ada interactive process,pdf

A Commercial Law WebAdvisor Webinar and

An HRWebAdvisor Webinar

Presented by by

Melissa Fleischer, Esq. HR Learning Center LLC

The ADA-Required Interactive Process:

Guidance for Complying with the Requirements

Webinar: The ADA-‐Required Interac6ve Process

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Copyright © 2013 HR Learning Center LLC

Disclaimer This presentation is provided for informational purposes only and is neither intended to be legal advice nor does it create an attorney-client relationship. This webinar handout is designed to provide accurate and authoritative information in regard to the subject matter covered. However, because of unanticipated changes in governing statutes and case law relating to the application of any information contained in this handout, the author, publisher, and any and all persons or entities involved in any way with the preparation, publication or distribution of this handout disclaim all responsibility for the legal effects or consequences of any document prepared or action taken in reliance upon information contained in this handout. If legal advice or other expert assistance is required, please consult an attorney in your jurisdiction.


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Agenda

n  Amendments to the ADA and the ADAAA n  EEOC Regulations n  What Changes you Should Make n  Interactive Process n  Reasonable Accommodations n  Conclusion n  Questions


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Top 5 Mistakes Managers Make When Employees Have Requested a Reasonable

Accommodation

n  Mistake # 1 Failure to Engage in the “Interactive Process” n  Mistake # 2 Failure to Adequately document your engaging in

the “Interactive Process” n  Mistake # 3 Failure to Recognize a Request for a Reasonable

Accommodation Under the ADA n  Mistake # 4 Failure to Provide Additional Leave Time As a

Reasonable Accommodation n  Mistake # 5 Failure to Properly Understand Undue Burden


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What Is the ADA?

n  Prohibits discrimination against “qualified individual with a disability”

n  Interactive Process n  Reasonable

accommodation unless undue burden


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Mistake # 1 Failure to Engage in the “Interactive

Process”

n  Obligation to engage in “interactive process” n  Employers should document the “interactive

process” and have it in writing rather than verbal

n  Employers need to understand what the “interactive process” requires


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What Is the “Interactive Process”?

n  Back and forth process n  What accommodations the employee requires to be able

to perform essential functions of his/her job n  Information from employee’s healthcare provider n  Need to determine if can provide that accommodation or

“undue burden” n  Legal determination


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Questions


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Legal Claim-Failure to Engage in Interactive Process


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Cases

n  Cattuna v. Sara Lee Corp., No. A-0603-09T2 (8/27/2010)

n  Traveling salesman n  Had panic disorder n  Held: Employee failed to communicate and tell

employer what accommodation he needed n  Case dismissed n  Employee failed to engage in interactive


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Steps for Interactive Process

n  1. Provide employee with ADA Accommodation Policy n  2. If need for accommodation is not obvious, (such as they are in a

wheelchair) may ask the individual for reasonable documentation about his/her disability and functional limitations.

n  3. Provide employee with a letter to take to health-care provider requesting: n  Documentation of disability n  Functional limitations n  Specifics of needed accommodation

n  How long accommodation will be needed n  If needs i.e. frequent bathroom breaks, how long will each break need to be,

etc. n  If needs ergonomic equipment, specifics, etc.


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Steps continued n  4. HR should review documentation with legal counsel

and employee’s manager n  5. Determine if have enough documentation or need

more n  6. Request more if need more n  7. When have enough documentation, review to

determine if can provide accommodation or undue burden

n  8. Advise employee in writing n  9. Provide accommodation


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How Much Documentation Can You Request?

n  Only the documentation that a person has an ADA disability and

that disability necessitates a reasonable accommodation. n  May not ask for documentation unrelated to determining existence

of a disability and necessity for an accommodation n  Cannot request a person’s complete medical records n  If more than one disability, cannot request information about all the

disabilities but only information pertaining to the disability that requires a reasonable accommodation


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What Should You Do If the Individual

Does Not Provide Sufficient Documentation?

n  Explain why documentation is insufficient n  Allow individual an opportunity to provide the

missing information in a timely manner n  Documentation is insufficient if fails to specify

existence of ADA disability and/or fails to explain need for reasonable accommodation


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Adequate Documentation n  Employee brings a note from her treating physician explaining that she has

diabetes and that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to avoid a hyperglycemic reaction

n  Note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness

n  Depending on the results of the blood test, the employee might have to take insulin.

n  Note requests employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin

n  Doctor’s note constitutes sufficient documentation that the person has an ADA disability because it describes a substantially limiting impairment and the reasonable accommodation needed as a result


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Health-Care Providers n  Doctors n  Psychiatrists n  Psychologists n  Nurses n  Physical therapists n  Occupational therapists n  Speech therapists n  Vocational rehabilitation specialists n  Licensed mental health professionals


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Mistake # 2

Failure to Adequately Document Your Engaging in the “Interactive Process”


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Sample Letter to Employee Dear _______

Thank you for contacting us to request an accommodation based on your medical condition. I am enclosing a copy of our policy on providing employees with reasonable accommodations under the ADA. Pursuant to this policy, since your disability is not obvious, we are requesting that you obtain medical documentation of your disability from your health-care provider as well as documentation of any relevant functional limitations and your need for an accommodation. We have enclosed a letter for you to provide to your health-care provider and have also enclosed a copy of your job description so that he/she can see the essential functions of your position.

Please return the requested documentation from your health-care provider to us as soon as possible so that we can assess whether we can provide you with an accommodation. Feel free to contact us with any questions you may have.

Very truly yours,

HR Professional


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Sample Letter to Employee’s Doctor

Dear Dr. ______:

Our employee, _____[name of employee] has informed us he/she has a medical condition and that he/she requires an accommodation under the ADA and/or state law. Enclosed is a copy of ____[name]’s job description for his/her position as _______[job title].

Please provide _____[name of employee] with medical documentation that he/she can provide to us demonstrating that his/her medical condition would qualify as a “disability” within the meaning of the ADA and/or state law as well as the specific functional limitations that he/she has and the requested accommodation that he/she requires to enable him/her to be able to perform the essential functions of his/her position.

Thank you for your cooperation and assistance as we engage in this interactive process.


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Employee Fails to Provide Documentation


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Mistake # 3 Failure to Recognize a Request for a

Reasonable Accommodation Under the ADA

n  The ADA requires employers to provide a “reasonable accommodation” to a “qualified individual with a disability”

n  Legal decision that managers should not be making n  Best left to HR in conjunction with in-house or outside counsel n  To determine what is a reasonable accommodation under the

ADA, first need to determinate if the employee is disabled.


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Qualified Individual with a Disability

n  The first step is definition of a disability n  Second step is definition of who is a “qualified

individual.”


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Definition of Disability Under ADA

n  Legal definition of disability n  If employee does not have disability within legal

definition might not be protected by ADA n  States have broader fair employment laws


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What Is a Disability Under the ADA?

n  A n  physical or mental impairment n  that substantially limits n  one or more major life activities

n  A record of such an impairment; or n  Being regarded as having such an impairment


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What Is a Physical or Mental Impairment?

n  Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body’s multiple systems, including the special sense organs, neurological, musculoskeletal, respiratory, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine systems.

n  The ADA further defines “impairment” as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.


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What Do Not Qualify as Impairments?

n  Physical characteristics such as eye color, hair color, left-handedness; n  Height, weight, or muscle tone that are within “normal” range and are not

the result of a physiological disorder; n  Predisposition to illness or disease; n  Pregnancy (but not pregnancy-related impairments); n  Common personality traits such as poor judgment or a quick temper where

these are not symptoms of a mental or psychological disorder; n  Environmental, cultural, or economic disadvantages such as poverty, lack of

education, or a prison record are not impairments; n  Advanced age, in and of itself n  Certain statutory exclusions from the definition of disability, including

individuals engaged in the current use of illegal drugs when the employer acts on the basis of such use


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Amendments to the ADA

n  September 25, 2008 President Bush signed into law amendments to the ADA.

n  Amendments effective January 1, 2009. n  One effect of these amendments was to expand

the coverage of the ADA by “de facto” overruling 2 important Supreme Court decisions.


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Overruling Toyota Motor n  The Supreme Court case of Toyota Motor Manufacturing, Ky, Inc. v.

Williams, had tightened the standards for “substantially limited” under the ADA.

n  The Toyota Motor case held that courts must strictly construe the terms “substantially limited” and “major life activities” when determining the existence of a qualifying disability and that the employee must demonstrate that such disability prevents or severely restricts him/her from “doing activities that are of central importance to most people’s lives.”

n  The ADA Amendments provided that this standard set forth in the Toyota Motor case was too narrow and had the effect of preventing too many disabled employees from the protections of the Act.


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What Does “Substantially Limit” Mean?

n  The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.

n  The term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.


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Other Changes in the Amendments

n  EEOC’s current regulation that defined “substantially limits” as “significantly restricted” should be revised to be more consistent with overall purpose of ADA which is to protect disabled employees from discrimination in the workplace.


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Overruling Sutton Case

n  Sutton held make determination taking into account any “mitigating measures” such as any medication the employee used or eyeglasses.

n  Employee with bipolar disorder, who took medicine which rendered them not substantially limited in any major activity while they were on their medication, would not be disabled under ADA.

n  Now determination made without regard to the effects of listed mitigating measures except for eyeglasses or contact lenses.


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Substantially Limits Continued n  The determination of whether an impairment substantially limits a major life

activity shall be made without regard to the ameliorative effects of mitigating measures such as— n  (I) medication, medical supplies, equipment, or appliances, low-vision devices

(which do not include ordinary eye glasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

n  (II) use of assistive technology;

n  (III) reasonable accommodations or auxiliary aids or services; or

n  (IV) learned behavioral or adaptive neurological modifications.


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Changes Continued

n  Impairments only have to limit one major life activity

n  Employees with episodic or in remission conditions can be considered “disabled”

n  Impairment that is episodic or in remission will be a disability if, when active, it would substantially limit a major life activity


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Substantially Limits


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How Do We Know If a Physical Impairment Substantially Limits a

Major Life Activity?

n  Courts will look at two major factors: n  Severity of the limitation n  Duration of time


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What Is Required to Show the Severity of the Limitation?

n  “An impairment is sufficiently severe to substantially limit a major life activity if it prevents an individual from performing a major life activity or significantly restricts the condition, manner, or duration under which an individual can perform a major life activity, as compared to the average person in the general population. An impairment does not significantly restrict major life activities if it results in only mild limitations”


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What About the Duration?

n  An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time

n  It is not substantially limiting if it lasts for only a brief time or does not significantly restrict an individual’s ability to perform a major life activity


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Major Life Activities n  The Amendments now list the following as major life

activities including: n  Eating n  Sleeping n  Standing n  Lifting n  Bending n  Reading n  Thinking n  Concentrating n  Communicating, and n  The operation of “major bodily functions”


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Major Bodily Functions n  The immune system n  Normal cell growth n  Digestive n  Bowel n  Bladder n  Neurological n  Brain n  Respiratory n  Circulatory n  Endocrine and n  Reproductive functions


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Impairments that Substantially Limit the Major Life Activities Set Forth

n  Deafness substantially limits hearing; n  Blindness substantially limits seeing; n  An intellectual disability (formerly termed mental retardation) substantially limits brain function;

partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;

n  Autism substantially limits brain function; n  Cancer substantially limits normal cell growth; n  Cerebral palsy substantially limits brain function; n  Diabetes substantially limits endocrine function; n  Epilepsy substantially limits neurological function; n  Human Immunodeficiency Virus (HIV) infection substantially limits immune function; n  Multiple sclerosis substantially limits neurological function; n  Muscular dystrophy substantially limits neurological function; and n  Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive

disorder, and schizophrenia substantially limit brain function.


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Two Other Definitions of Disabled

n  Having a record of such an impairment n  Being regarded as having such an impairment


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Changes Continued

n  Changed prior requirement that regarded as “substantially limited” in a “major life activity”

n  Now only having to demonstrate perceived to have an impairment but not that they are perceived to have an impairment that “substantially limits” them in a major life activity

n  Much easier for employees to utilize “regarded as” provision

n  Will likely result in increased “regarded as” claims


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Changes Continued

n  Employees with “transitory and minor” (Less than 6 months) impairments not covered under “regarded as” prong of the ADA

n  Employees who claim “regarded as” disabled rather than actually disabled are not entitled to reasonable accommodations under the ADA


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Who Is a Qualified Individual With a Disability?

A person who, with or without Reasonable Accommodation

Can Perform the Essential Functions of the Job


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Issues You Need to Understand

n  What are some types of reasonable accommodations

n  What are some of the major mistakes you can make when failing to recognize a request for a reasonable accommodation


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Mistake # 4 Failure to Provide Additional Leave

Time as a Reasonable Accommodation

n  Not Providing Additional Leave Time After 12-weeks of FMLA leave

n  Need to determine every request for a reasonable accommodation on an individual basis to determine if to provide it would be an undue burden


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Jenny calls Manager Judy


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Proper Response to Request for Reasonable Accommodation

n  Recognize that request is for a “reasonable accommodation”

n  First need to determine if the employee has a disability under the ADA/or state law

n  Then need to engage in the “interactive process” with the employee

n  Provide Accommodation if not an undue burden


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What Are Some Examples of Reasonable Accommodations?

n  Job Restructuring n  Ergonomic equipment or furniture n  Additional leave of absence even after the 12 weeks

of FMLA leave n  Modifications to a work schedule such as providing a

part-time work schedule n  Modifications to an employment policy


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Do You Have to Provide Specific Accommodation Requested?

n  If there is another accommodation that will equally enable the employee to perform essential functions of position employer may provide that accommodation rather than the one that the employee has requested as long as it is effective


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Employees Do Not Need to Use the Words “Reasonable Accommodation”

n  If an employee states that they need to take additional time off to get their medications right, this could be a request for a “reasonable accommodation”

n  If an employee states that they need to get up and walk around during meetings because sitting aggravates their chronic back condition this could be a request for a “reasonable accommodation”

n  If an employee requests frequent bathroom breaks because of a medical condition this could be a request for a “reasonable accommodation”


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Mistake # 5 Failure to Understand What is an

Undue Burden

n  Significant difficulty or expense


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Factors to Evaluate n  Nature and cost of accommodation needed n  Overall financial resources of facility making the reasonable accommodation

n  Number of persons employed at this facility n  Effect on expenses and resources of the facility

n  Overall financial resources n  Size, n  Number of employees, n  Type and location of facilities of the employer (if the facility involved in the reasonable

accommodation is part of a larger entity)

n  Type of operation of the employer n  Structure and functions of the workforce n  The geographic separateness n  Administrative or fiscal relationship of the facility involved in making the accommodation to

the employer

n  Impact of the accommodation on the operation of the facility


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What Is Not an Undue Burden?

n  Employees’ (or your customers’) fears or prejudices toward the individual’s disability

n  Negative impact on the morale of other employees


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What Can Be an Undue Burden?

n  Can avoid providing a reasonable accommodation if can show the provision of the reasonable accommodation would be unduly disruptive to other employees ability to work.


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Lucy Forklift Operator


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Dave Computer Programmer


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Susie Stealer

n  Susie Stealer steals money from the office

n  She claims that she did this because she has a disability, Kleptomania

n  Can you discipline her?


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Tina Tamperer

n  Tina Tamperer works for your clinic and tampers with and incapacitates medical equipment

n  You catch her and Tina claims she did this because of her psychiatric disability

n  Can you discipline her?


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Mike Messy n  Mike Messy is an employee with a disability who works in your

warehouse loading boxes onto pallets for shipment. He has no customer contact and does not come into regular contact with other employees. Over the course of several weeks, he has come to work appearing increasingly disheveled. His clothes are ill-fitting and often have tears in them. He also has become increasingly anti-social. Coworkers have complained that when they try to engage him in casual conversation, he walks away or gives a curt reply. When he has to talk to a coworker, he is abrupt and rude. His work, however, has not suffered. Your company handbook states that employees should have a neat appearance at all times. The handbook also states that employees should be courteous to each other. When told that he is being disciplined for his appearance and treatment of coworkers, Mike explains that his appearance and demeanor have deteriorated because of his disability which was exacerbated during this time period. Can you discipline him?


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What Can You Do?

n  You may discipline for: n  Poor performance n  Absenteeism n  Tardiness n  Violation of Workplace Conduct Policies n  Violation of Workplace Violence Policy n  Violation of other Workplace Policies n  Even if reason for violation is due to disability


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Lucy Librarian

n  Lucy Librarian, a reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and coworkers. After receiving a suspension as the second step in uniform, progressive discipline, she discloses her disability, states that it causes her behavior, and requests a leave of absence for treatment. Do you have to provide this as a reasonable accommodation?


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Larry Latetowork n  Larry Latetowork, an employee with a disability is

often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9:00 AM to 5:30 PM, but he arrives at 9:00, 9:30, 10:00 or even 10:30 on any given day. His job responsibilities involve telephone contact with the company's traveling sales representatives, who depend on him to answer urgent marketing questions and expedite special orders. You discipline him for tardiness, stating that continued failure to arrive promptly during the next month will result in termination of his employment. Larry then explains that he was late because of a disability and needs to work on a later schedule. Do you have to consider whether he may need a reasonable accommodation?


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Victor Violent n  Victor Violent, an employee has a hostile

altercation with his supervisor and threatens the supervisor with physical harm. You immediately terminate Victor’s employment, consistent with your policy of immediately terminating the employment of anyone who threatens a supervisor. When Victor learns that his employment has been terminated, Victor asks you to put the termination on hold and to give him a month off for treatment instead. This is Victor’s first request for accommodation and also the first time you learn about his disability. Do you have to suspend the discipline and provide a reasonable accommodation?


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Cases


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What Should Employers Do When Faced With a Request for a Reasonable

Accommodation? n  Engage in the “Interactive Process” n  Review your ADA accommodation policy and ensure compliance with such policy. n  Request medical documentation substantiating the disability and the need for an

accommodation. n  Take the medical documentation to HR and legal and discuss whether you can provide

such a reasonable accommodation or whether it would be an “undue burden” to provide it.

n  The requirement to provide a “reasonable accommodation” does not mean that you have to provide the specific accommodation the employee requested if there is another accommodation that would work as well.

n  Respond in writing to the employee regarding their request for a “reasonable accommodation”

n  Document, Document, Document


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What Employers Need to Do

n  Well-drafted ADA Accommodation Policies

n  Well established procedures for engaging in “the interactive process”

n  Procedures for determining whether to provide disabled employees with the accommodations they have requested

n  Provide training to managers


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Conclusion n  Important to understand how to engage in the

interactive process and provide reasonable accommodations under ADA

n  Use tips we have provided today n  You will ensure compliance with the law n  ADA is complicated and legalistic but important

to ensure compliance with ADA when managing leave of absences


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Questions?

Melissa Fleischer, Esq. President & Founder HR Learning Center LLC 914-417-1715 HRLearningCenter.com [email protected]

© 2013 HR LEARNING CENTER LLC

CONFIDENTIAL AND PRIVILEGED INFORMATION

The material contained in this webinar handout is for personal use and reference only, and is not to be copied, distributed or used for any reason without the express written consent of HR Learning Center LLC.

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