1. Accommodations Galore!
PRESENTED BY
Ignacio Garcia, Esquire
Ogletree Deakins Nash Smoak & Stewart
100 N. Tampa St., Suite 100
Tampa, FL 33602

2. Disability Accommodation- Sources of Legal Protection
Americans With Disabilities Act (ADA), Title I
Americans With Disabilities Act (ADA), Title III

3. ADA – Title I
Prohibits Discrimination Against Disabled Individuals in the Workplace
Disabled individual
Actual physical or mental impairment
Perceived Impairment
Record of Impairment

4. ADA – Title I Requires Accommodation Qualified Individual
With a Disability or Record of Disability
Dispute concerning accommodation of “regarded as” settled by ADAAA
Mitigating Measures
Major Life Activities
Episodic Impairments

5. Reasonable Accommodation Process
Notice of Disability
Employee request for accommodation generally required:
No “magic words”
No particular type of notice
Simple request for modification where disability is known will likely suffice
Employee request not required where:
Knowledge of disability
Knowledge of limitations imposed by disability
Knowledge that disability prevents employee from requesting accommodation

6. Reasonable Accommodation Process
Interactive Process
Open dialogue
Identification of limitations
Identification of essential and non-essential job tasks
Identification and consideration of possible accommodations and alternatives

7. Reasonable Accommodation Process
Selection or Rejection of Accommodation
Must be necessary
Must be reasonable
Must be effective
Employer may choose among effective accommodations

8. Reasonable Accommodation Process
Affirmative Defenses
Undue Hardship
Direct Threat

9. Types of Accommodations
Unpaid Leave
Job Restructuring
Transitional or “Light Duty”
Changing Supervisor
Work-At-Home
Environment
Leave for Substance Abuse Treatment
Reassignment
Modified Schedule

10. Title III – Public Accommodation
Protects the right of disabled individuals to:
“Full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”
Requires accommodation
Requires training of employees

11. Conclusion Best Practices Avoid Common Mistakes
Establish and/or review policies
Train employees
Avoid Common Mistakes

12. Religious Accommodations in the Workplace: Why Accommodate?
Failure to reasonably accommodate is religious discrimination under Title VII
State laws
Constitutional issues
Religious Freedom Restoration Act
Federal contractors

13. A Suggested Framework
Does the employee have a sincerely held religious belief or practice?
Does the belief or practice collide with a job requirement?
Did the employee notify the employer of the conflict?
Can the employer reasonably accommodate the belief or practice without imposing an undue hardship on its business?

14. What is a Protected Belief or Practice?
Must be religious in nature
Distinguish social, political or cultural preferences
All aspects of religious observance and practice, not just beliefs, are protected

15. What Does “Sincerely Held” Mean?
Is the belief or practice “truly held” by the employee?
Not whether the belief or practice is “true” or reasonable
Does not have to be recognized by an organized religion or larger group
Inconsistent behavior by the employee

16. The Ground Rules
Employer does not have to provide the requested accommodation if a reasonable alternative exists
Employee has a duty to cooperate in good faith
Process matters

17. The Ground Rules, cont…
Employer cannot rely on speculation or assumptions as to the effect of any accommodation
The accommodation must be reasonable, not the underlying belief or practice
Beware of pretext: were similar accommodations given for non-religious reasons?

18. Accommodation: Voluntary Shift and Schedule Swapping
Facilitating the swapping process
Advertising on bulletin boards and roll calls for swaps
Providing employee with work time to locate a substitute
Asking other employees to voluntarily swap

19. Accommodation: Flexible Scheduling and Leave Policies
Staggered work hours
Allowing paid or unpaid leave
Providing neutral rotating shifts
Splitting or balancing delivery loads
Allowing use of lunch time for early departure
Permitting “make up” time
Allowing extended break periods

20. Accommodation: Lateral Transfers and Voluntary Demotions
Step 1: Can the employee be accommodated in his or her current position?
Step 2: Would a lateral transfer better accommodate the conflict?
Step 3: Would a voluntary transfer to a lesser position accommodate the conflict?

21. Accommodation: Relaxing Dress Codes and Grooming Standards
Religious clothing or adornments that conflict with dress codes or grooming standards
Example: “clean shaven” rule and religiously mandated beards
Example: “no hats” and “no loose clothing,” and religious turbans, khimars, hijabs, turbans and yarmulkes

22. Dress Codes and Grooming Standards, cont…
Safety and sanitation risks may create an undue hardship
Example: religious clothing or facial hair that interferes with safety equipment
Example: religious clothing that increases the risk of injury at work

23. Other Accommodations
Allowing religious expression at work

24. What is an Undue Hardship?
Much lower threshold than an undue hardship under the ADA
Anything more than a di minimus cost is an undue hardship

25. Undue Hardship: When are Costs More Than Minor?
Overtime costs
Allowing employee to work overtime to accrue more vacation
Hiring a substitute
Interrupting production

26. Undue Hardship: Would the Accommodation…
Require the employer to shift work to other employees?
Violate state law or the legal rights of other employees?
Adversely affect the “company image”?
Caution: customer preference is rarely a justification

27. Best Practices Develop clear written policies
Implement an internal process
Rely on facts not assumptions
Explain the undue hardship – be specific and document
Check state laws
Keep religious beliefs confidential
Train supervisors

28. Military Obligations in the Workplace: What is USERRA?
Goal is to eliminate civilian work-problems from concerns of the military
Accommodations span from hire to fire
Employer duties arise automatically
No request for accommodation needed

29. Who is Owed Accommodation?
All members of Uniformed Service
Regardless of voluntary or involuntary service
A successor in interest owes obligation to employees of previous company
May be more than one employer

30. While the Employee is Absent
Treat as furlough or similar leave
Must permit use of paid vacation upon request
Non-seniority rights for comparable leave still apply
TIP: Contact the unit commander with concerns about timing of leave

31. Conditions to Reentry to the Workforce
Employee must usually provide appropriate notice of need for leave
Cumulative five year absence cap

32. Affirmative Defenses to Reemployment
Changed Circumstances exception
Brief, nonrecurrent employment exception

33. Prompt Return to Work
Timeframe for reporting to work or reapplying depends on the length of service absence
Tolling period applies if injured
Reapplication may be oral or written
Reapplication may be addressed to apparent agent for hiring

34. The Escalator Principle
Entitled to same status, seniority and other rights that employee would have occupied but for the uniformed service
Were these reasonably certain to occur?
Goes up and goes down

35. Reemployment Positions
If absence lasts less than 91 days, employee must usually return to same escalator position
If absence lasts longer than 90 days, employee must usually return to same or similar escalator position
“Qualified,” “reasonable efforts,” and “undue hardship”

36. A Few More Accommodations
Accommodating disabled employees
Discharge protections are based on length of service

37. Accommodations Galore!
Q&A
Accommodations Galore!