Obligations Under The Americans With Disabilities Act Melissa L. Shingles June 2, 2017

Melissa L. Shingles Associate Littler, Phoenix

AGENDA ADA Overview Compliance: Accommodation and the Interactive Process

What the ADA Requires No Discrimination Employers must not discriminate against a qualified individual with a disability Disability means an individual: Has a disability, has a record of having a disability, or is regarded or perceived as being disabled; Has the skills and qualifications for his/her job; and Can perform the essential functions of the job despite the disability, either with or without reasonable accommodation. Protection applies in recruiting, hiring, placement, training, job assignment, promotions, pay increases, application of policies, other facets of employment

What the ADA Requires No Harassment Consider what you know about other forms of harassment—sex, race, religion, age—same principles apply Includes comments, jokes, cartoons, e-mails, images, and more Mistreatment by co-workers of an associate who is being accommodated in some way

Who Is Protected? A job applicant or employee with a “disability”... Who can perform the essential functions of the current job (or a suitable, vacant, equivalent alternative)...  With or without reasonable accommodation. **Must fulfill all three criteria for protection.

What the ADA Requires Reasonable Accommodation Reasonable accommodations... For qualified individuals... With known disabilities... To enable them to perform the essential functions of the job... “Essential function” means: The position exists to perform that function There are a limited number of employees who can do it It is highly specialized and the person is hired for that expertise Accommodation does not poses an undue hardship on employer (difficult standard to meet).

Defining “Disability” A physical or mental impairment that substantially limits a major life activity.

“Disability": Past Present Future Three possibilities: (1) Actual impairment: Substantially limits major life activity; OR (2) Record of: Such an impairment; OR (3) Regarded as: Having such an impairment

“Major Life Activities” Caring for oneself Breathing Learning Performing manual tasks Walking Reading Seeing Standing Concentrating Hearing Sitting Thinking Speaking Reaching Communicating Eating Lifting Interacting with others Sleeping Bending Working

ADA Disability? Not a demanding standard; broadly construed to expand coverage Focus is whether impairment substantially limits compared to most in general population, but must ignore mitigating measures (exception for ordinary eyeglasses) For episodic impairments – covered even when inactive Need only limit one major life activity

Employer Says: How Is That A Disability?! “The primary object of attention” should be on interacting and identifying reasonable accommodation, not “whether the individual meets the definition of disability.” EEOC Focus should be on whether the company: (1) has fulfilled its obligation to provide a reasonable accommodation and (2) met its responsibilities with respect to the “interactive process.”

What this Means for Employers Less of an emphasis on the actual condition/ impairment Moving almost directly to the interactive process—in other words, an extremely individualized analysis—it’s all about accommodation

A Job Function Might Be “Essential” If.... The job exists to perform it The employee spends a significant amount of time performing it Its duties cannot be reassigned to another employee without changing the fundamental nature of the job

A Job Function Is Not “Essential” If... The employee never or rarely actually performs it or it can easily be assigned to another employee

Reasonable Accommodation Defined A modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity Allows performance of essential job functions

Four General Categories Of Accommodation Changes to the application process Modification of the work environment Changes to allow access to equal benefits and privileges of employment Leaves of absence to enable employee to return and perform essential functions

Accommodation Examples There are many forms of accommodation, including: Ergonomic (equipment, work space) Job changes (such as schedule changes or task modifications) Leaves of absence (intermittent or block)—yes, really The burden is on the employer to respond when the need for accommodation arises, so THE INTERACTIVE PROCESS IS CRITICAL!!!

Accommodation May Include: Providing special equipment Modifying work schedule Removing barriers to performance Restructuring job duties Reassigning nonessential tasks Exchanging nonessential assignments with other employees Redesigning procedures for as long as employee is disabled and requires accommodation

Reasonable Accommodation: Reassignment to a Vacant Position Duty of reasonable accommodation includes reassignment to a vacant position for which employee is qualified (without considering his disability) Employee cannot be required to “compete” for vacant position if employee can perform essential functions of position, with or without reasonable accommodation

Leave As A Reasonable Accommodation Leave is a form of accommodation if necessitated by the disability Leave may be granted on a continuous or intermittent basis Lave may be granted even if the employee is not eligible for leave under the FMLA and is an exception to Sharp’s standard leave policy If an employee is granted leave as an accommodation, he or she: Cannot be penalized for such absences Must be returned to the same position unless holding open the position would impose an undue hardship

No-Fault Attendance Policies “If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its ‘no-fault’ leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.” EEOC, Enforcement Guidance: Reasonable Accommodation and Under Hardship Under the Americans with Disabilities Act, question 17 (2002).

What Is The Interactive Process? Individualized process involving: Exchanging information about employee’s work restrictions Identifying the appropriate workplace accommodations Reaching a mutually satisfactory decision about the reasonable accommodation to be provided

So What About Undue Hardship? General Rule: High Standard Basic Undue Hardship Factors The nature and cost of the accommodation; The overall financial resources of the organization; The overall number of individuals employed by the employer; The effect the accommodation would have on the resources of the organization; and The impact the accommodation would have on the organization. Net result? Tough burden for employer to meet

and don’t forget . . . “Substantially limits” is an easy standard to meet There is no required duration—even short-term impairments can qualify Inactive conditions are viewed as active (ex: conditions which are in remission) Mitigating measures cannot be considered