sepa shrm chapter meeting - theemployerhandbook.com€¦ · sepa shrm chapter meeting ada:...

SEPA SHRM Chapter Meeting

December 20, 2016American Heritage Federal Credit Union, Philadelphia, PA

ADA: Reasonable Accommodation and the Interactive ProcessERIC B. MEYER, ESQUIRE| December 20, 2016

SEPA SHRM CHAPTER MEETINGADA: Reasonable Accommodation and the Interactive Process

2

IN A WORLD…


…where 7 little letters…


…FMLA and

ADA…


…and the headaches they’ve created…


(no pun intended)


… have created a strong urge for some in HR put a finger

up …


(Not this one.)


(Another one.)


…there’s one attorney…


…just, not your attorney…


(An attorney whose clients pay for legal advice)


…and who is now thinking that he should have left the money bags on the floor of

the PowerPoint editing room…


…who wants to remind those of you with

“hypothetical” questions …


…the ones about which you are “asking for a friend”…


(while your peers silently roll their eyes at you)


…that nothing the attorneysays should be construed as

legal advice…


…but, one attorney…


…this dapper, well-dressed attorney with a killer

employment law blog…


…is here to help youMASTER the reasonable-

accommodation process…


…and put the pieces of our world back

together again.


No, not that!!!


THIS!!!


And since I’m personally responsible for…


This…


…and stayed at a Holiday Inn Express last night…


…you’re in good hands…


…and, since we have a lot to cover…


…and, I’m jonesing to get out there and “catch ‘em

all”…


…it’s time to start talking again…


Agenda

ADA: The Basics

Hiring Accommodations

FMLA/ADA/PDA Interplay

“I’m too stressed to, you know, work.”

Best Practices

Q&A

…and a partridge in a pear tree


Agenda

ADA: The Basics (The other basics)


FMLA/ADA/PDA Interplay


Best Practices

Q&A



Agenda



FMLA/ADA/PDA Interplay (“PDA” stands for “Pregnancy Discrimination Act”)


Best Practices

Q&A



Agenda



FMLA/ADA/PDA Interplay(“PDA” stands for “Pregnancy Discrimination Act”)

“I’m too stressed to, you know, work.” ***eyeroll facepalm***

Best Practices

Q&A



ADA Basics

Purpose

Coverage/Eligibility

Reasonable Accommodations


Purpose of the ADA

The ADA prohibits discrimination against applicants and employees who are “qualified individuals with a disability” by providing for equal opportunities for work.


On the next episode of Keeping up with the Kardashians…

Kim, Khloe, and that other Kardashian daughter whose name begins with a K are thinking of opening a bakeshop called, “That’s How the Kookie Krumbles.” In the wee hours before the grand opening, Kourtney (as if we could play it off like we didn’t know her name) wakes up in a panic over ADA coverage for the workforce. Because, of course…

When will THtKK become an ADA-covered employer?

And if THtKK has a Philly location?


Coverage/Eligibility

Covered Employer: 15 or more employees for 20 weeks during current or preceding calendar year.

Disability: An impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

Qualified Individual: Must be able to perform the essential functions of the job with/without reasonable accommodation.


Disability

How easy is it to establish?


Examples of major life activities

hearing,

seeing,

speaking,

breathing,

blogging,

walking,

caring for oneself,

learning or

working


“Qualified individual”

One who can perform the essential functions of the job with or without reasonable accommodation


How are essential functions determined?

whether the reason the position exists is to perform that function,

the degree of expertise or skill required to perform the function.

a written job description (or CBA)

the time spent performing a function,

the consequences of not requiring that an employee perform a function, and

Your judgment


Reasonable Accommodations

Absent undue hardship, employers must provide reasonable accommodation to employees / applicants with disabilities.


Reasonable Accommodations (con’t)

Interactive Dialogue:

A good faith discussion between employer and employee to determine, after an individualized assessment, what reasonable accommodation(s) will allow the employee to perform the essential functions of his/her job

Generally, initiated by the employee


I'll be ready... forever and always I'm always here...

Mitch has been deaf since his birth, but can detect noises through his cochlear implant. In 2006, Mitch passed County’s Baywatch lifeguard training program. Upon receiving his lifeguard certification (and having mastered the art of slow-motion running), Mitch applied for a lifeguard position at County’s Baywatch wave pool. County is concerned that Mitch’s hearing impairment could affect his ability to safely perform the lifeguard position.

What should County do?


How to identify reasonable accommodations…

“How can we help you?”


Other hiring considerations

Medical Examinations and Disability-Related Inquiries

Ban the Box

Pre-Offer:

Do NOT ask an applicant whether she is disabled or about the nature or severity of a disability

Do NOT require the applicant to take a medical examination.

DO ask an applicant, “How are you?”

DO ask an applicant, “Can you do this job?”


Other hiring considerations

POST-offer

an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category

Drug Testing



Undue hardship: An individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense



Undue hardship factors:

the nature and cost of the accommodation needed;

the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;

the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);

the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and

the impact of the accommodation on the operation of the facility



Examples of reasonable accommodations

making existing facilities accessible;

job restructuring;

light duty;

part-time or modified work schedules;

acquiring or modifying equipment;

changing tests, training materials, or policies;

providing qualified readers or interpreters;

reassignment to a vacant position;

telecommuting (maybe); and

leave from work

*Source: The U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Available at http://www.eeoc.gov/policy/docs/accommodation.html)


“Vandelay! Say Vandelay!"

George, a full-time employee in Vandelay Industries’ latex shipping department with disc degenerative disease, states that he cannot pack packages for shipment because of recurrent pain in his back. Vandelay Industries also employs two part-time employees who could assist George if necessary. George has also expressed interest in a sales position, for which Vandelay Industries has been interviewing candidates since the prior sales representative resigned two months earlier. The sales rep. position requires driving to fulfill its essential functions.

What factors should the employer assess in evaluating George’s accommodation requests?


FMLA/ADA Interplay

“Disability” vs. “Serious Health Condition”

ADA "disability" is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

FMLA "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves . . . [i]npatient care . . . or [c]ontinuing treatment by a health care provider."


FMLA/ADA Interplay (con’t)

“Disability” vs. “Serious Health Condition” (con’t)

Some FMLA "serious health conditions" may be ADA disabilities, for example, most cancers and serious strokes.

Other "serious health conditions" may not be ADA disabilities, for example, pneumonia, a routine broken leg or hernia.



Pregnancy

Definitely covered under FMLA

Definitely not covered under ADA

But, conditions related to childbirth may be covered under ADA



Medical Certifications, Inquiries and Confidentiality

ADA: Only medical examinations or inquiries regarding an employee’s disability, which are job-related and limited to determining the employee’s ability to perform the job, the need for an accommodation, and whether an accommodation would be effective.

FMLA: When an employee requests leave under the FMLA for a serious health condition, employers will not violate the ADA by asking for the information specified in the FMLA certification form.



Light duty

ADA: Required to be offered if it is a reasonable accommodation (i.e. one that does not create an undue hardship for the employer); and no other reasonable accommodation exists.

FMLA: Not required.



Leave

ADA: There is no specific limit on leave. The inquiry should focus on what would constitute an undue hardship for the employer.

FMLA: 12 workweeks in a 12-month period.


But, how much leave is reasonable?

There is no clear-cut answer

Each situation is fact-specific

In other words…


105

(wait for it…)


106

Your lawyer’s two favorite words…


107

It depends…


Cheers or jeers?

Woody, a bartender, had surgery for his bad back in January. He was supposed to be back slingin’ drinks in late March. However, in mid-March, Woody submits a note from his doctor saying that he won’t return until May.

What should Cheers do?

What if Cheers has a six-month personal leave policy?

Nunes v. Wal-Mart Stores, Inc., 164 F.3rd 1243 (9th Cir. 1999);

Hwang v. Kansas State Univ. (10th Cir. 2014).


Factors to consider when determining how much leave is reasonable

Undue hardship factors

Amount and length of leave

Frequency of the leave

Predictability

Your employee handbook and other leave-related policies

Leave to other employees without disabilities



Fitness for Duty

ADA: Permitted as long as the medical examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job.

FMLA: Permitted for leave taken for the employee’s own serious health condition consistent with employer’s uniform policy.



Reinstatement

ADA: The employee must be reinstated unless doing so would create an undue hardship for the employer.

FMLA: The employee must be reinstated or placed in a position with comparable pay, seniority, benefits and other terms and conditions of employment.


Yadda, yadda, yadda…ADA violation

Fresh off its balloon-oil bladder – HELLLOOO! – and its ketchup/mustard single bottle, Vandelay Industries thinks that it has stumbled upon the next big thing: requiring employees on FMLA who are returning to work to first perform feats of strength and certify that they are 100% healed.

Get out! What should Vandelay do instead?


ADA and Mental Health

Coverage

FMLA

Other accommodation options

New EEOC Guidance


FMLA/ADA 90210

Brandon, a waiter at the Peach Pit, has been out on FMLA leave since crashing his best-friend Dylan’s Mustang. A few days before his FMLA leave exhausts, Brandon calls his boss, Nat, and informs him that, due to an anxiety disorder related to the crash (and hearing about Dylan’s related mishap), his doctor will not medically clear him to return to work. Nat informs Brandon that he is shorthanded and needs Brandon back at work. When Brandon does not return to work after his FMLA leave exhausts, Nat terminates Brandon’s employment because Nat no longer has job protection under the FMLA.

Can the Peach Pit fire Brandon? If so, what should it do first?


Best Practices

Policies: Employer policies should clearly address ADA issues and employer should post the required notices in the workplace.

ADA accommodation policy

Be wary of no-fault attendance policies

Don’t require that employees be 100% healed


Best Practices (con’t)

Communication, Documentation, Training:

Job descriptions

Training managers to identify ADA requests

Individualized assessment

Interactive dialogue

Privacy


Best Practices (con’t)

More communication

Stay apprised of employee status

Flexibility

Adapt to changes in disability-related issues, changes in business


Questions?


Sources

United States Department of Labor (www.dol.gov)

United States Equal Employment Opportunity Commission (www.eeoc.gov)

Society for Human Resource Management (www.shrm.org)


Eric’s contact information

Telephone: 215-575-7283

Email:[email protected]

Blog:TheEmployerHandbook.com

Twitter:@Eric_B_Meyer

That’s Eric! Not Eric!

sepa shrm chapter meeting - theemployerhandbook.com€¦ · sepa shrm chapter meeting ada:...

Documents