Employment Rights for Employees and Applicants with Disabilities

1. Interagency Committee on Employee with Disabilities (ICED) March 24, 2014 Presented by: Rachel Weisberg Staff Attorney – Equip for Equality Manager – Illinois ADA Project Employment Rights for Employees and Applicants with Disabilities

2. Equip for Equality Mission: Advancing the human & civil rights of people with disabilities in Illinois •Legal Advocacy •Information & Referral •Training & Education •Abuse/Neglect Investigations •Public Policy Advocacy •Self-Advocacy Assistance •Self-Determination•Employment Issues •Latino Outreach •Special Education •Traumatic Brain Injury •Assistive Technology (800) 537-2632 (V) (800) 610-2779 (TTY) www.equipforequality.org

3. Illinois ADA Project The Illinois ADA Project is funded by the Great Lakes ADA Center • ADA technical assistance • Referral information • Fact sheets & other documents • Customized ADA trainings (877) ADA-3601 (V) (800) 610-2779 (TTY) www.ada-il.org

4. Training Outline • Relevant Laws • Who is Protected? • Definition of Disability Under the ADA & IHRA • Qualified • What Does the Law Do? • Anti-Discrimination • Reasonable Accommodations • Disclosure, Medical Exams and Inquiries • Harassment, Retaliation, Confidentiality • Practical Tips / Resources • Questions

5. Employment Discrimination: Disability Rights Laws 1973: The Rehabilitation Act (Federal Law) Prohibits employment discrimination for qualified individuals with disabilities who work for: • Federal government • Entities that receive federal funding 1979: Illinois Human Rights Act (State Law) Prohibits employment discrimination for qualified individuals with disabilities who work for: • State government • Local government • Private businesses with 1+ employee

6. Employment Discrimination: Disability Rights Laws 1990: Americans With Disabilities Act (Federal Law) Prohibits employment discrimination for qualified individuals with disabilities who work for: • State government • Local government • Private businesses with 15+ employees 2008: ADA Amendments Act (Federal Law) Overturned various Supreme Court decisions that narrowly interpreted the definition of disability under the ADA Local Laws (example: Cook County; Chicago)

7. Who is Protected? (Disability, Qualified)

8. Definition of Disability: ADA & Rehab Act An employee has a “disability” if he or she: • Has a physical or mental impairment that causes a substantial limitation of one or more major life activities • Has a record of such an impairment • Is “regarded as” having an impairment Note: Same definition of disability in the Cook County Human Rights Ordinance

9. Long-Standing Definition When drafting the ADA, Congress used the Rehab Act’s definition of “disability” • Congress intended that the courts would continue the broad, flexible interpretation of coverage • School Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987) • “the definition of ‘handicapped individual’ is broad…” • “Congress acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”

10. Court Interpretations Narrow ADA Coverage Unfortunately, for many years, the ADA’s goals were not met due to restrictive court decisions: • Sutton Trilogy: • Ameliorative effects of mitigating measures considered • Created a catch 22 • Toyota v. Williams: • Established that definition of disability should be “interpreted strictly” to create a “demanding standard.” • Episodic conditions not covered

11. Lower Court Decisions Finding No ADA Disability People with the following impairments have been found not to have an ADA disability: • Intellectual Disability • Epilepsy • Diabetes • Bipolar Disorder • Multiple Sclerosis, Cancer, Asthma, HIV • Back Injury • Vision in only one eye • Post-Traumatic Stress Disorder & Depression • Heart Disease

12. ADA Amendments Act 2008: Congress passed the ADA Amendments Act The purpose of the ADA Amendments Act is to: • Congressional intent: Focus in ADA cases is whether entities covered by the ADA have complied with their obligations. • Definition of disability “shall be construed in favor of broad coverage … to the maximum extent permitted by the terms of this Act.”

13. caring for oneself walking standing lifting bending reaching seeing hearing learning concentrating eating communicating speaking thinking sleeping breathing performing manual tasks working interacting with others sitting This list is not exhaustive Expanded Definition of Major Life Activities 13

14. New Major Life Activities Category: Major Bodily Functions immune system neurological special sense organs & skin normal cell growth brain genitourinary digestive respiratory cardiovascular bowel circulatory hemic bladder endocrine lymphatic reproductive functions musculoskeletal Includes the operation of an individual organ within a body system, e.g., kidneys, liver, or pancreas. EEOC Regulations contain two lists: 1. Impairments that should consistently be a disability. 2. Impairments that may be disabling for some but not others. 14

15. Possible Application of Major Bodily Functions immune system: HIV/AIDS, auto-immune disorders, lupus normal cell growth:cancer digestive: Crohn’s disease, celiac disease bowel: ulcerative colitis bladder:kidney disease reproductive functions:infertility neurological:multiple sclerosis, epilepsy brain:schizophrenia, developmental disabilities respiratory:asthma circulatory:heart disease, high blood pressure endocrine: diabetes

16. ADAAA: Important Changes Conditions that are episodic or in remission:An impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active • Examples: Epilepsy, Bipolar disorder, PTSD Mitigating measures: Ameliorative effectives of mitigating measures must be disregarded • Examples: Medication, Coping Strategies, Behavioral Therapy, Hearing Aids

17. You Be The Judge: ADAAA Maria has epilepsy. Her seizures are mostly controlled by medication, and she has not had a seizure in over two years. Is she a person with a disability under the ADA? • Before the ADA Amendments Act? • After the ADA Amendments Act?

18. Definition of Disability: Illinois Human Rights Act • A determinable physical or mental characteristic of a person (including a determinable physical characteristic which necessitates the person's use of a guide, hearing or support dog)… • The history of such characteristic… • The perception of such characteristic by the person complained against… … which may result from disease, injury, congenital condition of birth or functional disorder Note: Similar definition of disability in the Chicago Human Rights Ordinance

19. You Be The Judge • Bill uses a wheelchair. He applied to be a French language translator, but he does not speak French. He is not selected – is this discrimination?

20. Qualified No – Individual must be also be qualified An employee is "qualified" for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the position, with or without reasonable accommodation. 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m) 29 C.F.R. pt. 1630 app. § 1630.2(o)

21. Essential Job Functions • Factors to consider when determining whether a job function is essential: • The employer’s judgment • Job descriptions • The amount of time spent performing the function • The consequences of not requiring the person to perform the function • The terms of a collective bargaining agreement • The work experience of others who have had, or currently hold, the same or similar positions

22. What Does the Law Do?

23. Workplace Protections Discrimination is prohibited in any facet of employment, including: • Job application procedures • Hiring / Firing • Benefits and Compensation • Advancement • Training • Any terms, conditions, or privileges of employment • Refusing to provide reasonable accommodations • Certain medical exams and inquiries

24. Workplace Protections Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants?

25. Workplace Protections: Limitations Answer ADA: No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to the existence or consequence of a disability. http://www.eeoc.gov/facts/adaqa1.html IHRA: It depends who the employer is. The IHRA requires affirmative action for people with disabilities in state government (but not for private employers).

26. Workplace Protections: Limitations Q. Does having a disability protect an individual from being fired or laid off?

27. Workplace Protections: Limitations Answer ADA: No. The ADA protects you from being discriminated against because of your disability. It is not a violation for your employer to fire, demote, not promote, reduce hours, or change any other condition of your employment for some other reason unrelated to your disability. IHRA: The IHRA requires state agencies (not private businesses) to examine the effect of a layoff on employees with disabilities.

28. Reasonable Accommodations

29. Reasonable Accommodation Discrimination under the ADA may include: • Not providing a reasonable accommodation for known limitations caused by a disability What is a 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 … or … • enjoy equal benefits and privileges of employment. 29 C.F.R. § 1630.2(o)(1)

30. Most Common ADA Issues (2008-2010) Source: Calculations by S. von Schrader, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 2008-2010. Development of this table was supported by Employer Practices Related to Employment Outcomes Among Individuals with Disabilities (H133B100017) funded by the U.S. Department of Education National Institute on Disability and Rehabilitation Research to Cornell University.

31. Three Categories of Accommodations • Application Process • Performance of the essential functions of the position • Enjoyment of equal benefits and privileges of employment

32. Examples of Accommodations for Job Applications / Interviews • Conducting the interview in a physically accessible location • Sign language interpreter for interview • Modifying tests, training materials, testing time, and/or policy manuals • Replacing a written test with a more extensive interview • Allowing a support person during the interview

33. Examples of Employment Accommodations • Providing tasks orally instead of in writing • Providing tasks in writing instead of orally • Making the workplace accessible to and usable by an employee with a disability • Restructuring a job (eliminating “marginal tasks”) • Allowing break periods • Modifying work schedule • Scent-free or restrictive scent policies • Unpaid Leave • Modifying equipment

34. Examples of Employment Accommodations • Providing qualified readers to accommodate individuals who are blind • Providing sign language interpreters to accommodate individuals who are deaf • Reassignment to a vacant position (ADA) • Providing periods of leave for treatment or recovery • Allowing a job coach • Allowing service animal • Telework Other Ideas?

35. Examples of Accommodations for Benefits/Privileges of Employment • Holding office parties at in an accessible location • Accessible cafeterias or employee lounges • Accessible parking • Sign language interpreter for job training

36. Not Required to Provide An Accommodation That… • Causes an undue hardship to the employer • Results in a direct threat to the health or safety of the employee or others • Is unreasonable • Requires reallocation of essential job functions • Will not enable to the employee to be qualified • Lowers production standards applied to all employees • Provides personal use items • Changes an employee’s supervisor • Excuses violation of uniformly applied conduct rules

37. Undue Hardship (ADA) • Definition: Action requiring significant difficulty or expense. • (Some) factors to consider when determining whether an accommodation would pose an undue hardship: • nature and cost of the accommodation needed • overall financial resources of the facility making the reasonable accommodation (number employees; impact on facility) • overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity) • impact on operations on the facility

38. Accommodation Basics • Must be an effective accommodation (not best) • Personal devices are not required • Individuals covered solely under the “regarded as” prong are not entitled to accommodations • Individuals covered by association are not entitled to accommodations • Employers are not prevented from providing extra accommodations • Employee request triggers “interactive process”

39. You Be The Judge • Bill does not have a disability but has a child with bipolar disorder. • He asks for a reasonable accommodation – modified work schedule so he can take child to therapy appointments. • His employer says no. ADA Violation?

40. Interactive ProcessStep 1: Employee Request • Requests do not need to be in writing • Best practice: Put it in writing • There is no specific language that must be used • Best practice: Use ADA and reasonable accommodation • Best practice: Use employer-created forms • State employees: Most state agencies have their own forms (ask supervisor, agency EEO/AA Officer, ADA coordinator)

41. Interactive ProcessStep 1: Employee Request • Another person may request an accommodation on the employee’s behalf • Request should describe: • Nature of the disability/resulting limitation • Need for an accommodation • Requested accommodation, if known

42. Step 2: Interactive Process • Considerations during discussions with employer: • Is the requested accommodation reasonable and effective? • Do other possible accommodations need to be examined? • Employers must provide an effective accommodation, not necessarily the requested one. • Employee’s preference gets “primary consideration.” • Consult with: • Supervisor and possibly HR • Doctors • VR agency • Computer experts • Resources – Job Accommodation Network

43. Reasonable AccommodationStep 2: Initiate Interactive Process • Employers may request limited medical info regarding: • The nature, severity, and duration of the impairment. • The activity or activities that the impairment limits. • The extent of the limitations of the impairment. • How the impairment(s) relate to the accommodation. • Employers are not entitled to release of entire medical record 29 C.F.R. § 1630.2(o)(3); EEOC Enforcement Guidance on Reasonable Accommodation, and Undue Hardship.

44. Reasonable AccommodationStep 3: Implement Accommodation • If an effective reasonable accommodation is agreed upon, it should be implemented and there should be follow-up to ensure its effectiveness. • The duty to accommodate is ongoing. The interactive process and the duty to accommodate can continue beyond the initial accommodation. The employer may need to modify the current accommodation or provide a new accommodation.

45. Reassignment as an Accommodation • ADA: Reassignment to a vacant position for which the employee is qualified may be an appropriate accommodation • Reassignment is generally not reasonable where it is sought to obtain a new supervisor or to escape certain co-workers • Need not be a promotion • Does not require bumping if there is a bona fide union or other seniority system

46. Reassignment (ADA): Recent Case Law EEOC v. United Airlines 693 F.3d 760 (7th Cir. 2012) • Background: United had a policy that employees with disabilities who could no longer do the essential function of their current jobs, could compete for open positions as a reasonable accommodation, but were not entitled to the position. • 7th Circuit 3 Judge Panel: Under existing precedent, reassignment to a vacant position was not required. • Full 7th Circuit: In light of the Supreme Court’s decision in Barnett v. U.S. Airways, the ADA mandates that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship.

47. Reassignment as an Accommodation (IHRA) IHRA: The IHRA has been interpreted to not require reassignment to another job as a reasonable accommodation. Caterpillar, Inc. v. Human Rights Comm'n, 154 Ill. App. 3d 424, 506 N.E.2d 1029 (1987) But see Alternative Employment Program for State Employees • Allows people with disabilities to be considered/hired in alternate programs when their disabilities prevent them from performing their current positions

48. Leave as an Accommodation • Courts have approved various lengths of leave • Indefinite leave is usually not a required accommodation • Tip for employees: Better to provide a return to work date, although absolute certainty is not required • Compare FMLA – 12 weeks of unpaid leave for serious medical condition

49. Leave as an Accommodation: Case Law Crabb v. SIU Sch. of Med.2010 WL 1790362 (C.D. Ill. Apr. 29, 2010) • Employee received intermittent FMLA to treat anxiety and depression • Employee hospitalized after exhausting FMLA leave • Employee did not return to work and requested leave • Court: Employee is “not entitled to receive unlimited time off in her sole discretion.” • Employers generally permitted to treat regular attendance as an essential job function • Employers not required to permit indefinite leave as a reasonable accommodation

50. Leave as an Accommodation: Case Law Shelton v. Bridgestone Metalpha, USA, Inc. 2012 WL 1609670 (M.D. Tenn. May 8, 2012) • Plaintiff requested an extension of FMLA (two weeks to six months) • Medical leave of absence is a reasonable accommodation if the plaintiff can prove leave is not indefinite or a significant extension to an already generously granted leave. • Court: Employer failed to show that this request for leave was unreasonable