Great Lakes ADA Center which is one of the 10 regional ADA Centers funded by the US Department of Education, National Institute on Disability Rehabilitation Research; I never get that 100 percent correct when I say it. This program is being brought to you as part of our grant program. The content of this program is being recorded and this will be made available or will be available to individuals, a finger went up. We invite you to join the program at any time [background sound] and afterwards. I''m going to go ahead and introduce our speakers at this time and then have them go ahead and start the program for us. Our first speaker [background sound] is Alan Goldstein and Alan is a Senior Attorney with the organization Equip for Equality and Alan has been with the Equip for Equality for several years and he is currently working with and operating our project related to the Illinois ADA project which is one of our affiliates in the Great Lakes region of our six states and I''m also then going to introduce Barry Taylor. Barry Taylor has been with Equip for Equality [background sound] for several years since 1996 and was the Legal Advocacy Director. He''s also received many individual and systemic discriminations cases under the Americans with Disabilities Act and he has been involved in self-advocacy training project. He oversees that which has trained over 23,000 people with disabilities under the ADA, transportation, guardianship and a number of other related issues. Prior to joining Equip for Equality, he was a Legal Advocacy Director for AIDS Foundation in Chicago; it''s a project in Chicago. So at this point I''m going to go ahead and turn it over to Barry and Alan and they''ll take it from here. Go ahead.
Great! Thanks, Robin. We''re really pleased to be a part of these series and look forward to hopefully having you join us throughout the year. Today what we''re going to be doing is splitting this up where I''m going to be speaking at the beginning and then will break for questions and then we will then resume and Alan talked a little bit more specifically. You''ll see in the PowerPoint, we''ve divided this up and I''ll be covering slides 1 through 32. So I''ll be giving you an overview of the ADA, very briefly ''coz I know we have a lot of people here who have experience with the ADA, briefly explain how the ADA could be covered for people with psychiatric disabilities, overview of reasonable accommodation requirements and also talk a little bit about the reasonable accommodation process. After that discussion, we''ll take a break for questions and then after that, Alan will resume and he''ll be talking about 4 different reasonable accommodations for people psychiatric disabilities; probably the most common ones that people ask for in the workplace and he''ll be talking about those both from best practices and about regulation standpoint from the EEOC but he''ll also be citing some other cases that have interpreted those different accommodations. And then we''ll be sure to leave some question time after his presentation and you can ask questions about anything that we presented today or if you have other questions that we didn''t cover certain types of accommodations or other things that we can do to address within the timeframe, we''re happy to do that. So when it''s time to break we''ll be taking...people can give audio questions and if people can''t because of the microphone, you need to do a text question. We''ll accommodate that as well. If for some reason, you''re having technical problems while I''m talking, I would suggest you send a text box rather than trying to ask an oral question. In that way the folks from Great Lakes can try to address the technical issue while we''re speaking but I''ve got it locked right now so I''m going to be speaking until we take a break after the 32nd slide. Great! So as most of you know, the ADA is divided up into different parts. They call them titles and we''re really focusing today on Title I which is Employment, but as many of you know it covers all aspects of the lives of people with disabilities including public transportation, state and local government services, access to private business and telecommunications. But today we''re just focusing on employment and the goals of the ADA, as again many of you already know, is really to make sure that people with disabilities are fully integrated into our society and one of those ways that people are fully integrated into society is through employment and recognizing that people with disabilities have been denied opportunities in employment historically, in our society, the ADA has certain provisions within the employment part of Title I to address these inequities and one of the inequities has been that people have not provided accommodations or modifications in the workplace to assist people with disabilities and so reasonable accommodations that we''re talking about today is a component of the Title I. So as we move forward with Title I, you''ll see there, next slide, thanks! The way the ADA has set forth, not all employers are covered by the ADA. You have to have at least 15 employees within your workplace if you''re a private employer. If you''re a state and local government employer, you only need 1 employee. So all businesses with 15 or more are covered, all employers are covered as well as state and local governments are covered. Also if you have a business or an employer that has less than 15 employees, they may not be covered under the ADA but will be covered potentially under some state and local governments laws and often times those laws are parallel in the way that they''re structured and that they have the same provisions of the ADA, so even small employers can learn from the ADA when they have parallel statutes that have some more provisions at ADA. And to be covered under the ADA, you have to show that you have a disability and the disability is divided up into 3 parts. You have to show you have a physical or mental impairment, one that causes substantial limitation to one or more major life activities. The ADA also covers whether you have a record of or history of a disability or are you regarded as having a disability. But today we''re really going to be talking about those people with actual disabilities because, for the most part, courts have interpreted that reasonable accommodations are primarily available for those who have actual disabilities. There have been some cases that have recognized people who are regarded as having a disability as having the opportunity to have an accommodation but those are actually the exception of the rule. So we''ll focus on people with an actual disability. The other important component is that people have to also be qualified to do the job with or without reasonable accommodation so you''ll see that reasonable accommodation is built into the definition of being qualified. So the first part is you have to show that you have impairment and you have to have a physical or a mental impairment and you''ll see there on the slide the definitions of both of those and typically that has not been an area where there''s been much litigation. There hasn''t been question whether a person has an impairment or not; it''s usually on the other two components whether you''re substantially limited in a major life activity or not. And you''ll see with substantial limitation, there are really two ways you can be substantially limited. One, is if you''re unable to perform a major life activity completely but the other is also if you''re significantly restricted in performing that major life activity, so an example would be if somebody is deaf they are unable to perform the major life activity of hearing. Somebody who is hard of hearing would be significantly restricted. They both would be covered under the broader umbrella of the substantial limitation. And then the final -- ok, I think we miss the slide there, Alan. Yeah, and then the final part of the definition of disability is major life activities. What we''ve done here is we divided up the regulations which list all the various major life activities. This isn''t an exhaustive list but an initial list that was developed when the ADA was passed and you''ll see the top part of the slide lists different ones that are common for people with psychiatric disabilities and since we''re focusing on that today we wanted to mention that. So you''ll see interacting with others, caring for one''s self, performing manual tasks, sleeping, concentrating, learning, working, thinking and speaking are often ones that have been litigated with people with mental illness have raised that as a major life activity. The one that''s probably been the most controversial or, may be controversial is not the right word, but the one the courts have been split on the most has been interacting with others. Some courts are not recognizing that as a major life activity and other courts have. The other thing, one is sleeping and often time that really goes to the degree of the person''s impairment. Sleeping has typically been viewed as a major life activity but often times it hasn''t been deemed that the person is substantially limited enough to be covered under major life activity of sleeping for disability. The other thing I wanted to mention that''s not in the slide is that if the symptoms from a psychiatric disability; I''m sorry the side effects for medication you''re taking for psychiatric disability. If the side effects themselves are substantially limiting, those also can be covered under the ADA. So for instance, there''s a case out of the 9th Circuit, the McLendon case, which was the first case I think, on this issue involving somebody with the psychiatric disability and he was taking medication to address his psychiatric disability and it was keeping his symptoms pretty much in control. However, the side effects of that medication he was taking rendered him impotent and so he made the argument that he was substantially limited in the major life activity of sexual relations and the court recognize that. So an important thing to remember is it''s not only the symptoms of the psychiatric disability but it can also be substantial limitation on major life activity that''s related to the side effects from medication you''re using to address your psychiatric disability. And the other thing I just want to mention before we move on is that list was not exhaustive. There have been more and more major life activities that people have come up with over the years so for instance, sexual relations and procreation. They weren''t on the initial list but those are also ones that have been recognized by the court. So employer should not rely on that list as the only ones that they will recognize for somebody having a disability. So the ADA and psychiatric disabilities, there is no set list on what''s considered a psychiatric disability. Often times, people will look at what they call the DSM-IV which is the Diagnostic and Statistical Manual for mental disorders. It''s kind of...if it''s under there then it''s probably a mental impairment and therefore potentially a psychiatric disability if there''s a substantial limitation. The key thing to remember is that the ADA very much relies on the fact that each person be assessed on an individualized basis. The ADA does not condone employers making decisions based on labels and titles. This can sometimes be a guidepost for certain accommodations but they should not be the be-all and the end-all coz despite the fact that 2 people may have the same diagnosis or psychiatric disability does not necessarily mean that they manifest the same way in the workplace or that the accommodations one person would need would be the same for the other person. And then there''s also some information on the slide there that gives you some guidance as far as how drug and alcohol use applies, often times people with psychiatric disabilities or what they call duly diagnosed where they have a substance abuse as well as an alcohol problem. So keep that into consideration as well. So here is a listing of substantial mental impairments that could result in an ADA disability. One thing I want to point out at the bottom of this slide is something that could be very helpful as you''re administering this in the workplace and that is the Equal Employment Opportunity Commission''s guidance that they''ve done on the ADA in psychiatric disabilities. It''s a very detailed guidance and gives a lot of factual scenarios and I think it''s something that I would definitely recommend you review as you''re making assessments and although some courts have not necessarily followed the EEOC to the letter and some have actually rejected the EEOC, it''s I think a very good place to start and gives you a sense of where the enforcing agency is coming down and although we''re not going to talk about how the ADA is enforced today, for Title I cases you do have to -- the employee first has to exhaust before the EEOC and so in all other cases are decided before the EEOC these days in mediation and so being familiar with the EEOC''s processes and their interpretation of the law, I think can be very helpful, especially within that initial stage when you''re going to the administrative remedies. This is just some statistical research information that we''ve pulled together. You''ll see the sites at the bottom of the slide and it''s just reminding all of us that people with psychiatric disabilities really do experience quite a stigma and it''s often times a challenge for people with psychiatric disabilities to make a decision on what to do with regard to the workplace because on one hand, there is a stigma about having a psychiatric disability and there are a lot of stereotypes that arise, people think you''re more violent or dangerous or unreliable, a variety of things like that and so disclosing that can result in a risk for a person as far as how people perceive them in the workplace. But at the same time that''s what we''ll talk about in order to receive a reasonable accommodation under the ADA, you have to advise your employer that you need one and so it sort of like if you don''t say that you need an accommodation then you may not be able to be qualified to do the job but if you do disclose then there are issues of stigma and problems in the workplace. So I think as employers trying to make a very disability-friendly environment and encouraging people and also when people do disclose the information keeping it confidential is very important. One other thing that studies have shown is that unlike some physical disabilities where the cause are more direct where you''re buying equipment and that type of thing; a lot of times the cause is associated with accommodations for people with mental illness are less out-of-pocket and more indirect meaning that you''re may be modifying schedules or revising the way somebody does a job which isn''t something where you''re actually going out and buying something but instead just changing the way things are being done in a workplace to accommodate the individual. So let''s move on now to reasonable accommodation. One thing to remember is that when we''re talking about discrimination and we''re talking about the duty to reasonably accommodate, we''re really talking about the whole gamut of the workplace. A lot of times people think that discrimination on the ADA is only in the hiring and the firing but it really does affect really all aspects of employment, and reasonable accommodation really is the same way. It can be when you''re going to the hiring process, people can get an accommodation so if somebody is deaf and they need an interpreter, that would be an accommodation or may be once they''re hired then accommodations to be successful in the workplace and then also with respect to any terms and conditions of employment like access to different things within the employment setting or insurance, those kinds of things; all of those would fall within potential areas of discrimination and all of them would fall within potential areas where a person would be entitled to a reasonable accommodation. And so this slide, I think, just reiterates what we''re saying is that not providing an accommodation for a known limitation caused by disability is a basis for discrimination claim under the ADA. The other thing to remember is that discrimination does not have to be intentional. If you have a policy that somehow keeping them from getting an accommodation, that in itself, could be discrimination itself. And you''ll see the definition of reasonable accommodation under the EEOC is listed here. Basically, it''s a modification to the workplace environment or the manner in which the decision is performed to enable the person to perform the essential functions of the job and then as we said before or enjoy the equal benefits and privileges of employment. So the four listed here are the most common reasonable accommodations through our research that we found for people with psychiatric disabilities and there''s court cases and interpreting each of these and as I said, Alan is going to be going to those in more detail but real briefly, the four are job restructuring, part time or modified work schedules, reassignment to a vacant position and appropriate adjustment or modifications of examinations, training materials or policies. So as you see, those are all the types of things that are not necessarily out-of-pocket cause but are really changing the way the job is done and the workplace to accommodate the individual with the psychiatric disability. Again, there are other types of accommodations that people with psychiatric disabilities may require or may request but these are the most common ones. Now, people are entitled to accommodation as given their...if the accommodation is deemed to be unreasonable and that it won''t really enable the person to do the job or it requires them to do something that is an essential function of the job, employers are not required to provide those. Also, if the accommodation is deemed to cause an undue hardship to the employer or results in a direct threat to the health and safety of the employer or others in the workplace, accommodations don''t have to be provided. We mentioned essential functions and again, one of the things you may want to refer to in addition to the EEOC guidance on psychiatric disability is there''s another very helpful document that you may want to review if you have it already and you''ll see that note at the bottom of your slide. The EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship goes through these issues in much more detailed fashion and could be very helpful. But in a nutshell essential functions are pretty much the fundamental jobs, these are things that you do primarily in your job and as we said the employers are not required to reallocate those essential functions. They may choose to do so but they''re not required under the ADA. A lot of times people will utilize job descriptions as a way to determine whether something is an essential function and that''s certainly a good place to start but if you got an outdated job description or they don''t necessarily, accurately reflect the job duties like for instance sometimes they''ll have as a given, you have to lift 20 pounds but the job doesn''t require lifting or that sort of thing. Those aren''t necessarily going to be as persuasive if they don''t really match the actual job. We mentioned undue hardship as a basis for not providing an accommodation and the regulations of the ADA define undue hardship as a significant difficulty or expense and so for an employer to claim undue hardship, they really need to do an analysis of the actual expense or difficulty, they can''t just say, "Well, that''s going to cost too much" or "That''s going to be way too hard to do". It can''t be that sort of knee-jerk reaction. It has to be something that''s based on objective evidence where they''re actually examined the options and often times they''re may be funding outside through maybe Vocational Rehabilitation Services or things like that to help supplement the cost. There''s, you know, tax credits and things like that. It can also essentially be of assistance of paying for things when it looks maybe a first blush, it''s something maybe too expensive. Really when we''re talking about psychiatric disabilities, I think the more common is going to be, this is going to be too difficult to provide. It''s going to be too difficult to change somebody''s position to reallocate the non-essential function or it''s going to be too difficult to let them go an hour early to their therapist and maybe come in an hour early, that''s just too difficult for us to manage and again, if they can show that it really is difficult rather than just sort of an initial reaction then that''s something came to be really an internal assessment as to what is possible and as we''ll talk about the interactive process and talking to the employee and what we''re trying to figure out is essential component of the reasonable accommodation process. And then the last way that an accommodation can be deemed to not be required or be provided is you can show that the person in the workplace would pose a direct threat and once we said a significant risk of substantial harm, so you have to have both not only the substantial harm of what might happen but also significant risk of that harm could happen, so both of those are important components and that that significant risk of substantial harm cannot be reduced by a reasonable accommodation. Again, what we''re trying to get with direct threat is that we want an individualized assessment as based on objective medical evidence again with people with psychiatric disabilities. A lot of times people have this sort of stereotypical view that there are threats in the workplace. They''ve heard about people with mental illness and that shooting people on post offices and things like that and then when they hear somebody has the same diagnosis, they immediately assumed that the person is threatening. The ADA is clear that that is not a basis for making a decision and certainly not a direct threat determination without something much more objective than that. So, now let''s move to the reasonable accommodation process under the ADA Title I. The first step is really typically starts with the employee requesting an accommodation and the ADA''s and the EEOC''s interpretation of that is real clear that it doesn''t necessarily have to be in writing. Often employees want to do that, they keep a record and you, as an employer, can also request that it''d be provided on a certain form that you fill out. You can have procedures within the workplace to help manage the reasonable accommodation process. It''s not required that the words reasonable accommodation be used and it''s also possible for a person with disability to have someone else ask that reasonable accommodation. It does not have to come directly from them, so for instance, if somebody became very ill and had to be hospitalized, a significant other could call into the employer and say this has happened to your employee, they''re requesting a leave. It wouldn''t have to come directly from the employee. So in requesting the reasonable accommodation, employee should be letting you know the nature of the disability and how it limits them that they need an accommodation and what accommodation they need. Now, sometimes people don''t really know what they need and that''s where the interactive process comes in, but if possible, employee should put out there what they need to help the employer assessed what''s going on. If the employer is aware the person has a disability and they have a reasonable basis that they need some sort of accommodation, courts have found that there may be a duty to provide an accommodation or at least start interactive process to figure out if an accommodation is necessary even without of specific request and you see a couple of cases cited at the bottom of your slide there, the Bultemeyer case and the Taylor case that I think Alan will be talking about; a little bit more detail in his portion where they found that you do not have to actually make a specific request. The employer was on notice. As far as the requirements of the actual accommodation request, one thing is very clear, is they''re only required to reasonably accommodating known limitations in disabilities. So if a person thinks that the employer should know that they have one but they don''t actually disclose it, employers aren''t required to be mind readers, so you got to cite there to the case the status, like Estades-Negroni case out of the 1st Circuit which upheld that concept and courts have been very consistent on that issue. Also, the request has to relate to the person''s disability. It can be that person has a disability and they make a request. There has to be a connection there and so the example here is the Boutin case out of Massachusetts where the person had a psychiatric disability and he had gotten initial accommodation related to his disability and then he asked for a second accommodation and that was to change his time to accommodate his daughter''s school schedule and while the first accommodation that he requested related to his disability, his second accommodation did not relate to his disability and the employer was not required to provide that one. Couple of other examples of people asking whether or not they did request an accommodation or not; you''ll see the Russell case. The person stated on the workplace, "I need to leave and I need to leave right now". The court said that''s not an accommodation request because there wasn''t any mention of a medical basis, he just said I gotta get out of here and so the employer was not imputed to know that that was an accommodation request and when the person that was disciplined resulting from that person leaving early, that was not held to be discrimination under the ADA. That''s the Russell case and then there''s another example here where a person talked about a reduction in objectives and lessening of pressure, again, really vague statements that didn''t relate to their disability and the court, while potentially lessening of pressure, could mean reassigning job duties and things like that. The court said that was too vague in order to be deemed to be a request for reasonable accommodation. On the other hand, the Bultemeyer case, which we talked about before, this person already had an accommodation and then the person was asked to come back to a very large school and place that the person would be deemed problematic for them and the employee''s psychiatrist had asked for less stressful environment and well they didn''t use the terms reasonable accommodation. The court found that that was deemed to be a request for an accommodation. I think one of the key things in that case was the person had already disclosed disability and had an accommodation and so they felt like the employer was much unnoticed than when somebody says, you know, something stressful to them where it doesn''t relate anything here; that was a history and so I think that history definitely played into the court''s decision. Basically what they said was the employer should have engaged in the interactive process rather than terminating the person when they refuse to do what was being asked to them. We''ve mentioned this already, but there is this requirement on the ADA, the interactive process. As many of you know, employers win on most cases under Title I of the ADA but where they''ve lost almost consistently is where they have failed to engage in the interactive process, so I guess, the best advice I would give to employers as they are working on ADA issues of reasonable accommodation issues is to definitely engage in the interactive process and basically there is no set way that''s done. It''s just having a discussion with the employee once it''s clear that they need an accommodation or once it appears that there''s a problem in the workplace related to their disability. Certainly in the interactive process, you should ask the employee what they prefer as an accommodation and there been cases that have interpreted the employee''s preferences as being a primary consideration that should really get a lot of weight. However, the courts are also very clear that you''re not required to provide the best accommodation or even the requested accommodation if you can show that the accommodation that was provided was effective. So if you have something that the employee''s requested that you view as being much more disruptive to the work place and you can provide something that''s effective even if it''s not necessarily what the employee wanted, employees have been upheld in that decision process. The other thing to remember is that accommodating one time does not mean that responsibility is over. People''s disabilities change and situations change in a workplace and so it maybe as we saw in the Bultemeyer''s case before where after you''ve accommodated them, they may need a different accommodation or you''re requesting them to do something different which then raises another accommodation issue. So it''s important to remember that one shot deal really doesn''t work when it comes to reasonable accommodation. One of the things in interactive process that you, as employers, are entitled to get is reasonable medical information when it''s not clear if the person has a disability or the need for the accommodation isn''t obvious so sometimes it''s clear the person has a disability and there''s no need to get medical documentation but sometimes it''s not clear and psychiatric disabilities are certainly the kind where it''s not clear that a person had a disability at all or may be you don''t know the nature of the psychiatric disability. And then sometimes if the disability is clear but it''s not clear how the accommodation could help that disability and so it would be entirely appropriate if it''s not clear on the surface to get may be a psychiatrist''s or a psychologist''s letter or explanation to support why the accommodation would help that person perform the essential functions of the job in the workplace. So like if a person with the psychiatric disability comes and says, "I need an accommodation of an orthopedic chair". You know, may be there is a connection there but on the surface it''s not really clear why they would need an orthopedic chair for psychiatric disability. So you''re certainly allowed to ask for that kind of thing, your request needs to be, as it''s here on the slide, job related and consistent with business necessity. It really should be limited to the accommodation request. Getting all the medical records really has been deemed not to be generally the appropriate thing in this kind of thing. Employees certainly are supposed to comply with the reasonable request for medical information. A lot of times where employee loses is when they don''t provide the information and that engage him in the interactive process. And then let''s move onto the next slide. As I said before, generally, his employer is not entitled of the complete medical records and a lot of times people will have releases they want employees to sign and employers have got in trouble when they''ve done that. So really to try to tailor the medical documentation request to the accommodation or to the specifics of the disability that you need to know that aren''t readily apparent. Also as we mentioned before, there is confidentiality provisions under the ADA. That information obtained related to the disability must be kept separate, must be kept confidential. You should only be sharing notes with the staff what they need to know. Really, you should not be sharing that with other employees or really, other people within the workplace unless there''s a clear need to know. The ADA has confidentiality provisions but sometimes there may be state laws or federal laws like HIPAA that also have additional requirements so it''s important to be up on all those different confidentiality laws including the ADA''s provisions. And also it''s just really important, I think, when we''re talking about getting too much information, you know, you don''t want to have more information than you need because when you have that you; have a knowledge of some thing that could then somehow impact your actions that could be then deemed discriminatory. So, I think, keeping request for information about disability and the accommodation that''s necessary is not only good for the employee in keeping their information confidential, but also is good for the employer to not provide them with more information than they need to do things better required under the ADA. So that''s a quick review of the ADA and the reasonable accommodation provisions. What we''re going to do now is open it up for people to ask any questions that they have and then we''ll turn it over to Alan to talk more specifically about certain accommodations on the ADA and the case law. When you ask a question, you need to simply press the control key and hold it and wait a second and you''ll hear a little beep and then you can ask your question and then let go of it. If you press the control key and you see that someone else is asking a question first, please release your control key and that will allow me to enter and answer the question and then once I''ve answered the question we''ll give other people a chance to press the control key again to ask an oral question. I know that some of you are not able to ask an oral question because of technology or potentially because of disability issues so we can also have people text in questions after we''ve done the oral questions if there''s time. We''ll get both of those in there and then we''ll move on to Alan''s so.
If you have a question, go ahead and ask it at this time by indicating...by pressing on the control key or typing your question into the text box. Then, can you tell me if the PowerPoint''s going to be available to us?
I think what the plan is that we have documents that are going to be sent by Great Lakes after and we have a brief that encompasses the PowerPoint that''s in lot more detail. I''m not sure if the PowerPoint itself would be sent. Robin could clarify that.
Yes, we won''t be actually sending you the actual PowerPoint presentation but as Barry said the briefs is very detailed. It''s not just of all this particular information. If you would like to have a copy of the specific PowerPoint you can send us an e-mail and indicate what the purpose or the use would be. But again this is information that these guys have produced as a part of this program and so we''re not actually making the specific slides available but we can address that case by case if that''s needed but at this time, no.
Any other questions before we move onto Alan? Okay, well, we''re going to save time for the end, so why don''t we move onto Alan and he''ll talk specifically about the 4 areas we spoke about and interpreting the case law and then we''ll some time for questions after that. Thanks for your attention.
Okay, thank you Barry and thank you Robin and the DBTAC-Great Lakes ADA Center for this opportunity to present today and thanks to everyone who''s listening through our webinar. On this slide you can see Groucho and Chico engaging in the interactive process. Moving on, I''m going to talk about the 4 categories of reasonable accommodations most utilized by employees with disabilities and I know Barry mentioned these, but these are job restructuring, part-time modified work schedules, reassignment and reasonable modifications of the work environment and/or policies. And I also want to point out the Job Accommodation Network which is under the US Department of Labor. It''s a very useful resource and I have their web address there at the bottom of this slide. So first we''re going to look at job restructuring and you may hear some street noise in the background, I apologize for that. Job restructuring may include reassigning non-essential functions. Remember, employers do not have to reallocate essential job functions although they may choose to do so. Job restructuring may also include allowing someone to work at home, part of the time or all the time, which is also called telework. Restructuring might involve altering the time or the manner in which the job function is performed. For example, having certain functions performed at certain times of the day, sometimes employees need quiet time or distraction-free environment and that can be achieved through several ways and one of the ones that''s often challenging is changing interpersonal interaction either among employees or between an employee and a supervisor and these references down there to some EEOC guidance and in one of the cases discussed in-depth in the legal brief which Barry just mentioned which you''ll be receiving after this webinar. There is a case Taylor versus Phoenixville which was referenced earlier, which cites some of the language from the EEOC Compliance Manual regarding the important role that supervisors play in helping achieve effective reasonable accommodations. Moving on to the next slide, here''s a little more discussion on modifications on interpersonal interactions. As any ADA situation, it''s very case specific and very factually specific so we''re going to be talking about a lot of cases and I think the cases are more illustrative than to say, "Oh, in this case they didn''t identify a limitations of; they don''t identify a limitation we''re going to accommodate them". That might not always be the best practice to take from this case because every ADA situation depends on the individual employee, their medical condition, their limitations, their job, their essential function so every case is very factually specific. So I just want to give that caveat when looking at the cases we''re going to look at, it''s really important to remember that what''s really going to matter is the fact situation involved in the specific instance where the accommodations requested. With some changes in interpersonal interactions that may be reasonable accommodations are providing for regular or informal meetings to help employees stay organized for example, or again in the Taylor case I referenced. In that case, the supervisor, almost monthly, he would follow the employee around and document errors and typos and then every month hold a formal disciplinary meeting which was quite stressful and the court mentioned having informal meetings periodically rather than saving up all this evidence to use against the person would have been more effective in helping the person do the job. It might also involve modifying the manner in which expectations are communicated using written means instead or oral, having set meeting times, utilizing checklist to help people stay on task and if someone is having some difficulties handling stress redirecting activity may also be a reasonable accommodation. Regarding telework, I want to point out the EEOC has a facts sheet devoted to telework and the titles at the bottom of the slide. The ADA does not specifically require that employers create a teleworking policy if there is not one already in place. However, if a telework policy does exist then people with disability should be able to participate and actually that theory stands up for a lot of these accommodations under the ADA. For example, if a workplace allows people to leave early either to coach soccer games or for school needs then if someone with the disability needs to leave early, it''s usually best that that employer allow the person with the disability to leave early as well if there''s generally some type of accommodation or flexibility in place and the work place, it''s important that if someone needs that flexibility for disability-related reason, that the employer look at providing that. Also, if there is no teleworking policy that that does not necessarily mean that telework is not available to the person with the disability, well, the employer does not have to create a policy. They may have to allow there''s a reasonable accommodation in that one specific instance for an employee with the disability who needs telework. Some courts have found working at home is a reasonable accommodation but other courts have been very strict in these guidelines and even though telework is listed in President Bush''s new freedom initiative as one way to help people stay engaged in the work, for us many courts are resistant to this as well and as we look at the cases, again, it''ll point out the factual specific nature of these accommodations. So, in the Mason case at the top of slide 38, a person works as a service coordinator, which was deemed a little level position requiring supervision and teamwork, was not allowed to work at home because the court held that their physical attendance at the work site was an essential function of doing their job. And likewise in the Mobley case working at home was deemed not be reasonable because the person was needed at the workplace frequently for meetings and mediations. The courts didn''t really address whether the meetings and mediations are scheduled in advance. I think at some point of those are planned at advance working at home around those meetings may have been reasonable but in this case, the court said no, working at home was not reasonable and the accommodation in place for that employee of a destruction-free environment the court held less effective and that goes back to various point that employers can choose among effective accommodations and as long as the accommodation the employees providing is effective, that is enough to satisfy the ADA requirements even if it''s not the specific accommodation desired by the person. Now, in the other hand, for a medical transcriptionist with obsessive-compulsive disorder, the court held that it was reasonable for them to work at home and the court noted in that case that others in that same position with that same job title were able to work at home for a variety of reasons and the court held within; therefore, so much to be able to work at home for a disability-related reason. And in this case this reiterates the point that it''s not just one attempt at reasonable accommodation, the processes ongoing because there was a prior accommodation in the Humphrey case with the employee but it was not proving to be effective, so then the court held them working at home needed to be examined. The second court category of accommodation for me to look at are part time or modified work schedules and these may be required by someone who needs active treatment or has limited stamina either due to disability or to side effects from the medication that''s used to help control their disability. And some of these accommodations include leave for a period of time that might be a month of leave, for example, to get treatment or it could be intermittent leave which would involve leave, for example, two afternoons a week for therapy or counseling or doctor''s appointments and that would be leave on an intermittent basis. It may involve extra break time or more frequent breaks but it''s important to know that under the ADA, employers never have to lower quality or quantity standards or the amount of hours that an employee needs to work. As a general rule, if a person does take extra break time, they generally need to make up that time at some point during the day or the work week. Modifying shifts, for example, the starting and ending time maybe an accommodation in some circumstances or having someone who work such shift instead of having a rotating shift. Maybe an accommodation as well and for some people flexible work schedules allowing them to have flexibility in their work schedule to come for the needs and limitation caused by their disability. It''s important to mention the Family and Medical Leave Act. A full analysis of the ADA and FMLA is far beyond this webinar but leave situations often if the employer and employee are covered into the Family Medical Leave Act, the FMLA; these situations may involve both laws. And the FMLA is generally looked at first because the law offering the broadest protection to the employee applies then to the FMLA if the person meets the standards for leave then they get the leave. There''s no looking at whether the leave is reasonable or not. If they''ve worked at the employer long enough and had worked enough times or worked for enough period of time, 12 months and if the employer is a covered employer then the person gets up to the 12 weeks of leave as a reset time or intermittent. In those situations, the ADA may come into play at the end of the 12 weeks. So an employer who gives an employee 12 weeks of leave, their responsibility might not be done if the employee needs an extra period of time, a month or 2 months or few weeks after the 12-week FMLA leave, the ADA may require additional leave. And of course what''s reasonable in leave circumstance depends on the fact situation involved then and generally employees should try to request specific period of leave if they''re able to do so under the ADA. Many courts have held that request for indefinite leave for unreasonable but as with any accommodation requests, if someone makes a request for a totally unreasonable accommodation that does not end the employer''s obligation that still may require that the employer engage in interactive process. The employer can come back and say, "No, we cannot give you indefinite leave but we can give you one month of leave or three months of leave. So it''s very important to keep that in mind and in many of these cases, the employee requested something unreasonable and the employer just said no and did not engage in the interactive process and the court held that that was a wrongful act by the employer that the interactive process still must be engaged in. Here are a couple of cases looking at part time re-modified schedules. So on the Rascon case, medical leave of 4 to 5 months for a treatment of posttraumatic stress disorder was deemed reasonable where the employer had other policies are provided up to 1 year of medical leave and they also had a very generous personal leave policy; in that case, 4 to 5 months was deemed reasonable and the court even held it was less restrictive or that the employer''s general policies were less restrictive and more accommodating than the 4 to 5 months of leave they were granted for this specific employee. So for employers that have generous leave policies in general, it''s important to make sure that with an employee request leave, that the leave granted as an accommodation is in line with the general policies regarding leave. And in the Byrne case, the request for extended indefinite leave might not be reasonable where the employee could not show when he would return and could not show that at the end of the leave, he would become qualified to perform the essential job functions. Remember accommodations are generally provided to allow an employee to perform the essential job functions and the employee must show how the leave will therefore enable them to do just that. We''ll look at the third category as reassignment. There''s only one slide on this case but this is a very important category. We''ll go through the bullet point first and then we''ll talk about the Supreme Court case on reassignment. US Airways versus Barnett which is cited at the bottom of the slide so, in general reassignment to a vacant position, it must be vacant for which the employee is qualified maybe a reasonable accommodation under the ADA and may be useful for employees who has limitations in handling a heavy work load, work place stress or who needs periodic leave and generally reassignment is deemed not to be reasonable where an employee says they needed to either obtain a new supervisor or to escape certain co-workers usually in cases where the co-worker or supervisor according to the employee causes extra stress. In those cases, reassignment just to get a new supervisor or a new co-worker is generally not reasonable. One issue that comes up and was almost heard by the current US Supreme Court involves whether an individual who requests reassignment to a vacant position should generally just be placed immediately into the vacant position if it''s vacant and they''re qualified or whether they have that priority or whether they are just then entitled to compete with everyone else who wants to apply for the job. And there''s a splitting circuits, the EEOC feels that the accommodation of reassignment does give the employee with the disability a preference and if the job is vacant and they''re qualified, they should be immediately placed in the position. Some courts disagree notably the 7th and 8th Circuits and they held that it is almost akin to affirmative action to have an employee with the disability be given preference over other job applicants who may be more qualified than the employee with the disability and accounted that the EEOC takes the position about reassignment would not be effective but they''re just allowed to complete because anyone can compete for a vacant job for reassignment to really have meetings in accommodations it must mean that they have a preference and that''s somewhat in the unsettled case. There was a case before the Supreme Court took a case to decide this very issue coming out of the 8th Circuit but the case was settled and so the Supreme Court will not be hearing the case. So it''s important to know what Circuit you live in, in order to see whether the employee with the disability in fact has a preference for vacant positions or whether they just have the right to compete with everyone else for vacant positions. Partially relevant to this issue is the US Supreme Court of the US Airways versus Barnett. Did not involved an employee with the psychiatric disability but it involved an employer who had a policy whereby vacant positions where assigned by seniority and the employee with the disability as of that policy be reasonably modified to allow him the accommodation of being placed in a vacant even though the employee did not have the necessary seniority and the court held in Barnett that generally employers do not have to modify a seniority policy for reassignment or placing people in a position directly but the court noted that there maybe exceptions whereas if the employer maintains a right of control and often deviates from the seniority policy in cases like that then the employee with the disability may need to be placed in a vacant position even without seniority. So I hope I didn''t explain that in too confusing a manner but this is somewhat of a complex issue and unfortunately with the current state of the law, what the law is in your individual Circuit depends on where you live. [Pause] And if people have questions on that please feel free and I''ll try to explain it again at the end. Generally, employers are allowed to maintain seniority policy provisions for reassignment. However, if they do deviate from it in other circumstances then they may need to deviate it as a reasonable accommodation for someone with a disability. In the 4th category, we''re going to look at reasonable modifications in general and these are modifications of either the work environment or of policies and procedures and it comes up a lot in the area of policies, the things and accommodation that we''ve talked about earlier for example, leave might require a reasonable modification in attendance policies or working for home might require a modification in the working from home policy. In training policies, it''s often an accommodation for people with psychiatric or other disabilities to receive expert training under the ADA more time to learn new job skills and that''s discussed some in the Taylor versus Phoenixville case which is discussed in depth in the legal brief you''ll be receiving and which was referenced earlier. A copy of that has a policy of no animals on the premises may need to modify that to allow service animals or may be to allow personal assistants on the premises and modify a policy regarding having non-employees in the workplace and the same thing may apply to job coaches. Some of the specific accommodations employees with psychiatric disabilities may require include additional time for training or learning new tasks. One accommodation that was requested in the Potter case which is also discussed in the brief was an employee wanted his co-workers to undergo sensitivity training. When his co-workers approached this employee from behind it would startle him and cause him severe stress and anxiety and he wanted his co-workers to undergo sensitivity training so they would not startle him. In that case the court held it was not necessarily a reasonable accommodation because it''s very easy to be startled in the workplace even if everyone is properly trained and the court felt that just undergoing sensitivity training would not eliminate the risk of the person being startled. And that''s the Potter case again discussed in your brief. Elimination of distractions including allowing to have music or white noise at work stations may again be a reasonable modification of policies to enable someone to perform their essential functions. Assistance with note taking or other job duties might be a modification of the work environment as might utilizing checklist help aid employees in staying on task as they go through their daily activities. A couple of cases regarding this accommodation, in Borkowski, the court held that providing teacher''s aid to assist the school librarian with classroom control may be a reasonable accommodation and it depends on that individual school and the setting and then in another case, EEOC versus Amego, a nurse of a medical facility was not able to fulfill the essential job function of administering drugs to patients due to her depression and the court held it was not a reasonable accommodation to have another employee perform this function. That would have been a reallocation of an essential job function which is not required under the ADA. Just briefly, I want to go through a couple of statistics and I was an Economics major so I kind of have a love-hate relationship with statistics. I believe they can be very valuable at times but they need to be used carefully coz their prone to why the varying interpretations. So I have 2 quotes there kind of. Talking about some other problems with statistics which may not be a great idea for me to use those before trying to share some statistics but I think these are helpful in analyzing in ADA situations. As Barry referenced in the beginning many accommodations are not costly and these are general statistics involving all employees with any types of disabilities from the job accommodation network, 20% cost nothing out of pocket and I think a lot of accommodations we''ve discussed today would fall into this category and over 70% cost 500 dollars or less with a median cost of 250 dollars. And what''s really important to remember is reasonable accommodations are really a way to help an employee be more productive and that''s something that we generally see as a win-win situation both for the employee and for the employer, and so in addition to that, increasing productivity which according to the statistics happens in almost three-quarters of ADA cases and enables an employer to retain a qualified employee and save insurance and training costs. There''s also a statistics showing that most new hires do not last more than a year so all the job search, they need to happen again. And in many of the cases we''ve analyzed, you will see this in the legal brief, often the denial of accommodation or may be often but in many cases the denial of accommodation eventually leads to the termination of an employee. I think it''s very important for employers to decide where they kind of want to draw that line and I think caution is urged on those because once an accommodation is denied more likely than not the employee will not be able to improve their performance as much as they would have had the accommodation been provided and it generally leads to a situation where the employee that is not able to do their job. And ADA suits even for employers who win, the majority of them can be very, very costly especially in cases that go to federal court. So it''s very important when you''re looking at accommodation to realize that denying an accommodation may have ramifications down the road and then my review of the cases, many of the cases leads to employee eventually being terminated or leaving the work. One important statistics is at the bottom and this is, I think, very important according to JAN company''s benefit 35 dollars for each dollar spent on accommodation and those include some of the benefits itemized just about that and I can''t I''m entirely sure how they''ve figured that number but even if it''s a little lower it really shows how accommodations are really more of investment and the benefit for the company far outweighs the cost of the accommodation. And now just a few resources, for people who have questions after the fact the DBTAC-Great Lakes ADA Center, the sponsor of this webinar, is a great resource. Barry and I worked for Equip for Equality and we generally provide advocacy for people with disabilities and we also manage the Illinois ADA project which provides general ADA information in Illinois to not only people with disabilities but businesses, service providers and government agencies. And then some federal resources, Department of Justice has a website in serving customers with disabilities a little beyond what we''ve talked about today but I think something important for business to look at. The Job Accommodation Network is very useful if an employer has a situation or they know someone might need an accommodation but aren''t sure what that would be, the Job Accommodation Network then might be able to provide guidance. You can call or e-mail them and they will respond and discuss your particular situation with you. The Equal Employment Opportunity Commission sometimes can be the friend of both employers and employees most particularly they have some excellent guidance on all of these issues we''ve discussed which are very useful and beneficial in the ADA Disability and Business Technical Assistance Center is also a useful resource regarding ADA issues. And that brings us to the end of the general presentation. We have about 20 minutes left for questions. Before we move to questions, I just wanna let everyone know the next webinar will be held March 4th of 2008. It will cover initially we only touched on today, medical inquiries, hiring and confidentiality, a very important issue especially because it involve the obligations that are attached to receiving medical information. So with that I''m going to unlock my microphone and open it up for questions.
Thank you Alan and Barry. I''m going to start out here just asking you to elaborate a little bit more on one of the biggest issues obviously that we know that comes up for people with the mental illness in the workplace is that typically this is not something that is exposed during the hiring process and individuals have faced a great deal of discrimination potentially in other employment settings or whatever issues related to their disability which may interfere with, you know, or having impact on their willingness to have a conversation with an employer in the hiring process around then the potentially needs for accommodation. Can you just discuss for a few minutes the issues specifically around the disclosure part of the mental illness to the employer and specifically as it would relate to an employer''s response to these issues. So for example, I don''t know my employee has a mental illness and you know they may have been working for me for 6 months to 9 months, it could be even longer and suddenly, you know, there is an incident that happens in the workplace you know on one day where that employee maybe the stretcher or whatever else that might be, you know what is the course of action and what should I as an employer be doing there with that employee in regards to that behavior or that particular action that was unknown to me and there has not been necessarily specific request for reasonable accommodation at this time?
Hi, Barry tried to answer that but had problems with his microphone. I''ll take a stab at it. Generally, employers do not have to accommodate any disability if they do not know of it and so if an employer does not know that an employee has a disability and then employee engages in conduct that violates a workplace policy or conduct policy, that employer is justified in disciplining the employee just as they would discipline any other employee for violating that workplace policy. If an accommodation is disclosed after the employee engages that conduct and violates the workplace policy, according to the EEOC, the employer is under no obligation to resent the past discipline because they did not know of the disability at the time they instituted the discipline. I''ve really only seen one case that looked at an employer resending discipline and generally that''s the Bultemeyer case discussed earlier and as discussed in more length and legal brief and as Barry noted in that case, the employee had already disclosed his disability and the employer had re-accommodated that previously, so the employer had knowledge of the disability before they terminated the employee. And also on that case, the employer sent a letter of termination but before the employer received it, he showed up at the employer''s office with an accommodation request and the 7th Circuit which is generally very conservative and often fines the employers. In the Bultemeyer''s case, they held it in no circumstances where the employer knew of the disability before the termination and because the time was so close between the termination and the second accommodation request, the court held that the employer did have a duty to look at resending that termination but in general, if an employer has no knowledge of the disability as long as it is instituting it''s discipline in the fair and even-handed manner, there is absolutely nothing unlawful about disciplining an employee who happens to have a disability but of which the employer is unaware, so does that answer your question, Robin?
Yeah. I guess it answers the questions just to wanna make sure clear that I think that employers'' you know best practice is to look at what would employer would do with any employee might be experiencing difficulties and problems in the work place and what available options and benefits they might have such as Employee Assistance Programs and things at the nature that they would refer that person to. I want to see if there''s any questions from the audience either if you want to, if you have microphone and want ask a question again just indicate by pressing your control key and if you want to type in a question because you don''t have a microphone or just prefer to type it, go ahead and type in to the text box. Okay, it looks like we have a question from in the text box and she is specifically asking what about employees who make an instant request for reasonable accommodation and that employee has gone to the emergency inpatient treatment and caused to leave message for supervisor to that effect. What is the employer''s responsibility if they knew of employee''s psychiatric disability but obviously they cannot reach the employee by phone to enter interactive process? Can they terminate for job abandonment or must say leave, must leave be granted? I''ll throw that back to Alan or Barry and then we have a question again from. We''ll take this one first and then take the second one.
Okay, I''ll try to answer that one. I think if the employee is leaving word that he is having emergency treatment, I think the employer might be hard for us to show job abandonment as the employee did everything reasonably possible in that circumstance to let the employer know about their need to leave the work site. And particularly, as you notice they knew of the employee psychiatric discipline...disability. So, I think in that circumstances, as long as the employee did everything they reasonably could, it would be hard to constitute an instance of job abandonment and again, if they haven''t...if the employer has knowledge of this psychiatric disability and they do terminate that employee for job abandonment, it would be relevant to look at all the other termination of employer where the employer terminated an employee for job abandonment and see how this situation compares with those. So, I hope that answers your question. I mean it is a tough situation where an employee is not present and the employer can''t reach them and the employee can''t get word, it can be a little sticky.
Just for a second there Alan, I just...take clarify, I mean, the situation would be that getting an instant accommodation, you would be looking basically at moving forward with providing an accommodation but that would not absolve and eliminate the need for the interactive process down to earth or may be that you''re doing something as an interim, with more need and follow up needed with that individual in regards to his specific needs and what are the needs where in addition to a leave for a day or a few days at a time, correct?
Right and then interactive process can happen after the employee receives that the treatment that they need at that time.
Or at the time which the individual would be available for discussion, so immediate treatment could be right now but it may be something that needs more long term or a day or a two or three days later, the employer and employee could reconnect and reengage.
Exactly. So, I hope that answers your question. I move on to question and if you have any further follow up, feel free to type it in the text box. So, trying to ask regarding medical records that the employer generally connect as for complete medical records and ask is the employer limited when he feels the employee''s doctors release to return to work, letter is inadequate after they took leave and the EEOC guidance address that if an employer feels that the information provided by an employee''s doctor is inadequate or vague or contradictory to other information, the EEOC recommends that the employer follow up with the employee''s doctor generally in our opinion is best that that''ll be done through the employee but if the employer wants to follow up with the doctor directly, they are allowed to do that but they need to obtain necessary releases and go through all those stuffs and make sure that the information is kept confidential. An employer''s...if the employer again with the follow up information still feels the employee''s doctors is not providing good information, the employer does have rights to send the employee for an examination by a doctor they''re choosing.
Okay. If anyone else has any further questions or those who have asked questions wanna follow up on the responses that have been provided by Alan at this time, this would be an opportunity for you.
If there aren''t any, if there aren''t any further questions we have follow up. Yes. We did say doctors of the employers choosing the EEOC, the employers do have the right, and the EEOC urges caution in exercising that right. And actually their guidance suggests that the employer seek clarification from the employer''s doctor before taking that step but if the employer is still unsatisfied, they do have the right to send the employee to a doctor of the employer''s choosing. Just want to say if there''re any other questions, please feel free to ask them or that Barry, otherwise Barry has some follow up information he wanted to share.
Thanks my headset is not working so Alan and I are switching back and forth. I just want to mention a couple of common policies that employers sometimes have that can get them into trouble with the courts one is that requires a person to be terminated after a certain period of time if they don''t return from leave, so an automatic termination up to 3 months. The courts have said that really ignores the interactive process component of the ADA, so that''s really a dangerous kind of policy to have. Another policy that often has people have is that you can''t return to work until you''re a 100% healed and that''s a kind of language that''s used and that''s the kind of policy that really again ignores interactive process, ignores the reasonable accommodation and obligation, so those are ones to stay away from. I just want to mention on the Hubert case which is the Supreme Court case that Alan mentioned that went up on reassignment. The 8th Circuit and the 7th Circuit are the ones that have really bought into the fact that you''re not entitled to be placed in a position you have to compete with others, and for those of you who''re unaware of which state is the 8th or 7th Circuit. The 8th Circuit encompasses Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota and the 7th Circuit is Illinois, Indiana and Wisconsin. And then the other thing I just want to mention was that reassignment is considered an accommodation of last resort. So really what should be doing happening is the employer looking to accommodate the person in their current work situation and they''re not required to look at reassignment until they''ve sort of exhausted other options. So if the person''s first choice is reassignment, certainly the employer has the opportunity to look at other options before going to that because the EEOC has recognized reassignment as being the accommodation of last resort. And then the only other thing I want to...I thought up when Alan was talking is that another common thing that comes up for people with mental illness is this whole concept of a rotating shift. A lot of employers have rotating shifts where for a period of time, you work the day shift and then you have to move to the night shift and the court are split at this point on whether or not a rotating shift is on the central function of the job because if its an essential function the job as we''ve talked about before that does not need to be accommodated but if it is not deemed as an essential function of the job, then it would be something you have to accommodate. People with psychiatric disabilities often find that rotating shift really plays havoc with their sleep schedule and that undercuts their ability to deal with their mental illness, so that''s why that comes up and as Alan mention if you''re accommodating the soccer dad to not work at night then you need to be accommodating with the big A reasonably accommodating people''s disabilities, so consistency in the workplace is really important and I guess at that point, we take any final questions and then Robin is going to give instructions about the next webinar.
This is Robin, just going to jump in here and just with the ADA Restoration Act and the issues related to defining disabilities associated with that, how do you if anything see an impact on people with mental illness with any potential passage of the ADA Restoration Act compared to what we''ve seen in previous and at the current Supreme court interpretations?
That''s a great question. For those of you who aren''t familiar with the ADA Restoration Act, there''s a bill that''s currently pending in congress that would change the definition of disability as you remember when I went through the definition disability, we talked about being substantially limited in a major life activity and that language would be eliminated. So basically you will just need to show that you have a physical or mental impairment and that you are being treated differently because of that physical or mental impairment. You still have to show that you''re qualified in all those other things but you''re no longer proving that you have substantial limitation of major life activity. The reason that was brought about was that there is Supreme Court cases that have said that you''re not substantially limited in major life activity if you take a mitigating measure like medication for psychiatric disabilities and that reduces your symptoms to such that you''re not substantially limited. So, I think what we would see is a lot of cases going further than their currently going. A lot of cases get kicked out because people can''t show that they have an ADA disability and what this would do is to be allowed to make it easier for people to get through that first door or over the first door or over the first showing that they have a disability and actually have the courts decide whether or not there was in fact discrimination or not rather than booting the case out before you even get to the underlying facts, so you know, people would still have to prove they''re qualified, they still have to prove that there was discrimination but it''ll be just easier to prove that they''re covered by the ADA and make it more consistent with the other civil rights laws that are out there.
Thank you Barry. Just another comment and another question here one that we often seek it here and about is that in this issue of disciplinary action or disciplinary process when an employer has not known that an individual, you know, physically has mental illness and may be behaviors or actions or things that nature rights at the point where that person is now having difficulties doing their job and or violating policies and procedures and things that the employers engages but disciplinary action process with that person whether it be the warning and you know subsequent you know step process or its an automatic fire or whatever else it might be for the particular action. When the individual raises the issue of mental illness as part of the that process, a defense or whatever in that regard, any particular thoughts or ideas as to how far the employer has to go or should go in regards to subtending or addressing the issue one that does not get raised until it is just an ordinary process.
Well, I mean, I think as Alan had mentioned, conduct rules can be enforced if people are violating conduct rules and if the employer is...has a policy of the present discipline, they should follow it, I mean during that present discipline, if the disability comes up then I think the interactive process requirement kicks in. It''s not too late to have that kicked in the policy is that you violate this rule you can be terminated and the person terminates and then the person raises it, I think it''s going to be tough for the employee in that case but if it''s aggressive discipline where you get this, you know, certain thing in the work place, you know, a letter to file or something like that, that probably would stay but before it gets to the next step, if that''s when the disability is revealed then the interactive process comes out and they try to see if there is a way to reduce the issues so that these workplace problems don''t occur in the future. Alan has one other point to raise.
I just had one thing I want to mention too. As we both mentioned if an employer doesn''t know of the disability when instituting discipline then they''re entirely justified to institute discipline. Sometimes what comes up in terms of discipline is an employee for example has modified starting time where they start at 9:30 instead of 9 and then what may happen is the employer starts writing them up for being 5 minutes late every time they arrive at 9:35 whereas in the general workforce people who arrive at 9:05 are not written up. And one thing employers should make sure that they don''t do is put the person with the disability under a more intense microscope and institute discipline, especially if it''s related to an accommodation and they don''t institute discipline generally for the same violation. That can be seen as harassment and/or retaliation under the ADA.
Thank you. I think we have another question here before we sign off. Can an employer require an employee to address reasonable accommodation process through a third party such as a union?
Where the line is drawn is not clear but generally, an employee does have the right and the EEOC guidance says anyone may request an accommodation on the employees we have and I believe the employee has the right to have either a union or support person or may be even a therapist involved in the accommodation process. We think that will be beneficial in identifying effective reasonable accommodations. So I think likely the person would be able to ask that the union be involved if the union agrees.
The only time that I would make there is I think one of these things that we found is that again even using a third party does not necessarily change the issue of employer having the right to have the information that would substantiate that the person, one has the disability and accommodations were linked to the disabilities so you don''t really necessarily able to circumvent that by ok, I have the union work with me on requesting and he is more clean or not and not disclosing to the employer or not wanting the union representative to disclose to the employer on your behalf.
That''s right using a third party doesn''t change what the employee''s obligation to disclose her disability and limitations resulting from it at all which is another party who can help in the interactive process which is defined as informal and flexible in order to identify possible effect of accommodations.
I think that had a follow up there and said that what if the employee doesn''t want it that way but what happens when the union fails to notify the employer that the employee is ready to return after a psychiatric leave?
Well, I mean I think the employee unless there''s some reason they could not notify the employer on their own if they''re ready to return then the employee would just be able to submit their doctor''s note saying that their able to return to work and if they don''t want the union involved then they can engage in the interactive process without the union bargaining some may be unusual collective bargaining agreement provision to the contrary which I have not encountered.
Yes, I think that saying that is I''m reading his question correctly and his comment is that the employee was not necessarily agreeable to all this although it''s the union that was doing it. There was the union that failed to notify the employer. Would that have an impact on the employee if it was the union that failed to notify them?
Not clear on why the employee couldn''t notify the employer without going through the union.
Yeah, but it looks like from what he''s saying he did but by then the employer said it was too late that they have been terminated. The employer had already terminated that person so.
Well, that''s kind of tricky situation but then that would be the circumstance where the employer already has knowledge of the disability so they need to afford the employee a reasonable opportunity to let them know that they are ready to come back from leave and I mean there may be some duty that the union''s violating in terms of not notifying the employer which would be a separate cause of action under the duty of fair representation or something like that. But I think in those situations it sounds like in this case, the employee did not let the employer but I think the employee can bypass the union and just let the employer know directly. In Baltimore that''s what the employee did. He brought in a note from his psychiatrist. He looked at his worksite with his foreman and then brought the note in on his own.
Ok, thank you very much and thank you for everyone who participated in the program today. I would like to thank our speakers, both Alan Goldstein and Barry Taylor for their time and their efforts today. On behalf of this program I do want to let you know that their next section as was indicated is March 4th which will address medical inquiries, hiring and confidentiality. More information about the full set of the programs and series is available by going to www.ada-audio.org and again if you would like to contact us or need to contact us related to this program, you can do that through the www.ada-audio.org website. There''s a contact us option. You can call us directly if you''re within our region through our 800-number, 800-949-4232. If you''re not within region, it would be 312-413-1407 and that is both voice and TTY as well as our 800-number. Again, thank you very much for your participation today and you can go ahead and sign off, and to sign off all you have to do is shut down your browsers. So thank you very much.