities Act“ADA” Toni McFarland, OSE/EHM&Cheryl Schmittdiel, OSE/CNA

26. Eligibility • Employers Subject to ADA Employers with 15 or more employees for 20 or more calendar weeks in the current or proceeding year. • Individuals Eligible for ADA Protection “Qualified individuals with a disability”

27. Definitions • Qualified Individual With A Disability “…an individual with a disability [as defined by the ADA] who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such a position.”

28. Individual with a disability • An individual with 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 • Being regarded as having such an impairment

29. Essential Functions • The fundamental job duties of the position. - the term “essential functions” does not include the marginal functions of the position.

30. A function is essential if… • The reason the position exists is to perform the function. • There are a limited number of employees available among whom the performance of the function can be distributed. • The function is so highly specialized that the person is hired for his/her expertise or ability to perform the function.

31. Reasonable Accommodation • “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;”

32. “Undue hardship” • Undue hardship means financial difficulty or actions that would be “unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business” • Undue hardship must be determined on a case-by-case basis

33. Key Requirements • Interaction with the employee • The employer must engage in an “informal, interactive process” with the employee to determine an appropriate reasonable accommodation. • The employee may initiate this process. • The employer should initiate this process without being asked if the employer knows or has reason to know that such a discussion should take place. • The employer may ask for “reasonable documentation” about the employee’s disability and functional limitations if not obvious.

34. Types of reasonable accommodations • Job restructuring • Leave • Length of leave based on “undue hardship” standard • Employee is entitled to return to the original position • Modified or part-time schedule

35. Reassignment to a vacant position • Michigan Supreme Court has said that another position is not considered a reasonable accommodation (Rourk vs Oakwood Hospital Corp.)

36. Medical Information & Inquiries Employers may only: • Require medical information that is job-related and consistent with business necessity • Inquire into the ability of an employee to perform job-related functions

37. Appropriate questions • When can the employee return-to-work • Physical limitations that are job-related/essential-function-related • Whether a condition will create an unsafe situation • Whether the employee can work a full shift

38. Questions that may not be asked: • If an illness or disease is in remission • The likelihood of full recovery • Physical limitations that are not job-related/essential-function-related

39. Confidentiality • Medical information must be kept confidential • Medical information must be maintained on separate forms and in separate medical files

40. **NOTE: Employers can only restrict an employee’s return to work under certain circumstances… • if it creates a direct threat, which is defined as – a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation. • if the employee’s restrictions cannot be accommodated so that they would be able to do the essential functions of the position.

41. Workers’ Compensation

42. Exclusive Remedy Principle • “No-fault” insurance • The employer is obligated to pay workers’ compensation claims no matter who is at fault • The employee cannot sue the employer for negligence that caused the claim

43. Lawsuits still possible • Employee can sue employer for claims falling outside the realm of workers’ compensation • Employees often sue over whether or not an injury or illness is covered by workers’ compensation • Employer not complying with workers’ compensation laws (e.g., no insurance) • Injury or illness not covered by workers’ compensation • Employer retaliation for pursuing a claim

44. Benefits • Medical Costs • Income replacement is generally based upon a percentage of lost wage up to a statutory maximum - Permanent total disability - Temporary total disability - Permanent partial disability - Temporary partial disability • Death benefits for family members

45. Compensable Injuries & Illnesses • Compensable “Illnesses or injuries arising out of and in the course of employment” “In the course of employment” can include situations outside of normal job duties

46. Generally non-compensable • Traveling to and from work

47. FMLA: Light-duty & Alternative Position Rules

48. Restoration rule • Employees can make a “voluntary and uncoerced acceptance of a light-duty assignment while recovering from a serious health condition”. (29CFR825.220) • The employee’s right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12- month period, including all FMLA leave taken and the period of light-duty.

49. Additional points • Additional leave may still be “available,” but job restoration rights will have expired. • If FMLA leave time is still available, and employee takes further FMLA time for another condition or family member, employer should maintain job restoration benefits

50. Light-duty vs. Alternate Position • Seemingly contradictory FMLA rules (29CFR825.702) • Employer cannot require employee to take a light-duty job in lieu of leave. • Employer can require employee to transfer temporarily to an alternate position during reduced schedule/intermittent leave in order to accommodate recurring periods of leave.