Are You Okay?

Are You Okay? Understanding the Districts Rights and Responsibilities Regarding Employee Fitness for Duty and Reasonable Accommodations

Shellie Hoffman Crow, Associate Attorney

School district employees play a crucial role in facilitating the education and development of students, so it is important to ensure their fitness for the job, while making reasonable attempts to make accommodations for eligible employees. Guidance on employees with disabilities comes from federal law and court decisions, as well as the Equal Employment Commission (EEOC) and the Department of Labor. The Americans with Disabilities Act (ADA) applies protections to a “qualified individual” with a “disability.” Under the ADA, a “qualified individual” is one who, with or without reasonable accommodation, can perform the essential functions of the position that the individual holds or seeks employment in, and meets the legitimate skill, experience, education, or other requirements of the position they hold or seek. The Act defines an individual as having a disability when the person has a physical or mental impairment that substantially limits one or more major life activities, or a record of such an impairment, or is regarded as having such an impairment.

According to the ADA, the question of whether an individual’s impairment is a disability should not demand extensive analysis, and the definition of disability should be construed broadly.

Major life activities are those activities that are important to most people’s daily lives including, but not limited to caring for oneself, performing manual tasks, walking, breathing, working, hearing , seeing, speaking, eating, reading, concentrating, sleeping, thinking, communicating, standing, lifting, and bending. An impairment that constitutes a disability may be any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body systems (e.g. neurological, reproductive, digestive, skin) or any mental or psychological disorder. A mental impairment is defined under the ADA as any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Common examples include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and posttraumatic stress disorder), schizophrenia, and personality disorders. Additionally, an impairment that is “episodic” or “in remission” qualifies as a disability if it would substantially limit the major life activity when active.

An employee may also have a disability under the ADA if they have a record of an impairment (i.e., such as being in recovery from a physical or mental illness) or are regarded as having an impairment. Impairment can also be substantially limiting because of medication taken or due to mitigating measures used for the impairment. Examples of medication or mitigating measures include the use of a prosthesis, high medication levels impacting memory and motor function, as well secondary effects of a particular medication. With the exception of glasses and contacts, the employer should assesses the level of “substantial limitation”, while disregarding the positive effects of mitigating measure. For example, rather than focusing on how the employee can hear with a hearing aid, the employer should ask how the employee would hear without a hearing aid.

Once it is determined that an employee has a disability, the employee may require certain accommodations in order to effectively perform the essential functions of his or her job. Determining the necessary and appropriate accommodations must be accomplished through an interactive process. The federal regulations provide that the interactive process is meant to identify the employee’s functional limitations and the potential reasonable accommodation or accommodations that may be needed (29 CFR 1630.2(o) and 1630.9). The three areas where reasonable accommodations may be implemented are:

1. Changes to the job application process; 2. Modifications to the work environment – including how the job is performed – so that a qualified individual with a disability can perform the essential functions of the position; and 3. Changes so that the employee with a disability can enjoy equal benefits and privileges of employment.

The interactive process involves a series of steps requiring action from both the employer and the employee. Typically, the employee must first request an accommodation. However, if the employer is aware that the employee has a disability and therefore the need for an accommodation, the employee does not have to make a request for the accommodation. Normally, the employee needing an accommodation because of a disability has the responsibility of informing his or her employer, but it is important to understand that the employee does not need to use any specific, legal language for it to constitute a request for an accommodation. According to the EEOC, an employee need only indicate that he or she is seeking an adjustment or change in working conditions or duties because of a reason related to a medical condition. Once this notice is received, however, due to a concern that a supervisor’s awareness of an employee’s disability creates heightened potential for disability discrimination claims, an employee’s immediate supervisor is not the best person to engage in an interactive process with the employee. Accordingly, when a supervisor is approached by an employee related to a medical condition, they should refer the employee to the Administration or the appropriate person in Human Resources in an effort to centralize the handling of the interactive process.

While a request does not have to be in writing, an employer may ask that an employee fill out a form to confirm the request or follow up with the employee in writing, confirming the request. Additionally, an employer is not required to meet in person with the employee and may engage in the interactive process by telephone, letters and email, but ultimately, when an accommodation is requested, an employer has the duty to engage in the interactive process with the employee. (EEOC v. LHC Group Inc., 773 F.3d 688 (5th Cir. 2014)).

Moreover, if an accommodation is requested and the disability or the need for an accommodation is not obvious, an employer may ask for reasonable documentation about the individual’s disability and functional limitations, but an employer cannot ask for the entire medical file or for unrelated information. An employer can, however, ask the employee to sign a limited consent of release allowing the employer to engage with the employee’s doctor about the requested accommodation(s) and related condition. The employer may also request documentation of the impairment and information providing a description of the impairment (including the nature, severity and duration), activity or activities limited by the impairment (such as specific essential job functions), extent to which the impairment limits the employee’s ability to perform the activity or activities, as well as suggested assistance to provide employee.

Throughout the process, it is important for the employer to consider the employee’s job description and required duties, in addition to the information provided by the employee. The employer may require that the employee go to the health professional of the employer’s choice if the individual provides insufficient information, or if the medical documentation is inconsistent with the employee’s apparent abilities, but the employer should explain how the information is insufficient, and allow the employee time to provide missing or clarifying information.

15 | February 2020 control over possible modifications or whether the employer must order equipment. The employer cannot simply refuse to provide a reasonable accommodation without offering other suggestions or at least expressing a willingness to continue discussions of possible accommodation. Additionally, an employee’s failure to cooperate or to engage in the interactive process may extinguish any discrimination claim.

Also, an employer is obligated only to provide an effective accommodation, not necessarily the specific accommodation the employee wants. The employer may opt for a less expensive or simpler accommodation, so long as it is effective. An employee is free to refuse an accommodation that is offered, but if he or she cannot perform the essential functions of the job without that effective accommodation, the employee will not be considered “qualified” (and thus protected) under the ADA.

The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship. In assessing the reasonableness of an accommodation, the employer may consider the nature and cost of the accommodation, the overall financial resources involved in providing the reasonable accommodation, adverse effects on other employees, effects on expenses and resources or the impact of the accommodation on operations, the number, type, and location of employer’s facilities, the type of operations of the covered entity, including the composition, structure, and functions of the workforce and the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. Common accommodation requests include unpaid leave, job restructuring and re-assignment, providing an assistant, working from home, medication monitoring, modified work schedule, and shift changes. These accommodation requests do not always have to be granted, depending on whether doing so would cause undue hardship to the employer. In the spirit of the interactive process, however, it is important for an employer who denies an accommodation on the grounds of undue hardship to at least attempt to find a different effective accommodation for the employee.

Finally, it is important to note that the ADA prohibits the release of medical information. Disclosing to others the fact that someone is receiving accommodations under the ADA may be “medical information” that should not be disclosed. However, the employer can inform an immediate supervisor of an employee who is receiving accommodations that employee has a disability that needs to be accommodated.

As an employer, it is important to keep in mind that ADA reasonable accommodations are normally employeeinitiated, and after such a request, the employer must engage in the proper information gathering and discussion of the accommodation(s) with the employee to ensure the accommodation is effective and feasible for both the employee and employer, and that the accommodation will enable to employee to perform the essential functions of their position. Upon implementation of the reasonable and effective accommodation, the employer should continue to monitor the effectiveness to ensure compliance with the necessary laws and regulations.

Are You Okay?