Dealing with Employee Disabilities

Jennifer A. Powell

The Americans with Disabilities Act was passed in 1990 and signed into law by George H.W. Bush. Because Congress thought courts were construing the law too narrowly, in 2008, they passed the ADA Amendments Act of 2008 (“ADAAA”), which was dubbed, “An Act to restore the intent and protections of the Americans with Disabilities Act of 1990.” The law became effective January 1, 2009. Then, in 2011, the EEOC issued Final Regulations that added examples of “major life activities,” defined “substantial limitation,” and added rules of construction. The bottom line of all of this is that now, almost everyone can be considered disabled! And Congress has said we should focus on accommodations – not on whether the employee is disabled. So, it is key for HR professionals to know how to recognize and respond to requests for accommodation. Several points of note are that requests can come at any phase in the employment process; need not be in writing; can be made by someone else on the employee’s behalf; and no “magic words” are required. Requests for accommodations must simply provide sufficient information to let the employer know that the employee is having difficulty performing their job because of an impairment which may constitute a disability. Once you have received a request, follow this 12-step program for responding to requests for accommodation.

STEP ZERO: BE PREPARED

DAA (LOCAL) does not significantly expound on that policy. That leaves administrative regulations and internal practice and procedures to guide you. Don’t let that practice be haphazard! Ensure that you have a procedure for handling requests for accommodations from start to finish, including obtaining or developing forms to use. Also ensure that you have procedures in place to keep medical information confidential and train supervisors about this requirement. Provide Training. Ensure that supervisors are trained to recognize requests for accommodation and forward them to HR like a hot potato. Review job descriptions (or create them). Job descriptions must: include all aspects of the job; include job qualifications; include

physical requirements, e.g., standing, sitting for long periods, or lifting; and delineate essential functions (vs. marginal functions). In identifying essential functions, keep the following in mind: • A job function is essential if the job exists to perform that function. • A job function might be essential if: o The employee spends a significant amount of time performing it o The duties cannot be reassigned to another employee without changing the fundamental nature of the job • A job function is not essential if: o The employee never or rarely actually performs it A written job description can be great evidence of essential functions, but it will not trump reality if challenged!!!

STEP 1: DOCUMENT THE REQUEST

Have the employee complete an Employee Accommodation Request form. Determine what information you need. If both the disability and need for accommodation are obvious, you will not need much.

STEP 2: INITIATE THE INTERACTIVE PROCESS

Initiate the interactive process to clarify what the individual needs and identify appropriate reasonable accommodations. During the process the employee, health care provider, and employer share information about the nature of the disability and limitations that may affect the ability to perform essential job duties. Initiate the interactive process by confirming receipt of a request for accommodation in writing and informing the employee what information you need to make a determination.

STEP 3: OBTAIN MEDICAL INFORMATION

There are two options for obtaining medical information. One option is to obtain a medical release from the employee to communicate directly with the healthcare provider and then send a health care provider statement to the health care provider with a letter. Include the job description and the medical release signed by employee. Another option is to give the employee the statement form and have him/her take it to the provider with the job description. If at first you don’t succeed . . . keep going back and forth with employee and/or provider until you have adequate information. If the employee’s treating physician provides inadequate information, you can require the employee to go to a doctor of the employer’s choice after giving the employee an opportunity to cure. There are guidelines as to what medical information can be requested and when. Employers may make inquiries or require medical examinations necessary to the interactive process. They may require a medical examination to: determine disability; extent of limitation; and identify possible accommodations. In this situation employers may ask for reasonable documentation about: the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; the extent to which the impairment limits the employee’s ability to perform the activity or activities. However, keep in mind that the information requested must be limited to the disability for which the employee has requested an accommodation. Aside from when employees request accommodation, whether medical information can be sought depends on the stage in the employment process. There are three stages: pre-offer; post-offer; and during employment. At the pre-offer stage, all inquiries and exams are prohibited even if they are related to the job. Note that this includes current employees who apply for a new job. Post-offer means after an applicant has been given a conditional job offer but before the employee starts work. At the post-offer stage, the employer may make disability-related inquiries and conduct medical examinations regardless of whether they are related to the job as long you do so for all entering employees in the same job category After employment begins, employers may make disability-related inquiries and require medical examinations only if it is job-related and consistent with business necessity. Job-related and consistent with business necessity includes when an employer has a reasonable belief, based on objective evidence, that: an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition.

Medical information must be kept in separate confidential file. You must keep information confidential except that you may share such information with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

STEP 4: DETERMINE IF THE EMPLOYEE HAS A DISABILITY

Even though I said we’re not supposed to focus on whether an employee has a disability, there may be situations where there is no documented disability. Review the paperwork from the health care provider and see if it supports a disability and need for accommodations.

STEP 5: MEET WITH EMPLOYEE TO REVIEW ALL

Have sit-down face-to- face meetings with the employee to discuss the documentation and possible accommodations. Take notes. Create a dialogue.

STEP 6: DETERMINE POSSIBLE ACCOMMODATIONS

A reasonable accommodation is a modification or adjustment to the application process that enables qualified applicants with a disability to be considered for the position to the work environment, or the way things usually are done that enables a qualified individual with a disability to perform the essential functions of the position and enjoy equal benefits and privileges. You do not have to provide the employee the exact accommodation he/she requests, but it must be an effective accommodation. Accommodations may include: • making existing facilities accessible; • job restructuring, including part-time or modified work schedules; • acquiring or modifying equipment; • changing tests, training materials, or policies; • providing readers or interpreters; • reassignment to a vacant position; • leave. Also keep in mind you must provide reasonable accommodation that is needed to deal with side effects of medication or treatment related to an employee’s disability. Job restructuring may require elimination of marginal functions, but you’re not required to eliminate essential functions. You may require the employee to take on other marginal functions he or she can perform. This may require exchanging assignments with other employees. You also may be required to alter when and how a function, either marginal or essential, is performed. You may be required to permit the use of additional leave as a form of reasonable accommodation. The EEOC says additional unpaid leave = reasonable accommodation. But, open-ended leave with no return to work specified is not reasonable. Reassignment is sometimes considered the accommodation of last resort. It is important to know that creating a new position is not required, but reassignment to a vacant position may be a reasonable accommodation. If the employee is reassigned to a lower position, you do not need to maintain the higher salary unless past practice indicates it is done that way for others. There is a split of authorities about whether the employee must compete for the vacant position. The conservative (most risk-averse) position is not to require the disabled employee to be most qualified before you will give the position; just require that the employee be qualified for the position. Note that the EEOC says that an employer has a duty to tell a disabled employee about a vacant position if they are qualified. In other words, you shouldn’t just say “apply for any position for which you think you’re qualified.” There are certain things employers are not required to do as reasonable accommodations: remove essential functions; create a job; change a person’s supervisor; or withhold discipline. The following are some resources for ideas on reasonable accommodations: • Job Accommodation Network: http://www.jan. wvu.edu/media/atoz.htm • Office of Disability Employment Policy: HTTP:// ww.dol.gov/odep/ • The Disability and Business Technical Assistance

Center: http://www.adata.org/

STEP 7: ANALYZE UNDUE HARDSHIP/DIRECT THREAT

“Undue hardship” means significant difficulty or expense. The analysis focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a

specific accommodation. Undue hardship involves not only financial difficulty. It also applies to reasonable accommodations that are unduly extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the business. However, undue hardship cannot be based on a cost-benefit analysis. Indeed, often, the accommodation will be something for which its cost exceeds its benefit to the organization. Also, note that you are expected to look for outside sources of funding. Undue hardship cannot be based on the fact that it will hurt employee morale, nor can it be based on employees’, parents’, or students’ fears or preferences. “Direct Threat of Harm” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. This analysis requires an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. It is important to consider reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence. Consider the following factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that potential harm will occur; and the imminence of the potential harm.

STEP 8: REPEAT ABOVE STEPS UNTIL OPTIONS ARE EXHAUSTED

At this phase you want to think creatively and suggest multiple accommodations. Try not to leave any stones unturned. Also, it is important to keep good documentation of these discussions.

STEP 9: GRANT OR DENY ACCOMMODATION

Document the decision on accommodation and notify the employee. If granting, include details of the accommodation and anticipated start date. If denying, be aware that denying a reasonable accommodation can be costly. For example, in 2010, a Wisconsin jury awarded a teacher with seasonal affective disorder $2 million because the district failed to accommodate her disability, including by failing to provide her with a classroom with windows. Ekstrand v. School Dist. Of Somerset, No. 08-cv-193-bbc (W.D. Wis. Oct. 5, 2010).

STEP 10: IMPLEMENT THE ACCOMMODATION

Note the date of implementation. Notify supervisors, managers, and first aid and safety personnel. Sometimes you or the supervisor will get questions about why a certain employee is getting “special treatment.” Of course, you can’t respond by disclosing that the “special treatment” is because of a disability. Instead, you should emphasize that the district has a policy of assisting any employee who encounters difficulties in the workplace. Point out that many issues are personal and it is your policy to respect employee privacy. Reassure employee that his/her privacy would also be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons.

STEP 11: REVIEW AND MODIFY

An accommodation, once made, is not set in stone. If it is ineffective, you need to return to the interactive process. Also, the accommodation may need to change if the disability changes or the needs of the district change.

STEP 12: PRAY OR CROSS YOUR FINGERS!!