Good day, ladies and gentlemen, and welcome to the Great Lakes ADA Center Retooling Call. All participants are in the listen only mode and later we will conduct a question-and-answer session and instructions will follow at that time. This conference call is being recorded. I would now like to introduce your host for today is conference, Ms. Andrea Haenlin Mott. Ms. Mott, you may begin.
Thank you very much, Pam. Hi. I''m Andrea Mott in for Jennifer Bowerman-Skulski from the Great Lakes ADA Center. I am the Product Director of the Northeast ADA and IT Technical Assistance Center, the DBTAC. Welcome to the ADA Distance Learning Series, hosted by your regional Disability and Business Technical Assistance Center through the ADA Distance Learning Series. We will offer three tracks of concentration, one being employment, two being architecture and three general interest. As we continue to receive feedback through evaluations, from participating sites, many participants have suggested we present a session on the major changes to Title I compliance, the human resource professionals should be aware of. Thus we''re happy to fill that request in today is session featuring Susanne Bruyere. Susanne is the director of the program on employment and disability at Cornell University and the New York School of Industrial and Labor Relations Extension Division. She is currently funded by the U.S. Department of Education, National Institute on Disability and Rehabilitation Research. As principal investigator of a four-year research and demonstration project in collaboration the Society of Human Resource Management. To address ways to improve the employment practices covered under the ADA. She previously served for five years as the Director of Disability Management and Employee Assistant Program Services in the University Department of Human Resources for Cornell University''s 10,000 employees. Susanne holds a doctorate degree in rehabilitation counseling, psychology from the University of Wisconsin Madison, is a certified rehab counselor, and a senior professional in human resources. Susanne is going to get us going with the presentation that we have. This session is, as a reminder, currently realtime captioned on the Great Lakes Web Site at www.adagreatlakes.org. With that said I will turn it over to you, Susanne, for your presentation, and then we will open it up for some questions from the audience.
Thank you, Andrea. And welcome to those of you who are participating in this continuing education session this afternoon. Good afternoon and good morning to those of you who are our West Coast joinees. I am pleased to be here. I have worked with the DBTACs over the 10, now 11 years of its existence, and it is a real privilege to be a part of this program. And I''m pleased to share some of the work that we''re doing at Cornell, in addition to talking more generally about the topics at hand. As we begin, I want to call your attention to... if you''ve not done so, the Great Lakes DBTAC has made available for your use to guide you through the conversation during our presentation, both either a PowerPoint copy of the presentation that I will be speaking from, but also there is a print copy of the same text that is in a Word document. So either version is going to capture for you an outline of what we will be speaking from, hopefully make it easier for you to follow along. The title of this session is An ADA Update, Retooling for Title I Issues. And I am going to be pitching this in a way that I think hopefully will have some utility for the HR professionals out there who have joined us today. That has been the focus of Cornell''s research, and what we will be dealing with in terms of the issues we think are ones that can be confusing in the workplace and hopefully shed some light on some of that confusion today. And I am also aware that we have a mixed audience and have as a part of our center some of our advocacy groups and educators and others out there. So welcome to all of you and I look forward to hearing from you, some of your questions, in the second half of this session. I''m going to follow right along with this outline that I just spoke of with you. And on page two of the PowerPoint version, there is a heading entitled Key Issues that bullets out for you the areas that we will be covering in this brief time that we have together this afternoon. The first is, I would like to set the context for the vantage point that I am speaking from by telling you a litt le bit about the employer research that Cornell has been working on over the past four years in collaborating with the Disability and Business Technical Assistance Centers on, and some of the issues that have surfaced there that are relevant to today''s specific topic and why I was pleased to be involved in this, because it does, I think, respond to some very much needed information in the field. We''re secondly going to talk about an area that is often confusing for employers, and that is definition of disability, and some of the more recent discussions about that that have come out of court cases and its implications for practice and policy in human resource functioning, and a bit about the interactions of that where human rights laws at the state level is concerned. Reasonable accommodation policy is at the heart and practices at the heart of the employment provisions of the ADA, and we will talk a bit about what makes that a good strategy. And talk about reassignment as a reasonable accommodation, which at times can be a source of confusion for employers. And then end up with talking about the Family Medical Leave Act and a bit about Workers'' Compensation and its interactions with disability nondiscrimination legislation like the ADA. Going on to the next page, a little bit about Cornell''s research. We have been involved over the past 10 years with training and technical assistance on the ADA, and more recently in the last four years have been conducting surveys both in the private and the federal employer sectors to examine effective practices in disability nondiscrimination. We have partnered in that with the Society of Human Resource Management, which many of you will know that organization, it is a membership organization of over 140,000 members nationally, and the Washington Business Group on Health, which is a group of large employers, approximately 170 of them who are interested in promoting healthy workplaces. And we have sampled from both of those groups as well as from the entire federal sector. We focused on human resource professionals having surveyed a sample of 803 private sector HR professionals who are randomly selected from SHERM''s membership as well as all of the HR professionals who are part of the Washington Business Group on Health members. And indeed all of the top level human resource professionals across all 96 of the federal agencies nationally. I''m pleased to report that it is representative samples, those of you who are from smaller employers I think will be pleased to know that this information, although certainly there are some unique considerations for smaller employers, that we were able to get a significant amount of response, 40 percent of our response was from employers of 250 or less employees, and so I feel, I''m confident it is very representative of their interests and considerations on these issues as well. Now moving on to page 4, one of the things I will share... I''m hoping that you had an opportunity, those of you who have an interest in going to the Great Lakes web site and seeing the resources available on this research, and if you have questions from that we will be happy to address those later or at a future time if you want to follow up with us. But I''m going to single out here one of the things that I think is directly related to our topic today, and that is when we asked our human resource professionals in the survey, the areas relating to the interaction between disability, nondiscrimination legislation and other employment legislation, there was a significant degree of uncertainty about the interplay between those. And specifically, the two areas that had the highest degree of uncertainty for our HR professionals was the Family Medical Leave Act and Workers'' Compensation, which I think will probably be no surprise to those of you out there who are dealing with these legislations in your workplaces, policies and practices. And those of you who provide guidance to employers on our hot lines with the Disability and Business Technical Assistance Centers. And specifically, some of the things that showed up where there was a high degree of uncertainty was coordination of leave under the ADA, the Family Medical Leave Act, Workers'' Compensation. But in addition, short-term disability and long-term disability policies or other sick leave and salary continuation schemes. We won''t be specifically addressing it today, but I think it is worthy of note that approximately 55 percent of employers across the United States are also covered by short-term disability plans and sometimes there is confusion about disability discrimination legislation. And these policies and plans of employers as well. Another area of uncertainty for our respondents was whether an employee who requests Family Medical Leave Act is also covered by the ADA, when an injured worker is also covered by the ADA so a Workers'' Compensation concern, and whether light duty can be considered permanent reassignment for ADA purposes. So that again confirms the importance of having discussions around topics like the ones that we have selected today for this program. Moving on to the area of, in response to some of the inquiries that have come in, definition of disability. And I''m on page 5 at this point, of the materials that you have. Understanding who is covered by the Americans with Disabilities Act, who is a protected person, and therefore whether a request for an accommodation is appropriate based on this eligibility is an area that has created concern for employers and confusion and so one that always merits some time for discussion in programs, information sharing opportunities such as this. And we see from the courts that the termination of cover is continuing to be refined and explored by the regulations that are being promulgated by the EEOC and by the definitions that are being ler fide by case from the courts. The Supreme Court rulings that have come down in the last several years, one of the areas that I think is worthy of discussion here, I''m sure many of you are familiar with the Supreme Court rulings that came out in 1999 crystallized the concept of mitigating measures in a way that previously had not been interpreted, and I think it is important for employers to revisit because of that. These decisions emphasize the importance that the individual with a disability, the person''s impairment must be examined in light of any any medications or steps that the person might take to mitigate the effects of a disability which had not been focused on prior to these decisions. And it reaffirmed, as did the recent court the recent court court decision that came out in the last week, the Williams versus Toyota Motors Manufacturing case, that the ADA was written for persons who have a significant disability, that are truly disabled. The Supreme Court decisions state that the ADA is designed to protect people whose impairments substantially limit a major life activity. We see in these cases the reaffirmation time and again that these are indeed the criteria that determines whether the person is really truly a protected person under the ADA. And this can be some of the confusion when people are covered by other pieces of employment legislation that give them an opportunity, such as Workers'' Compensation or short-term disability, for medical coverage and salary pay while they are they are on leave. As a result, the implications I would say for employers of some of these decisions is to again be sure, besides educating yourselves as HR professionals and your supervisors about these, when the about these definitions when the question of disability comes up, but also more closely scrutinizing your own human resource policies and practices to be sure that the nature of the work itself is clear, which is the side of the confusion equation that you have control over and can contribute to enormously by reviewing your jobs, looking at the criteria for selection of employees and being sure that the criteria are very clear and don''t disparately at the same time single out people with disabilities and eliminate them for opportunities for these positions. And review positions for consistency of screening criteria over the life of that position. Employers who have done this are way out ahead in terms of fending off potential problems or claims of discrimination when those policies and practices have been proactively addressed as a part of good human resource practices. Again, another affirmation that has come out of these cases, and I think we can''t affirm this enough, is that each determination of who is a covered person really must be done on a case-by-case basis. And again, this was affirmed just in the past week with the most recent decision. And therefore, it is vital for human resource practitioners to convey the importance of that in reasonable accommodation protocols that they may write, in guidance that they give supervisors and in discussions with individuals who are requesting accommodations. It cannot be stressed enough that that is exactly the way this law is intended to be implemented and will really minimize the amount of difficulties that over-generalization can get an employer into. With that I want to mention here that these definitions, one of the areas for confusion is these definitions as the ADA interacts with the Family Medical Leave Act and Workers'' Compensation, and that is that a person who is eligible for the Family Medical Leave Act and for Workers'' Compensation may not necessarily be an individual who is a protected person under the ADA. And this is, I think, the highest source of confusion often for HR professionals and supervisors, because a person is qualified to take leave because of a legitimate medical condition under one of these two pieces of legislation, the FMLA or Workers'' Compensation, it does not necessarily qualify them to also be a protected person under the ADA and therefore able to access the benefits of an accommodation for their disability. The disability often in these situations covered by these laws are more temporary in nature and not necessarily substantially limiting to a major life activity as a definition necessitates for the ADA. With that I would like to leave the definition of disability area and go onto some of other areas that hopefully will continue to add clarity to the interplay of these pieces of legislation. I''m now on page 6, and that is State and Local Human Rights Laws. It is important to note that although I mostly discuss the clarifications on definition that have come from Supreme Court decisions and the pending district cases, it is important to note the state and local law, because indeed if those pieces of legislation at the state level are more stringent, it is that protection that applies to the individual who may be in your workplace asking for an accommodation. And an example we can speak from being from New York state here is that our own human rights law that relates to disability nondiscrimination is much more stringent in definition of disability and accommodation, reasonable accommodation regulations than is the ADA. It specifically covers temporary disabilities and covers employers of four or more employees rather than 15 or more. So it behooves HR professionals and employers to become familiar with their own legislation lest you miss some of the guidance, the regulations that may impact the definition of disability within your own workplace and who are protected persons in your own employ. I am now moving on to page 7, Reasonable Accommodation, and I will say again that this is really the heart of the employment provisions. And that is the right of the protected individual to request an accommodation that enables them to equitably produce the task, be able to do the task of essential functions of the job that they are applying for or are already involved in. And what we''re going to talk about here are not necessarily spelled out in the ADA, but what we know from good practice will maximize the likelihood that the accommodation process in your work environment is effectively executed, minimizing the likelihood of conflict or controversy or claims. That is a policy and procedure is developed and implemented in your workplace, that it is clear that there is an office or a person who is responsible for spelling out the appropriate process and where questions can go, and preferably that there is a formal statement of support for disability nondiscrimination that comes from upper management, and therefore it is really seen as a commitment throughout the organization that the procedure for requesting accommodations is clear and preferably written out so that it can be handed off to the HR professionals who are out in outlying offices as well as to middle management and supervisors. And with that I just want to affirm that often these requests come to supervisors and managers, and if they are appropriately equipped to deal with this, that is a very best place to often have the accommodation, the request come to an address. If there is a good relationship between that supervisor and the employee requesting, that often gets dealt with very effectively and fairly. And so the more we can equip and educate supervisors to know how to respond, the better off we will be. Often those questions, however, do come to HR professionals and so having been both HR professionals as well as managers and supervisors understand the process of the organization as well as the requirements of the lawful accommodation for protected person is absolutely imperative to minimize confusion or conflict later on. I also would encourage a few other things here, and that is that one keeps data on accommodations. It appears that employers who actually keep track of the accommodations that they make can be benefited in two ways. First of all they have good documentation of having made an in good faith effort to accommodate over a track record, but similarly, when such accommodations come in, it is easier to discern what has been done before and the types of equipment or protocols that have been helpful in previous similar such situations. So that is a vote for good data keeping on accommodations. I am now going to move on to page 8, which is a schematic that we have pulled together to basically emphasize the importance of two things. One is that all parts of the organization be apprised of what the requirements of the ADA is for employers and the rights of applicants and employees with disabilities, and that different parts of the employment setting speak to each other about this so that if your efforts to support individuals are not fragmented, leading and contributing to confusion, but secondarily and most importantly that the appropriate resources are brought to bear on the issues when the request comes in and particularly when there is interaction with other pieces of legislation, which is what this process chart is attempting to show. First of all, I want to call attention to the fact that within a given employment setting, a particularly to mid to large size employer have a number of resources internal to the organization which can be brought to bear to help in identifying an appropriate accommodation and the appropriateness of the request. And some of these are marked here. Health and safety professionals, ergonomists or industrial hygienists can be very helpful. Musculoskeletal injury prevention professionals, or employee assistance programs, which are often sometimes right in the organization but can be contracted employees, as well as labor union representatives or labor relations professionals, particularly in unionized environments, where there is a case of discrimination questions or legal questions involving one''s counsel''s office, which we found internal to the organization is often where our HR professionals would go when there was a question about a discrimination claim. And your own internal EEO office can be another really helpful source of information. When a request for an accommodation is relating to an FMLA request, often the organization needs to involve its third party administrators or claims benefits coordinators, that could be for either FMLA, comp or short- or long-term disability. These are, to date I''ve been mentioning all organizational resources that are usually internal to the organization or under contractual relationship, but I want to here also emphasize that there is a tremendous resource, as many of you know, in the Disability and Business Technical Assistance Centers and a free 1-800 number that we will mention at the end that a lot of these questions can be quickly resolved from either the HR manager or a supervisor if there is a question about the appropriateness of an accommodation request or the question of who is covered, which we just discussed. Now I would like to go onto page 9 of the document that you have, the details of this presentation, and talk about the question of reassignment. I think for those who haven''t had a lot of experience with applicants or employees with disabilities, this is a new era for those of you who have a large workplace and I''m sure have much experience with trying to accommodate, this is not a new issue, but indeed reassignment is an appropriate accommodation for consideration when an individual cannot do their current position. When that is not possible, that is, I want to emphasize here that accommodation in the current position is always the most desirable thing, if at all possible, and this is not being emphasized to encourage you to look elsewhere quickly, but rather to know that there is a backup that is an appropriate consideration if the person cannot do the essential functions of their current position. When a reassignment is considered, however, I would like to encourage you to think about the fact that what you need to seek is comparability of pay and status of that job so it doesn''t seem to be punitive, that they''re being moved and losing a great deal in that process since they can''t do their current position. And there is an added consideration if it is a unionized environment and your union representative should likely be involved in that kind of a discussion, if there is going to be a reassignment made. And with that I''m going to go to the Family Medical Leave Act interactions, which is, I''m told by the Society for Human Resource Management, one of the most frequently asked questions in their hotline is about the FMLA, which is, since its passage in 1973, raised a lot of questions in employers'' minds, and we know those of us who are also involved in disability nondiscrimination information dissemination that it can create some confusion in terms of the interaction between the two pieces of legislation. One of the questions that often comes up is about the intermittent nature of the access to the family medical leave. Family Medical Leave Act permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances because of serious health condition, as well as to take care of a seriously ill family member or for a newly placed child. But I''m going to focus on the health issue, since that is the direct relationship with disability nondiscrimination consideration. So the individual to accommodate their need can go in and out of leave in that situation. And it may mean that they have a condition that enables them to work at some times but that the leave is necessary. Multiple sclerosis is one situation that that might be true for, but there are other chronic conditions that a person may be fine on some days and not so well on others. And so this affords them an opportunity for intermittent leave. But then the question can come also, is are they indeed a covered person under the ADA? Timing and disclosure issues as well as documentation issues also can be a source of confusion or concern between FMLA and ADA coverage. The FMLA requires the employer to get documentation to be able to substantiate the nature of the leave, and if the person knows in advance, a 30-day notice is an appropriate request by the employer. And that requirement for FMLA recordkeeping purposes needs to be balanced with the confidentiality requirement of the Americans with Disabilities Act. And one of the things we always encourage is that any such documentation be kept separate from the person to assure that that confidentiality is upheld, and in addition, that the nature of the disability isn''t discussed with co-workers. And only supervisors, if the person is a protected person under the ADA, if an accommodation is needed, is the information shared. And lastly, under FMLA and ADA interactions is the question of temporary versus permanent accommodation. In some situations the individual returning from family medical leave cannot return to that original job and then it is a question again of if that individual requires a more permanent change of assignment to accommodate that, is that person a protected person under the ADA. And the question is, as we already discussed, whether or not that is a permanent impairment that is going to be substantially limiting to a major life activity and an enduring one. So those are the questions that you as HR professionals need to ask and to guide your supervisors through as the questions come in on that. Before we open the lines for questions, I want to call your attention to the last page on the PowerPoint in your handout materials, and that is confirmation of the access information for the ADA Disability and Business Technical Assistance Centers. The 1-800 number, 1-800-949-4232, as well as the Web site, www.ADAta.org, where there are many, many resources to address some of the questions, like some of the questions that we''ve been talking about today. And also listed there is Cornell University''s telephone, our TTY number as well as our web site. And a web site I want to call your attention to is this one that is listed there, HRtips, and if you have not had a chance to go to it, I want to mention that on that web site there are over three dozen informational brochures on human resource practices and disability nondiscrimination as well as accommodating individuals with specific disabilities. And one of those information brochures is on the Family Medical Leave Act. Another is on Workers'' Compensation. And another on collective bargaining. So it hits many of the issues in much more in-depth than we have time to do today. So I encourage you to take a look at those. And they''re downloadable. You have a lot of free additional information on that web site. And with that, I''m going to stop and turn this back to Andrea to help us to field some questions from the audience.
Great. Thank you, Susanne. At this point in time we will open up for questions. We ask that each site''s coordinator select questions and prioritize them in relevance to the topic. We will also ask that if you''re calling from a speaker phone that you either speak into the handset or as close to the microphone as possible. In the event the call is inaudible we may need to drop the line. Pam is our coordinator, who will be taking the questions and facilitating those for us. Pam, do we have any questions?
Thank you. Our first question is from Martha White of the Illinois Department of Human Services.
This is Audrey. Hello, Susanne.
Hi. How are you?
I''m good. I couldn''t make it to Tucson, so you owe me.
A couple of questions. Well, basically, two. When I look at your accommodation process chart, Susanne, I was kind of curious in that the model given here sort of seats the reasonable comp office within your HR structure, yet the EEO responsibilities are separated in this chart. Was this based on an amalgam or preferred model or history or experience or... I was curious, given EEO would be civil rights issues of employees in my mind equal to ADA.
It is a great question. I''m hoping I understand it correctly to do it justice. This is not necessarily a preferred chart, Audrey. I''m glad you asked that question. It is what we see very often in mid to large workplaces, and that is that there are all these separate, often operating in silos, unfortunately, offices, all which can touch upon disability issues but all operating separately. And it has been our experience that legal questions or discrimination questions often go to the EEO office or the counsel''s office. That seems to be where HR professionals look to get... I wouldn''t say... certainly not all of their accommodation or disability questions answered, but when those questions are more complex or when they''re thorny or when there is a claim or a conflict, that indeed is where they report that they go. Have I addressed your question?
I think so. Basically, this is an amalgam model, and it does not presume any preferential structure.
That is correct. It is an attempt to show two things: One is that there are lots of different places where an accommodation request can come in. And so it is important to educate all pieces of the workplace. But also that there are many resources which can be brought to bear on an accommodation inquiry, so that the most appropriate accommodation possible can be addressed with existing resources.
My second question, I don''t know if I''m playing by the rules, but you know, Susanne, I don''t care.
I do know that.
On reassignment I notice you differentiate and call it reassignment for purposes of this presentation, but how do you envision light duty, which is often inherent or in the reassignment request?
Well, I see light duty as more of a short-term, often a short-term response, where reassignment, I am focusing here for purposes of this presentation on something that is a more enduring judgment. In other words, it is not a temporary assignment to ease the person back to the ability to lift or ability to keyboard again. It is a judgment that the current position is for the long term, not viable, and that the person needs to be permanently reassigned, not temporarily reassigned to a lighter duty job.
In follow-up, how do you see reassignment affected by the Williams decision?
Do you know, I think that what the Williams decision is driving us all toward is a reaffirmation that these judgments need to be made on a case-by-case basis, and that we need to look seriously at the impact on the individual, not only in one sphere of life but in all spheres of life, and a reaffirmation that the impact has to be a substantially limiting to a major life activity. I don''t think it is going to preclude individuals... I hope it won''t preclude individuals like Ms. Williams, who have carpal tunnel issues, from requesting accommodations and being able to have that upheld. But certainly it is going to make us all have to reaffirm that we go about that qualifying eligibility kind of criteria in a way that adheres to the guidance that has been given by that case.
My final question, the nexus of FMLA and ADA is very challenging. One of the things that I wrestle with is the issue of productivity. Again, when you do an individualized case-by-case analysis of requests, you certainly have to look at the essential functions and what have you. However, some jobs are very productivity oriented, as such, how you rightfully weigh the issue of periodic and intermittent attendance and its impact on productivity. And the basis of ADA saying the person is essentially qualified and can do the job. Have you any direction you would give us on that, Susanne?
Well, it is a tough question and a terrific question and I think it is one that the employers do deal with all the time. And I think what the ADA has given both employers and individuals with disabilities is an opportunity to try to maximize much better than I think we were doing prior to the ADA, whatever productivity that the individual can contribute to that workplace. And I think the point I would make for employers is that the advantage in doing that, although sometimes it can be tough, because we would, most employers would want their employees to be 100 percent productive, that 40-hour week or more in that workplace, is that not only is it the law, is it appropriate that they accommodate and try to adjust to enable that person to take the leave they need to stay functional and not exacerbate the position? But often we find that when they have a good employee, that it is indeed a cost-effective accommodation to try to keep that person engaged as much as they can. And that is not to say that there won''t be times when, with a given individual and the level of severity of what hears happened with a chronic illness, that it may be at a point at which the person cannot do the job and a judgment needs to be made that they do have to terminate, or perhaps if not terminate, go back to a part-time rather than go to a full-time position. That is an appropriate judgment call to make with that individual. But the ADA is giving us an opportunity to try to keep people maximally engaged, and I think it is a win-win if we can do that.
Thank you, Susanne. I will shut up now.
Thanks for your questions, Audrey. It is good to hear your voice.
Our next question is from Judy of Options Independent Living Center.
Yes, hi. I have John Winters who had a question, it says: Is one who is already on Social Security Disability and wants to try to go back to work, is he automatically a protected person now under ADA?
Oh, that is a great question. You''re a ringer in the audience, John. You''ve been doing your homework. You know, one would think that that would be the case, because of the rigors of the Social Security Administration in making people eligible, but that is not necessarily the case. A person''s eligibility for protections under the Americans with Disabilities Act would need to be considered separately, and you are not automatically made a protected person under the ADA just because you are a recipient of SSI or SSDI. So an independent judgment would need to be made on that. It does not automatically qualify you.
Thank you. Do you have anything else, John?
Well, if a large employer with a thousand employees, a large manufacturing type of place, they decide to try out somebody who wants to get back into the work force who is on Social Security Disability and has very severe disabilities, and they know the disabilities are very severe, but they give him a chance, and they probably... the employer should be given an award of some kind for giving the person a chance. But then after a couple of weeks they decide that they just don''t want this severely handicapped person working there, so they fire them for medical reasons. Are they in jeopardy of being sued under ADA?
You know, I think we would need more information to be able to make a judgment call on that. There is nothing unique that applied to the situation you''re talking about. Just because a person is a person who is a recipient of Social Security doesn''t give them any added protections under the ADA. They would still need to do the essential functions of the job and hopefully the employer would keep them on long enough that they could make a good determination. So there is no special protections afforded that individual, unfortunately, because I know it can be quite scary for people coming off of Social Security to take that risk. What we do have going for us right now, but that is a topic for a different continuing education program, is we have the ticket to work legislation from Social Security, which provides incentives for individuals and lowers the risk for their taking that opportunity to go to work. And so on the Social Security side, our social policy is providing added supports, but employers are not required to provide any added protections, nor does the ADA afford that.
This person that takes this job who has the severe disabilities, one morning he goes to work and his boss gives him a termination slip and says we''ve decided to terminate you for medical reasons. Does that employee, after being terminated abruptly like that, does he have the ability to at that point ask for accommodations?
Hopefully if... let me say certainly the employee can ask for an accommodation or ask for a reconsideration if the accommodation request didn''t occur before the termination. Then certainly by all means the individual should make an effort to try to rectify the situation by asking. What is ideal, however, or much more preferable, is that if there was a performance issue that was evident, that either the supervisors address it with the individual and mentioned that, so that if an accommodation would have rectified the performance problem it could have been addressed prior to the termination. That is always the preferable way to go. And what we rely on in doing that is an individual who is aware of their own performance enough that they can ask for that if they notice there is a problem. Or a really good supervisor on the employer''s side, a good supervisor who is paying attention to the performance and any performance problems of the individuals can ask those questions so that there is an opportunity for dialogue prior to it getting to the termination stage.
I think we could go on to another question.
Thank you. Our next question is from Susan Allen of ICED. Hold on. We have a question from one of our participants. Just a minute.
Hello. This is Sherry. My question pertains to accommodation requests for an individual with a mental disability. If the doctor... the doctor requesting that this individual has difficulties being supervised under a certain individual only because the manner in which the supervisor supervises and the condition the person has. If the agency is saying, well... and in most cases dealing with accommodation we have to make accommodations within the confines of the policies and procedures of the agency. But In a case like this with the request by an individual''s doctor, proceed in a... present policies or procedures in place?
I''m not sure I understand your question, Sherry. Can you run it by me again? Are you saying if the accommodation... let me take a stab at it and then you can clarify... is for a person with a mental health or psychiatric disability, and it relates to the nature of the supervision that they''re receiving and they would like an adjustment to that. Is that correct?
And your question is, is that a legitimate request that an employer should respond to?
Okay. I would say yes. Certainly the manner or approach of supervision in an adjustment to that for a protected person under the ADA is absolutely an appropriate accommodation request. It is far more likely that an employer will be able to respond to it if the request is the manner in which the supervisor is supervising or rather than a change of supervisor itself. I mean that can happen, but that is far less likely that an employer is going to respond to that and see that as a reasonable accommodation. But certainly, for example, clarifying work tasks and putting them in writing rather than just having verbal instructions, minimizing distractions that supervisor themselves might provide by coming and going too frequently. The manner of a supervision certainly is an appropriate topic for discussion as an accommodation.
The manner of supervision only?
I would say rather than changing the supervisor, certainly one could ask that. I think I might have heard you asking, but maybe I''m overinterpreting, that you were asking whether or not you could ask for a different supervisor.
You know, you can ask. There is nothing in the law that would preclude you from asking that. Nor that would guide the employer about whether or not that was a reasonable accommodation. My experience would say that that would be difficult for an employer to respond to, where it would be more reasonable, more in line with what would be an acceptable request if you were asking if you could clarify what was problematic about a supervisory approach and ask for an adjustment in the manner in which you were supervised by a given individual.
Andrea, I think one other element is in the 1999 Supreme Court, reasonable accommodation regulations from the Equal Employment Opportunity Commission, I think they clearly indicated in there that reasonable would not be a reasonable accommodation in their opinion, depending on the situation, to have a request for a change in supervisors. Certainly I think it is right, you''re 100 percent correct, that that is something that an individual can always ask for, but it may not be determined to be reasonable. Especially depending on the size of the company, size of the organization, the amount of which that would make the most sense. Maybe reassignment to another position is an option, as always with reasonable accommodation. But I think that clarification from the EEOC in terms of what their position, what that is would be helpful.
I just wanted to add to that....excuse me.
The doctor is saying if the person stays under the supervision of this individual, it can lead to deep depression. And this person is more military in instruction and so what happens if this person goes back to a leave because of severe anxiety and depression?
Well, you are describing what is a very compelling reason to push that person to ask for what I think is a maximum request on the supervision question. If it is that difficult an environment, it sounds like it would be advisable to do that. Whether or not the employer would do it is the question. And whether or not it would be seen as reasonable if indeed there was a question about the legitimacy of that accommodation request is another issue. You certainly could ask for it. If it is that significant an issue, one might want to go ahead and risk asking. But it would remain to be seen whether or not that employer actually would see that as a reasonable request and whether that would be upheld in a judgment if a claim were filed.
And what if the person goes back onto medical because of it?
Well, that could be a possibility, but that wouldn''t change the judgment in whether or not this was a reasonable request. It sounds like it is a bad mix in terms of person with their work environment and their supervisory environment. But The law would not. .. the regulations and the law does not require an employer to see that as a reasonable accommodation.
What if the person is then taking intermittent leaves because of their condition? They have the right to take intermittent leaves, right?
Sure. They certainly can. If they''re qualified for FMLA, they could take leave. And I think what I hear you suggesting is that may be the way they deal with what is a very difficult situation for them.
Our next question is from Paula Alberts of the Will Center.
I think this will be the last question and then we will have to wrap up because of our time frame.
Paula, your line is open. Would you like to go onto the next question?
If there is one more question that we could answer. Is there one, Pam?
Yes. Our final question then will be from Rick Edwards of the State of Indiana.
Hi, how are you?
Good. You have a question for us?
Given the trend in court that you have seen, how necessary do you think it is going to be, particularly a state agency to establish essential job functions?
Do you mean for them as employers?
Did I hear yes?
I don''t know if it is... the recent Supreme Court decisions make it any more compelling. I think that a state agencies... if you''re talking about the decision that came down today, I think state agencies as employers, any of us as employers, it behooves us to have well written human resources policies and practices, and that includes well written job descriptions. And I think it only confirms that especially where disability discrimination issues are concerned, it more affirms that it is important, but I think it is always been important and something each of us as an employer should be attending to.
Do you have a follow-up question?
Well, is there a difference between job description and essential job function?
To me a well-written job description will clearly articulate the functions of the job. And that may either be by the proportion of time that is in the job or the skill level that is articulated that is needed for a particular task to be performed. But indeed, the job description should reflect what is essential components of the job.
Well, at that point, it brings us to the closure of this particular session. Susanne, thank you very much. I know if there is follow-up questions, there is resources that were available either through the web, phone numbers that are available, as well as the 800 number that is available to reach the Disability and Business Technical Assistance Centers across the country at 1-800-949-4232. Thank you so much for joining us today. Please join us again on February 19th, when David Capozzi from the U.S. Access Board gives us an update on the rules on the Access Board. As a reminder the website for the 2002 distance learning series is www.adagreatlakes.org And if you have any questions about the ADA or any of those upcoming sessions you can feel free to contact the Disability and Business Technical Assistance Center. Thank you so much.