Ladies and gentlemen thank you for standing by. Welcome to the reasonable accommodations conference call. At this time all participants are in a listen only mode, later during the call we will conduct a Q and A session. Instructions will be given at that time. If you should require assistance at any time during the call, please press star 0. As a reminder this conference is being recorded. I would like to turn the conference over to our host, Jennifer Bowerman. Please go ahead.
Good afternoon to the East Coast and good morning to the West Coast. This is Jennifer Bowerman from the Great Lakes ADA center. I would also like to welcome our other partner, Disability and Business Technical Assistance Centers both the Mid-Atlantic and Pacific regions. We have more than 100 sites participating today on this session on reasonable accommodations. A little housekeeping note to all of you. This session is currently being provided realtime captioned off of our web site. If you have access to the Internet where you are calling right now, please feel free to get into our web site that''s www.gldbtac .org there are instructions to get through to the realtime captioning off of the Great Lakes web site. As far as housekeeping for this session, the first half-hour of the presentation will be given by Sharon Rennert from EEOC. The captioning is being provided by Realtime Reporters, so Allison and Dave Hoyman are both on the line as well.If at any time during the call you need us to slow down or repeat something, please jump in and we will go back for that. And during the second half of the presentation we will open the session up for question and answers, which you will be given instruction at that time on how to ask questions both on this conference call and through the Internet. At this time I would like to start the session. As you are aware in March the Equal Employment Opportunity Commission issued a guidance on reasonable accommodation and undue hardship under the ADA. Today we are excited to have with us, Sharon Rennert, attorney adviser at EEOC who helped in authoring much of the guidance. We are thrilled to have you with us, Sharon, to not only give some insight into the guidance but to also answer some questions. So if you could go ahead with a brief overview of certain items to look for in the new guidance and then we will go into Q and A.
Certainly, thank you very much. And welcome to everybody no matter what time zone you are in. I''m going to start by hitting some of the highlights in the reasonable accommodation guidance. I hope that all of you have copies of it, maybe have looked it over, and have a lot of questions about it. If you haven''t had a chance to read it, I do encourage you at your leisure to do so. There is a very detailed index in there if you are looking for certain specific questions or issues. But it really is just crammed with a lot of information, a lot of new information, and we will not have an opportunity this afternoon to go overall of it. But let me hit some highlights. Beginning in the first section, the general principles section, we do spend sometime discussing the term reasonable accommodation. And what it means and doesn''t mean. As many of you may know, a lot of people want to keep focusing on what is reasonable versus what is unreasonable. When is an accommodation reasonable to provide, when is it unreasonable and therefore an employer does not have to do it. And as the Commission points out, that is the wrong question to be asking. Reasonable accommodation is a legal term of art. And there is no separate definition for reasonable. It is not a separate standard under which we assess an accommodation. If you look at the statute, reasonable accommodation is defined only in terms of examples of different forms of accommodation. There is nothing in there that puts a quantitative or qualitative or any other form of limitation on the obligation to provide accommodation. All the limitations on how far an employer has to go is under the term undue hardship. It''s undue hardship where we look for when is it that an employer does not have to provide a certain item or when is it an employer does not have to make a certain change in the workplace. This is critical because if you try to say well, what is reasonable, you are actually going to be putting an additional burden on a person with a disability. That person with a disability inevitably is going to have to show more, often what they are being asked to do is in effect prove it''s not an undue hardship. That completely goes against what Congress intended. So when you are discussing reasonable accommodation, you don''t want to be talking about well this is reasonable to do. That''s the wrong way to approach it. You really want to talk about here is a form of reasonable accommodation and the question might be whether it causes an undue hardship. The next section of the guidance after general principles goes through the process of requesting reasonable accommodation. And definitely do take a look at this section. This is an area of interest both to people with disabilities, but especially to employers. Employers need to be aware that there is no magic language, no special words that constitute a request, and the importance of entering into a dialogue when a person makes a request for reasonable accommodation. That dialogue is what we have called the interactive process. And it is really critical that both parties, the person with the disability, and the employer, engage in this process. It is very important first of all; sometimes an employer needs to begin by asking questions about the person''s disability. It''s not always clear that the person who is requesting accommodation actually has an ADA disability. And an employer is entitled to ask questions and even to request documentation that shows that a person has an ADA disability. And it''s important that people who are making the request understand why they may be getting such questions. A lot of times people think, well, just take my word for it or I told you I have the following condition. Why are you questioning me? And so it is important that they understand that an employer just doesn''t have to take it on faith, employers can, if they want to, but employers are entitled to make sure it''s an ADA disability because otherwise they have no legal obligation to provide a reasonable accommodation. So sometimes the interactive process may begin with a discussion on whether a person has an ADA disability. If it''s very clear that it''s an ADA disability or that''s been established through the interactive process, then the next focus may be on the form of reasonable accommodation. Here the employer and the individual really need to discuss precisely what limitations are arising, where the specific problems are, and what would be an effective form of reasonable accommodation. It''s very, very critical that the person who is requesting an accommodation be specific about what the problem is. If the person is very general and not letting the employer understand exactly where a problem is coming up, it is very hard to come up with an effective accommodation. This often arises; the example I like to use here is when an employee might say to an employer, well, I have a lot of stress. And therefore I need you to give me a reasonable accommodation. Now, assuming for a moment that the person has an ADA disability, and that that disability means that the person has difficulty tolerating a great deal of stress, until we know exactly what''s producing the stress, we really can''t come up with effective accommodation. So for example if the stress is a result of a person being asked to juggle ten different job assignments at once, sometimes due to various psychiatric disabilities or learning disabilities, that may be very difficult to juggle ten different assignments at once. That''s different than if the stress is caused by deadlines. Sometimes people have to meet deadlines, they do have to meet them, but there may be different accommodations available to help them cope with meeting deadlines. There are going to be different accommodations for those two very different situations. So that''s why I say it''s very important that people who are requesting accommodation really be specific in this interactive process to let the employer know exactly where the problems are arising. On the employer side, the employer needs to ask questions. If the employer is not clear about what the problem is, about what form of accommodation might be effective, then this interactive process is the opportunity for the employer to ask questions. And to be a specific-as specific in the kind of questions they are asking, because they can''t really solve a problem until they have all the relevant information possible. So both sides really need to come into this process, to discuss fully with each other the information they have and then we hope, from all of that discussion, there can be an identification of a possible reasonable accommodation. Now sometimes it''s possible that there will be more than one effective accommodation. And as the EEOC has stated throughout the years, we will certainly encourage employers to provide the type of reasonable accommodation that the individual would prefer. But as long as two different forms of reasonable accommodation are both effective, meaning they both will solve the problem, then the employer ultimately gets to choose. So the important thing here is an assessment that we have got two equally effective forms of accommodation. If they both remove the workplace barrier that''s preventing this person from performing a job or applying for a job or getting equal access to the benefits of a job, if two forms of accommodation are effective, then ultimately the employer is allowed to choose. Now the guidance also emphasizes that this interactive process in providing reasonable accommodation should proceed as quickly as possible. Again, it''s kind of common sense but we found a need, sometimes, to underscore common sense in this document. That an employer should not be sitting on a request for reasonable accommodation. And often what happens here is poor training. It results in this problem. Requests for reasonable accommodation tend to come into supervisors and managers, but they can come into anybody. If there is a health service unit, it may come into the health service unit. If it''s somebody whose disability is the result of a workplace injury, then it might come into the Workers'' Compensation people. It might go to the human resources or personnel department. Of these different offices, all these different people have to recognize when they are receiving a request for reasonable accommodation. And then they have to know what to do with it. There is no one way to handle requests for reasonable accommodation. In terms of who makes the decisions, who engages in the interactive process, that can be done any number of ways. But what''s important is that somebody recognizes they have received a request for reasonable accommodation and that they follow through. So if a supervisor receives a request, but at this particular employer all requests for reasonable accommodation are supposed to be handled by the human resources department, you don''t want the supervisor just to take the request and sit on it. And do nothing. And not refer the person; not call up human resources, but just to in effect ignore it. That''s where there is going to be a problem. And it can be a problem where the supervisor doesn''t know that it''s the human resources department who handles these kinds of requests. That''s why I say, it''s often a training problem. That an employer may have a process, but everybody doesn''t know what that process is. So really important for employers to make sure that all the way down to the front line supervisors, anybody who might get a request for reasonable accommodation, to know what they are supposed to do with it. And to move the process along as quickly as possible. Now sometimes the process may take longer, there is nothing inherently wrong with that, as long as people are keeping it moving. They are getting the questions asked that they need to ask, they are getting the information, they are following through on the information they are receiving, if there is research that needs to be done they are doing the research. But they are proceeding as quickly as they can. That''s what is really important here. The next part of the guidance after discussing requests for reasonable accommodation discusses accommodations that they might arise in the application process. And that they might arise dealing with the benefits and privileges of employment. I''m not really going to spend time on these two, except to say in terms of benefits and privileges of employment. Most employers and even most individuals with disabilities I think are very aware about getting reasonable accommodations to apply for a job and perform a job. But oftentimes it''s overlooked about getting reasonable accommodations to gain access to what we call the benefits and privileges of employment. And these can cover a number of things: They can cover social activities, they can cover various services that an employer might provide. For example, an employee assistance program, a credit union, a cafeteria, a gym, and it can also cover training opportunities. All of these kinds of things might necessitate a reasonable accommodation so someone can gain access to it. The most common forms of reasonable accommodations or maybe I should say the most common disabilities, types of disabilities that people have, where these issues come up, tend to be people with hearing or visual disabilities, things that might affect communication, as well mobility problems. That''s the other area that we see can come up here. People with disabilities involving mobility. It''s important that employers be aware that they are required to provide reasonable accommodation to enable people to gain access to these benefits. We haven''t had a lot of charges involving this area but we have had a few, and they are starting to grow and I think that''s a function of people with disabilities realizing that they are entitled to get access to these kinds of services. And so that is something to look at. The next part of the guidance, though, focuses on reasonable accommodations related to job performance. And what we did in this section was to focus on those forms of reasonable accommodation that tend to raise legal issues. So you won''t see anything in this section, for example, talking about acquiring, leasing, purchasing, various machines or devices. Now that is certainly a form of reasonable accommodation, but it hasn''t tended to raise a lot of legal issues. So we decided we wouldn''t spend any time discussing them and instead focus on reasonable accommodations that have raised various legal issues. We do spend a lot of time talking about leave as a form of reasonable accommodation. Let me point out everybody is so focused always on reasonable accommodation we sometimes overlook the obvious. And that is that most employers will give all employees a certain amount of leave. And where an employee has a disability and is using leave that they are getting by virtue of being an employee, whether it''s called annual leave, vacation leave, sick leave, personal days, that is not reasonable accommodation. All they are using is the leave that they are entitled to, not because they have a disability, but because they are an employee. And so we don''t want to be so quick to label everything, oh, that''s a reasonable accommodation. Instead it''s just people using a benefit that they are entitled to anyway. And if there is a problem, if employers normally give two weeks of annual leave to all employees but suddenly tells an employee with a disability you can only use one week of your leave, that is not a reasonable accommodation problem, that''s what we call disparate treatment, where a person is being singled out because of his or her disability and treated differently than everybody else. It is a violation of the ADA, but it is not a reasonable accommodation violation. So that''s one of the things we wanted to remind everybody, sometimes, especially true in the area of leave, we are not always talking about reasonable accommodation, we are talking sometimes about disparate treatment. But where leave is a reasonable accommodation, where a person is getting more leave than any other employee, in other words they are getting additional leave because they have a disability that necessitates getting additional leave. There are certain ADA rules. One is that you cannot penalize the person for needing or using that leave. Sometimes employers give out the leave as a form of reasonable accommodation but turn around and penalize them. That would be a violation of the ADA. In fact you have retaliated against somebody for taking advantage of what is a legal right. But also you have taken an effective reasonable accommodation and made it ineffective. It doesn''t do a person much good to basically say on the one hand we will give you leave that you need because of your disability, but when you use it, we are going to penalize you for it. That''s ineffective and do not consider that to be therefore a reasonable accommodation. So there is no penalizing somebody. That''s an important point. Another point that we make concerning leave that has raised some controversy, has to do with attendance. A lot of employers have concerns about people not being present in the workplace who might miss a lot of work. And so some people have argued that attendance, your presence in the workplace, is an essential function because if you are not in the workplace, how can you be doing your job? In the guidance the EEOC says we don''t think attendance is an essential function. That does not mean that we think attendance is irrelevant. Because of course it''s very relevant and very important. What we are saying here is that leave is a form of reasonable accommodation. The issue is usually one of undue hardship. Where somebody needs a block of time as a reasonable accommodation, a block of leave, an employer certainly can assess whether granting that leave will cause undue hardship. Usually the situation is-situations where attendance comes up is where somebody doesn''t want a block of time, but rather they need unpredictable leave. What happens is that they come in for a few days, and out for a few days, then back for a while, then out again, you know, maybe they work for two weeks then out for three days, in for five days, out for seven. It''s kind of on a frequent basis, and unpredictable and a little bit here, and a little bit there, and the employer goes along with it for a while, but at some point the employer says enough is enough. I cannot allow this to go on any more. Well really when the employer is saying enough is enough, what the employer is really assessing or they ought to be assessing, it''s an undue hardship, and it''s not hard to see why it''s an undue hardship. If there is no predictability to it, that does not enable an employer to effectively plan for someone''s absence. What happens when someone is not there at the last minute? Is work not being done? Does that mean deadlines are being missed? Other employees have to be pulled off of other projects? Other employees who might not even be working are required now to come in to cover for somebody? What are the consequences and looking at how long it''s been going on, that this is not the first or second or third, oftentimes these kind of situations have been going on for months. And the employer can look at that and say look at what''s happened over the span of the last six months where we have had to deal with this. So basically the employer is making an undue hardship argument and I think they are always going to succeed in that. It is not that the EEOC is saying people never have to show up, employers have to tolerate people who don''t show up for work, what we are simply saying is that we don''t think the correct ADA analysis is to say attendance is an essential function. Instead we think it becomes an undue hardship issue, but the reality is it will not be hard for an employer to show undue hardship when you have frequent and undue absences that have occurred over a considerable span of time. The last form of accommodation very quickly let me talk about is reassignment. Lots of new stuff in this one and I really do urge you if you haven''t read through the guidance, spend sometime looking through the reassignment section because there are a number of new things here that you will have not seen before. Certainly there are things you will have seen before. It''s the accommodation of last resort, only when a person is no longer able, due to her disability, to remain in her current job, then the last thing an employer is supposed to check out is whether it can make a reassignment to a vacant position. The vacancy should be as close as possible to the current job equivalent job. We talk a lot in here about what equivalent means. If you cannot find an equivalent position, then the employer should be looking down for what would be a demotion in effect. Until it gets to the job that again is as close as possible to the old job. The interactive process is vitally important here. Really important that the employer and the employee talk to each other. The employer ought to get a good idea about what the skills are, the interest, the qualifications, of this person, because the person does have to be qualified. To assume a vacancy, they are not entitled to a job that they are unqualified for. So the employer has ever right to find out if the person is qualified. The person, however, does not have to compete for a job. Reassignment means as long as the person is qualified for the position, then the person is entitled to that position. It is not about being an applicant, about putting your application in and competing against others and may the best person win. It''s not about competition and that''s really important to make sure employers understand that. No competition here, simply an assessment is somebody qualified. Another important point for employers who have multiple facilities that might go-span across a region or even across the country, potentially they might have to look for a vacant position at all of their facilities. The limitation is undue hardship, if an employer wants to claim that it cannot look for vacancies throughout all of its facilities, it has to be prepared to show why that''s an undue hardship. Why is it so difficult to identify whether or not there are appropriate vacancies, at other facilities? In this day and age of computers if everything is computerized and you have got facilities from the east coast to the west coast, but everybody puts it in the computer and I''m sitting here in Washington, D.C. and I tap into my keyboard and I can find out what''s available in Chicago and San Francisco, in a matter of minutes, an employer can''t really argue to me that that''s too difficult, that that''s an undue hardship to find those vacancies. It''s important to note an employer does not have an obligation to pay for any relocation costs. That''s not an obligation the employer has. And so it''s important to-for the employer to tell the employee that. A lot of employees might start out by saying sure, look nationwide for me. But if the employee knows that he or she will have to pay for relocation, than many employees will say no thank you. So before an employer looks nationwide or very far away, talk to the employee about what he or she wants, how far is he or she willing to go in terms of a vacancy. There is also a section in here that deals with things that are not forms of-forms of reasonable accommodation. Perhaps one of the most significant things here is to point out that changing someone''s supervisor is not a form of reasonable accommodation. So someone who comes in and says I don''t get along with my supervisor, please remove him or her, that''s not going to be a form of reasonable accommodation. On the other hand, changing supervisory methods, changing the way a person supervises, that can be a form of reasonable accommodation. And that''s really important. Many people with psychiatric disabilities, various learning disabilities, that''s a critical form of reasonable accommodation for them. Remember that it is not a form of reasonable accommodation to ever excuse performance or conduct problems. You do not excuse conduct or performance problems as a form of reasonable accommodation. You look for reasonable accommodation that will enable a person to adequately perform a job and to adequately conform their conduct to the minimum conduct that''s expected of everybody. In terms of undue hardship, the last section in the guidance, we review the standards there, we do remind everybody that the employee morale, how unhappy employees may be that someone is receiving an accommodation, that''s not a form of undue hardship, but there are forms of reasonable accommodation that could significantly disrupt the ability of other people to do their jobs. And that can be undue hardship and we give examples where yes, something might be an effective form of reasonable accommodation in terms of the individual with the disability, but it so disrupts the ability of other workers to do their jobs, an employer would not have to provide it. So do take a look at those. Let me stop here so we can get to your questions.
Let''s go over for question and answer.
Throughout the correspondence it talks about, you know, employers who have collective bargaining agreements need to renegotiate their contracts to comply with these guidelines and the question I have is regarding reassignment to a vacant position. Common sense prevails that seniority is also a factor that does not put a person with a disability ahead of someone with more seniority. Or am I misinterpreting the guidelines here where it''s not a competition just based on skills and abilities but also includes seniority?
The guidance addresses collective bargaining agreements in the undue hardship section. The EEOC has taken the position now for several years that seniority system, collective bargaining agreements do not actually trump the ADA, do not automatically prevail over an employer''s obligation, potentially, to provide a form of reasonable accommodation, including reassignment. The reason for that is that Congress itself said that they acknowledge seniority, they said it''s important but they said it is not necessarily determinative, it is obviously a factor to be considered but it''s not necessarily the determining factor. Given what Congress said, we don''t think there is an automatic favoritism to seniority. And so we do layout in the guidance you will find it in undue hardship section, what is expected of the union because the union has obligations under the ADA just as management does. The obligation for union and management to see if they can negotiate a way to amend a seniority system or collective bargaining agreement to enable a reassignment and we discuss what would be undue hardship, where a union and management could legitimately say, no we cannot do that. Now so far courts have not agreed with us, they have wanted to simply make it simple and say always seniority trumps the ADA so if you have a seniority system and the disabled employee does not have the seniority, then that''s not a vacant position. That''s where the courts are going with it, but as I said, EEOC believes that that is misreading Congress''s intent so we have not taken that position.
Thank you .
Next question is from the line of Herb Levinne Independent Living San Francisco.
Can you hear me? My name is Mr. Gomez, my question is actually in regards to the reassignment, and also I understand from the last caller that his concern is mainly to the issue of seniority. More concern is more into the issue of qualifications and how can they clarify someone based on the fact that-qualify someone based on the fact they feel the person is not qualified to take the position. So I don''t know how-what guidelines do you have to, you know, guarantee that the applicant will be fairly evaluated?
Well, in terms of assessing whether an employee is qualified for a vacant position to obtain it as a reassignment, what we are looking for here in terms of qualified is two things - First: whatever the qualification standards are, the sort of prerequisites, so if somebody has to have a college degree, a specific type of college degree, if somebody has to have a certain number of years of experience, if somebody has to have worked with certain types of computers, certain types of spreadsheets. If you are into accounting. If someone has to be able to speak Spanish, in other words you look at the job announcements and they will always list sort of the prerequisites those are things that are part of being qualified. The other thing is being able to perform the essential functions of that new position with or without reasonable accommodation. So the employer would be entitled to find out whether the person could perform the essential functions with or without reasonable accommodation. How the employer determines all of this, the employer can talk to the person, the employer can ask to see a resume, the employer might even be asking for a demonstration. If that is warranted. So whatever it takes to find out that the person is qualified and if it turns out the person is qualified, then they are going to be entitled to obtain that vacant position.
Thanks, Sharon. And we do have our first faxed question, Sharon. It''s asking if you could please address how EEOC views reassignment and government when you have a number of different agencies and within those agencies different budgets, different hiring authority, bargaining units and so forth, how far does one agency have to go as far as looking for vacancies in a 200 plus government bodies and reassigning employees across agencies?
Okay. Again if you look in the reassignment section we do have a specific question that says-that is looking for vacancy limited to the employee''s current office, branch, department, agency, it''s a wordy question but we did it that way because we wanted to bring home the point that the obligation to look for a vacancy can extend fairly far. That applies both to private sector and to government agencies. State and local government agencies who are covered under the ADA as well as if I have any federal agencies in this audience and the Rehabilitation Act. Now what I will use as my example, suppose that we are talking about the Illinois Department of Health. Now the Illinois Department of Health may have facilities all through the state. And within the Illinois Department of Health there may be different branches, different divisions, and the question, what about different budgets, different appointing authorities, again that''s not automatically going to be undue hardship. You are going to have to explain why. Now maybe you can''t. I''m not saying that you-can. I''m not saying that you don''t have a legitimate-I''m sorry, I started coughing, you may have a legitimate reason for saying look we can''t go against a different appointing authority, or we can''t go where there is a different budget. Please think this through, because that''s not necessarily always the case. And I think pretty much the Illinois Department of Health is going to have to look at its different facilities and look at its subsidiary offices and branches and agencies. What the Illinois Department of Health doesn''t have to do is look for a vacancy at the Illinois Department of Revenue. That''s where there would be a limitation. You don''t have to jump to a completely different kind of department doing a completely different kind of work. But through the Department of Health you would have to look.
Thanks, Sharon. We will go back to the phone lines as it looks like our on line group is still a little bit shy. So do we have another telephone question?
Yes, quite a few more. Our next question is from the line with ADA compliance services, please go ahead.
Thank you. I have two questions, basically to ask you because they are situations I constantly run into. One of the questions I keep running into is when someone has been given an accommodation and a new supervisor comes on the line and says we can''t give that to you any more. I. E. an example would be a woman had for eight years was allowed to work four days a week on site and one day a week at home. A new supervisor comes in and says now it''s an undue hardship. I''m finding that happening more and more and more where new employers are coming in and they are not holding to the accommodation that was given. The second question I need your help on is, has there been anything to address when somebody comes up with a new need? They have already been accommodated but their disability becomes worse and now they need additional needs. I''m hearing employers say I have already accommodated them I don''t need to do anything more than that.
Okay. Both of those issues are addressed in the guidance. In terms of-this is very common where a new supervisor comes in and says basically I''m not going to continue this. Well, again, that''s really stupid. Because unless it can be shown that either the person no longer needs the reasonable accommodation, because if a person no longer needs the accommodation then the employer doesn''t have to continue providing it. So unless an employer can show it''s no longer needed or that circumstances have changed so that it''s now an undue hardship, and it''s not automatically an undue hardship just because a new supervisor comes in who doesn''t like the idea of providing reasonable accommodation. That obviously is not undue hardship. Again I think it''s often a question or poor training. Where an employer is not making sure that new supervisors coming in know about the ADA. Understand the ADA obligations. Understand why reasonable accommodations are being provided. Understand that a supervisor can get the employer into big trouble by coming in and suddenly disrupting things. Now legitimately if there are legitimate reasons to want to check, and this kinds of goes into your second one, that disabilities can change. Jobs can change. And that, both of those things can affect whether somebody still needs a reasonable accommodation. And an employer is certainly entitled to come back and revisit, especially for long-term accommodations, where there might be some changes going on. I mean certainly if somebody uses a wheelchair and they need a ramp and are still using the chair three years later, you don''t need to start the whole interactive process, and do you still need the ramp? But for many disabilities they can change over time and if the job changes over time, then that could affect whether there really is still a need. An employer could legitimately say look we want to get an update. In terms, though, of an employer who has provided a reasonable accommodation and the person comes back later and says well, this is great but now I do need a second accommodation, or a third reasonable accommodation, the guidance makes clear that there is no arbitrary number limit on how many reasonable accommodations an employer has to provide. An employer has to consider each request for reasonable accommodation on its merits. And the mere fact that they have already provided one or two or three doesn''t mean that the next one isn''t undue hardship. What they would have to do is assess it on its merits, first of all is it needed. If somebody is already getting accommodations, if they are taking care of the problem, why does the person need a new one? Is there a new problem? Does one accommodation on its own not solve the problem and the second one combined with the first will? Is it needed, if so what''s the appropriate form of accommodation, is it effective. Then finally is it going to cause an undue hardship. Now sometimes what happens in these situations is an employer has tried a number of reasonable accommodations and they are all failing, if the situation is showing that the employer has tried a number of accommodations, they have all failed, basically, yes, there may be something else that the employer could try. But based on the experience you know it''s going to fail also. That basically there is no way to provide an effective reasonable accommodation. Then the employer doesn''t have to provide another one. It doesn''t have to do something that they know will be futile. So in that situation they have got a legitimate claim. We don''t do it. But if it''s simply, we have already given one, we don''t have to give a second one, that''s not nearly enough.
Thanks, Sharon. We have another fax question here. The question is what if an employee asks to voluntarily demote to another position because they are experiencing some physical problems?
Well, certainly a person can request to take a voluntarily demotion, due to a disability. The thing is that once they do that and then if they improve, they may be stuck where they are. So in terms of saying okay now I would like to go back to my other one, I think that the person needs to really explore with the employer what''s going on. If they need a permanent change due to their disability, then they, you know, should get into a discussion about what would be the appropriate vacancy. And if they are feeling that they need a demotion because they cannot stay at the level they are at due to their limitations, then that''s fine. On the other hand if this really isn''t permanent, the person''s disability, let''s say it''s a few months, six months, and then all the expectations are they will be just fine to continue where they are, then what the employee may want to explore is what can be done during those six months so they don''t end up having locked themselves into a demotion where then they can''t get back into their higher level job. So they really need to be very specific with the employer about why they are asking for this change, what the limitations are. And then let that guide how they proceed.
Thanks, Sharon. Next phone question.
Next a question from an individual, Pamela Magic please go ahead.
Thank you very much. My question is first of all thank you very much for the information. And am I applying all this information to each and every area of my life? Not only in the workplace but I''m talking about, I''m in Fresno, California, I have had problems with harassment, discrimination
All we are talking about this afternoon is reasonable accommodation for applicants and employees. So this is not necessarily the same information that''s going to apply in other areas. The ADA prohibits discrimination in other areas, but all we are talking about this afternoon is reasonable accommodation for applicants and employees.
Employment?
Exactly.
Okay. So all right, that was my question.
You are welcome.
Next we have a question from the line of Lisa Lopez with Pinkerton.
I faxed to you as well, but my question was regarding open positions that we may or may not have at the time accommodation is requested. To me it''s-it sort of borders on preferential treatment in that what if you have the position open for a period of time and you have other applicants that are equally qualified or even more qualified than the person that could possibly qualify for that person, the person with the disability.
Congress did not define it as preferential treatment or Affirmative Action but rather a form of discrimination. It is a form of discrimination not to make reasonable accommodation. And it is a form of reasonable accommodation to reassign individuals. Congress decided that the consequences of having to basically we are talking about terminating employees, because you are only at the stage of reassignment if it''s determined that a person can no longer perform his or her essential functions with or without accommodation in their current position. So the next step is going to be some sort of termination. And Congress decided that they thought the stakes were high enough at this point that they wanted to have one last form of reasonable accommodation here. Obviously if you have already offered a vacancy to somebody else then I don''t think it''s vacant any more. But the fact you have advertised a position and even started interviewing people, you have not committed to anybody at this point. And so that''s the point where you are now aware somebody needs a reassignment and it looks as though this person might be qualified, then the employer ought to sit down with them, determine if yes, they are qualified. And then if they are, as I have said, they are going to be entitled to that position. If it turns out they are not equal for it, then they are not entitled to it and you go on interviewing your other candidates, that''s the way the process would work
What would you tell your other candidates that were equally qualified or maybe more qualified that-why the person got the job? Would you say because they needed a reasonable accommodation? Or wouldn''t that be breach of confidentiality? How would you then formulate, I guess, the basis of your decision to articulate if challenged by somebody of an equally protected classification?
Well, first of all you are absolutely right you cannot breach confidentiality that somebody had a disability and received reasonable accommodation. But in terms of people asking, employers all the time are not necessarily laying all of it out as to what was behind a certain decision. And I think to talk about any hiring decision there is always a lot of components to it, that you don''t necessarily have to be talking about somebody was better qualified than you. A lot of employers, ADA aside, are not always hiring the best-qualified person. That these hiring decisions take into account many different factors and looking at all the factors you made a different decision and if you think this is a good person that you would really like to encourage them in the future to be applying for you or whatever else you may say, but I often think that the response here is one that an employer will have to make regardless of whether it''s reassignment in the ADA, the applicants are always challenging why wasn''t I hired? What''s going on and employers have to answer that question every day. This is one more time that they will have to answer it. But I think there are a range of answers that do not require breaching confidentiality.
Thank you very much.
You are welcome.
Thanks, Sharon. We have so many great questions coming in and unfortunately we only have time for about one or two more. I''m going to go over to Robin Jones in our web site I understand there is a web question.
Yes. This is from KCDC their question is how do you define a vacant position under reassignment provisions?
A vacant position is one that somebody is not currently occupying. So it''s one that can include that you have advertised for it, you may already have started interviewing for it, but you have not offered it to somebody. And nor has somebody actually working in that position. So it''s also got to be an existing vacancy that you are planning to hire somebody for. Some employers may have vacancies that are basically sitting there but they are not planning on hiring at all, I do mean they are not planning, you can''t sort of play games with this and let somebody leave the company and then suddenly decide we are going to activate it. You don''t want to play games, obviously, sometimes due to funding; we don''t have the money to fund a position right now, so it''s not really a vacancy, an actual one. Then we wouldn''t consider that to be a vacancy. It has to be one the employer is planning to fill, it is not currently being filled by somebody and it hasn''t been offered to somebody.
Let''s take one last phone question.
From Independent Living Resources, please go ahead. And your line is open, Gerald. We will move on. Next question then is from Joe of Community Resources, please go ahead.
Hi. I have a question about if somebody needs an accommodation like an abbreviated schedule they were working 40 hours but now they can only handle say 30 and the company''s policy is that less than 35 hours people don''t get medical benefits, don''t get pension, that kind of thing. Can the company do that or does the company need to still continue to pay their insurance and retirement benefits and other things as if they were working full time?
No. When somebody needs a reasonable accommodation like abbreviated schedule but now they are not going to be entitled to benefits that they got as a full-time employee, an employer does not have to continue providing those benefits. The reasonable accommodation here is the abbreviated hours. But the person is not entitled to get the benefits that what would in effect, the full-time work. They are going to have to take the benefits that go with the part-time work. If an employer wants to go beyond its policy wants to continue those things, then that''s fine. And they certainly can do that. But there is not a requirement as part of providing the reasonable accommodation. That they continue those benefits. So everybody who works under 35 hours doesn''t get the benefits you were listing, then a person with a disability isn''t going to be entitled to them, either.
Thanks.
Thanks, Sharon. I know there are a lot of other questions out there. And unfortunately due to the limited amount of time we we weren''t able to get all of those. Please feel free to call your regional Disability and Business Technical Assistance Center at 800-949-4232 to go over the guidance some more. If you have a specific circumstance that you want to talk about, all of the centers have experienced technical assistance specialists on hand to help walk you through those questions and situations. At this time I would like to make special thanks to the Great Lakes, Mid-Atlantic and Pacific regions for their participation in this project, and especially the more than 100 sites that have dialed in today. A very special thanks to Sharon Rennert for all of your expertise and really going over the EEOC reasonable accommodation guidance in a nutshell for us. Thank you so much, Sharon. And for all of you that have been participating on our distance learning sessions, please feel free to look for additional information with your regional centers for our next session, which is scheduled for July 20th. That will feature John Wodatch from the Department of Justice. John will be talking about the recent Supreme Court decisions and how they will have impact on the Americans with Disabilities Act. So again thank you to all of our participants and to Sharon for dialing in today. We hope to have you back on the line on July 20th.
Ladies and gentlemen, that does conclude the conference for today.