Good morning or good afternoon, depending on where you happen to be out there. Welcome to the audio conference Series. This is the third in the series on Reasonable Accommodation. Hopefully, many of you have been with us throughout this series and have found some useful information in the past couple of sessions and that today''s session with just enhance or add to that. This session is brought to you as part of an ongoing collaboration between the 10 Disability and Business Technical Assistance Centers, which are the National Network of Technical Assistance Centers on the Americans with Disabilities Act, funded by the U.S. Department of Education National Institute on Disability, Rehabilitation, and Research. We have been offering this program for several years and we offer our monthly sessions targeting different aspects or different topics related to the Americans with Disabilities Act. For your information, this particular session is being simultaneously being Real-Time Captioned on the Internet. If you are interested in connecting to that program, you can go on to our website at http://www.adagreatlakes.org/ and on the front page you will see a link to the captioning and you will then be able to sign in and get yourself online. The session is also being audio recorded. Following the session, within five working days, we will have the completed transcript and the audio recording posted to our website for future reference and people can go back and use that information. Hopefully everyone was able to access the information for today''s session and will be able to follow along. Our speaker will give us a little bit more information on that. As I said, this is the final session in our Reasonable Accommodation series. I''m going to just take a few minutes to introduce our speaker and then I''m going to turn the session over to him. At the conclusion of his remarks he will then open it up and we will be able to take some questions from our audience and Denise our operator will give us all some instructions about how to do that at the time. Hopefully everyone will recognize that it is not possible to get everyone''s questions asked. Hopefully we will be able to answer some of your questions through David''s remarks or you will have an opportunity to ask him directly during the question/answer period. So, I''m going to go ahead and begin the session at this time and introduce David Fram. He is an attorney and director of Americans with Disabilities Act (ADA) and EEO services for the National Employment Law Institute. He conducts many seminars and briefings and workshops and in-house training on the ADA and other EEO laws. He also provides guidance as well as expert witness services during administrative proceedings and litigation. He had previous worked with the Equal Opportunity Commission as a policy attorney from ''91 to ''96 so he is obviously intricately familiar with the Americans with Disabilities Act during its formative years. Prior to that he was also in private practice with the law firm of Hogan and Hartson in Washington, DC where he worked with employers on a broad range of employment-related issues. He is a frequent speaker across the country on a number of different topics related to ADA and EEO. He has trained many, many, many, thousands of professionals in HR and attorneys and other groups from the local, state and national level. Title II entities, government entities, I think one of those things if you named it, he has probably done it. He has also done a number of public publications. Most recently he has written some books and articles of which some of the materials you were provided for this session is a great excerpt from. I think we all are going to benefit from having access to that information. Further information and more in-depth can be found in some of his publications. One of them is called Resolving ADA Questions: How Courts and Agencies are Dealing with Employment Issues published by Neli in April of 2005 so it is a very recent publication. Also, The Human Resource Guide to Answering ADA Workplace Questions: Checklist and Practical Hints for Human Resource Personnel again published by Neli in August of 2002. The other thing I think is important to note is that David is involved in providing a series of seminars across the country. His upcoming ones will be in September. They are full day ADA specific workshops and he will be holding those in Seattle, L.A., San Francisco, Denver, Dallas, Philadelphia, Washington D.C., and Chicago. So if you are interested in getting more information on these sessions or about accessing any of the publications that he has been involved in, you can call and I''m going to just get some contact information here and it is the National Employment Law Institute and the phone number is (303)861-5600. David, what is the exact website address for that?
It is www.neli.org
Thanks, I didn''t have that written down, I appreciate it. So that is a nice segway into you taking over this session at this point and again we will have time for questions and answers at the end and at this time, I will turn it over to you David.
Well thank you Robin, it is such a treat to be with you all today to talk about what I think is the most exciting issue in the ADA context and that is Reasonable Accommodation. But before we get to Reasonable Accommodation let me tell you that so much has happen on virtually every single issue in the ADA and the Rehab Act and remember when I say ADA I am also referring to Rehab Act for those of you who are federal government because the standards are exactly the same with the ADA and the Rehab Act on the issues that we are going to be talking about. So much has happened on what is a disability, who is considered qualified, what is? What is not required as reasonable accommodation? When does somebody pose a direct threat? What kind of conduct issues are coming up? Medical examination in inquiry; so many legal developments on every single issue. Of course today we are going to be focusing on what the courts are saying are reasonable accommodation. But before we get into what the courts are saying on reasonable accommodation (and I apologize foe the sirens going in the background), I''m speaking to you from York City, which is not the quietest place to be speaking from... Before we get into the court cases, as Robin mentioned to you, what I do is loads in-house training, for supervisors and managers and HR professionals, and lawyers. What I have been doing over the past year is collecting up some of the very practical questions I have been getting from these different professionals, let me read to you some of the more common, some of the more interesting questions I have gotten on reasonable accommodation. Think about the questions as you are listening to the session that you are going to want to get answers to. Then we are going to turn to the court cases and actually get the answers that we can. Some of the questions on reasonable accommodation: What if somebody raises his disability for the first time as you are giving him his disciplinary notice and says, hey, I need a reasonable accommodation and that accommodation is take back the discipline. What if we give ADA accommodations to people who have restrictions but might not have disabilities? Are we setting ourselves up for example, for a regarded as claim? What if we have taken away an essential function as an accommodation, which is of course something you don''t have to do. What if we have done it. Does that make it not an essential function? Assuming we don''t have to provide indefinite leaves and we are going to talk about that, when exactly does a leave become indefinite? For example, what if somebody says I need two weeks leave, and then at the end of that two weeks I need more and then I need two more and then I need two more. At what point can we say, hey, you are not entitled to this anymore as an accommodation. Do we really have to reassign people as an accommodation? And if we do have to reassign people, is it competitive or is it non-competitive? If we really do have to reassign people, do we have to reassign probationary people? Do we have to put somebody into a position that we don''t intend to fill, maybe we don''t have the money to fill it. Another question I get frequently. We are seeing more and more employees, who say I can''t handle the stress job, and they might be in a stressful job. Maybe they are in a customer contact job and they say I can''t handle the customer contact. What is the employer supposed to do in a case like that? Lots of employees have been coming in and saying, I need an environment free of all smells. Is an employer required to prohibit perfumes or for example scented deodorants in the workplace? What should the employer do if somebody says I can''t work for this particular supervisor, I can''t work for you. I can''t work in this particular building. Does an employer have to give an accommodation if somebody wouldn''t need it, if he just took his medicine or just wore his hearing aid or just went to therapy? A question I got last week from a federal employer, we have an employee who has hearing aids, but won''t turn them on. Can we require somebody to turn it on or are we required to just take the person as we find them? What if determining an accommodation might take some time? For example, a few days, a few weeks, what should we do with the person in the meantime? Well, now, these are just some of the questions that I have been getting. What I would like to do now is turn to the materials and let us answer some of these questions, what are the court''s actually saying on these various questions. I plan on speaking for a little more than an hour right now, and then I''m going to turn it over to you all to throw some questions at me, I will do my best job with those questions. The materials that I will be using as I speak are the materials that Robin mentioned that are on the website. In terms of pagination, I''m going to be using the materials that you will find in the adobe format. I know some of you may have downloaded it in one of the other formats. If the pagination doesn''t exactly match what you have, you will be able to follow along just through the headings, which I will mention as we go through the paper. If you haven''t downloaded the paper and if you are not looking at the paper online as we speak then feel free to sit back, relax, listen and take notes. If, for example, we get to a case site that you find particularly interesting, you can jot down the of the case site and go back to the web and you will find the actual legal citation on the web. Reasonable accommodation, what is it? Well, you know at its most basic level its removing some workplace barrier so the person with the disability can do the job. Now, you wouldn''t get the reasonable accommodation as an issue, before you analyze whether the person is a covered individual under the law. Does the person have a disability, is the person qualified. In other words, is this person a qualified individual with a disability? Once we have analyzed the first two issues then we get to reasonable accommodation, and ask what kind of workplace barriers do you, if you you are the employer, do you have to change so that this person can do the job? Now, does reasonable accommodation (on page one of your materials) mean preferential treatment? Yes, that is what it means. It does mean treating somebody with a disability better than you are treating somebody else. Now, what liberal court would have said that? You know who said it? The Supreme Court said it. The Supreme Court said it in the U.S. Airways case. They said that is what reasonable accommodation is. Its giving the person with a disability more so that the person can have an equal employment opportunity. Alright, page 4 up to page 5... What does reasonable mean? Well, what reasonable means said the Supreme Court in that U.S. Airways case is facially reasonable. Now, do you find that to be a terribly helpful definition? No, but that is what the Supreme Court said it means. Something that something looks reasonable at its face. Now those of you who have followed the ADA for years, you know that prior to the Supreme Court case were loads of court of appeals cases, those of you who are not lawyers, that is the level just before the Supreme Court. Loads of court of appeals cases, saying, hey, to determine if something is reasonable we are going to look at the costs and compare them to the benefits. On page 5 and 6, the Time Warner case, the Walton case, the northeast Ohio case, all of these cases that look at the costs, compare to the benefits, the Supreme Court doesn''t acknowledge these cases at all. It doesn''t say we agree with them, it doesn''t say we disagree with them. So those of you who are lawyers, and those of who you-of you who want to become more aggressive in terms of being management employers, you could arguably still use these cases since the Supreme Court doesn''t say that they disagree with them. The way I would use them is I would say, if I were advising an employer, I would say, hey look, if the costs greatly exceed the benefits, then under the U.S. Airway standard it is not reasonable on its face. The bottom of page 6, the Felix in the second circuit suggests that that line of approach could be could arguatively be valid. Page 8, now, we know from other sessions that disability comes in three major categories. Is there an actual, is there a record of, is there regarded as disability? Who do you have to provide reasonable accommodation to? Well, actual disability of you have to provide reasonable accommodations. Somebody has a disability. You to gotta provide accommodation unless it poses an undue hardship. What about the regarded as case? What about if somebody is only as regarded as having a disability? Do think you have to provide an accommodation in a case like that? Well, on page 8 the Equal Employment Opportunity Commission (EEOC), interestingly has actually suggested that you don''t have to provide accommodation in a regarded as case. We see this in briefs that they filed, for example in Durbis, in Dean. Any you know what, courts of appeals on pages 8 and 9 have said the same thing. For example, the Kaplan case out of the 9th circuit said would be perverse, it would be troubling if somebody were better off under the statute if they got an accommodation because their employer treated them as disabled. So it would give people a windfall, said the court, they perpetuated the employer''s bad attitude. What courts do seem to be saying, and I must say, I was pretty comfortable on this, until very recently. Courts of appeals were almost unanimous in saying, you don''t get reasonable accommodation in a regarded as case. But recently, and we see on page is 10, the Williams case, where for the very first time we have a court of appeals case saying, we understand that this is what all the other courts have said on regarded as issues, but you know what, we don''t agree. We don''t think that somebody you should be denied accommodation because they fit under the third category. Right now there is a conflict in the courts, most are saying you don''t get an accommodation in a regarded as case. This one court you do. Anybody out there who has read the Williams case, you will know that it is not a reasonable accommodation case. The court is getting it wrong. The court is just misinterpreting what kind of case it is. It is a straight disport treatment case. But, having said that, what I think, what you think doesn''t matter because the third circuit in that case does say that hey, we think that regarded as plaintiffs should get accommodation. What about the middle of category? What about the record of category? Should somebody be entitled to an accommodation if they only have a record of disability? Well, EEOC''s position is yes you do get accommodation in a record of case. We see this on page 10. The one court that has dealt with this issue in a meaningful way, has agreed with that, and said, hey, look, if somebody has got-if somebody has got ongoing limitations flowing from something that really was a record of air disability, that person should get accommodations. So what this means for those of you out there who are HR folks. If you are going to be the ones determining disability and determining reasonable accommodation, if somebody is asking for a reasonable accommodation, you need to make sure if the person didn''t have an actual disability-you need to make sure that there wasn''t record of disability as well. Now, record of means you have got to go back in the past and look, for example, at what the person''s condition was in the past before he went on his medication. Maybe he doesn''t have an actual disability now because he is taking depression medications and is in good shape. But it could be that five-years ago before he on his depression medications he was in bad shape, now he is in good shape, but he still needs to go to therapy treatment, so he needs a modified schedule. You know what, that would be somebody who has a record of a disability and might be entitled to an accommodation for the limitations, the ongoing limitations flowing from the record. On page 12. What starts the whole process? Well, generally what starts the process is the person asking for something, EEOC says this, we see this on 12 and courts say it. For example, cases like Donnor and Brown, Melletta. Lots of cases say, on page 13 says the person really does have to start the process by asking for something. Most of the time. The one exception to this on page 15 is going to be where the employer knows about the disability and has reason to know that the person needs something because of it. For example, the Smith case and the United Airlines case say, if you about the disability, and you have some reason to think the person needs something because of it, well, in that case, you should probably also get into the reasonable accommodation process. So those would be the two big things that start the whole process. Number one, the person asking for something, we will talk in just a second about content. Or number two, you know about the disability and you have reason to know the person needs something. Now, what if the person says to you, I don''t want anything, I don''t need anything, what I need is for you to go away and leave me alone? Well, what should you do in a case like that? Go away, leave him alone, and do one thing and that is document, document, document, document that that is what the person said. On page 19, cases like Umbel, cases like Blue Cross, say that where the person said I don''t need anything, I have learned to compensate for my condition. Well then you don''t have to do anything, but you do need to make sure you document that. If you are the HR professional, the EEO professional, the management attorney. If you are the plaintiff''s attorney, I know some of you out there do represent people with disabilities, you want to make sure your client hasn''t said something like that, or you really do risk jeopardizing your reasonable accommodation case. Remember, nothing I''m saying to you today is legal advice. Right? Right. Having said that, what I''m doing is explaining what the courts do seem to be saying in my opinion on all these issues. Those are two the big things spark the process, but you know what, there are a couple other things that could spark the reasonable accommodation process. On page 19 the Duval versus Webb case, says, look, if it would be futile for somebody to ask for an accommodation, maybe because the supervisor has said we don''t do anything special for anybody, then you don''t have do anything, if you are the plaintiff, if you are the employee. If it would be futile, that is why if you are an HR person, you need to make sure that you are training your supervisors and managers not to say something like we treat everybody the same. You know what, you can''t blame supervisors for something like that we have been training supervisors for 40 years to treat everybody the same. Now you have to train them that under the ADA and under the Rehab Act that has been in effect for 30 years, you need to train supervisors that ADA is not talking about equal treatment, it is talking about preferential treatment so that the person can have an equal employment opportunity. That is the third thing that could spark the process. You know what, there is another thing that I think could spark the process and there aren''t any cases out there on the court of appeals level on this yet, but I think it is dangerous. And that is inflated performance reviews. Now, I''m sure that none of you have out there ever have to deal with the issue of inflated performance reviews. I''m just kidding when I say that, I bet you every single one of your listeners Robin has to deal with the issue inflated performance issues at one or another if they are representing employers. I''m telling you, I think inflated performance reviews are real killers for employers. Number one, they could be seen as disport treatment. You didn''t give me the same opportunity to fix the problem as you would have given anybody else. Number two, I think it could lead to an accommodation case, even absent and expressed request. Why? Because the person can easily claim hey look, how was I supposed to know that I needed to ask for something if you never even told me that my performance wasn''t up to par? So those of you again who are responsible for training supervisors and managers, you need to train your supervisors and managers, do not give inflated performance reviews. Do not give inflated performance reviews just because you feel sorry for somebody. That is just asking for an ADA case. We talked about what sparks the process, the main thing that sparks the process of course, is the person asking for something. Page 20. What language does the person have to use? Well you know what, courts are saying that there is no magic language, EEOC is saying there is no magic language. As we is see on page 20, cases like Coneen, no magic words, Taylor, Allen, southern California Edison. All of these cases are saying, there is no magic language that is required, but the person does have to ask for something. Now, what it is the courts do seem to be saying is the person has to indicate they need something because of some conditions. My wrists are killing me when I type. You know what, that is probably enough. I just told you I need something. Maybe I don''t even know. How about this "It is killing me when I lift all the time." I just told you enough. I need something because of some condition. We don''t know whether the guy''s back condition is a reasonable disability. That is a whole different topic. But I have probably given you enough information so that you know I need something because of some medical condition. How about this, I have diabetes. Is that enough? No, that is not enough. I need the other half of that equation. Now, if you knew or had reason to know I needed something because of it, that would be something different. But the courts and the EEOC are saying you are not supposed to be speculating, you are not to be acting as the person''s parent. People with disabilities are grown-ups, they can decide for themselves if they want to ask for something or don''t want for something. How about this? I need leave. I need to leave right now. Is that enough? No, say the courts. For example, the Russell case. On page 22. It is not enough. I haven''t told you it is because of some condition. So again, what the courts do seem to be saying is there is on magic language that is required, but the person does have to give you enough to go on so that you can determine yourself this person needs something because of some condition. Now, is the request going to come to you, the HR professional or you the lawyer or you the EEO professional? No, who is that going to go to? Who is that statement to be stated to? It is going to be stated do the first line supervisor. So I know you are not listening to this broadcast for purposes of getting homework assignments. I''m telling you, you have to train your first line supervisors to be alert that that is enough that that could be sparking the whole interactive process. They have to be alert. That is why they have to understand the ADA. Maybe not all the ins and outs that you are understanding. But they have to understand what could spark the process, and who at the employer is going to be engaging in the interactive process. Now, its interesting because a lot of the questions I get deal with who should be dealing with this interactive process. And frankly, I don''t know that it is such a great idea for the first-line supervisor to be doing the interactive process. The supervisor has to know who to go to. That is going to be doing the interactive process, the supervisor has to know to turn to the HR professional who is going to be involved in the interactive process. Page 25. Can you require that accommodation request be in writing? Could you require it? No, you couldn''t require it to the EEOC. Could you have a policy that says requests should be in writing? You know what, you can. EEOC has the policy for their own employees saying that requests should be in writing. Now EEOC people have told me that they are not going to enforce that policy and the you can''t enforce a policy saying that your policy must be in writing either. Any more than you could say for example say that a complaint about sexual harassment must be in writing. The question becomes, why have a policy saying requests should be in writing if you can''t enforce it? Anybody out there who has done litigation on ADA issues, you will know that a lot of ADA issues in terms of the actually litigation turn on creditability. Who does the jury believe? You might have the person saying, I asked, and I asked, and I asked for an accommodation, and the employer saying I didn''t; not even once. Who is the jury going to believe? Now change the facts and say you have the policy that requests should be in writing, and the person signed as having received that policy. Now they are saying they asked and asked and asked. Your attorney gets on the stand asks, did you ever once put it in writing? Now the person says, no, I never once put it in writing, now know what, it is more likely going to believe the employer. If you have a policy like you need to make clear to the supervisor that they can''t enforce the policy. What should you do-and I know many of you out there are employers-what should you do once the interactive process has been triggered. What should you do? Interact! That is what the courts are saying. Cases Barnett, and Taylor and Williams and Boeing, these cases are saying interact, talk to the person. To be honest, you know what I would do in starting this interactive process? I would start by looking rather than getting into the whole ADA kit and caboodle right off the bat. I would start at looking whether there is something quick, simple and easy that just solves the whole issue. This is the step that I always call the Starbucks step. When you go into Starbucks, does the clerk behind the counter say to you tell me the source of your caffeine withdrawal? No, what do they say? They say, "How can I help you?" Well, in New York City they don''t say that, they say "what do you want." But in the Midwest they say, "how can I help you?" So I would start off with the Midwest version of Starbucks and say, "how can I help you?" When the person says to you I''m having trouble piping today. The reason I would start off that way, sometimes what the person is asking for is simple easy to do. A person might say I want a split keyboard, it costs $9.50 at Radio Shack. What should you do, go buy them a split keyboard. Maybe it will work, maybe it won''t. But what are you out of?...$9.50. You will still have to look for a accommodation, but the point is, so many employers who have told me they start off with the quickest, easy solution have told me that so many of these issues go away right there. I will tell you something else, the other reason I would start off with that quick, simple easy step, the how can I help you step, that is going to tell you whether you are in ADA land or in FMLA land or in both lands. For example, my wrists are killing me. If I ask a person, how can I help you? And the person says I need a split keyboard, we know we are not in FMLA land because they don''t need leave, right? What if the person says well I need leave to get an operation? Well now where are we? At that point we are potentially in ADA land. We are potentially in FMLA land. We are potentially in both. That is very, very important for the HR professional to know right up front. Because that affects what kind of information you can get upfront. Today''s session is not on FMLA, but whoever is doing this interactive process, I don''t mean to scare you, but you do also to understand FMLA, because some of the issues really do overlap, especially when we are talking somebody asking for leave that could be an accommodation and could be something required under FMLA. I would start off with this quick, simple, easy step, and I would document, document, document what you are doing. If you know what, if you provide something quick and simple and easy and you haven''t analyzed disability which frankly, I wouldn''t if there were something quick and simple and easy to do, I would document that. I would document this is what the person asked for, this is what I gave him. It wasn''t something I said he had to do, it is something he asked for. And I haven''t analyzed whether there was a disability. That way there can''t be any claim of regarded as discrimination. If there is not a quick and simple and easy solution, well then I would get into ADA land. I would ask-I would ask all of those questions that you have dealt with in other sessions like: Is there a disability? Is there an impairment? Is there a substantial limitation of a major life activity? All of those questions that HR people must ask! Analyzing what this person''s condition is like compared to the average person. Analyzing whether there really is a substantial limitation, analyzing what the person can and can''t do. All of those things you need to look at. This is where you analyze what are the essential functions of the job? Can the person do the essential functions without the accommodation? This is where you get into all those issues. This is where you call everybody you can think of who is going to have ideas for a possible accommodation. For example, call other employers who might have ideas, always call the federal job accommodation network, a wonderful agency. I don''t if they are the line right now. If they are, they are a wonderful agency at helping employers come up with possible accommodations and document, document, document all those places you call, the people you talk to. One common question I get from HR professionals in this regard, is do we have to be telling the person all the places we are calling, all the people we are talking to? The answer is no. But I say why not? Why do people sue their employers? You know why? Because they are mad, they are really just plain mad at how they have been treated. You are already doing nice things in this interactive process. My point here is, let them know. Work with them. Make them a team effort to come up with an accommodation. You know, another question I get at this point when I''m talking about all the things the employers should be doing. One question I frequently get from supervisors who are dealing with recalcitrant employees is, do we have to be doing all of this for an employee who we think is just trying to set up a lawsuit? The answer is, yes. Even more for that employee. Because who is most likely to sue you? That employee is most likely to sue you. The person who you think hates you, who you think is trying to set up a lawsuit. So what you are doing here is two-fold, you are trying to come up with an accommodation, but also trying to put together a beautiful legal defense for if this person does sue you. How long do you have to do all this. On page 28 on to page 29. The courts are saying, you have to be expeditious, that is what EEOC is saying. Again that is what courts like the medical imaging case are saying. The Internet case are saying. You have to move quickly, because unreasonable delays say these courts is going to be evidence of discrimination. Page 29, I am making such a big deal about this interactive process, does that mean the interactive process itself is legally required? Well, no, say the courts? For example, in cases like Williams, Deally and Potter and Alexander, all of these cases are saying the interactive process is a means to an end. It is not an end in itself. I know many of you are coming to us from the West coast, from the 9th circuit. Ninth circuit including states like California, Oregon, Washington, Hawaii, Alaska, oh let us see I think, Idaho, all the most beautiful states in the country are 9th circuit states. The 9th circuit is the one circuit that has gone the other way on whether the interactive process is legally required. The 9th circuit actually says the interactive process is legally required. The rest as we see on page 32 and 33, are saying it is not legally required. On page 34 the courts are saying you will lose your motion for summary judgment but, its not legally required. Remember on page 35, the interactive process is where we are documenting disabilities says the EEOC and say the courts. On page 36 this is where you are demonstrating your good faith in trying to come up with an accommodation, because this is what gets the employer out of punitive damages and certain compensatory damages. Page 37. I have been making such a big about your, the employer''s obligation to be engaging with the interactive process. The courts are also saying the individual has an obligation to cooperate with you. Again on page 37, the employee''s failure to cooperate is going to kill the reasonable accommodation claim. Take cases like Carter, for example in Carter the guy wouldn''t show up to take a typing test. The court said, hey, look, well the employer was trying, and the employee was the one responsible for the breakdown, and then the employee losing-loses. The courts do seem to be looking at who dropped the ball. If the employee dropped the ball, for example, by not responding to the employer''s request for more information, that the employer really needed, then the employee is going to lose his reasonable accommodation case. Those of you who represent plaintiffs, you want to show that your client did everything right, that if anything it was the employer who dropped the ball. Those of you who represent employers, you want to that you did everything right. For example, you are an HR professional, you want to show that you answered this individual''s phone calls quickly, that you responded to the person''s letters quickly. That when the person said hey, I want to come in for a meeting, you didn''t just put the person off for three weeks. That is going to be real dangerous, if you are now defending a reasonable accommodation case. Remember, this also includes getting more information, sometimes the employer needs more information about whether there is a disability. The courts on page 39 are saying, you are entitled to that information, even when the doesn''t want to give it to you. On page 40 for example, the Tyler case and the Maine case, the person didn''t want to give this information because this is personal private stuff about my psych records. The courts say hey look, if you are putting your psych condition at issue and asking for reasonable accommodations for you psych disability, well, then, you have got to cooperate. I have been making such a big deal about this interactive process, you know why? It is the most important thing the courts are saying the employers should doing. You have got to engage in the interactive process, it is what is going to lead to the possible accommodation if there is one, and it is going to you a good defense if you are sued. Page 42, what can you tell the other employees if you have provided an accommodation? Well, EEOC over the years has not changed its view. All you can tell them as the manager is, that you are acting for legitimate business reasons or in compliance with federal law. The good news is that supervisors really talk that way, right? Wrong! Nobody talks that way! Sometimes supervisors and managers ask me, are you telling me we should be using a script? And the answer is, YES! Use a script, stay out of trouble. If you don''t use a script, a supervisor or manager is going to start saying something they shouldn''t say. I mean, I have done so much in-house training and supervisors have said to me things like we have an ADA in my group. And I turn back to them and I say, don''t people ADA is, ADA is the name of a law. You need to train your supervisors and managers not to refer to people as ADAs. It is a person with a disability. Page 44. Let us say we came up with several accommodations. Which one do we have to provide? The answer is, whichever one you want to provide as the employer. Cases like the EEOC''s Bazelli case and Trepca on 44 and Smith on 45. All of these cases 45, 46, 47, are all saying you get to choose. But what they are saying is that you can''t choose something less effective over something more effective. For example, you couldn''t choose to put somebody out on leave instead of giving an accommodation that would keep him in his original job. You couldn''t choose to reassign somebody, instead of letting him take two weeks of leave. So you have to choose the most effective accommodation first and then work your way down to the less effective accommodation. Now on page 50, I would like to talk about type of accommodations. What are the courts saying are required and what are the courts saying are not required accommodations. Well, page 50 is really the most common type of accommodation that people ask for, and that is leave, giving me more leave than I have accrued. Courts, on page 51, like Fresco, and Cook County and IBM and Wal-Mart and Humphrey and IAM. All of these cases are saying, you have to give leave as an accommodation. More leave than the person has accrued unless it causes an undue hardship. I know what you are thinking if you are an HR professional, when does it cause an undue hardship? Well cases like Cleveland on 51 are saying there is no bright line rule; you have to look at the actual job. Is this a low level job where maybe you could replace the person temporarily for a long period of time without so much trouble or is it a highly skilled job where, you know what, there just aren''t people who are willing to fill in on jobs like this for a long period of time. For example on 51, the Wal-Mart case, this guy wants a long period of leave. He was a low level employee at Wal-Mart, this is a low-level employee, Wal-Mart has the ability to get people who are willing to come in, seasonal people who are to take those jobs for long periods of time. It would be very difficult to show that is an undue hardship. But contrast that on page 52 against the case of city of pine lawn, where there it was a police department, the police department only had 15 to 22 police officers. They couldn''t fill that job for a long period of time, because nobody would take a officer''s job for a long period of time. Just temporarily. Somebody who is a police officer wants the police job on a more permanent basis. You have you know another thing courts are looking at on page 52 is how long did it take you to fill the job. For example, if we are saying, we can''t give guy four weeks of leave and then it takes three months to fill the job, cases like Time Warner say, you are going to lose. Are you actually holding the job open on page 53 while the person is out on leave? YES, that is what you are doing! That is what the EEOC say to do unless its an undue hardship and that is what the courts do seem to be saying that you have to do. Page 54. Are we talking about leave for a defined or indefinite period of time? Well, the courts are saying its only for a defined period of time. The courts are saying you don''t have to keep a job open indefinitely. But let me tell you, for those of you who represent federal employers, EEOC''s position is indefinite leave is a possible accommodation unless you can show us an undue hardship. So EEOC says you have to show why indefinite leave causes an undue hardship. The courts are not saying this as we see on page 55, cases like Fogelman, and Vice and Laura these cases are saying indefinite leave is simply not an accommodation, where somebody says I have no idea how much leave I''m going to need, that is not an accommodation. So if somebody keeps asking for more and more and more leave, on page 57, in cases like Humphrey, you got a good argument that that is asking for indefinite leave. I keep asking and I ask and ask and at the end of each two-week period, I ask for more. The courts seem to be saying now its turned into indefinite leave. So that is what you would want to look for, the pattern. Page 59, do you have to give leave unreliable or unpredictable attendance? Well, the courts seem to be saying no. Cases like Buckles and Jovanovich and Amadio. Remember, what did I say before about those of you who are going to be doing this interactive process? You have to be the same professionals who are involved in the FMLA process. And FMLA, which of course is not the topic of today''s discussion, but you can''t segregate these issues. FMLA might require unreliable unpredictable attendance for a particular period. It might require that intermittent, unpredictable leave. Once the person has used all of FMLA leave, you don''t have more under ADA. On page 61, might you have to restructure a job as an accommodation? The answer is, yes. But you don''t have to restructure essential functions, of course, we are only required to restructure marginal functions and this is why before you get to the issue of reasonable accommodation, you have to have done that issue we talked about earlier the issue of qualified. Looking at what are the essential functions. Now, one of the questions I asked earlier, sometimes an employer, a supervisor for example, will have given away essential functions. Temporarily, you know why, ''cause the supervisor is really nice. Well, do you jeopardize things because you have been really nice? The cases seem to be saying no. Of course on page 62 they say that you don''t have to give the away if you don''t want to, cases Amans and Hummel. On page 64 at the bottom, cases like Boeing say they are not going to punish employers for giving away essential functions temporarily. But you know what on page 66 there are a couple scary cases like Brown and Time Warner, where the courts have said, well, the that you gave it away may be evidence that it really wasn''t essential. So my advice to you, again, this is not legal advice, nothing I''m saying is legal advice, my advice to you is if you are going to give away essential functions, I would do three things, three safeguards, number one, in writing, I would get this signed by the individual. I would say these are essential functions of your job. You acknowledge it, we acknowledge it, but temporarily, in our sole discretion, temporarily we are not going to make you do these things. Number two, don''t call it a reasonable accommodation because its not. Its going beyond what reasonable accommodation requires. And then number three, in the performance appraisal, I would say, hey look, this person hasn''t been doing all of its essential functions, we haven''t required it. I wouldn''t get into why or you turn the performance appraisal into a medical document. But I would say that we have not required the person to do everything, but based on what he is here is how he is doing here is how he is doing. Page 66. Transitional duty or light duty or modified duty. Is this required as an accommodation? Well now, you know the answer to this, NO! Cases like Norsworthy, Hoskins, Spurt, Stevenson on 67, you are not required to create light duty jobs, but if you do have them, is it a good idea? Lots of people think it is a good idea, personally I think it is a good idea, but it is just a matter of your own business judgment, whether you want to have them or not. If you have them, can you have them for a temporary period? Well, the EEOC and the courts are saying yeah, as we see on page 67. EEOC''s position on cases like ITT. Like Watson, you can have them for a temporary period. You know what, there is some really good language in some of these cases. For example the Watson case says you are not required to turn one of these temporary jobs into a permanent job. Otherwise it would close the job to anybody else who might need it temporarily. Having said that, on page 69 there is one scary case, the Beaver case. Where the courts said, you know what you let the guy stay in this job for a year and a half and there really weren''t any meaningful discussions about whether it was temporary or permanent, so maybe it was his permanent job. My point to you based on a case like Beaver is, if you are going to have one of these jobs and you are going to let somebody stay in it for a long period of time. Nothing wrong with that, I think it is a nice thing, just have it documented. Have the person acknowledge that they understand this is not a permanent new job. That they are job includes essential functions of X, Y and Z which they are not being required to do now. They are not being required to do these things temporarily in your sole discretion. Number two, don''t call it a reasonable accommodation, call it something else, and number three, in the performance appraisal indicate what the person has not been required to do, and talk about what the performance is like based on he has been doing. Page 71. Are you required to give the person a job assistant or job coach? You may be required to let the person bring in a job assistant or job coach. You are not required to hire somebody who is going to be doing the functions for the individual as we see on page 72 and 73. On 73 we then get to the really tough issue of reassignment. When the person simply can''t do his job anymore. Just can''t. What kind of accommodation comes up then? Well, that is where you have to look at reassignment. Reassigning the person to a vacant, equivalent job-vacant, equivalent job that a person can do. And if there is nothing vacant equivalent, then vacant lower level. Now it used to be-it used to be the case that courts really were split. On whether you had to reassign people. But guess what, they are not split any more. As we see in your materials, on 74, 75, 76, 77, there are so many cases saying that reassignment is a possible accommodatio-ases like Haynes and Schmidt and Duvall and Giles. So many cases! In fact, one of my favorite cases continues be the United Parcel Service case on page 75, where it was a truck driver for U\.S\.in Texas who wanted reassignment to Oklahoma. Why? Because he was allergic. To what? To the state of Texas said the court. Well the court said in that case, he is entitled to reassignment. Because apparently there is certain plant that is only grow in Texas don''t grow anywhere else, so he would be entitled to reassignment. So even really conservative courts are saying reassignment is a possible accommodation. What does it mean though? Well as we see on page 79, we are talking about reassigning current employees. Not applicants, not former employees, cases like Benger and Crano on 80. We are not required to bump somebody, cases like Boeing and Detroit Edison. We don''t have to promote somebody, cases like Edrick and Thompson. And we only have to put somebody on 81 into a job that that person can do cases like Braden. Now remember on page 81, when are we looking at reassignment? As the combination of last resort cases like Time Warner say this. You couldn''t choose reassignment instead of giving that person an accommodation so he could stay in his original job. Reassignment to what on page 83. Reassignment to a position that is vacant that is equivalent. Well on 84, what does it mean? Well equivalent means that its as close as you can get. Vacant is the harder one. Vacant means it is available. It is available now or we know now that it is going to be available soon. That is what EEOC says, that is what courts like Donor are saying. One of the interesting and difficult that comes up is, well, what if they are just wasn''t anything. There wasn''t anything, and let us say we treated this person as we treated anybody else, we can''t do this job any more, he has used up all his leave, it is an undue hardship to keep giving leave. And now the person is no longer our employee. And now two weeks after we fire him, something opens up do we have to the person back? Well, the courts seem to be saying no as we see on 84. Cases like Hedrick. Might you want to? Of course, you might want to. It is going to help avoid a lawsuit. But the cases seem to be saying, no, it is a snapshot. Like everything else under the ADA, you always want to look at your state law, for example, some state laws do require you to keep looking and looking and looking. Those of you who are calling in from Washington state, Washington state law, under the state law, they do require you to keep looking for a reasonable period of time. Most state laws file ADA, say it is a snapshot of now or what do we know will be opening soon. On page 86, what about seniority, about if somebody is entitled to that opening because of seniority but now I have a disability and I need that opening. Who gets it? Who gets it? Well, the person with seniority gets it says the Supreme Court in the U.S. Airways case cited on page 86. As long as you consistently enforce your seniority rules. Does it matter whether it was seniority under a collective bargaining agreement? No it doesn''t matter. In fact, that wasn''t the case in U.S. Airways. So it doesn''t have to have been pursuant to a CBA, but it does have to be seniority that really is consistently enforced. Because if you make exceptions to your seniority rules, then you might need to make another exception here. And this is why, when you really think about that U.S. Airways case from a few years ago, a lot of management attorneys cheered the case, but you know what, frankly, I don''t find it all that helpful for most employers, because most employers whom I have talked to don''t have seniority as the be all and end all. Seniority tends to be a number of factors that comes into play, in terms of who is going to get the position. And if seniority is just of a number of factors, well, then I don''t think that U.S. Airways helps you. U.S. Airways really helps you if seniority is the determining factor. Page 90, how widely do you really look for reassignment? Could you stop at the person''s facility? No, what if you are, and I know some of you are nationwide facilities, I know some of you have got 2,000 locations across the country. Do you have to look in all 2,000 locations? Yes, yes, you do. I mean you have to out closest to home, but then you have to move further out if there wasn''t anything vacant and equivalent. That is what the courts are saying as we see on page 90 and 91. Now, I have recently somebody said to me, well, we do this, we try and we are never successful. They said, we look outside, we send out E-mails to our HR professionals across the country and we are never successful. I asked this guy, what exactly are you doing? And he said, well, we send out an E-mail listing all of this-this employee''s limitations that we ask. Do you have anything open? Well, now, what kind of E-mail is that? You don''t want to be sending out an E-mail with the guy''s limitations, you want to send out an E-mail with the guy''s qualifications right, asking whether there is a possible opening that the person is qualified to do. Page 92, do you have to train somebody for the opening? No, you don''t have to, unless you train people without disabilities, if you train people without disabilities, then you have to train somebody with a disability. Otherwise you have disport treatment. Page 93 at the bottom, the hardest reassignment question is, are you making somebody compete for the new position, or do you give them the new position? The courts are split on this, but EEOC and Department of Justice and most courts say the person gets the job. The person with the disability gets the job over somebody who might be more qualified. We see this on page 94, cases like Smith and ATKA and Whole and Bournet and 95. You know the only circuit - well, I should say the one that has been adamant about it, that has gone the other way, is the 7th circuit. On page 95, cases like Hummus and Keeling and Williams and Mays. Say, naw you don''t have to give the person the job over somebody who is more qualified. Seventh circuit is Illinois, Indiana, Wisconsin it tends to be a very, very conservative circuit when we are talking about ADA cases. If you are an employer, you can''t lose in the 7th circuit. If you are an employee, you almost can''t win in the 7th circuit. Why is the 7th circuit taking that position? Well, just take a look, just take a look at the Williams case on page 95 at the bottom. They say ADA doesn''t require us to give preferential treatment. Now, those of you who are listening at the beginning of this broadcast you will know what did the Supreme Court say in the U.S. Airways case? They said ADA does require preferential treatment. When you think about it, the 7th circuit does seem to be wrong on this issue, but having said that, this is what they say, and the Hedrick case in the 6th circuit has said something similar on page 96, most have gone the other way. Page 96, what do you pay the person in the new job? Well, it is whatever the new job pays. That is what cases like Cassidy and Voytex say on 97. As long as that is what you do for somebody without a disability whose been reassigned. Page 99. What about that question that I raised earlier, when somebody is getting a suspension and as you are handing him the suspension notice he says, well, you know what, I have broken your rules because of my disability. Let me give you a hypothetical. The person says to you, you gave an oral warning for coming in late. Next time you give him a written warning, the next time you gave him a suspension, as you are handing him the suspension he says to you I have been coming in late because of the treatments I''m getting. Now, this is a pop quiz for all of you, and I know you can''t answer this, but during the question and period you can tell me what you think. What should that supervisor turn around and say now that the guy has been coming in late because of the treatments I''m getting? What should the supervisor say? Should the supervisor say, what kind of treatments? No, what should the supervisor say? The supervisor should say, how can I help you? Why? Because we are now on notice, aren''t we. We are on notice the person needs something because of some conditions. We are on notice. So you need to look at whether there is some possible accommodation. The person might say, well, you know what? My last treatment is Friday, I need to come in 15 minutes late on Friday. Now, I would approach as a Starbucks case. I would say to you is it something you can just give, is it quick and simple and easy? If so, just do it. Sometimes you can''t. Even 15 minutes you may not be do that. It may be the guard at the front gate and you can''t let him come in 15 minutes late. If you can, do it, if you can''t, then go into ADA land. And, of course, it would be in ADA land where it would analyze is this a disability and is it as a possible accommodation. Page 99, the point here, though, is you don''t have to rescind discipline as the accommodation. If you said to the person, how can I help you and the person said, I would like for you to take back that suspension. What should your answer be? No, I don''t have to take back the suspension. In fact, HR people and EEO people, what would it be like if you took back the suspension. It would be just like giving the person an inflated performance review, you wouldn''t be giving the person the same type of feedback as you would be giving anybody else. So taking back the suspension, rescinding the discipline because you feel sorry for somebody or because the person has a disability could itself be seen as disport treatment.
Page 100-101. Work at home as a possible accommodation cases like Humphrey and Consolidated Edison. But of course you have to look at the job. Consolidated Edison says working at home is a possible accommodation, but in that case the job involved overhead electric line repair. You can''t do that job at home. The one circuit that has gone the other way on whether work from home is a possible accommodation on page 104 is, guess who, the 7th circuit. Cases like U.S. tobacco say you really hardly ever have to let somebody work at home. Very, very conservative circuit. I don''t think it is safe to follow that on issues like this. If you want to play it really aggressively, you can, but I wouldn''t think it is the smartest thing to do. Page 105. A modified work schedule a possible accommodation. Changing the start times, the stop times like the Coneen case on 105 on to 106. Letting her come in at 9:00 instead of 8:00. Do you have to give somebody a 106 and 107 an open-ended schedule. Come and go as you want? No, why not? Because regular, reliable predictable performance is going to be essential. On page 110, do you have to change someone''s shift as an accommodation? Not if the shift is what-not if the shift is an essential function of the job. Interestingly, although there is not a lot of court cases out there on this point. The cases out there do seem to reflect that the shift itself could be considered essential. Even EEOC has says on 110 that the timing can be a critical part of what is being done. Page 111, an irritant free environment, do you have to give somebody an environment free of all irritating smells. Well, cases like Buckles and the EEOC on 112 Roberts case have said no, you don''t as a reasonable accommodation says you don''t have to remove all smells from the workplace. Not a lot of cases out there yet on that point, but the cases that are out there are in favor of employers. A different type of irritant free case. That is the case where the guy said I need an environment free of all irritating managers, I want to be left alone at my desk until I retire. The Mack case and the court said, no, that is not something that is required as an accommodation. Page 112, can you as the HR professional, as the lawyer, could you require somebody to take medication as a possible accommodation? The answer is no. It is up to the person he is going to treat or not treat his body. What devices he is going to use on his body. You can''t make somebody use a hearing aid. In fact you can''t make somebody turn on his hearing aid. You can''t make somebody take medication for his depression. You can''t make somebody change his medications for his depression. You can''t make somebody go get therapy. The point it, you take the person as you find them. And although doesn''t sound fair to a lot of supervisors and managers, the courts are saying, you take them as you find them. You may have to give an accommodation, even though the person may not need it if he took care of himself. Page 115 on to 116- alcoholics. Alcoholics, courts are generally saying, now they are starting to change their tune a little bit on this one, are generally saying have disabilities. On page 115 and 116, what does that mean in terms of accommodation? What that means is, you may have to give the person leave to take care of the alcoholism, you don''t have to give the person time off to enable the addiction, right? You have to give the person time off on Mondays because of weekend binging but you might have to let the person have time off to go to treatment programs. This issue is also important when we get to something like smokers. On page 118, so far, I''m not aware of courts of any courts. Now, there is probably some lower court out there somewhere saying a smoker has a disability. I''m not aware of them. And if any of you are, I would love to hear it. But even if a did have a disability. What would be the accommodation you would have to give the smoker. It would not be smoke breaks, it would not be smoke rooms, those are things that would enable the addiction. What would it be? It would be time off to get treatment for that addiction and you know in your hearts, that is what smokers really want, right? I''m just kidding. On page 122, undue hardship. We talked about reasonable accommodation, remember the flip side to this and in just a few minutes we are going to be turning to you for questions. The flip side to this is, you don''t have to give an accommodation if it would pose an undue hardship. Undue hardship is the point where you, those of you who are employers never want to be. If you are a plaintiff or you are a disability rights advocate, this is exactly where you want the employer to be. You want to show there was an accommodation and the employer is not giving it, and now it is up to the employer to show undue hardship. There are certain undue hardship arguments that are just terrible to argue, and others that are okay to argue, for example, on 123, EEOC has said, hey, look where an accommodation is unduly disruptive to others, it is not that it is affecting moral. It is affecting their actual ability to do their job. Well, then that is a good undue hardship argument. Or it is making people work longer and harder. Page 123, cases like Mason. Or it is increasing the difficulty throughout other people''s work. The United Airlines case. One thing you don''t want to argue as the employer on page 124 on to 125 is cost. You don''t want to say it is too expensive, and once again, one more thing to put in your to-do list to train your supervisors, you don''t want them to be saying, hey, I can''t afford it. Hey, it is not in my budget. Here is what happens, you we can''t afford it. What have you just done for the plaintiff''s attorney or for the disability rights advocate to argue? Well, now they should have free access your books, because you just said you can''t afford it, well, what kinds of things afford? It is fair game once you put that in issue. So as the employer, never on 124 want to we can''t afford it, even if you believe it. Come up with something else as to why you couldn''t provide an accommodation, and for those of you who represent plaintiffs in these cases or complainants in these cases, if the employer had said we can''t afford it, well, you have now got a really wonderful way to find out those things the employer can afford. On 126, the final issue is what about a collective bargaining agreement? I mean, could you say, hey, look, the collective bargaining agreement says we can''t do this this particular way. Therefore it is an undo hardship? The courts do seem to be saying that is a good undue hardship argument where the CBA says you can''t do it this way. EEOC''s position all of these years, has continued be that is just one of a number of factors you can''t-you can''t say, that is the be all and end all, courts do seem to be saying it is. The EEOC says you can''t just argue that you at least try to negotiate with the union. I think that is good advice. What do you have to lose if you try? I imagine some of you out there represent unions. I''m finding less and less unions saying no, we won''t even talk to you about it. But from the employer''s perspective, if you at least try to talk to the union then the union says no we won''t talk to you, you know what? EEOC investigators have told me, and aside from training a lot of in-house government agencies and private entities, I also trained a lot of the EEOC offices as to what the courts are doing on these various issues. A lot of EEOC investigators have told me, if that is the case, they will leave you, the employer alone and go after the union instead if you tried. So, you have a letter from you to the union saying we would like to negotiate a change. A letter from the Union to you saying no we won''t talk to you. You show those letters to the EEOC investigator, in some cases the EEOC investigator might let you off the hook. What do you have to lose? That is reasonable accommodation and undue hardship. Robin, let me now turn it back over to you to give me some questions.
Great! Well, Dave that was a wealth I''m sure is spinning right now, as they are looking at their documents or they are to think back at some of the things you said, because obviously you covered a huge breadth and depth of topics and issues that are key and at the forefront of the reasonable accommodations process. So, I think this is a good time for us to open it up to our participants to see if they want some further clarification or if they have other questions or, of course, as we know from this group we have worked with for a long time, we always have some interesting issues that they may be working with that are often outside of what you may have mentioned as key issues right now. So we will ask Denise to give instructions once again for our participants so they know how to ask questions, and then we will start the process of engaging in question and answer period.
Hi! One of our participants has a question here, we are from Hawaii.
Great. Go ahead.
We have a system where you have leave and typically up to a certain number of days you don''t have to give reasons for why you are on leave, you don''t have provide a doctor''s proof. For instance. If the person is undergoing treatment as part of their accommodation, can we require them to provide of proof of treatment from day one?
So are you saying that you would have a different type of program for somebody who is getting treatment?
This is for alcoholism or something like that.
No, if I''m understanding the question correctly. No, you could not have some different requirement for somebody who is getting treatment for disability as you have your general leave policies, would be disport treatment. If you had under all of your leave policies that the person has document why they are out on leave that is one thing. I would not have something special for alcoholics. If I''m understanding the question correctly.
Yes, okay, thank you.
Sure. And I wish I was in Hawaii.
The question I have, is I realize that an employer cannot require an employee with a disability to seek counseling as a reasonable accommodation. But what about equal employee-what about requiring any type of employee to seek counseling. Is that allowed or do you possibly come across the problem regarding that having a disability.
Where are you calling from?
You raise an interesting question. This wasn''t today''s topic, so you have cases in your materials on this. But the question you are raising is could referring somebody, and I''m going to use the example of an employee assistance program, because that is kind of where some of the case is come out. Is referring somebody to an employee assistance program, is that regarding the person as having a disability? So far the EEOC and the courts have said no. Referring somebody to an EAP. As long as you do it the right way, it doesn''t regard the person as having a disability. But now, think about it, if you make something a mandatory referral. I think it is much more dangerous, if a voluntary referral I think much more likely that it won''t be considered regarded as. Also, you want to make sure that you are not saying things to the EAP professional that regard the person as having a disability. For example, you don''t want the supervisor, or the manager or the HR professional saying things to the EAP professional like you know what, I think the guy is an alcoholic otherwise, you have just regarded the guy as having a disability. Better, much better to say to the EAP professional, here is the workplace performance issues we are noticing, we are referring this guy to you for help, because what we care about is the guy''s performance. So in other words, you want to stay away from talking about the person''s physical or mental condition, and you want to be basing all your communications on person''s actual workplace performance.
Does that answer your question?
Yes, it does, thank you.
Great. Thank you. The next question, please.
All these wonderful locations today, Hawaii, Miami,
I I''m sitting here in New York City wishes I was all over country right this second.
Can you hear us?
I can. Go ahead.
We have employees who are hired to do a particular job, and they later find out that they can''t perform part of the essential functions of the job. When does it become unreasonable when you have let us say 8 out of the 10 employees that can''t perform this job?
Okay. Well, now, what the Caller just raised was a question of somebody who can''t do the essential functions of his job. What would happen in a case like that, if it really was. I''m going to assume for purposes of this question, that it really is an essential function this person can''t do. What is the analysis, the analysis is, that guy is not qualified for the job. You do not have to somebody from doing an essential function of his job. The person is simply not qualified. What would we do for that person who just can''t do his job any more? Let us say there was simply no accommodation that would let him do that essential function. What accommodation would we be looking at? Those of you Robin, is it okay for me to throw the question back to the people with Eileen?
Anybody have any ideas? What would be the accommodation? Well I don''t want to put you on the spot. It would be reassignment. That is where we look at reassignment. But we wouldn''t have to keep a person in the job that he just couldn''t plain do the essential functions of.
Does it also tell you that maybe we are hiring people without first testing to see in they do the essential functions?
I would say if that particular employer has-is finding so many employees can''t do the essential functions, that they may want to evaluate their hiring process. I don''t find-I mean, most-I haven''t heard that all that often, so it could be that the particular employer who you are working with maybe needs to how it is evaluating applicants.
I mean I think we get this question quite frequently, it comes up in training. Employers need to look back at what do you really need to note to determine if someone is a qualified applicant. If its a key issue of a particular function or something of that nature that it makes a difference whether somebody can do the job or not. You need to look at whether all perspective employees are asked to demonstrate, whatever process you go through for that particular task, so you can make sure you have a qualified workforce coming in.
That is exactly right. And yet another session that I''m had on this program. You are allowed, of course, to ask people to describe or demonstrate if you ask everybody else, that may be something that you would want to re-evaluate. If it is a manual labor type job and you are finding that so many people can''t do it, maybe you do want to add some type of demonstration, but you want to stay away during the application process preoffer, you want to stay away from asking about physical condition. Post offer you do. Preoffer you want to stay away from it. When I say post offer, can you caveat to that is check your state law, for example, California''s new state law, their fair employment and housing act which they passed about two-years ago, prohibits even at the post offer stage from asking medical examinations and inquiries.
Could we ask a follow-up to that?
What if during the recruitment process that we ask a question whether or not they can perform they essential of the job description because in the part of the recruitment process, you actually review the job description, you are asked to basically look over the functions and they sign off and say that they are willing to work in each shift. They are willing to do all the essential functions the job. What has been after let us say, they pass probation time, they present a doctor''s note that says this person had this condition prior to employment that they are no longer able to perform the essential functions.
Well, remember, conditions change, so it could have been-I understand what you are getting at, and I think what you are getting at is that you are wondering whether this person could have lied to you. If the person lied to you and right from the beginning was never going to be able to do the essential functions, well, that is one thing. But, you don''t want to just assume, hey, this person lied, therefore, we can terminate him for lying as we would terminate anybody else for lying. Remember, sometimes somebody really does think they would be able to do the functions if you gave him an accommodation, and look, the way you asked the question, can you do these functions, if I said yes it may be that I''m saying yes, because I can do this function if you gave me an accommodation, if I really lied, knew I going to be able to do it well then that is something different.
Thank you, alright, next question please.
An employee has bipolar disorder. She is apprehensive of going to her supervisor because of the stigma. She says she has depression, so the accommodations she is getting are for more depression versus what she really needs. If you have a mental illness or mental disability, what is the best way to approach a supervisor for reasonable accommodation.
I can''t answer that one in terms much, sort of what-except from the legal perspective, I will give you a legal perspective answer, sort of from a disability rights advocate perspective, I can''t tell you the best way for the person to do it. But I would say that if the individual doesn''t effectively go to the supervisor and say, here is what I need, courts are saying that the employer has no obligation to give it to the person. So if this person is asking for an accommodation for depression when what he needs is an accommodation for bipolar and now he is saying, you are not giving me the right accommodation, that is not the employer''s fault. So the employee has the obligation, say the courts and says the EEOC to ask for what he needs, the reason is, the ADA is not meant to be a paternalistic statute. It is not meant to put the employer into the parenting roles telling the individual what he needs or what she needs. The employee''s got to ask for it, the employee''s got to be forthcoming with the medical documentation to back it up.
So if the person basically says I have bipolar disorder, are most human resource directors understanding of that, have they been exposed enough to that?
I think the answer to that is no.
No, I don''t think-most HR people would not. Honestly, I would say HR people should stay out of necessarily understanding all of and outs of bipolar. What I would do with the HR professional. Is I would have a good list of medical professionals who you turn to for advice. I always tell the HR people don''t play doctor, and I tell doctors don''t play lawyer. Everybody has his or her expertise, and you need to know who to go to with the questions. If the HR professional has been this person has bipolar. If I can, kind of turn your question into a hypothetical. Somebody comes in and says, I have got bipolar but doesn''t say I needing in because of it, just says, I have bipolar, I would say to the HR professional what you should be doing in a case like this. Unless you have got performance problems that you really reasonably could tie to that bipolar I would say base your employment decisions on workplace performance. On the other hand if the person says I have bipolar and I''m having a lot of trouble with the stress of job, or I''m having a trouble with the that I have to work, in other words, tying some type of problem to bipolar, then I would say to the employer, to the supervisor, I would say go to HR, HR engage in the interactive process, starting off with the quick, simple, easy thing. How can I help you? Then go to a health professional and all of this should be above board. I would include the person in this discussion as to what the person really needs, whether the bipolar raises the level of disability because sometimes it does and sometimes it doesn''t. And then find out what the person really needs because of it.
Okay. Thank you.
Go ahead. Hello?
David, it is good to hear you again, I go to your trainings in Chicago.
Nice to hear you.
I have really got an opinion question to ask you, you mentioned the 7th and I believe the 3rd circuit said that employers, oh I''m sorry, employees didn''t get an auto placement-my term, auto placement into a new position versus the other circuit that yeah, they get the position. If that is a reasonable accommodation. Can you tell me why the Supreme Court hasn''t done anything to fix this or it hasn''t come to their attention?
As you might know from the sessions that I have given in Chicago, I have been for-I must have been saying for the past five-years that I think this is going to be the next issue the Supreme Court is going to take up. Because its such an important issue and it raises so many important sub issues, but for whatever reason, they just haven''t. You know, it could be that this is just such-it is such a controversial one. Maybe they-I don''t know why they are not taking it up. I think they should. If were them, this is the one I think could be the most helpful for employers at this point. To know, what is the employer''s obligation. But, no, I can''t tell you they haven''t done it.
Why did the Supreme Court-why did they define reasonable in such an unhelpful way. If I had been them, would I have defined it much more helpfully for both the plaintiffs and the management community. I think in some cases they want stay out of controversy.
Alright. Thank you.
We also find the reassignment issue gets muddy when you start dealing with the unionized environments and things and that may also add another layer of complexity.
Interestingly on that, they did get into that with the U.S. Airways case.
But they stopped short of saying anything about the issue that was just raised.
Next question, please.
I actually have four questions from different people.
Okay, we will start but we are actually getting close to the end of our time, but go ahead with the first one.
Okay. If an employer cannot accommodate an employee with a disability in their current position, for how long does an employer need to search for a vacant position to which to reassign an employee with a disability?
This is the question, where I was saying ADA looks at it as a snapshot. First of all, you would look if the person is saying, hey, I will be able to come back to my job, well, then you would look at leave as an accommodation, whether we can hold the job open for that period of time or whether it causes an undue hardship. Let us assume that this is a case where the person really won''t be able to come back to his that is what I''m going to assume from your question. How long do we have to look? Well, ADA says it is a snapshot of what do we know now that is open or what do we know now that is going to be opening soon. What do we know now that is going to be opening in two weeks, what do we know now that is going to be opening in two months. ADA does not require you to keep and looking and looking and looking. This is where I was saying, you are not in Washington State right?
No, I''m not.
If you were talking about Washington State, that is one of the State laws that I know of, that does keep you to-require you to keep looking and looking and looking for a reasonable period time. But ADA doesn''t.
So it is a state-by-state issue you may also need to look at your State law.
Interestingly, Robin the only state that I know of, and I would be interested if others out there know of states that I''m not thinking of, on this point-the only state that does require you to keep looking and looking is Washington State.
We will take another question from the captioning. Go ahead.
We have someone here who was wondering if we could speak a little bit about federal employees. Her experience has been that she has requested a reasonable accommodation and they have told her that regular staff are entitled to the reasonable accommodation, but not management staff.
Well that is just plain wrong. That is wrong. The rules that we have just gone through are exactly the same for federal employees, for state employees, for private sector employees, for any employee who are covered under ADA or Rehab Act. As I said, right off the bat, the standards are the same on this issue as they are for ADA. If a manager has said management employees are not entitled to reasonable accommodation, then that manager needs to get good ADA training.
I don''t mean to sound harsh about that. But when I hear things like that, I just think that employer is just setting himself up for an ADA lawsuit.
What if they are not compliant with it when they present like you said, they requested and they provided, you asked for it, and you provided it not only what you need, but also the whole information of why you need it, like the-you ask for the reasonable accommodations, why you need it, and what is needed for. I mean, the whole enchilada.
And don''t abide by it.
What you need to do if you are the employee is file an EEO charge. The way you file an EEO charge differs whether you are federal or private sector, so you would want to start at, if you are a federal employee, you would want to file with your agency. And then it works its way up through the federal sector to EEOC. If private sector, you would go to your state agency or EEOC. The one thing if you were representing an employee, you want to make sure that you were not responsible for the breakdown in process. If the employer asks you for information and they are saying, can''t give it to you because you haven''t given us the information to determine disability or to determine the functional limitations, then that is something different.
Okay. We are going to have to end at this point. We are at the 2:30 Mark, I recognize everyone probably has many more questions, because is a topic and this is obviously David has been an excellent speaker with a ton of information to provide to everybody, and even sometimes when this information is given, it almost raises more questions, is a good thing in some ways. But also with the time limits, unfortunately, we don''t have ability to deal with every single thing that is happening out there. We do you want you to know that the session will be available again on our website in about 5 business days to review both the transcript as well as the audio recording if you are interested in listening to it again. As I think you heard, in my introduction, that David has a number of seminars upcoming specific to the ADA in September and you can go website WWW.NELI.ORG or call their offices at 303-861-5600 to find out more about those sessions across the board. I do want to thank everybody for participation, I want to remind you again, this is the end of our three-part series, those of you who have been participating in all three of the sessions and are looking and would like to have a certificate, noting your participation. Be sure to work with your coordinators to get information to our offices so we can issue those. As well as those who are seeking the CRC credits as well as those from the society of human resources management. Make sure that you get that documentation in. Our next month''s session in June, I can''t believe we are already into June, is related to transportation and an update on what is happening in the public transportation systems related to accessibility, 15 years after the implementation of the ADA as many of you know from watching the press, we continue to have problems in that arena. And then our July session will feature John Wodatch from Department of Justice as well as Sharon Reinert from the Equal Employment Opportunity Commission to give us an update on the ADA and the litigation activities of Department of Justice (DOJ) and EEOC over the past year. Hopefully some of you will join us in the upcoming sessions, thank you very much for your participation today. And David, I want to thank you for your excellent information and for making this resource information available to everybody as you have as part of this session. I think it is very valuable and hopefully everyone will benefit from it. Everyone, have a good day!