1. November 21, 2014 2014 TSHHRAE Annual Conference Presented by: Bradley W. Howard Brown & Fortunato, P.C. bhoward@bf-law.com

2. The ADA protects a Qualified individual with a disability.

4. Neely v. PSEG (5 th Cir. 2013)

5. When is an individual “disabled?”

6. What is not a “disability?”

7.  Definition of Disability (for cases arising on or after January 1, 2009: A physical or mental impairment that substantially limits a major life activity, or a “record” of such condition. The ADA also covers an individual who has been “regarded as” having a disability, which means that s/he was subjected to an allegedly discriminatory action because of an impairment (unless the impairment was minor and transitory). ◦ Does individual have a current disability?  Does s/he have an impairment?  If yes, what is the impairment?  Is a major life activity affected by the impairment?  Walking, speaking, breathing, hearing, seeing, thinking, sitting, standing, reaching, interacting with others, communicating, learning, performing manual tasks (including household chores, bathing, brushing teeth), bending, caring for oneself, concentrating, lifting, sleeping, working, reproduction, sexual functions, eating, controlling bowels, reading, and/or running, other ◦ Does the impairment substantially limit the major life activity?  Discuss what the individual cannot do, as well as what the individual is able to do. Compare the individual’s abilities/limitations to those of the average person. [For cases arising on or after January 1, 2009: Discuss what the individual’s condition would be like without medication, mitigating measures, or behavioral modifications.]  How long is condition expected to last? Is it minor and transitory?  If the major life activity is “working,” identify the class of jobs or broad range of jobs that the individual cannot perform because of the impairment. Also, identify the jobs that are still available to the individual.

8. ◦ Does individual claim s/he has a “record of” disability?  Does s/he have a record of an impairment?  If yes, what was the impairment?  Discuss evidence of the impairment.  Was a major life activity affected by the impairment?  If yes, what is the alleged major life activity?  Walking, speaking, breathing, hearing, seeing, thinking, sitting, standing, reaching, interacting with others, communicating, learning, performing manual tasks (including household chores, bathing, brushing teeth), bending, caring for oneself, concentrating, lifting, sleeping, working, reproduction, sexual functions, eating, controlling bowels, reading, and/or running, other  If yes, what is the alleged major life activity? ◦ Has individual been “regarded as” having a disability?  Does s/he claim that s/he has been “regarded as” having an impairment?  If yes, what is the impairment?  Does s/he claim that s/he has been “regarded as” affected in a major life activity because of the impairment?  If yes, what is the major life activity?  Walking, speaking, breathing, hearing, seeing, thinking, sitting, standing, reaching, interacting with others, communicating, learning, performing manual tasks (including household chores, bathing, brushing teeth), bending, caring for oneself, concentrating, lifting, sleeping, working, reproduction, sexual functions, eating, controlling bowels, reading, and/or running, other

9. Besides being “disabled,” the individual must be “qualified” Otherwise, the employee/applicant has no ADA claim

10. Employer must focus on ability to perform the job AT THE TIME OF THE EMPLOYMENT DECISION

11. Rules goes both ways Applicant/employee must be qualified AT THE TIME OF THE EMPLOYMENT DECISION

12. Polling Question Number 1: An employer is required to provide an accommodation for an applicant to meet the background standards for a job. True or False? Answer 1: TrueAnswer 2: False

13. No accommodation required to meet the background standards

14. Employer must explain the need for the standard

15. Easiest standards for employers to defend are license and certifications

16. Is the standard job-related and consistently enforced?

17. In order to be “Qualified,” the employee/applicant must be able to perform the essential functions of the job.

18. Is the job function essential?: A written job description is key evidence

20. Inaccurate job descriptions can harm employers

21. But the inaccurate job description isn’t always fatal

22. How not to write a job description

23. Is the job function essential?: How much time does it take?

24. Is the job function essential?: What are the consequences of not requiring someone to perform the function?

25. It is the employer’s burden to prove a job function is essential AND Employee’s burden to prove he can perform the essential functions

26. Big Issue: Whether particular functions are essential Is the job function essential?: Ability to handle stress and get along with others Coca-Cola case: Absence off such skills renders employee unqualified Sapp case: Getting along with subordinates

27. Polling Question Number 2: Can a positive attitude be an essential function of a job? Answer 1: YesAnswer 2: No

28. “Qualified” can mean ability to work “without interfering with the ability of coworkers to perform their jobs.”

29. Is the job function essential?: Attendance and punctual performance EEOC position v. Courts (regular attendance is generally an essential job requirement) Examples: Employee with MS; neo-natal intensive care nurse; “essential function of most jobs”

30. Is the job function essential?:

31. Is the job function essential?: Ability to work a specific shift

32. Is the job function essential?: Standing/walking

33. Other essential job functions?: Oral communication Lifting Manual dexterity Maintaining security

34. Other evidence that employee is or isn’t qualified Employer’s acknowledgment of satisfactory performance Doctor’s note Apparently inconsistent statements in other forum

35.  Definition of Qualified: The individual with a disability has the background required for the job, and s/he can perform the essential functions of the job (either without any accommodations, or with a reasonable accommodation). ◦ Does the individual have the required skill, education, and experience for the job, and does s/he meet other qualification standards?  If no, does the individual claim that s/he is being denied the position because of a qualification standard that screens him/her out because of disability?  If yes, what is the qualification standard at issue?  Why does the individual claim his/her disability keeps him/her from meeting the qualification standard?  If the qualification standard screens out the individual because of disability, is it “job-related and consistent with business necessity” (i.e., is it necessary to perform an essential function of the job or to prevent direct threat)? ◦ What are the “functions” of the job (as distinguished from the ways of performing those functions)? ◦ What are the “essential” functions of the job?  What evidence/documentation supports this determination?  Employer’s judgment, written job description, amount of time spent performing function, consequences of not performing function, terms of collective bargaining agreement, experience of current employees in position, experience of past employees in position, nature of work operation, organizational structure, other ◦ What are the “marginal” functions of the job?  What evidence/documentation supports this determination? ◦ Can the individual perform the essential functions of the position, either without a reasonable accommodation or with a reasonable accommodation (if needed)?  If yes, does the individual need a reasonable accommodation?

36. Common Reasonable Accommodation Issues Job applications Work environment Equal benefits and privileges

37. What is Reasonable?

38. Whose duty to address Reasonable Accommodation?

39. Must the request be in writing?

40. Employer must engage in interactive process after reasonable accommodation is requested

41. Documenting disability when reasonable accommodation is requested

42. Polling Question Number 3: Can the employer tell others that the employee is receiving accommodation?

43. Answer 1: Yes Answer 2: No, it would violate HIPAA to do so. Answer 3: No, it would violate the ADAAA to do so.

44. Polling Question Number 4: Who determines which reasonable accommodation is appropriate? Answer 1: The employee Answer 2: The employer Answer 3: The EEOC

45. Employer may usually choose the accommodation

46. What types of reasonable accommodation are required? Employee leave a reasonable accommodation?

47. What types of reasonable accommodation are required? Modify the no-fault attendance policy?

48. What types of reasonable accommodation are required? Job restructuring?

49. No good deed goes unpunished -- Is that true?

50. What types of reasonable accommodations are required? Change employee’s supervisor? Provide assistant? Rescind discipline? Work at home?

51. What types of reasonable accommodations are required? Modified work schedule? Shift changes? Reassignment?

52. When is a requested reasonable accommodation too much?

53. Undue hardship as a defense for employers

54.  Definition of Reasonable Accommodation: A workplace modification so the individual with a disability can apply for a job, perform the essential functions of the job, and enjoy the job benefits. An employer doesn’t need to provide a reasonable accommodation that causes and “undue hardship.” ◦ What category of “disability” does the individual claim (“current”, “record of,” or “regarded as”)? ◦ Has the reasonable accommodation process been triggered because of the individual has requested a job modification because of a medical condition that could be a disability? ◦ Has the reasonable accommodation process been triggered because the employer knows the individual has a disability and has reason to know that the individual needs a reasonable accommodation? ◦ If the reasonable accommodation process has been triggered:  In which aspect of employment is reasonable accommodation needed?  Application process, performance of job (including leave), benefits and privileges of employment) ◦ What accommodation (if anything specific) was requested?  Equipment or machinery, reader, interpreter, modification of policy (including leave policy), accessibility, job restructuring (reallocation of marginal functions), modification to work schedule, examinations/training materials, reassignment, other  Describe accommodation requested ◦ Is the reasonable accommodation needed because of disability? ◦ Did you engage in “interactive process” to identify an effective accommodation?  Did you discuss accommodation with the individual?  If yes, document discussions (include attachments, if necessary).  Did you request assistance in determining accommodation from any outside source (e.g. the Job Accommodation Network)?  If yes, document discussions (include attachments, if necessary).

55. ◦ Has accommodation been provided?  If yes, is accommodation effective (i.e., does it work?) ◦ Do you claim that providing reasonable accommodation would impose an undue hardship?  If yes:  What evidence exists to support undue hardship?  Nature and net cost of accommodation (taking into account availability of tax credits and deductions, and/or outside funding)  Overall financial resources of facility/facilities, number of employees at facility, and effect on expenses and resources  Overall financial resources of covered entity, overall size of business of covered entity with respect to the number of employees and the number, type and location of facility/facilities  Type of operation(s) of covered entity, including composition, structure, and functions of the workforce of covered entity, and geographical separateness and administrative or fiscal relationship of facility/facilities in question to the covered entity  Impact of the accommodation on the operation of the facility, including impact on other employees’ ability to perform duties and facility’s ability to conduct business  Terms of a collective bargaining agreement (Discuss how the accommodation would affect the rights of other employees, and whether you tried to negotiate a change to CBA)  Describe and document evidence supporting undue hardship

56.  Definition of Direct Threat: The individual with a disability poses a significant risk of substantial harm to him/herself or others, and there is not a reasonable accommodation that would lower the risk or harm below that level. ◦ Is the employee being screened out for safety-related reasons?  If yes:  Is the specific risk identified?  What is the risk (e.g., contagion, injury, etc.)?  Is the risk significant (i.e., highly probable)?  What is the duration of the risk?  What is the harm?  Is the harm substantial (i.e., serious)?  Is the harm imminent? ◦ Can the risk or the harm be reduced by providing reasonable accommodation? ◦ Did you engage in “interactive process” to identify and effective accommodation?  Did you discuss accommodation with the individual?  If yes, document discussions (include attachments, if necessary).  Did you request assistance in determining accommodation from any outside source (e.g., the Job Accommodation Network)?  If yes, document discussions (include attachments, if necessary).  Has an accommodation been provided?  If Yes, is the accommodation effective (i.e., does it work?)

57. ◦ Do you claim that providing reasonable accommodation would impose an undue hardship?  If yes:  What evidence exists to support undue hardship?  Nature and net cost of accommodation (taking into account availability of tax credits and deductions, and/or outside funding)  Overall financial resources of facility/facilities, number of employees at facility, and effect on expenses and resources  Overall financial resources of covered entity, overall size of business of covered entity with respect to the number of employees and the number, type and location of facility/facilities  Type of operation(s) of covered entity, including composition, structure, and functions of the workforce of covered entity, and geographical separateness and administrative or fiscal relationship of facility/facilities in question to the covered entity  Impact of the accommodation on the operation of the facility, including impact on other employees’ ability to perform duties and facility’s ability to conduct business  Terms of a collective bargaining agreement (Discuss how the accommodation would affect the rights of other employees, and whether you tried to negotiate a change to CBA)  Describe and document evidence support undue hardship

58. ADAAA raises the bar for employers

59. November 21, 2014 Bradley W. Howard Brown & Fortunato, P.C. (806) 345-6310 bhoward@bf-law.com