After the ADAAA: Reasonable Accommodation Update

1. After the ADAAA: Reasonable Accommodation Update Oct. 5, 2012 Prince William County SHRM

2. Recognizing Accommodation 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” • --“Tips” for recognizing requests

3. Recent Case Law on What Constitutes an Accommodation Request 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).

4. Insufficient Notice: • 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).

5. 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).

6. 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).

7. Timing of Requests May be made at any time during the application process or during employment An employee does not lose the right to request an accommodation because he did not do so during the application stage Employees may make more than one request for reasonable accommodation

8. Does the Requesting Employee Have a Disability? • 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 the changes made by the ADA Amendments Act of 2008 • ADAAA: the definition of disability “shall be construed broadly” and “should not demand extensive analysis”

9. The ADAAA’s Major Changes to the Definition of “Disability” • Congress made 4 main changes to “substantially limited in a major life activity”: 1. Need not be a “severe” limitation or “significantly restricted” 2. Major life activities include “major bodily functions” 3. Ameliorative effects of mitigating measures not considered 4. Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active

10. Courts Have Rejected Reliance on Pre-ADAAA Case Law • See accompanying handout summarizing post-ADAAA cases • Courts have found a wide variety of impairments to meet the “substantially limits” standard on the individual facts shown, e.g. carpal tunnel, depression, cancer, cancer in remission, “cancer free,” HIV, hepatitis C, kidney disease, PTSD, sleep apnea, heart disease, anemia, asthma, back and disc impairments, knee injuries, monocular vision, morbid obesity, multiple sclerosis, stuttering, two broken femurs, Graves’ Disease, and others

11. Types of Impairments That Will Virtually Always Be Found To Be Substantially Limiting [§ 1630.2(j)(3)(ii)] • Regulations emphasize that individualized assessment still required • But, for certain impairments, this individualized assessment will virtually always result in a finding of substantial limitation due to the inherent nature of these conditions AND the extensive changes Congress made to the definition of disability

12. Types of Impairments That Should Easily Be Found To Be Substantially Limiting[§ 1630.2(j)(3)(iii)] • Deafness, blindness, mobility impairments requiring use of a wheelchair, intellectual disability (mental retardation), partially or completely missing limbs • Autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy • Mental impairments such as major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, schizophrenia

13. Condition, Manner, or Duration[§ 1630.2(j)(4)] • Regulations retain these factors as concepts to consider, if relevant, in determining whether a substantial limitation exists • May consider difficulty, effort, or length of time required to perform major life activity; pain; amount of time major life activity may be performed; the way an impairment affects the operation of a major bodily function

14. More examples from revised EEOC regulations Back or leg impairment that causes significant pain if standing more than two hours = substantially limited in standing Impairment that does not cause pain until the 11th mile of walking  not substantially limited in walking Back or leg impairment that causes 20 lb. lifting restriction expected to last several months = substantially limited in lifting

15. 9 rules of construction in revised EEOC regulations • 29 C.F.R. 1630.2(j)(1)(ix): No minimum duration -- Impairment lasting fewer than six months may be substantially limiting-- 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

16. When and How Much Supporting Medical Information Can the Employer Request? • ADAAA has not changed the legal rules regarding when and how much medical information employers can request. • If not obvious or already known, an employer may obtain reasonable documentation that an employee has a disability and needs the accommodation requested.

17. Supporting Medical Information Employer may ask employee to obtain information from treating health care provider, or ask employee to sign limited release allowing employer to contact doctor directly. For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations, and/or determine what accommodation might be effective.

18. If adopting internal reasonable accommodation procedures spelling out your process, consider indicating who is authorized to request and review medical information from employee and/or employee’s health care provider, and to have any follow up communications.

19. Effect of Genetic Information Nondiscrimination Act (GINA) on Employer Requests for Medical Documentation Title II of GINA prohibits employers from requesting, requiring, or purchasing genetic information (which includes family medical history) of applicants and employees Inadvertent acquisition of genetic information does not violate Title II of GINA If request for documentation for accommodation indicates that genetic information should not be provided, any genetic information employer gets will be deemed inadvertent; see GINA regulations for model language

20. “Qualified” May arise if employee requests to be relieved of performing a particular duty due to medical restrictions (To be “qualified,” employee must be able to perform the essential (or fundamental) functions of a position (with accommodation, if needed, or without reasonable accommodation, if not needed). An employer never has to eliminate an essential function of a job as an accommodation.

21. 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

22. 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?

23. If the employee cannot be accommodated to perform the essential function, he is not qualified for that position, but he may still be qualified…can the employee be reassigned to a vacant position for which he is qualified (the accommodation of last resort)?

24. Examples of Common Types of Accommodations Physical modifications Sign language interpreters and readers Assistive technology and modification of equipment or devices Modified work schedules Making exceptions to policies Job restructuring (swapping or eliminating marginal functions) Changing supervisory methods Job coach Telework Leave Reassignment to a vacant position

25. Undue Hardship Consider the following factors: Nature and cost of the accommodation (“significant difficulty or expense”) Resources available to the employer overall (not just individual department) Impact of the accommodation on operations

26. Actions Not Required as an Accommodation Lowering production or performance standards (though pro-rate production requirements for period of leave as an accommodation) Excusing violations of conduct rules that are job-related and consistent with business necessity Removing an essential function Monitoring an employee’s use of medication Providing personal use items Changing someone’s supervisor (though changing supervisory methods may be required) Actions that would result in undue hardship (i.e. significant difficulty or expense)

27. “Interactive Process” Employer should engage in an interactive process with the individual asking for the accommodation. May involve determining (1) whether the requester has a disability, (2) whether requested accommodation is medically needed, and/or (3) what accommodations are possible. Implications of “good faith” provision in 42 U.S.C. Section 1981a

28. Employer has discretion to choose among equally effective accommodations where there is more than one possibility. • Accommodation does not require lowering performance or production standards (but pro-rate production standards to adjust for time off granted due to disability).

29. Interactive Process Determine the limitations at issue caused by the employee’s medical condition, what accommodation the employee needs for those limitations, and determine if it can be provided without undue hardship. Communicate, exchange information, search for solutions, consult resources as needed www.askjan.org

30. 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 (2002)

31. Keys to the Interactive Process • 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

32. Recent Case Law – Employer Failures in the Interactive Process • Flatly turning down requested accommodation and failing to offer available alternative. Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010) • Ignoring request because employer believes employee does not have a disability. Zombeck v. Friendship Ridge, 2011 WL 666200 (W.D. Pa. Feb. 14, 2011).

33. Reassignment Accommodation of last resort Position must be vacant Must be equal in terms of pay, status, etc., or as close as possible Is not limited geographically Employee must be qualified for the new position, but does not have to be best qualified

34. Reassignment (continued) Vacant means that the position is available or will become available within a reasonable time Does not have to be a promotion Employer does not have to bump another employee to create a vacancy Reassignment that would violate seniority system generally is not reasonable Employer does not have to pay cost of relocation, unless it does so for other employees who transfer voluntarily

35. Confidentiality of Medical Information Employers must keep medical Information about applicants and employees confidential, including fact that someone has requested or is receiving a reasonable accommodation. Limited Exceptions: - information may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations - information may be disclosed to individuals involved in making decisions about reasonable accommodations where necessary for emergency treatment to officials investigating compliance with the ADA for workers’ compensation and insurance purposes

36. Going Beyond Legal Obligations Many employers may take actions that are not required as reasonable accommodations Employer will not be deemed to have regarded an individual as disabled just because it exceeded its legal obligations Employer may inform an employee that it is taking an action beyond what the law requires But beware of disparate treatment

37. Going Beyond Legal Obligations (continued) Examples of situations in which an employer may want to exceed its obligations include: Accommodating a condition that is not substantially limiting Providing a temporary measure while considering a request for reasonable accommodation

38. Accommodation 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

39. Resources EEOC www.eeoc.gov Job Accommodation Network (JAN) www.askjan.org

40. Contact Information Jeanne Goldberg Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission jeanne.goldberg@eeoc.gov 202-663-4693