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

2. Melissa L. Shingles
Associate
Littler, Phoenix

3. AGENDA
ADA Overview
Compliance: Accommodation and the Interactive Process

4. 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

5. 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, s, images, and more
Mistreatment by co-workers of an associate who is being accommodated in some way

6. 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.

7. 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).

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

9. “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

10. “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

11. 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

12. 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.”

13. 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

14. 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

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

16. 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

17. 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

18. 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!!!

19. 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

20. 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

21. 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

22. 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).

23. 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

24. 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

25. 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