1. February 6, 2013 PRACTICAL considerations in dealing with DIFFICULT EMPLOYEES under FMLA and ADAAA William A. Earnhart, Esq.

2. February 6, 2013 Keep disabled employees as productive members of the workforce with undue hardship

3. February 6, 2013 INTERACTIVE PROCESS Two way communication Two way communication Collect information Collect information Be creative Be creative Document Document Listen Listen Smith v. Anchorage School District, 240 P.3d 834, (Alaska 2011) (interactive process requires employee to also participate.) Smith v. Anchorage School District, 240 P.3d 834, (Alaska 2011) (interactive process requires employee to also participate.)

4. February 6, 2013 The plaintiff bears the burden of showing she is able to perform the essential functions of her job. US Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). The plaintiff bears the burden of showing she is able to perform the essential functions of her job. US Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002).US Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002)US Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) http://www.eeoc.gov/policy/docs/accomm odation.html http://www.eeoc.gov/policy/docs/accomm odation.html

5. February 6, 2013 Accommodations that are Reasonable In the ordinary case, reasonable accommodation may include any of the following: In the ordinary case, reasonable accommodation may include any of the following: 1. Job restructuring; 1. Job restructuring; 2. Part-time or modified work schedules; 2. Part-time or modified work schedules; 3. Reassignment to a vacant position; 3. Reassignment to a vacant position; 4. Acquiring or modifying equipment; 4. Acquiring or modifying equipment; 5. Changing exams, training materials, or policies; and 5. Changing exams, training materials, or policies; and 6. Providing qualified readers or interpreters. 6. Providing qualified readers or interpreters. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2). 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2).

6. February 6, 2013 Essential Functions “Essential functions” are “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). “Essential functions” are “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1).29 C.F.R. § 1630.2(n)(1)29 C.F.R. § 1630.2(n)(1) Evidence considered in determining whether a particular function is essential includes: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the work experience of past incumbents in the job. 29 C.F.R. § 1630.2(n)(3). Evidence considered in determining whether a particular function is essential includes: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the work experience of past incumbents in the job. 29 C.F.R. § 1630.2(n)(3).29 C.F.R. § 1630.2(n)(3)29 C.F.R. § 1630.2(n)(3)

7. February 6, 2013 Essential Functions A “qualified individual” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added); see also 29 C.F.R. § 1630.2(m). “Essential functions” are “fundamental job duties of the employment position... not includ[ing] the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1); see Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir.2001). “If a disabled person cannot perform a job’s ‘essential functions’ (even with a reasonable accommodation), then the ADA’s employment protections do not apply.” Cripe, 261 F.3d at 884-85. “If, on the other hand, a person can perform a job’s essential functions, and therefore is a qualified individual, then the ADA prohibits discrimination” with respect to the employment actions outlined in 42 U.S.C. § 12112(a). Id. Humphrey v. Memorial Hospital Association, 239 F 3d 1128, Ninth Circuit 2001); cert. Denied Memorial Hospitals Ass'n v. Humphrey, 535 U.S. 1011, U.S., Apr. 15, 2002. A “qualified individual” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added); see also 29 C.F.R. § 1630.2(m). “Essential functions” are “fundamental job duties of the employment position... not includ[ing] the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1); see Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir.2001). “If a disabled person cannot perform a job’s ‘essential functions’ (even with a reasonable accommodation), then the ADA’s employment protections do not apply.” Cripe, 261 F.3d at 884-85. “If, on the other hand, a person can perform a job’s essential functions, and therefore is a qualified individual, then the ADA prohibits discrimination” with respect to the employment actions outlined in 42 U.S.C. § 12112(a). Id. Humphrey v. Memorial Hospital Association, 239 F 3d 1128, Ninth Circuit 2001); cert. Denied Memorial Hospitals Ass'n v. Humphrey, 535 U.S. 1011, U.S., Apr. 15, 2002.42 U.S.C. § 12111(8)29 C.F.R. § 1630.229 C.F.R. § 1630.2Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir.2001)Cripe, 261 F.3d at 884-85.42 U.S.C. § 12112(a)Id.Memorial Hospitals Ass'n v. Humphrey42 U.S.C. § 12111(8)29 C.F.R. § 1630.229 C.F.R. § 1630.2Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir.2001)Cripe, 261 F.3d at 884-85.42 U.S.C. § 12112(a)Id.Memorial Hospitals Ass'n v. Humphrey

8. February 6, 2013 Attendance/Light Duty An employer is not required to reallocate the essential functions of the job. 29 CFR 1630.2(o), App.; Dark v. Curry County, 451 F.3d 1078, 1089 (9th cir. 2006). See also, Carson v. Fed Ex, 2006 WL 3751266 (D. Oregon 2006)( no duty to create light duty position with no definite return date to full duty.). Martin v. Kansas, 190 F.3d 1120 (10th Cir 1999)(Permanent light duty is not a reasonable accommodation, no medical release date provided). Myers v. Hose, 50 F.3d 278, 283, (4th cir 1995)(reasonable accommodation does not require employer to wait indefinitely for medical condition to be corrected.) See also Gantt v. Wilson Sporting Goods, 6th Cir 1998; City of Tampa, 111 LA 65 (Hoffman 1998). An employer is not required to reallocate the essential functions of the job. 29 CFR 1630.2(o), App.; Dark v. Curry County, 451 F.3d 1078, 1089 (9th cir. 2006). See also, Carson v. Fed Ex, 2006 WL 3751266 (D. Oregon 2006)( no duty to create light duty position with no definite return date to full duty.). Martin v. Kansas, 190 F.3d 1120 (10th Cir 1999)(Permanent light duty is not a reasonable accommodation, no medical release date provided). Myers v. Hose, 50 F.3d 278, 283, (4th cir 1995)(reasonable accommodation does not require employer to wait indefinitely for medical condition to be corrected.) See also Gantt v. Wilson Sporting Goods, 6th Cir 1998; City of Tampa, 111 LA 65 (Hoffman 1998).

9. February 6, 2013 UNDUE HARDSHIP Accommodations that are Unreasonable as a Matter of Law 1. Ineffective Accommodations 1. Ineffective Accommodations 2. Paid or Indefinite Leave of Absence 2. Paid or Indefinite Leave of Absence 3. Elimination of Essential Functions 3. Elimination of Essential Functions 4. Hiring a Helper 4. Hiring a Helper 5. Overriding Collective Bargaining Agreement 5. Overriding Collective Bargaining Agreement 6. Ousting/Bumping Other Employees 6. Ousting/Bumping Other Employees 7. Promotion 7. Promotion 8. Forcing Others to Work Harder 8. Forcing Others to Work Harder 9. Creating Light Duty Jobs 9. Creating Light Duty Jobs 10. Lowering Production or Efficiency Standards 10. Lowering Production or Efficiency Standards 11. Transferring Outside of Regular Transfer Policy 11. Transferring Outside of Regular Transfer Policy

10. February 6, 2013 TIPS FOR EMPLOYERS 1. If in doubt about whether an employee is disabled, be safe and go through the interactive process. 1. If in doubt about whether an employee is disabled, be safe and go through the interactive process. Request additional medical documentation if needed. Request additional medical documentation if needed.

11. February 6, 2013 2.Conduct the interactive process in person, and do not project a “negative” attitude to the employee. 2.Conduct the interactive process in person, and do not project a “negative” attitude to the employee. Following your face-to-face meeting, send the employee a letter what was discussed. If additional medical or other information is needed of the employee, then specifically describe the information that is needed. Following your face-to-face meeting, send the employee a letter what was discussed. If additional medical or other information is needed of the employee, then specifically describe the information that is needed.

12. February 6, 2013 3. Make a good faith to determine whether there is some reasonable accommodation out there that will enable the employee to perform the job. 3. Make a good faith to determine whether there is some reasonable accommodation out there that will enable the employee to perform the job. If you have been unable to find a reasonable accommodation, then say so. Document the fact that the employee has also been able to think of accommodations that would work, and invite the employee to come forward if he/she thinks of something else. Interactive If you have been unable to find a reasonable accommodation, then say so. Document the fact that the employee has also been able to think of accommodations that would work, and invite the employee to come forward if he/she thinks of something else. Interactive

13. February 6, 2013 4. Get the union onboard. 4. Get the union onboard. 5. If the employee cannot be accommodated in their current position, look for other positions. Interactive 5. If the employee cannot be accommodated in their current position, look for other positions. Interactive 6. If you ultimately determine that the employee cannot be reasonably accommodated, advise the employee of such in a “nice” letter. DO NOT send the employee a “cold” form letter that simply says we cannot accommodate you and therefore you are fired. 6. If you ultimately determine that the employee cannot be reasonably accommodated, advise the employee of such in a “nice” letter. DO NOT send the employee a “cold” form letter that simply says we cannot accommodate you and therefore you are fired.

14. February 6, 2013 TIPS Engaging the Employee in the ADA's Interactive Process is Essential. Engaging the Employee in the ADA's Interactive Process is Essential. Analyze and Document how the Requested Leave of Absence Poses an Undue Hardship to your business. Analyze and Document how the Requested Leave of Absence Poses an Undue Hardship to your business. Communicate internally and with your third party administrator. Communicate internally and with your third party administrator. Implement a comprehensive "ADA policy" and include it in your employee handbook and personnel policies. Implement a comprehensive "ADA policy" and include it in your employee handbook and personnel policies. Utilize "Automatic termination" provisions at your own risk. Utilize "Automatic termination" provisions at your own risk.

15. February 6, 2013 Questions?