Slide 1:
Welcome to the 2013 
Legal Issues Webinar Series
The content and materials of this training are property of the Great Lakes ADA Center and cannot be distributed without permission.  This training is developed under NIDRR grant #H133A110029. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at adaconferences@adagreatlakes.org or toll free 877-232-1990 (V/TTY).

Slide 2:
Listening to the Webinar
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Slide 3:
Listening to the Webinar, continued
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Slide 4:
Captioning
Real-time captioning is provided during this webinar.
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Once selected you will have the option to resize the captioning window, change the font size and save the transcript.

Slide 5:
Submitting Questions
For Q&A within Webinar Platform:  Using your mouse, choose “Great Lakes ADA” from the Participant list and double click.  A tab titled “Great Lakes ADA” will appear in the chat panel.  Type your question in the text box and “enter”.  Your question will be submitted to the presenters.  It will not be viewable by other participants. (Keyboard - F6, Arrow up or down to locate “Great Lakes ADA” and select to send a message )
If you are listening by phone and not logged in to the webinar, you may ask questions by emailing them to adaconferences@adagreatlakes.org
Please note: This webinar is being recorded and can be accessed on the AccessibilityOnline website at www.accessibilityonline.org/Archives within 24 hours after the conclusion of the session.
 
Slide 6:
Customize Your View
Resize the Whiteboard where the Presentation slides are shown to make it smaller or larger by choosing from the drop down menu located above and to the left of the whiteboard.   The default is “fit page”

Slide 7:
Customize Your View continued
Resize/Reposition the Chat, Participant and Audio & Video panels by “detaching” and using your mouse to reposition or “stretch/shrink”.  Each panel may be detached using the icon in the upper right corner of each panel.

Slide 8:
Technical Assistance
If you experience any technical difficulties during the webinar:
Send a private chat message to the host by double clicking “Great Lakes ADA” in the participant list. A tab titled “Great Lakes ADA” will appear in the chat panel.  Type your comment in the text box and “enter” (Keyboard - F6, Arrow up or down to locate “Great Lakes ADA” and select to send a message ); or Email adaconferences@adagreatlakes.org ; or Call 877-232-1990 (V/TTY) 

Slide 9:
Reasonable Accommodations in Employment: A General Update with Emphasis 
on Leave and Reassignment
Brian East, Senior Attorney Disability Rights Texas
March 20, 2013 

Slide 10:
Two parts to many ADA employment cases:
“Disability”
“Qualified”

Slide 11:
Changes to ADA make accommodation even more important:
ADA Amendments Act expands definition of “disability
More cases will now be decided on the issue of “qualified”
“Qualified” means able to perform essential job functions with or without reasonable accommodation

Slide 12:
Identifying Accommodations—the Interactive Process
Employer & employee should engage in “flexible interactive process”  
Employer’s obligation normally triggered by accommodation request
Courts often rule in favor of party who engaged in process in good faith, and against party who didn’t. 

Slide 13:
Leave as a Reasonable Accommodation
Widely recognized, and one of the most important accommodations
Generally reasonable, but details may raise “undue hardship” defense

Slide 14:
Defense of Undue Hardship
Need not make accommodation that would be undue hardship
Undue hardship means significant difficulty or expense
Factors include cost, overall financial resources, operation, impact
This is a fact-specific defense based on individualized assessment

Slide 15:
Length of Leave
No hard and fast rules as to length
Courts have approved leave of various lengths
Case example: Very large employer with high turnover and fungible employees; very lengthy duration could be reasonable if employee easily replaceable without significant expenses.

Slide 16:
Leave in Excess of FMLA or Company Policy
Leave usually clear if consistent with policy or with FMLA
But accommodation may require deviation from company policy
Many courts and EEOC recognize that extra, unpaid leave may be required.

Slide 17:
Leave Requests for Employees to Avoid
Many courts do not require indefinite leave
Employees should avoid asking for indefinite leave
Better to provide return-to-work date
But absolute certainty not required.

Slide 18:
Response to Leave Requests for Employers to Avoid
Fixed-leave policies are subject to challenge.
Don’t claim that medical inexactness is indefinite leave
Don’t refuse chance for employee to get return-to-work date

Slide 19:
Common Alternatives to 
Traditional Leave
Reasonable periods of part-time status or light duty; Schedule changes and flexibility; Telecommuting.

Slide 20:
Other Reasonable Accommodations - Examples
Temporary light duty;
Rest & recovery breaks between assignments;
Excusing employee from the need to move between buildings;
Allowing work from a seated position;
Providing lifting assistance or lifting devices;
Additional training or instructions;
A job coach;
Limiting rotations to other posts;
Limiting overtime;
Help in the application process;
Allowing access to diabetes supplies;
Allowing naps at lunch break;
Providing sign-language interpreters for meetings and trainings;
Providing a reserved parking space;
Providing an ergonomic keyboard;
Providing a raised seat and grab bars in the restroom;
Providing a glare-guard or one-handed keyboard for computer;
Adjusting desk or shelf height

Slide21:
Reassignment as Reasonable Accommodation
Generally do not have to permanently excuse “essential” job functions
Is there accommodation that would allow performing those functions
If not, employer must consider reassigning to vacant position
Remember that:
Reassignment need not be promotion;
Reassignment generally doesn’t require bumping
Parties should work together to identify vacant positions;
EEOC and recent case law say actual placement required, not just allowing employee to compete.

Slide 22:
More Things for Employer to Avoid
Ignoring or failing to respond to accommodation requests;
Delay in accommodating;
Resisting in face of obvious need;
Offering accommodation that didn’t work, with no follow-up;
Firing instead of accommodating;
Claiming “misunderstanding” when request is clear.

Slide 23:
More Things for Employee to Avoid
Failing to providing reasonable medical information to the employer;
Breaking off the process prematurely by resigning;
Failing to contact employer to request leave or other accommodation.

Slide 24:
Questions?
Using your mouse, choose “Great Lakes ADA” from the Participant list and double click.  A tab titled “Great Lakes ADA” will appear in the chat panel.  Type your question in the text box and “enter”.  Your question will be submitted to the presenters.  It will not be viewable by other participants. (Keyboard - F6, Arrow up or down to locate “Great Lakes ADA” and select to send a message ) 

Slide 25:
Thank you for Participating In Today’s Session
Please join us for the next session in this series: 
May 8, 2013
The ADA in the Hospitality Setting
Barry Taylor, Equip for Equality

Slide 26:
Session Evaluation
Your feedback is important to us
You will receive an email following the session with a link to the on-line evaluation