JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 ADA Update 2015 JAN welcomes Jeanne Goldberg, Senior Attorney Advisor, Office of Legal Counsel, U.S. Equal Employment Opportunity Commission.

ADA Update 2015 Roadmap: ADA Provisions that Apply to Individuals with Disabilities  Disparate treatment based on disability (permissible if individual not qualified or posed direct threat to safety) or association with an individual with a disability  Use of a qualification standard that screens out based on disability (permissible if job-related and consistent with business necessity, unless could meet standard or perform job with accommodations)  Harassment  Denial of reasonable accommodation (permissible if would have posed undue hardship) 2

ADA Update 2015 Roadmap: ADA Provisions that Apply to All Applicants and Employees  Retaliation  Improper Disability-Related Inquiries or Medical Exams  Disclosure of Confidential Medical Information 3

ADA Update 2015 Does the Individual Requesting Accommodation Have a Substantially Limiting Impairment?  Employer is free to provide accommodations to anyone, but simply be sure not to engage in disparate treatment.  If employer has determined not to provide accommodation unless individual is legally entitled to it, threshold issue is whether individual has or had an impairment that “substantially limits a major life activity,” and presently needs accommodation. 4

ADA Update 2015 Supporting Medical Information  Accommodation request may be oral, and is simply a request for some type of change due to a medical condition.  Once accommodation request is made, when and how much medical information can the employer ask for in support of the accommodation request?  ADAAA has not changed the rule: If not obvious or already known, an employer may obtain reasonable documentation that an employee has a disability and needs the accommodation requested. 5

ADA Update 2015 Supporting Medical Information  Employer may ask employee to obtain the supporting medical information from employee’s treating health care provider, or ask employee to sign limited release allowing employer to contact the health care provider directly.  For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations as well as what accommodation might be effective, and for how long it may be needed. 6

ADA Update 2015 Assessing Medical Information  Remember changes made by the ADA Amendments Act of 2008 (ADAAA).  ADAAA: Definition of disability “shall be construed in favor of broad coverage” and “should not demand extensive analysis.”  Definition much easier to meet. 7

ADA Update 2015 When it enacted the ADAAA, Congress made 4 changes to “substantially limited in a major life activity”:  Need not prevent, or significantly or severely restrict, a major life activity  Major life activities include “major bodily functions”  Ameliorative effects of mitigating measures not considered  Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active 8

ADA Update 2015 “Substantially Limits” (cont’d)  No minimum duration: impairment can be “substantially limiting” even if lasts or is expected to last fewer than 6 months. 29 C.F.R. § (j)(1)(ix).  Duration is a relevant factor, but even short- term/temporary conditions can now be “substantially limiting”  Example: Back impairment that causes 20-pound lifting restriction lasting several months. 9

ADA Update 2015 Don’t Rely on Pre-ADAAA Case Law on Definition of Disability  Notice of Rights Under the ADAAA:   Question and Answer Guide:  ness.cfm 10

ADA Update 2015 Most Common Examples of Accommodation  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 11

ADA Update 2015 Examples (cont’d)  Allowing job coach  Telework  Leave  Reassignment to a vacant position (must be provided by employer as accommodation of last resort if available without undue hardship) 12

ADA Update 2015 Actions Never Required as Reasonable Accommodation  Lowering production or performance standards (though pro-rate production requirements for period of leave as 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) 13

ADA Update 2015 Undue Hardship Considerations  Nature and cost of the accommodation (“significant difficulty or expense”)  Resources available to the employer overall (not just individual division or department)  Impact of the accommodation on operations 14

ADA Update 2015 Keys to the Interactive Process  Communicate, exchange information, search for solutions, consult resources as needed  If requestor only knows the problem, not the solution, employer is still obligated to provide an accommodation if available. Search for possible accommodations.  If requestor asks for a particular accommodation, but it is one that legally need not be provided (e.g., request to lower production standards), employer must provide an alternative if available. Search for and consider alternative accommodations. 15

ADA Update 2015 Employee Must Cooperate in Interactive Process Ward v. McDonald, __ F.3d __, 2014 WL (D.C. Cir. Aug. 12, 2014).  Employee sought telework due to condition that affected mobility. After receipt of internist’s letter that made reference to home treatments that could take 1-3 hours for symptom flare-ups, the employer sought additional information from the doctor to explain how the employee would be able to work even at home given the symptoms and treatment needs as described.  Employee refused to provide the clarifying information requested by the employer, and the court ruled the information was legitimately sought by the employer. Because the employee therefore failed to engage in the interactive process, she could not prevail on denial of accommodation claim. 16

ADA Update 2015 Employer Should Not Just Go Through the Motions Goonan v. Federal Reserve Bank, 2014 WL (S.D.N.Y. July 22, 2014).  “the interactive process of the ADA demands active participation by both parties in creating a reasonable accommodation, not just occasional employer reactions as a mentally ill employee works his way through the resources structure”  a jury could find that the agency “was merely attempting to placate Goonan rather than making good faith reasonable efforts to accommodate him” 17

ADA Update 2015 Accommodations for Symptoms or Treatment While Continuing to Work Gleed v. AT&T Mobility Services, 2015 WL (6th Cir. June 4, 2014)  Retail sales consultant requested two reasonable accommodations for his physical impairments: (1) sitting as needed during the work day, due to chronic cellulitis (skin infection), vascular dysfunction, and psoriasis in his legs and feet; and (2) a four- to six-week schedule modification, for daily IV antibiotic infusions to treat a serious infection in his leg.  AT&T denied his request to sit as needed, although at the same time it allowed a pregnant coworker to sit in a chair on the sales floor as needed, and denied request for schedule change that would have enabled him to work during infusions, instead offering only unpaid leave. 18

ADA Update 2015  Appellate court ruled that the employer was not entitled to summary judgment on denial of the request to use a chair to sit as needed.  The court held that this request was reasonable on its face, particularly given that standing caused Gleed great pain, and increased his risk of skin infections.  The court rejected AT&T’s argument that if Gleed was physically capable of doing his job (no matter the pain or risk to his health), then it had no obligation to provide him with any accommodation.  But court affirmed summary judgment for the employer on the denied schedule modification, reasoning that the employee should have further discussed the matter with the employer rather than quit. Presumably, this might have entailed Gleed explaining to the employer how it would be possible for him to continue working while receiving treatment if the schedule change was granted. 19

ADA Update 2015 What if employee requests to be excused from performing job duty due to medical condition?  If it’s a marginal function – can it be swapped or eliminated without undue hardship?  If it’s an essential function, it need not be removed, but can employee be accommodated to perform it?  If employee cannot be accommodated in position, he could still be qualified for a position to which he could be reassigned…is there a vacant position for which he is qualified (the accommodation of last resort)? 20

ADA Update 2015 Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562 (4th Cir. 2015).  Deputy court clerk’s duties were mainly filing  4 or 5 out of 30 deputy clerks were assigned to perform back- up front counter duty  Job description listed counter duty as one possible task among many  Jury could conclude plaintiff -- who could not perform counter duty due to disability -- could be accommodated by assigning counter duty, a “marginal function,” to other employees and assigning plaintiff to another task instead.  Proposed accommodation did not require employer to increase co-workers’ workload, but merely to change which deputy clerk among many was assigned to which of many tasks. 21

ADA Update 2015 Shell v. Smith 2015 WL (7th June 15, 2015).  Plaintiff's hearing and vision impairments prevent him from obtaining a commercial driver’s license, but he worked for twelve years in mechanic’s helper position without a CDL and without driving a bus.  When new general manager was appointed, he informed plaintiff that his employment would be terminated unless he obtained a CDL, as the job description required it.  Jury question existed as to whether driving a bus was an “essential function” of mechanic's helper. 22

ADA Update 2015 Stern v. St. Anthony's Health Center, 2015 WL (7th Cir. June 4, 2015).  Chief psychologist for acute-care facility was terminated based on medical evaluation finding short-term memory deficiencies rendered him unfit for duty  Held: Clinical practice, supervision, and administration were essential functions of his position; there was only one chief psychologist at the facility, and moreover, if supervision was eliminated he would no longer be the chief, and if the clinical practice was eliminated, he would no longer be functioning as a psychologist.  If a particular job function is an essential function, then it is irrelevant whether the employer could have someone else perform the function without undue hardship.  “[j]ob restructuring includes modifications such as: reallocating or redistributing marginal job functions that an employee is unable to perform because of a disability; and altering when and/or how a function, essential or marginal, is performed”... “[a]n employer never has to reallocate essential functions as a reasonable accommodation, but can do so if it wishes.” EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA, 23

ADA Update 2015 What if Employee Requests Telework as a Reasonable Accommodation?  As a reasonable accommodation for an individual with a substantially limiting impairment, an employer may need to permit more frequent telework than is otherwise allowed under its regular telework policy.  Fact-specific determination based on particulars of position and workplace. Telework as accommodation need not be granted as an accommodation if not feasible or poses an undue hardship. 24

ADA Update 2015 Examples of Relevant Facts to Consider in Determining if Telework is Feasible  Employer's ability to supervise the employee adequately  Whether any duties require use of certain equipment or tools that cannot be replicated at home  Whether there is a need for face-to-face interaction and coordination of work with other employees  Whether in-person interaction with outside colleagues, clients, or customers is necessary  Whether the position requires the employee to have immediate access to documents or other information located only in the workplace 25

ADA Update 2015 Management Considerations NOTE: Teleworking employees can be held to same performance and production standards as working on-site. Managers can require daily accomplishment reports or use other management methods with respect to all employees. More information: Work From Home/Telework as a Reasonable Accommodation, 26

ADA Update 2015 What if Telework Was Not Possible? McNair v. District of Columbia, 2014 WL (D.D.C. Jan. 23, 2014). Although essential functions of hearing examiner job could only be performed in the office, precluding requested accommodation of telework three days per week, employer failed to follow up as part of the interactive process to offer alternative available accommodations that would have permitted work to be done in the office. 27

ADA Update 2015 What if the Employee Cannot Be Accommodated in Her Current Position?  You must consider reassignment as the accommodation of last resort  Reassignment search looks for a position equal in terms of pay, status, etc., or as close as possible  Not limited geographically; any “vacant” position (not yet filled)  Employee must be qualified for the new position, but does NOT have to be best qualified and does NOT have to compete for it. 28

ADA Update 2015 Reassignment (cont’d)  Vacant means that the position is available or will become available within a reasonable time  Employer does not have to reassign to a position that would be a promotion  Employer does not have to bump another employee to create a vacancy, or create a new position  Reassignment that would violate seniority system generally is not reasonable unless the employer makes other exceptions  Employer does not have to pay cost of relocation, unless it does so for other employees who transfer voluntarily 29

ADA Update 2015 Contact Information Jeanne Goldberg Senior Attorney Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission 131 M Street, NE Washington, DC (202)

ADA Update 2015 Contact  (800) (V) & (877) (TTY)  AskJAN.org &  (304) via Text  janconsultants via Skype 31