Thank you. Good tax day to everyone. At least I hope it is a good tax day. Welcome to the 2003 ADA Distance Learning series. A collaborative effort of the ten regional disability and business technical assistance centers. You can reach your regional center by dialing 1-800-949-4232 with any additional employment or ADA-related questions you may have. You can also contact your regional center about upcoming distance learning sessions, including the May 20 session titled "Ask the DOJ" where John Wodatch from the Department of Justice will have ask the expert session similar to the one conducted in January with Sharon Rennert from the EEOC. It will be 90 minutes where individuals can ask questions of the Department of Justice. Also, in June, on June the 17th, we will have a session demystifying federal regulations, the fair housing act and others, where we will have representatives from the access board answering your questions regarding federal accessibility standards. Today''s session is currently being real-timed captioned on the Great Lakes website www.adagreatlakes.org . In addition, the PowerPoint presentation is also available on that site. If you wish to follow along to today''s presentation. Today, we will be looking at Best Practices in Reasonable Accommodation: Back to the Basics. We have Karen Michael, the vice president and employee relations consultant with SunTrust Bank Inc., and today, Karen will discuss best practices that SunTrust has with regards to accommodating employees with disabilities. At this point, I will turn it over to you, Karen. Welcome.
Thank you, Peter. I wanted to definitely thank Great Lakes and Peter and Robin for inviting me to speak to all of you. I have had the chance to look back at some of your prior speakers and really feel like I am in pretty impressive company. You have had some preemptive experts in this area including Sharon Rennert at the EEOC, who I have spoken with on a couple of occasions, and David Fran from Nelly. I have to admit, I do not pretend to know nearly all that they do, because they are true experts in the field of the ADA. My role today is to really I think take a different focus, and a different look. Certainly the EEOC and consultants and outside counsel, I was an outside attorney for 6.5 years as a big law firm. I know we all have our perspectives. The perspective I am trying to give today is that of an organization, a corporation, trying to manage and understand complex ADA issues that come into the workplace every day. You know, as I have concluded, the ADA rarely works in isolation in a realistically in an organization. And when it does act in isolation, I really find that it is really not even an issue. ADA or otherwise. Generally, I think managers want to do whatever they can within reason to make an employee as productive as possible. And if this involves, you know, a special chair or computer screen or some other relatively inexpensive or even expensive tangible item, these really rarely create any controversy and companies are usually glad to help and do whatever it takes. But it is the cases where, you know, there are performance issues or attendance issues or what I would describe as multiple occurring issues at one time that the ADA does get complicated in a workforce. It does not make it easier that there are other laws that coincide and yet conflict with the ADA including FMLA, workers'' comp., companies have their own sick pay policies, short-term disability, long-term disability, performance standards and they get wrapped up in a complicated weave of issues. What I find is really interesting is there is no one person out there to help with all these issues. When I have an ADA issue that is too hard to figure out myself, I call Sharon Rennert at the EEOC and she is glad to help me. She will not help me with the FMLA. I will call the Department of Labor that question, and they are glad to help with the FMLA but cannot answer ADA questions. There is no central resource for workers'' comp. So, you know, an employer''s perspective looking at the ADA is not the same as somebody who just focuses on the ADA every day, and that is it. Because it rarely works in isolation at an organization. I think that being able to take the ADA and apply it appropriately in an organization with all these countervening and difficult and complex other issues going on is what takes an employer to a best practice. So today what I am going to talk about the ADA and trying to take us back to the basics.
Excellent. I wanted to throw out there real quick and remind individuals that the regional disability and business technical assistance centers are a great resource not only for individuals with disabilities, but also for employers who have those, you know, those tough ADA and FMLA questions. And you know, we are a great resource that the 10 centers for employers.
And I think that is good information. Because employers do find it increasingly difficult to find resources. Believe it or not. You think there are more, but really it feels like there are so many resources that you can pay a lot of money to, like a lawyer, who really does not understand at least I did not when I was an outside attorney, really understand how organizations operate. And how complex these issues are. And sometimes what I do not want is a legal answer. I need a business answer and a practical answer. And today, what I hope to talk to you all about is how an organization can become a best practice relating to the ADA. And Peter has correctly pointed out I have 40 slides. And that I need to get through the presentation part in 40 minutes. So I will try to quickly go through that part, so that we can have some good questions and answers. So looking at the agenda, we are going to be talking on page 2, slide 2, of corporate commitment to diversity and what that is about. I will go pretty quickly through the ADA compliance issues. Then we will focus on sample case studies. Going to slide 3, what are the origins of a corporate best practice? And what even makes SunTrust think we can be on the list of a company that could have best practices? Well, I look at the disability issue as people talk about building a house for diversity. That is a comment that is out there in the world of diversity issues. I look at a subset of that of building a house to be a place where disability issues are not ones that are negative but that are looked at as being positive and productive ways to get the best employees. What we are doing at SunTrust is we really do recognize value in hiring a diverse workforce. And disabled employees clearly should and do receive the same opportunity as everyone else. SunTrust''s philosophy is we want the best of the best of the best and clearly many of the best reside within the disabled population as well as many other types of populations. We try to look at the big picture. So here is what we have done to build this house to be a disability-friendly organization. The first thing we did a few years ago is one of our employees colleagues here put together and worked with an organization called the business leadership network. Many of you may be familiar with that. It originated out of the president''s committee on people with disabilities and falls under the Department of Labor. SunTrust is what is called a lead company in that organization. And through the business leadership network SunTrust is able to invite other organizations into a group of organizations and companies that understand and recognize the importance of employing people with disabilities and promote the opportunities for the disabled community. The way that SunTrust as a lead company does that is offering seminars, relating to disability issues and it joins with other organizations like the Department of Rehabilitative Services as well as manpower is one vendor we rely on heavily. We work with Virginia Commonwealth University who is a best practice in this area. And we have tried to go out to find resources to help SunTrust and other organizations find people with disabilities who we can bring into our premises to work here. So it is not just sitting around waiting for people to come in our door and accommodating them when they get here. It is seeking people out. And the hope is that if the word gets out that SunTrust wants to hire people with disabilities, we recognize that as a value. We want to hire the best of the best. If that word gets out, then SunTrust will be a best practice because hopefully the disabled community will feel comfortable coming to us. We want them here. That is the word that we are trying to get out. The other things we do in addition to being with the business leadership network is we have a special individual who focuses solely on outsourcing for a variety of-it is called accessing community talent. In addition, we have source of reasonable accommodation budget within the mid-atlantic region of SunTrust so that managers who need funding for reasonable accommodations are able to tap into a centralized budget, it does not come out of the management cost center and the partnerships we have done has been the key. In building the network, what we have done is hopefully to create the right atmosphere to promote the need to create the funding and develop the partnerships with the DRS and other organizations. So that is where we are in hopefully becoming a best-practices organization. And on slide 4, what we will talk about specifically today is not just the employment of people with disabilities, but specifically I have been asked to discuss reasonable accommodations. And before I find when talking about back to the basics, even considering the quote "reasonable accommodation," I think it is always important to first act whether this is an ADA issue. I think one of the mistakes that employers make that makes employers frustrated about hiring people with, "disabilities", is they do not understand who is a disabled employee and who is not. And when they are trying to accommodate everybody for everything, an employer gets frustrated. And thinks that this is more work than they can handle. And if employers would really focus on where the need exists, and where the requirements exist, employers would not be so overwhelmed. A good example is pregnant employees who for example cannot travel. You know, they need an accommodation or want an accommodation. Every employer thinks this person is covered by the ADA. We know that in general, a person with a pregnancy is a temporary condition that is not covered by the ADA. It might be covered by another law or several other laws, but it is not covered by the ADA. So in focusing on reasonable accommodation, I think it is really important for employers to really go back to the basics and look at all of the requirements under the ADA before getting to reasonable accommodation. Now, it is true, even if the person is not ADA-covered, you very well still might want to provide an accommodation. We do all the time. But knowing what the obligations are will at least let you know where you stand. And of course, you know, I read this in one of your previous calls with Sharon Rennert, the question was asked should you accommodate anyway and what is the risk? She indicated she did not think there was a big risk to accommodating any way. I think there is a risk that you would have the-you know, you could be regarded as being disabled and have a record of disability, those two items still exist out there even if the current is not currently disabled under the ADA or qualifying for the ADA. That is always looming in the back of our minds because we do not want to create exposure where none would ordinarily exist. You are always weighing those issues, and really understanding where you stand seems important. On page 5, you know, why it matters if you have an ADA issue. I think clearly it does prevent fraud. Quite frankly, those fraud issues is what gives the ADA a bad name. I will give you just an example. Not all examples I give relate to SunTrust Bank MidAtlantic. I teach a graduate school at the University of Richmond, I practiced law, some of these come from that. I would not want anyone to think these are SunTrust Bank MidAtlantic examples. I have an employee with a history of absenteeism. Never asks for an accommodation related to a disability. The employee''s birthday is Christmas Eve. She tells a co-worker before that she will call in sick on her birthday. Sure enough on 12/24 she calls in and says she an epileptic attack and could not come to work. A manager says, I need a certification. And the employee says no and is fired. Sure enough the next day you get the EEOC charge alleging disability discrimination. Those are the cases that give the ADA a bad name. And trying to really assess who is covered and who is not will help the employer to avoid that knee-jerk response of I cannot handle this, this is not something I want to deal with anymore in the future. All disabled people are off limits, because that is where you do not want people to go. That is the worst possible outcome from these fraud-what I would describe as fraud-related issues that come from some employees. So these are the situations that employees are dealing with, and ensuring that it is an ADA issue will usually get you to the right result. On page 6, we will briefly go through this section, talking about how to determine if you have an ADA issue. I know many of you are experts in this area, and probably already know this, but I just think it is so important to go back to the basic analysis. People who do this all the time in my world, who are HR people, forget these basic requirements. I try to take them back to the list. Is this person-we are an employer, we have to provide a reasonable accommodation to qualified individuals with disabilities, who are employees or applicants for employment. Unless it causes an undue hardship. And on page 7, for each employee, I think the key when you get a request is to really go back to the basics. Does the individual have a disability? Is the individual qualified? And is the accommodation needed reasonable? It sounds simple at least. We will talk about some of the complexities on page 8. In looking at the first question, on disability, a disability is simply a physical or mental impairment that is substantially limits a major life activity. On page 9 we look at the first question of is there an impairment? An employee comes to you and says, I have back pain and cannot do the mail run on the rotation, and you know that no one likes to do the mail run and everyone is trying to get out of it. You get nervous because this person has back pain, they told me this information. I must accommodate. And, you know, the key is to ask the employee, tell me what is wrong? Get medical information on the problem. Managers realistically in organizations have been so pressured to follow the law, do not ask too many questions, you must do this and that. Sometimes managers are even afraid to get to the basic level of, can I have some medical information on what is going on with you? They really need to be taken to the truest basic of, does this person have an impairment? Of course requests for accommodations do not have to be in writing. But once the employee comes to you, and you engage in that interactive process, clearly employers can require something in writing from the employee about, you know, what is it that your concerns are and what is it you need? What is the work issue that you are prevented from doing because of this impairment? Explain to me what you believe an appropriate outcome would be. Some of that or all could be in writing if that is appropriate. And of course the doctor''s verification cannot be stressed enough. Employers for whatever reason get nervous about getting doctor''s notes. This is the one case where the documentation is pretty key. Not just to make sure you get to the right result, but also, you know, from my perspective to ensure we have all this information documented that we did go through the process. Then on page 10, of course an impairment that affects a major life activity. That is something that is consistently litigated and the Supreme Court has given us some guidance on that case. Only after you include it is an impairment do you look at major life activity. Most of us are familiar with the Supreme Court case. To reinforce what all that means, major of course means important. Life activities are those central important-I do not know if you all recall the Supreme Court case of Toyota motor versus Williams, or Williams versus Toyota motors. The employee was unable to do repetitive work with hands and arm extended at or about the shoulder levels for extended periods of time. I do not know how many of you do that on a regular daily basis. That is not a part of my daily normal life is raising my hands on a repetitive basis extending above my shoulders, et cetera. The court agreed. It is not an important part of their lives. Eating, sleeping, walking, talking, thinking, breathing, seeing, hearing, those are normal things people do. And even the Supreme Court was willing to simply go back to the basics. The Supreme Court recognized we have gotten so far complicated and complex on this statute, let us just take a breather and go back to what is realistic. What is reasonable? And the court recognized that, look, you know, you ignore-they said the lower court ignored she was able to fully tend to her own personal hygiene, carry out her personal household chores, but household chores, bathing, and brushing your teeth, are the normal types of manual tasks that are clearly central to people''s everyday lives. In the employment setting, employers get nervous asking those kinds of questions. Well, you know, how long do you sleep at night, if somebody had epilepsy here or some other illness, how often do you sleep? An employer is nervous asking those questions, but those are the central kinds of issues that employers should be asking in getting to the issue of whether the person has a disability. And then on page 11, this issue of working still seems to be outstanding even after that case. Clearly an employee who cannot do his or her job, that mere fact that an employee cannot do his or her job, end of story, does not make that employee qualified under the statute. And managers get nervous automatically when an employee cannot do a specific job, because of a disability. And clearly we need to look at more basic levels than that. It does clearly extend outside of the workplace. And then on page 12, you have also got to look at whether it is significantly impacted. They all have to be decided before you get to the issue of reasonable accommodation. While it does seem complicated, if you divide it out into checkmarks, you can hopefully get to the right result. Clearly the court said the impact must be permanent or long-term. And a good example, I think, that I am familiar with is, for example, an employer with narcolepsy could be disciplined for falling asleep at work. The employee says I fall asleep because I do not sleep at night. I have problem sleeping I randomly sleep. This is my disability, and I expect to be-I first of all expect my discipline to be relieved and I expect to be accommodated. And the employee truly believed she was covered by the ADA. Of course the employer had a lot of angst about is this a reasonable accommodation? And the bigger question was, is she even disabled under the law? And clearly she said, well, she sleeps about six hours a night, and, you know, having two children I know that six hours a night for me would be a good night. I do not think it is so abnormal someone would get a good six hours of sleep at night and that would probably not qualify that person as having a disability. Her failure to sleep at night was not significantly impacted. It was not considerable or substantial as the law would require. Now, of course whether it is being relieved of disciplined. That employee would not be relieved of discipline in the past because reasonable accommodations, and the ADA, are prospective not retrospective. She would not have received relief even if she ended up being a qualified individual with a disability. On page 13, continuing on with that case, I would say, though, one of the problems we evaluate in looking at whether somebody is a qualified individual with a disability, and one of the problems with the ADA that I see, is that it is a legal question, not a medical question. And the reality is you had better be right. Because if you sit down and evaluate all this disability, all the disability questions and you get the medical certificate and you read it. If you later go to court and you are wrong, then you are wrong. Because it is a legal question. I do sense some caution. When in doubt, I think the best practice is you always weigh in favor of the employee. If there is any doubt at all, clearly the best practice is in favor of the employee. And of course you are always going to want to keep the documentation and do the right thing. I think on page 14, it is important to focus on impairments that are excluded. Because this actually comes up a lot. Both in my graduate school and when I practice and quite frankly here and elsewhere, people do not realize there are some express exclusions from the ADA that do not even have to be considered, and I again think that some of these issues, if they come up sort of give the ADA a bad name. People think some of these would be covered. An example is, you know, a call that I might get from the inside or outside of SunTrust is an employee is a current drug addict, tested positive for cocaine, the employee is asking for an accommodation, what do we have to do? That employee is not covered by the ADA at that moment. That employee is expressly excluded from the ADA. An employee might be addicted to porn on the Internet. You do a random search of the Internet, find porn use on there four times a day. The employee says I am an addict, I have a problem, I need help. Let me go to counseling. Take my computer away from me as an accommodation, I will not ever use porn again. That employee is simply not covered by the ADA. No accommodation is required, and if the employee has violated a company rule, then that employee would be appropriately terminated. Another example that is actually in one of our scenarios, I will cover it now, is gambling. An employee may be on the computer four hours a day gambling. That is actually an increasing problem with-there are an enormous amount of Internet sites that offer gambling. That is an increasing problem. It is extremely addictive and, you know, you might terminate an employee for gambling and you will get a lawyer letter saying you needed to accommodate him. He has a problem. And the reality is that is simply under the ADA not true. Two things I focus on, and something that Sharon Rennert has said to me on several occasions when I called her with issues, is one, ADA is not a shield for bad behavior. I think that is a really important point to make. And one that employers need to realize. So that they can feel good and really understand the ADA and the purpose behind the ADA. And two, the ADA never requires an employer to support an addiction. You know, I get asked all the time whether as people who smoke are covered by the ADA and are required to give smoke breaks. This is a practical problem that comes up every day only frequently. When I am out speaking on the issue, this question seems to come up every time. The reality is there might be a court out there somewhere who has concluded that nicotine addiction is covered. I do not think it is expressly excluded. But even if it is you are never required to support the addiction. So clearly that is something that employers would want to focus on. On page 15, is the individual otherwise qualified? You know, that is really for applicants and for reassignment. We will talk about that in one of the case studies. Finally, now we are getting to reasonable accommodation. You know, after you are going through the basic steps, get to reasonable accommodation. Getting to reasonable accommodation first, I think, is a dangerous road to go down. Because if you are going to do that first for one person, you had better be doing it first for everyone. If you have a consistently applied practice where you are looking at each individual to determine whether that person has a disability and is qualified, then you will have a consistent approach, which I think for fairness, and for management tools, is very important. All right, considering reasonable accommodations. We are all familiar with the three types of accommodations under the regulations. Just so we have it in writing. On page 16. One is of course job application process. Is there some modification that needs to be done during that process? On page 17, the work environment. The manner under which the position is performed. Is there some accommodation that can be done in that environment? And on page 18, can the employee enjoy equal benefits and privileges of employment? This is the brown-bag lunch example. The company holds a brown bag lunch for employees on work life balance. A deaf employee wants to come. Do I need to hire an interpreter? Of course you do. This does not have to do specifically with the job, but that employee should get to enjoy everything that this company offers other employees. There is no excuse for an employee to not enjoy all those benefits that we offer to everyone else simply because that employee cannot hear, cannot see, whatever the employee''s impairment might be. If it is reasonable, the company should be providing it. And really that is where having a reasonable accommodation centralized budget is really helpful. Because a manager gets frustrated to have to continue to pay out for things like an interpreter, for things that seem voluntary to the employee. But if you have an accommodations budget, then the manager is not paying it directly out of his or her department''s budget. We know that managers are so squeezed for budgets these days that having that centralized resource is pretty important. What are some examples of workplace barriers? I like to look at this, because it helps to remind me specifically what we should be looking at. There are lots of other ones, but these are in particular physical obstacles, like inaccessible facilities or equipment or procedures or rules, when the work is to be performed, when breaks are to be taken, et cetera. On page 20, looking at some examples, you know, a manager sometimes says what can I do for an employee? What are examples? Of course all of these do not apply to every one. One or several might apply to someone. But some examples, of course, are making existing facilities accessible, job restructuring, part-time schedules. Acquiring or modifying equipment. Changing tests. On page 21. Light duty. Now I will talk about light duty for a second. This is an example of where the ADA and the FMLA in some ways contradict. Of course under the FMLA, if an employee needs to be on leave, or an employee cannot perform her job because she has a heart condition, for example, if the job is causing her heart condition to worsen, and the doctor says, she cannot do her job as it is today. That employee is entitled to FMLA more than likely. And requiring that employee to go on lawsuit duty is a strict violation of the FMLA. Because that employee is entitled to leave, get better, and then come back. Of course under the ADA, you could, as an accommodation, give that employee light duty during the period of time that that employee is in need. But that would directly conflict with the employee''s rights under the FMLA. That is just one of many examples of where putting this into the full-blown context of a workplace, and all the laws that go into play, is important. Shift changes, I think, is another good example. Because under the FMLA you could not take somebody from the day shift to the night shift. You could not just randomly transfer that person, even if the employee wanted to do that, I think you would have to be careful about what the-about having the employee waive his or her FMLA rights. There is a big issue about waving FMLA rights now. That makes it more complicated. Work at home issues. Reassignment to a vacant position and unpaid leave. Clearly those are the two most complicated issues that at least we face and I have seen, people I work with, face. I want to focus for a second on reassignment. I think that is important. And there are helpful hints that I at least think about when I think about reassignment. It can get complicated. One is it has to be available. Or will be available soon. The position. It is a vacant position, or one that will be vacant. The employer is certainly not required to create a position or create a job under the ADA. It does not, you are not required to reassign somebody to a job that would be a promotion. You-under the recent Supreme Court decision cannot step on well defined, fully enforced consistently applied seniority rules. And I preface that with all those preludes. I can assure you few companies legitimately have consistently applied never break the rules seniority rules. Some do, mainly union shops, but other companies generally have probably some variations to that process. Of course the employee must be qualified for the job. It is not required-this is where Sharon Rennert and I disagree. The employee does not have to be the most qualified. Sharon Rennert would argue I think, or she has, you do not compete for the job. Even if that employee is not the most qualified, if the employee is qualified, the employee gets the job. I think it gets complicated where you have an employee who is another employee, who is extremely more qualified for the job. I think that gets very complicated in the workplace. And of course you only have to pay for what the job pays. If the job is actually-the vacant job is a demotion you only have to pay for whatever the job would normally pay. Of course under the unpaid leave description of what is a reasonable accommodation, you just get into all sorts of issues under the FMLA and workers compensation. A good example is under FMLA you get 12 weeks of leave and you come back to a similar comparable job. Under the ADA you get more than 12 weeks. The exact amount is unknown. Probably from four months to two years, and you come back to the exact same job. Under the ADA. There is no similar job. You come back to the exact same job. So there is just little intricacies that employers need to be aware of when looking at accommodating employees and how does this fit into the other issues that I have going on? Examples of accommodations that are not reasonable, that we always have to keep in our eyesight are eliminating an essential function of the job. And I think that is important. Lowering production standards. And what is interesting is how this has come up is managers want to be able to lower production standards, when they want to keep a disabled employee. I am familiar with the disabled employee who was a great performer but simply could not keep up with that call volume because of the usage of some technical programs that the employee would work with in order to-I think he was-I think he was blind, and he was using one of the technical programs, and it simply took longer to use that program. It was not the employee''s fault. It was simply a use of the equipment. And the manager simply wanted to lower production standards. There was a lot of angst around whether we could. And how would that work? And how is that fair to the other employees? And, you know, knowing what is not required, I think is important. So you do not make too many mistakes. Obviously personal use items are not reasonable accommodations. Do not have to create a job or promote an employee. You do not have to bump an employee. On page 23, placing a disabled applicant in the job for which he or she did not apply. Many companies have very strict processes on an application process. And trying to do the right thing recruiters might look at an employee and say you did not make a cut for this job because there was somebody more qualified. I will put you in this other job because I think this would be a good fit for you. That is well intended but it is in violation of a process, then that is probably not the best route to take. And, you know, what I find so interesting is usually people are doing things with well intentions. And, you know, I think that that makes them frustrated when they cannot do things that they think are good intentions. My point is disabled employees deserve to be treated like every other applicant. And I think it is important to ensure your process is consistent. The direct threat issue does come up. Not as frequently as I think the Supreme Court case that came out makes it sound. But the Chevron case, which you probably are all familiar with, is a good example of a case where I guess an employee could have harmed himself if he was going to be in the job. I am familiar with the case of an employee with epilepsy who would have some very, very violent attacks in the work place, and there was an issue, does this employee create a significant risk to himself or others? I think the court wants it to be a really big risk. Not a little small risk. The Supreme Court''s expectations are it has to be a significant risk. What satisfies the accommodation required on page 24? Is you do not have, of course you do not have to give the employee the exact accommodation sought. The key is the accommodation must be effective. And that is always what we look at. What is the end result that we want to achieve? We want to make sure the employee can perform the essential functions. We want to make sure the applicants can get through the door and have equal opportunity. We want to make sure all employees have equal privileges. That is the end result we are looking at. That is what we are hoping to accomplish. By making sure the accommodation is effective, and really trying to be creative, and that is pretty important. Usually employers can get to the right results. I have a few slides on page 25 to 27 on undue hardship. That is so rarely comes into play I will pretty much skip that. If you want to read on it, you can read the sections. How an individual requests an accommodation. Well, at SunTrust we have a specific policy regarding reasonable accommodations it is in our EEO policy. Employees have access to it. It specifically identifies what an employee needs to do in order to bring forth the need for an accommodation. And in that process, employees can do it verbally or in writing, and that is pretty important. Of course an accommodation does not have to be in writing under the law. But the key is that an employee lets you know. And what I think is important is that an employer creates an environment where employees know what to do, and they know they will be welcomed when they get there. That is the environment that we have tried to create through our processes and through our policies. And then of course it is engaging in that informal interactive process. And on page 29, the key question is how can I help you? What can I do for you? What can we do to make sure this is effective? Making it truly an interactive process. One where the employee feels that he or she is being heard, that-and then the company understands what the issues are and really works comfortably with the employee on these issues. And, you know, one of the things that I think is the best practice, of course, is making sure that managers are trained on this issue, et cetera. But the reality is, you know, managers are so overwhelmed, and what the we try to do is tell managers to recognize when an issue comes forward, and then bring that issue to HR, because we try to be experts in that area, and we are skilled at working with employees, making them feel comfortable, and helping them to have a safe environment to bring their issues and helping us work with then the managers to accommodate the employee. But I think it is important on page 29 to really ask a lot of questions, listen very carefully, document everything that the you do in that interactive process. There is no disagreement about what went on. Seek documentation where it is needed. Do not be afraid to do that. Use the resources. I find job accommodation network to be fabulous. I think the EEOC is, you know, most companies do not sing praises of the EEOC, they feel they are in conflict with them. I find them to be terrific. I cannot say enough good things about Sharon at the EEOC and the people that work with her and being creative. Of course do not forget on page 30 you still in the back of your mind have that regarded as or history of issue on liability. All right, let us go to some of the case studies. We will open it up for questions. On scenario 1, your company arranges for one of its employees to provide a program titled balancing work and family offered to all employees for two hours from noon to 2:00. The program is optional. A deaf employee wants to take the training. The answer to this question is found directly in the reasonable accommodation guidelines. On the website for Great Lakes, I noticed that they put a lot of the EEOC''s publications on there. They are very-I do not agree with everything in them, but I do think they are a very helpful resource. One that employers do not use enough. It is the-the answers to many of questions are there. They have done a good job of coming up with the issues. I do not agree with all the answers but I know where the EEOC stand on them. I do agree on page 12 of the guidelines is yes, of course the employees need to provide access-employers need to provide access to the employees with many forms, computers, bulletin boards, mailboxes, posters, public address systems, and when implementing these programs employers need to think about how this information can get to other employees who do not see, who do not hear, who do not use a computer, et cetera. How can this information be given to all our employees? On page 33, scenario 2, you have an employee who advises you that due to a mental disability, she can no longer handle the stress of her current job. She asks to be accommodated. The manager tells her every job is stressful and refuses to have further discussions with her. It does not occur to the manager that the employee might have a qualified disability and/or be entitled to accommodations under the law. How can companies be more prepared to understand employees'' rights and needs and how should the manager have handled it? You know, I have to admit, some managers, hopefully not at SunTrust, but out there in the world, managers are cynical. Some think all employees are faking or trying to get out of doing something especially if the disability is not obvious. Where the disability is obvious, I honestly cannot think of a time where I have ever had a manager question, because the manager is able to see it and understands it and does not think that the employee is not telling the truth. Regrettably where the disability is not obvious, there does seem to be more conflict out there in the world. And really managers need to learn more than anything that there is a process. And while it would be ideal to give everybody training on the ADA and make them experts, that is what your lawyers would say, train your managers, trian them all, train every one of them. Bring them to a room. That is ideal. That is what the EEOC is expecting us to do. I can tell you our managers out there in the world, not just SunTrust, but in corporations everywhere, are overwhelmed with training. They have so many things they need to know, every year it seems there are new laws out, Sarbanes is a good example that managers need to be trained on. The reality is even experts on the ADA do not fully understand the ADA. So expecting employers really to fully understand this or managers is unrealistic. I think the key is to create an ADA-friendly environment, which I think SunTrust has done. Show managers that we accommodate people with disabilities, we want them in the workforce, and that we want the best of the best. Publicize the process through policies which we have done through the policies, we have done it through the promotion of the BLN network, we invited managers to attend seminars who come and share information with others. We try to include it in our EEO training. Most companies are having diversity training or some sort of EEO training, harassment training, that is the venue, the proper venue to talk about the ADA. Bring it up there. You have your captive audience, usually the trainings are two hours long at least. That is a perfect time to talk about the ADA process we should follow. Have a good working policy, and certainly be proactive with managers. In this case, obviously the manager should have engaged in some interaction with the employee and worked with his internal process to ensure that the employee''s issues were addressed. On page 34, scenario 3. You hire an employee into the job on night shift working with the day shift is competitive and based on a seniority system although occasionally in special circumstances, someone can get into the day shift depending on the circumstances. Two days after the employee starts working the night shift you get a doctor''s note indicating the employee cannot work the night shift due to a sleep disorder. The doctor indicates that the employee needs a reasonable accommodation to be moved to the day shift. To move her to the day shift at the next opening would enable her to leap ahead of six more senior employers on the list to move to day shift the next available opening. What should you do? Well, this-I have presented this issue before with the EEOC on a panel, and oddly enough the EEOC''s position is this employee is still in a probationary period, has never actually performed the job, and is not entitled to the accommodation. And that is an issue that had never occurred to me. Until it was presented by the EEOC. Of course originally we should look at does the employee even have a disability? The employee probably is qualified. Is the accommodation reasonable? Let us say the employee had been in the job for a year and then had this issue, in some circumstances people leap ahead, and I think if that is the case, the employee is going to be entitled to the reassignment. If there is a really strictly applied policy on seniority, then the Barnet Supreme Course from last year would indicate no, seniority is going to rule. Should I do one more scenario and then open it up?
Let us go ahead and open it up to questions. If individuals want to make reference to the scenarios when asking questions, Karen, they can do that.
Karen, something you mentioned right at the top of your presentation that stuck with me was the view that SunTrust has with regards to employees with disabilities, and viewing them as assets in bringing-adding to the diversity of their employee pool rather than being a corporation that looks at individuals with disabilities as a liability. Completely changes, you know, how the process of looking at reasonable accommodation.
That is exactly right, Peter. And the interesting thing is that, you know, it is true, it is not rhetoric that the reality is it does not cost, people think it will cost so much money. That is not true. We are so thrilled with the folks that we have hired who are disabled in our workforce, and even though we are going through a huge re-organization that was going to shift other lot of employees and move some to Tennessee which would have meant some of our disabled employees would not move, we have been able to fully redeploy them within the workforce, get new computer programs, working with DRS, and focusing on making sure we were able to retain this group of employees. Some of whom are blind, some of whom are, cannot walk, which is so insignificant in the scheme of a workplace, because we are easily able to accommodate those people who are mobile only through a wheelchair. And it is really a wonderful process to see the redeployment of our best employees, which clearly includes the disabled workforce here.
Right. It cuts down on your training or having to retrain the employees. Let us go ahead and take the first question, please.
Hi. I am calling from the state of Illinois. One question about a comment that you had on your slides in regards of types of accommodations, I thought that there was EEOC guidance in the terms of category life duty, that that is not necessarily an example of an accommodation simply because in this case, you actually would be creating duties for the individuals to perform?
I think it would largely depend on whether the, quote, light duty is with respect to an essential function or a minor function. And I think that really is what it depends upon. We have had, for example, maintenance crews, who we had one individual who was disabled. And that-within that group of employees, we-they do a variety of functions. Some change the light bulbs, but some work the phones to answer facilities calls. And the question came up, is, well, you could argue on the one hand you are taking away that person''s essential functions, but where you have a group of category of maintenance employees who interchange their functions, all the time, having one person just stay on the phone while the other person changes the light bulbs seemed to us to be a reasonable accommodation. But I do think that if the light duty requires either a creation of a job or the elimination of an essential function of the job, then those would not be a reasonable accommodation.
All right. I think the EEOC guidance also references when light duty is available for other employees such as individuals who are injured on the job and they make it available in workers compensation situation that those positions should also be available to individuals with disabilities as an accommodation. All right, do we have another question, Mary?
Hello. Kevin Lofton with the center for independent living. Karen, I would like to go back to the issue of the drug addict. A short scenario quickly. You have a drug addict who is on the job and says, I am a recovering addict, and I need to leave early on Fridays to go to my group session, or to go to my therapy, because that is the only team that I can access this. Would it be safe to say that that would be an accommodation that an employer should make?
This does come up not just with that, but with alcohol, with issues, people who want to go to their AA meetings. You would want to go through the scenario of did the person have a true disability, significantly affecting a major life function? Maybe, maybe not. It is unclear based on the issue. But, you know, that is for me a tough one. I do think that that could be-I would argue that person is not covered-that person-you know, I had to go back to the basics myself. And going back to the basics, that person does not have a disability right now. And so that person is not entitled to a reasonable accommodation right now I do not think. Now the person has a history of a disability, but a record of an impairment does not justify an accommodation. You have to have a current disability. To be entitled to an accommodation.
Okay, I was under the impression that if a person-let us take it a step further. If the individual is a recovering addict and he or she puts that on their application, the employer says, I am not going to hire you because you are a recovering addict, they have claimed-the system has claimed, what about that?
You cannot discriminate against an employee for having a record of a disability. You might not be required to accommodate them. You cannot discriminate against the person. This issue has come up on a panel I had with the EEOC, of what if you terminate an employee for drug use and they reapply two years later? You terminated that person for a legitimate policy violation, the EEOC would argue you have to hire them back. You know, if at the time they had a disability and they have been through treatment, the actual going through treatment is-seems to be what kicks it in. And the EEOC would say you have to hire that person back. You cannot discriminate, if the person is qualified, you cannot discriminate against the person because of having a record of a disability. Or a history of a disability.
You are saying drug use or a history of drug use is not a disability in and of itself, is that what you are saying?
I would argue that the treatment that a person goes through after having drug use is what the EEOC would say prompts the history of a disability. I think.
Through the definition?
And I would think they would argue that you do not have to, quote, accommodate the person but you cannot, quote, discriminate against the person.
Thanks. Can we have the next question, please?
Hi. How are you?
This deals with my wife. She was working with the YWCA here in Raleigh, North Carolina. And they have what they call the after-school program, and summer day camp. My wife decided that she did not want the work, the summer day camp, she had worked it for ten years straight but yet she let them know that she was willing to come back to work the after-school program, and they terminated her. What could we do about that, please?
What-does that have something to do with a disability?
She has 25% cerebral palsy.
I am not certain that we are going to be able to answer your question directly. On this audio conference. I would recommend that you call the regional ADA center. To have that question answered. Can we have the next question, please?
Yes, I have a question. Major employer has a collective bargaining agreement in place, and they have a program that places disabled people, disabled persons, to reasonably accommodate them. In that process, they look at the length of time that the person has spent in the process and attempts to place those higher on the list first based on abilities. Separately, they have a separate seniority system for jobs that you apply for and you get by seniority. The question is, if they accommodate an employee by placing them on to a job that is a reasonable accommodation, and then let us say five, six weeks later, someone walks up and says, you are being bumped off of your job, somebody with higher seniority is taking your job, have they really been provided a reasonable accommodation, or is that separate and actionable again under the ADA? Because they have not been provided with a reasonable accommodation, and is it right to assume that reasonable accommodation is a continuing process?
I think that reasonable accommodation, I would argue, is a continuing process. But I do think that collective bargaining agreement, the Supreme Court at least, has held that the collective bargaining agreement, at least in the seniority system process, stands. And if it is consistently applied, and regularly-regularly-the most senior employers get the position, if that is within the collective bargaining process, then the Supreme Court has held, at least, that they will honor that.
Strictly, if it is strictly followed. What I am saying is they have two different systems of placement. One that deals specifically with seniority-based, and the other is placement of disabled people, not by their seniority, by length of time in the process itself. So what I am saying is a person with 1997 seniority could be placed on a job that they can do and six weeks down the road, someone comes up that has got 93 seniority that wants that job. So basically, they have two different systems that they utilize, one is seniority-based, the other one is length of time in the process, and I do not think that it is really being adhered to strictly when you have two different conflicting systems of placement.
The collective bargaining agreement I am sure is 80 pages long and has 100 intricacies to it. The general rule is, of course, that if there is a legitimate seniority system. Now the court pointed out if there are lots of exceptions to the policy or the program on seniority, then their hard and fast rule is not going to work. It does sound like there may be an inconsistency. But it is just-I am sure the collective bargaining agreement is worded in a way that is more than you have described.
Well, basically, let me put it to you like this, it is a little gray book that is about 18 pages long, it will fit in your back pocket. And I do not know how to put this, this corporation has been hailed as the new corporate America, in having a-an open living agreement, if that gives you any clue as to who it is.
It does not.
All right. I am calling from Tennessee if that gives you a better idea.
Thank you for your question. You know, Karen, what you said regarding the Supreme Court decision, they said where exceptions have been made, you know, the employer requesting the reassignment can demonstrate that exceptions have been made in the past for other reasons, and can, therefore, then make that request for the reasonable-for the reassignment to that vacant position. Can we have the next question, please?
Hello. This is not a work-related question. This is a question concerning transportation.
Transportation. Well, James, we are focusing on employment this afternoon. And I would suggest that you contact your regional ADA center at 1-800-949-4232, and your transportation question can be answered by an ADA technical assistant specialist.
Okay, thank you. Bye-bye.
Our next question, please? Gail, could you speak up or-a little more? We are having trouble hearing you.
Hello, I work with the office of employee practices day county, how does SunTrust avoid fraudulent medical notes? Because I can get a friend of mine, who is a doctor, to sign off any old thing to make me eligible for a flexible job schedule or anything else.
I appreciate that question a lot, actually, because that is an issue that is ringing true with a lot of certifications. Although we see it more in the FMLA context as a question than the ADA. Under the ADA you could send the employee to his or her own doctor or send her to one of her doctors if you think that is appropriate. So it seems like in the ADA context at least, it is less likely. And it-at least for the ADA, because the process is interactive, I personally find when you get into the interactive process, the fraud issue, if there is one, and you are-okay, most of the times when we have fraud issues there was no interactive process. The employee gets terminated for something and goes to the fair employment practices of Dade county and asks for relief, where there is the interactive process and you are able to work with employees, I generally find that fraud issue just does not exist, because it is such a positive interaction that if that fraud is really going to exist, the employee usually eventually sort of goes away or does not want to talk about it anymore. You are able to really discuss the issues and get into details. With the FMLA, you do not have that. It comes up more frequently in that context. With the ADA, if you are really working with employees and doing what the EEOC expects, which is that good interactive, positive, effective accommodation process, I just have not seen really the fraud there.
Karen, how does SunTrust handle-do you put the responsibility on the employee to provide the medical documentation from their physician or does SunTrust in any instances contact a physician themselves?
We generally put it on the employee. We try to avoid having too much interaction with doctors. Quite frankly, because it feels to me private. We do when we have to. But I feel like that is something that is private, and if I trust the employee, which usually in the ADA context, I do feel like we usually have pretty legitimate ADA issues, by the time they are brought to HR and we can interact with them. We have a form that we use whenever we need to that talks to the doctor about, you know, what significant life-what are the major life functions, and we give some examples. When you give examples, those are the exact ones they list, but, you know, what are the major life functions? What is impacted? How much? And sometimes we send them back to the doctor. Employees who are sort of on the up and up are usually willing to get this information to us so we can continue with this process. And employees who are not really on the up and up usually just stop proceeding. And of course the second that the employee does not respond to legitimate requests by the employer, the obligations end. The employer is no longer obligated to provide the accommodation.
It really is a requirement and a burden placed on the employee to get the information.
We have a fitness for duty process, and that way it will eliminate guesswork. And it standardizes everything. We have the option to use it. And certainly those are Dade county approved medical doctors that sometimes a second opinion is warranted. That is thousand we handle that. That is why I was curious.
That sounds like a get process. Sun trust does have offices in Florida. So maybe I might actually contact you separately to get more information on that. Was it Carmen?
Hello, can you hear me?
We are calling from Chicago. The mayor''s office for people with disabilities. Karen I appreciate your presentation, thank you. I like it very much. I would like to ask a question what did SunTrust Banks do to reach out to the community to let it know that SunTrust Banks wanted to hire people with disabilities.
I appreciate that question. It has been several years in the making I have to say. We originally had a program that was called put ability to work. And when we initiated that process. We went to the Department of Rehabilitative Services and said how many people can you send up? Here are our jobs. What jobs can you help us fill? And we really started with them. Then we went to Manpower and said, it was a temp service. We had a pretty successful temp to perm. One of the issues that Virginia is trying to resolve is dealing with employees who are receiving certain benefits from the government whose benefits will be withdrawn if they work too many hours or receive too much pay from the Bank or from the company. So a lot of our employees were coming in through a temp service and hopefully going temp to perm and working-we sought out the-we sought them out. We sought out people that we knew, organizations that we knew accommodated and worked with the disabled population, and we asked for the employees. We said, we want who you have. Who can you send us? We did the same thing with manpower. We said you have got any disabled employees there? Bring them to us. We want anyone you have who is skilled. We want the best of the best. We know the best of the best resides largely with the disabled population. We have not been wrong.
Were you able to provide these agencies with the skills needed for the particular positions and had they done assessments and were able to match the skills of their clients with the skills needed for your particular positions?
Yes, and the outstanding part of this process is we have a wonderful department of rehabilitative services. We downed that in DC and Maryland as well, we are trying to work with the folks in Georgia and Florida to make sure we are able to work with those agencies, they will come in, do job assessments, work with us on the technology. We might have an employee who has-who is deaf. We say, you know, here are the jobs we have. Help us to make sure that we could did a right fit. That employee will apply for the job. We work consistently with the DRS. They keep coming back to make sure it is working. If there is a kink in the system, we invite them back to help us. We had employers in other regions who have said this is not working for me, I need a more comfortable chair, I need something else, we are happy to bring in agencies to help us determine what this employee needs. We want it to be effective. Because an employee who is miserable at work is certainly not going to be productive and is not going to be happy here. That is not our goal obviously. Our goal is to have productive employees who want to come to work. Some companies are afraid to work with agencies. They are afraid they will get in trouble or something bad will happen. We love working with agencies, because they have provided us with top employees. Of course we go through the employment commissions. But we really find that the largest number of disabled employees can come from working with some of the temp services, working with the department of rehabilitative services and Virginia and Commonwealth University has a rehabilitation center where we seek them out. We have sought out the agencies and said, we want to build a house where people want to come here and work. We want the disabled population to want to come here and work. Help us find them. And they did. And it is really-it has been a perpetuating cycle. When we go out and talk to other organizations, we draw some of the disabled population to those sessions as well, and they see SunTrust as being friendly to this issue, wanting to focus on the issue. They tell people. It has snowballed into a positive thing.
Great. Can we have our next question?
Hi. A person has a documented disability and is receiving accommodations but cannot physically handle working more than eight hours a day. When the company has periodic mandatory overtime, is an eight-hour work day considered an ADA accommodation? And if yes, can the company charge the overtime hours not worked under FMLA hours?
Can the company charge the mandatory overtime not worked? I think the biggest question you have is whether the overtime is an essential function of the job. Is it?
Well, if it is not, but all other employees are not working the overtime?
Well, it is-it is periodic mandatory over time.
I think that the key here is that the employer-I mean if you go back to the basics, the employer is never required to take away lower production standards, take away essential functions of the job, and any requirements of the job that are reasonable, because all the employer is required to do is to accommodate the employee so that the employee can do the job of his or her co-workers, of equally situated individuals. And I think it depends on how frequent the mandatory overtime exists and how required it is. You tell me it is not an essential function. So that sort of changes my answer a little bit. If it is not an essential function, I think clearly that could be a reasonable accommodation because you are going to marginal functions of the job. But when you are talking about mandatory overtime that sounds like essential to me. So that is where I am a little confused. But on the other issue you can charge it to FMLA? I think if it is not a requirement of the job then you would not be allowed to charge it to FMLA. If it is a requirement of the job you would be able to charge it against FMLA. That is the test, I think.
Okay. Could you briefly discuss supervisors discussing an employee''s medical condition and accommodations with nonhuman resource personnel in terms of what they can and cannot disclose if they have certain information?
Well, managers should not be disclosing-I mean give me the context. I would never allow a manager to disclose FMLA or ADA related medical conditions broadly and broadcast to anyone other than the employee or people on a need to know. You are talking about co-workers who get upset when they see Suzy take off early?
And generally what the EEOC has said, and I wish I had the quote here, but you can ask Sharon in a couple months. Generally what the EEOC said you can say is something to the effect of, I know that you have questions about Suzy, but just as I would not discuss your-any situation relating to you with other co-workers, I am not going to talk about Suzy. You do your own work and Suzy will do hers. If there is really a lot of angst, which there is. Sometimes accommodations of one employee creates angst and confusion among the other employees, and I argue that that is a risk the employer has to take. The value of keeping the employee''s medical condition a secret and confidential outweighs the downside of employees having confusion and angst. I will say, though, we have had an employee who requested that her medical condition be discussed with her co-workers, and wanted there to be a video about it so people would understand when she had epileptic attacks and would not get scared, and I have got nervous about that. I called the EEOC and said, can I do this? It makes me nervous. The EEOC''s position was this really, for this employee, is an accommodation. The employee has asked for this information to be revealed. And it will help-it will help her to work more effectively in her department and that is something if she requested it you can do. It is up to you. You do not have to do it. Of course we had the employee sign 150 disclosures making sure this is what she wanted. The EEOC said sure, if the employee has asked for it. But otherwise not only should it be confidential. Anything related to it should be kept in a separate file. You should never go in the personnel file and see Suzy asked for these accommodations. All medical information should be kept separate.
Where does SunTrust keep the medical information? Is it left solely with the human resource in the frontline supervisors managers do not have that information or is it shared with those frontline supervisors who may be implementing the reasonable accommodations?
We actually have our files online. Not really on line. It is an imaging system. It is a separate file in which only HR has access, only in that file, certain HR people have access.
Have access, okay.
It is a very confidential, extremely confidential process. That and other sort of medical-related issues should not be in the personnel file.
Right. Good. Can we have the next question?
Actually, it is somebody that has been here with Will. We will go with it. Karen, I wanted a clarification. Slide 22 and 23, examples of accommodations that are not reasonable. And then I heard you say that lowering production requirements is not required. There is a difference between the term not required and not reasonably particularly since reasonableness is a product of what the company thinks is reasonable. So would you speak to that, please?
Well, I think your general rule is that the company should never lower production standards. In order to accommodate an employee. Because the theory of the ADA is that you should provide whatever accommodation is reasonable in order to enable that employee to perform as other similar employees would perform. And when the ADA was initially passed, there was a lot of discussion about making sure that employers were not expected to have lower production from disabled employees versus nondisabled employees. That makes sense.
Right. But I did not mean to use that as the only example. You listed several things under this on examples, on 22 and 23. And for example it says here that it is not reasonable to purchase a wheelchair for someone, for example. Well, as an employer, I have purchased a wheelchair for someone to be used on site. I felt it was reasonable. I have in fact as an employer eliminated essential job functions. It was reasonable to my company. So to tell me that these things are not reasonable is making a judgment call on my company. I knew it was not required, but what about the concept of reasonableness?
Well, I guess, maybe the title of the slide should be "examples of things that by law are not considered reasonable accommodations." because if you fail to provide a wheelchair to an employee, then I would argue that that employee would not have rights under the ADA. So I think the question is what is a, quote, reasonable accommodation covered by the ADA? If you voluntarily choose to provide personal use items or eliminate essential functions, which honestly eliminating essential functions I think is a dangerous road to go down for one employee, because I think you would have the expectation to do it for all. I think that your company is welcomed to expand and do anything. I mean, you can do anything for an employee you want. But the question is under the law, what is considered a reasonable accommodation by law and by law the things listed there are not considered, quote, reasonable accommodations, that are requirements.
Right the EEOC guidance, when speaking to personal use items, says they are not required, but certainly if the employer chooses to provide those, those personal use items, they can. You know obviously go above and beyond what is required by the law.
That would be true with anything.
Any of the leave you want to give employees. You are always allowed to expand. But, you know, you really have to get into a consistency issue in this case.
Right. Can we have our next question?
Hi. We had a question from another location. Springfield. Yes, this is Springfield. When several accommodations will allow an employee to be accommodated, and the pre-employment screening testing process, the screen reader versus human reader, is the hiring agency required to buy a screen reader?
You are saying-let me give an example. I think the answer is whatever is effective. The employer can choose whatever is effective. I will give you an example that is very specific. An employee feels that the noise around her is too much, you know, really has a disability, has a problem concentrating when there is all this noise, and asks that a wall be built around her work area, or be given an office. In consultation with the EEOC, their point is, give her ear plugs. That is a reasonable accommodation. And, you know, I had some angst around that. That was not the accommodation that was ultimately provided, but I think that the take away from that is this is an interactive process. Whatever works and whatever is effective is really going to be okay as long as it makes the accommodation so the employee can be entitled to the same benefits of the application process and the work, et cetera.
So a specific question, drew, the hiring agency in that instance would not necessarily be required to purchase the screen reader as long as providing a reader, a human reader would be, you know, as effective as having a-the assistive technology.
I have a follow-up question to that too.
Sure. Go ahead.
The state government entity has several facilities dedicated to administering preemployment exams to job applicants. Exams are administered via computer. Several accommodations are available. Screen magnifications, high-contrast screens, colors, closed captioning, et cetera. A screen reader is not available because programmers have not been able to focus thus far on implementing that accommodation. However, a screen reader is planned to be implemented in the future, can the lack of this accommodation be considered discriminatory?
You are saying that there is no screen reader and there is no person there. Basically the applicant has no access?
There is a person available. To do the read.
There would be a person available to provide the reading in lieu of having the screen reader.
What is the-sorry?
So I guess the question was, the lack of the screen reader, would that be-mean a disability discrimination, the fact that they are planning on purchasing one down the line but one is not yet present?
Well, is the person reading going to provide a different result to the applicant than an actual computer screen reader?
No. Part of the question is was it discriminatory there are accommodations for other disabilities that are available, for low vision such as the screen magnification case and high contrast screen colors, so is there discrimination that low vision people get better accommodations than people who are learning disabled?
I would argue as long as both are effective, no.
The request for the accommodation is the accommodations themselves should be, you know, viewed independently. As long as the one is effective then that is what is key. Do we have another question?
I am calling from Illinois. Our organization has a process where the cost of accommodations are taken out of the department managers'' budget. I am interested in how SunTrust got to the point of a centralized budget and how you influenced the organization with regard to that.
Well, we are in the process of influencing it even more. I hope. Because we are only doing did right now in the mid-atlantic region. We are trying to figure out how much it really costs to-and one of the problems is we have done it now for two years is not enough money is coming out of it to continue justifying funding it in a way. In the budgetary process, you have to spend it all to get it the next year. I think that is an interesting problem to have. The-one of the ways we did it is to show we are a leader in the industry in this area. We do not want managers to have any angst at all about hiring people with disabilities. And with budget crunches that all folks have right now, we did not want that to even be on their radar screen. As a potential issue. We want them to be free from that concern. And our management, quite frankly, is extremely open to these issues. That is how they get through is because they have a management system here who recognizes and values the hiring of people with disabilities. It was not as difficult in an organization of this size as you would have thought, because once you get to the point where you are an employer that values people with disabilities, the rest of it just seems to happen. And I do think that it is important to have champions within the organization. It might be you. Who is a champion. For the issues. And I think if you can get some champions in the-on the issue, you will be able to get the support. And, you know, it has been amazing to me, though, how little of the money is spent. You know, people talk about how realistically, when you hire people with disabilities, the actual cost is very minimal, and it is remarkable how true that is. It really is such a low cost ultimately to the employer. Especially versus the benefit. And, you know, a lot of our accommodations are provided by the DRS. They fund a lot of the accommodations. So even then, the costs continue to be minimal. And one of the challenges, and one of the things we do through the BLN is to promote the resources out there to provide technology to organizations, and funding to organizations. There is a lot of resources out there that are-there are a lot of resources that provide the technology for low or no cost.
Good. Do we have another question?
This is Julie from New Mexico. A couple of quick questions. Earlier you had referred to recovering alcoholics and attending ADA meetings as a reasonable accommodation. If you could expand on that a little bit and what your company does with that. Also, could you expand a little bit on the reassignment to a vacant position as a reasonable accommodation for the less qualified person with a disability versus them getting it over the more qualified person?
On the issue of recovering alcoholics, I have-that issue has regularly come up quite frankly under the FMLA, and whether the person has a chronic condition. And it is one that has come up more, I think, in my graduate school class, where people have brought that issue to my attention. But I think that in the end, that is one of those issues that I think is hard, because you wonder why employees-I feel like that is one of the things that employees can do after work and the question is, is that truly something that has to be done during work hours? If so, it does seem reasonable to me to ensure that employees are alcohol-free or going to their treatment that that has been something that has been provided usually though through the FMLA process. More so than the ADA. I cannot think of when I have evaluated it under the ADA. Because it usually has kicked in through the FMLA, the medical certifications have come through. On the issue of the less qualified, you know, I have always had a lot of angst around this issue, because it is really hard to-when you have two employees, one of whom is significantly more qualified for a job who is applying for that job internally, and another employee who needs a reassignment to that job, who is truly less qualified. It is hard for me to justify the reassignment. Even if-in a workplace where we try to be so friendly to disability issues, and we try to focus on them. Because I feel strongly about fairness to everyone. We try to be fair to all our employees, not just the disabled population, obviously, and it does not seem fair to me. That is just the bottom line. It feels unfair to me. I have talked to the EEOC about this issue. And they will not say, and maybe you can get Sharon to talk about this, they will not say whether if somebody is significantly more qualified, whether the reassignment must take place. That issue came up in a panel. They will say that if there is, you know-they are pretty much the same qualifications, the person that needs the reassignment gets the job. They argued there is not a competition. You should not allow them to compete. If there is a vacant job, no one is in the job now, and the disabled employee is qualified the disabled employee gets the job. One of my case studies in here talks about a job that is open and the employee does not have a license.
Does the employer have to actually train the employee and ensure the employee gets the license and of course the answer is absolutely not. You cannot forget one of the requirements it is the-is the employee qualified right now? If the employee is going to take three years to get qualified or two months to get qualified or a week to get qualified, theoretically that employee is not qualified. A week, I do not want to hold my hat on that. A year or month or any period of time I think that that employee would arguably not be qualified. But the reassignment issue is hard one for me, because I do think it seems unfair to me to reassign somebody when there is another person who is significantly more qualified, and, you know, that is how I keep trying to pose it. I want to force the issue. I cannot get a straight answer from the EEOC on that point.
That makes two of us.
Maybe you can push Sharon. She is pretty good. That is one she is holding strong on.
Thank you. Let us get to one last question in here.
My question is this, as far as filling out a job application, and the section where they-where it says do you have a disability which may prohibit your ability to do the job for which you are applying? I was wondering if a disabled individual has to fill that out?
I am shocked that is on an application.
Well, actually, the applications that I filled out, the sections-the section says, do you have a disability which may prohibit your ability to do the specific job for which you are applying? I have always filled out that section and told them yes, I have a disability, and it is cerebral palsy. I personally have never had a problem filling out this section. But I am wondering if other people have had problems filling out that section. And I have also heard that you technically do not have to fill that out.
Right, right. Okay, thanks for your question. We are going to drop the line as we get close to the bottom of the hour here. I will get Karen address that quickly.
My advice to employers is that we do ask that question once somebody comes into the employ, because we are affirmative action employers and are required by law to have employees complete something about their disability and that goes into a confidential section that no manager would ever see. We are required by law to do that under the guidelines. But preemployment questions regarding a disability on an application is something that I personally would not recommend. Do you have to fill it out? You know, I do not want to make an opinion on that. I think probably-I think it is so inappropriate that I do not know what I would do.
Employers should not be asking any disability-related or any questions that would elicit a disability-related response. From a prospective applicant.
There are instances when employers can ask it verbally. That is if the disability is obvious and other things in the guidelines. On an application, that would not be the route I would take if I was an employer.
Right. Excellent. Obviously 90 minutes is not quite long enough to answer questions about reasonable accommodations in the ADA. Karen, I would like to thank you for giving us your time and expertise today and sharing your information about SunTrust and the policies and best practices that they follow. So thank you very much. For additional employment questions, or additional information about the upcoming May distance learning session with the Department of Justice or the June session, with the access board on the federal accessibility standards, please contact your regional disability and business technical assistance center. The 10 regional centers. Collaborate to bring you the distance learning session. And you can contact them at 1-800-949-4232. Look forward to having all of you here on May 20th and thank you very much for joining us today. Goodbye.