Qualified as related to Reasonable Accommodations such as Leave and Reassignment

Robin Jones

Good afternoon everyone or for some of you this may actually still be morning depending on what part of the country you are joining us from. My name is Robin Jones and I am the Director of the DBTAC - Great Lakes ADA Center. This program is being brought to you by the Great Lakes ADA Center, which is one of the regional Disability and Business Technical Assistance Centers, otherwise also known as ADA Centers. Our mission is to promote voluntary compliance on Americans with Disabilities Act. The Legal Webinar series, this is the third in our series of programs that we have been offering related to this topic or variety of topics around the employment and Americans with Disabilities Act. We are pleased to have those of you joining us for the first time, as well of those of you who have joined us for previous sessions as well. I am gonna just take just a few minutes here to go once through the technology again. I will introduce our speakers and the topic, and I will turn it over to them and they will have control for majority of the rest of the sessions today. Just to review for those of you that are not familiar with the technology, individuals can interact with us here through either using your microphone. In order to do that, you would press on the control key and speak, and keeping the control key pressed, and when you are done speaking, you would lift the control key. Due to the issues of technology, only one person can speak at a time. If you are interested in speaking or wish to speak, you can press your control key down, and that will put you in queue for the next time that someone is done talking and they can call on you and have you speak, the moderators myself as a moderator or either Barry Taylor or Alan Goldstein our speakers will be able to call on you, and they will stop periodically to allow you take questions. You are also able to submit dialogue through the text box by just typing in to the text box, and enter on your keypad that will enter your dialogue into the public chat box at the top right-hand corner of your screen and you will be able to read that. This session is also being recorded and it will be archived for reference for individuals who would like to also go back to the program. You will also receive at the conclusion of the program all of the copy of the materials for today''s session as a follow up, as well as an evaluation form that we would ask you to provide for us feedback on today''s session specifically. Okay, I am just having a little technology problem here. Just hold on for a second. Okay, I am going to go ahead and introduce our first speaker. I will introduce both of the speakers at the same time and then turn it over to them. The first speaker would be Barry Taylor. Since 1996, he has been the Legal Advocacy Director for Equip for Equality, which is the Illinois Protection and Advocacy System. He supervises the legal services of advocacy and training programs for Equip for Equality. He also oversees individual and systemic discrimination cases including the several successful ADA federal suits against entity such as National Board of Medical Examiners, Chicago Police Department, Chicago Transit Authority, and he is also currently Chief Counsel in a class action on behalf of people with developmental disabilities living in private institutions seeking community services using many of the arguments under the ADA related to the Olmstead decision. He is also involved in this agency''s Self Advocacy Project, and a variety of other different areas within the programs and services offered by Equip for Equality. Alan Goldstein is a Senior Attorney with Equip for Equality. Again, the same agency as Barry is with. He is also Manager of the Illinois ADA Project which is funded by our center the DBTAC - Great Lakes ADA Center, and our project is overall funded by the National Institute on Disability and Rehabilitation Research or NIDRR. He has been practicing law for about 20 years approximately at this time, specializing in the area of disability rights for more than 15 of those 20 years. He has provided Americans with Disabilities Acts and employment training through human resource professionals, businesses, judges, attorneys, service providers, people with disabilities, government agencies, and other organizations using his experiences as an attorney to provide practical information. He also is currently collaborating with the Chamber of Commerce, Chicago land Chamber of Commerce, Business Leadership Network to provide training to their members as part of the Illinois ADA Project, and he is also working with other groups such as SHRM and other professional employment or business organizations and such. So, I think that both of them are well qualified for today''s topic, and I am going to go ahead at this time and turn it over to them. So, they can take it from here and again, they will be periodically taking questions from you, the audience, and then we will remind you again how to ask those questions if you need to be prompted during that period of time. So, I will go ahead and turn it over to Barry and Alan.

Barry Taylor

Thanks, Robin. I am going to start first to do a couple of sections and then we will take some questions and then Alan will speak. So if we go on to the next slide, we are going to be talking about issues related to being qualified under the ADA and as they interface with various reasonable accommodations, and those reasonable accommodations will include leave issues and cases being decided in that realm, and then reassignment as an accommodation, and the case law has been decided in that area. I will cover those two provisions, and then we will stop to take questions, either audio questions or you can write them into a text box, and then Alan will continue on and talk about job modification issues in cases, and then he will also go into some additional qualified issues including what happens when somebody applies for social security, and at the same time, are seeking reasonable accommodation under the ADA, and how that affects them being qualified. So first, we are going to be talking just generally a quick overview on qualified issues. I know a lot of you have background in the ADA so we will just do a couple of slides just to get the basics out, and then we will move on to the case law. So first, the definition of qualified issues as you see there on the slide, a person with the disability in order to proceed under the ADA has to be qualified for their position, and qualified really is divided up into two different sections. One is that they satisfy the pre-requisite skill, experience, and education, and other job-related requirements in the position, as well as performing the essential functions of the job with or without reasonable accommodation. And then, the ADA regulations further define essential functions and talk about them being the fundamental job duties, and then make it clear that employers aren''t required to reallocate the essential functions. They may choose to do so, but they are not required to, under the law. And then also, in determining whether something is an essential function or not, oftentimes the courts will look at whether the job description talks about that function as being essential, and that is good evidence in determining whether something is essential, although it is not absolutely determined too. So then, we move in to reasonable accommodations and we again have the EEOC regulations in front of us, and I am sure all of you are familiar with this definition of reasonable accommodation. The thing that we are going to be talking about today is really the third bullet points. So with reasonable accommodations, we are always talking about modifications or adjustments in the work environment or the manner in which the position is performed. And then, that third bullet point is really important for our discussion today is that enable a qualified individual with a disability to perform the essential functions of the job. And so, it is linking the reasonable accommodation to making the person qualified. So, it is some sort of change in the work place that allows the person to be a qualified individual with a disability. Moving on to the next slide, as we see here, an accommodation does not have to be provided if it is unreasonable, and requires either the reallocation of essential job functions, or again, this key component we are talking about today, will not enable the employee to be qualified. So, the accommodation doesn''t allow the person to be qualified. Then, it is not necessarily going to be an accommodation that the employer has to provide. Also, the accommodation does not have to be provided if it would result in an undue hardship to the employer, which as defined by the EEOC, is involving a significant difficulty or expense. Oftentimes, these first two bullet points are combined in the courts'' analysis, and so, they will not enable the employee to be qualified. It goes sometimes into the undue hardship analysis at EEOC. It is kind of mooched a little bit in the cases. But, the other factor, the third one we really won''t be talking about at all today and that is if the accommodation is not really provided if the person is a direct threat or safety to the other employees or to themselves. We will actually have a separate session on direct threat and how it deals with qualified and how it can be used as an affirmative defense by employers in our session in September. So let''s move on to qualified with respect to leave issues, and we are gonna talk about basically, real quickly some of the background on leave, and then talk about some of the way the courts have interpreted it. So, medical leave can be required due to a need for treatment or in stamina. It can be for a period of time. It can also be intermittent leave. So when we are talking about leave, it doesn''t mean somebody is off continuously for months. It can also be they are off every so often depending on what is going on with their disability. And also leave cannot only involve the ADA but can also involve the Family and Medical Leave Act and you will see a reference here to the bottom of the slide that the EEOC has a fact sheet that talks about the interplay between the Family and Medical Leave Act and the ADA. And if you haven''t seen that I would recommend that to you. Today''s session really isn''t a discussion about that interplay. I will talk a little bit about some other components but that maybe a topic for a future webinar because it does raise a lot of issues. And before I go further I just want to give a little bit more information and that is, that in addition to the PowerPoint following the seminar, today, you will be receiving a legal brief that we have done on leaves as an accommodation as well as on reassignment as an accommodation. So the PowerPoint will have some cases and we will have some analyses but just due to time a lot of the more in depth analysis and details about these cases will be provided in the briefs you will be receiving after the webinar today. So we move on to the next slide. You will see a little bit of discussion between the FMLA and the ADA. As people probably know the FMLA involves when you have 50 or more employees where as the ADA is limited to 15 or more, so the FMLA would not be involved with work places that have fewer than 50 but if it has 50 or more then eventually you are going to have an interplay between the ADA and the FMLA. The FMLA provides up to 12 weeks of unpaid leave per year where as the ADA talks about reasonable amount of leave as an accommodation. The FMLA talks about maintaining insurance during the leave and guaranteed to return to the job or equivalent position whereas that is not specifically laid out in the ADA. If they both apply because you have more that 50 employees and the person has been working a sufficient amount of time, what the court has said is we want to provide the broadest protection to the employee and often times what we will see is a person taking their FMLA of 12 weeks and then the person seeking an accommodation beyond that 12 weeks under the ADA and that is when the court has to make the analysis of whether that is reasonable or not to provide that. The only other difference I just want to point out before we move on is that the ADA''s definition to, has a definition of disability whereas the FMLA has a definition of serious health conditions which may or may not rise to the level of an ADA disability. So under the ADA, leave is generally unpaid although certainly you could set it up within your employment situation that people can use their vacation or seek time to run concurrently while they are on leave either under the ADA or the FMLA. The ADA allows the employer to offer other options besides leave so like extra break time, modifying shifts, flexible work schedules. Really, what we want to make a point here is that if there is a reasonable accommodation other than leave such as the ones that are listed here, the employer can deny the leave request and instead provide the alternate request as long as it is an effective accommodation. As we have talked about in previous sessions, accommodations don''t have to be necessarily the one the person with a disability request although certainly employers can get deference of this request as long as it is an effective accommodation. Couple of other things on leave before we get to the cases I wanted to mention is that what we are seeing in some employment situations is that employers will have what is called that a 100% healed policy for returning from leave and so somebody is on leave and the employer will say you can only come back if the doctor says you are a 100% healed and that is their language and not necessarily one that I prefer but that is where a lot of these policies say and the courts have really been very unwilling to support those kinds of policies because they really disregard the requirement of providing an accommodation. So often times what these I think policies think is that if you provide the reasonable accommodation of leave that is really all you have to provide and the person needs to come back without an additional accommodations, when in fact if somebody is on leave they may when coming back needs some additional accommodations as they readjust to being back in the workplace and maybe they come back on a part time basis or maybe they comeback on some sort of flexible work schedule because they are getting used to medication that they are on and maybe start a little later than they did before or some other types of accommodation in the workplace that might be required and if you have these 100% healed policies you are not going to have that additional accommodation option and courts have been very, looked very dis-favorably upon those kinds of things. The other thing I wanted to mention is that leave is really different from pretty much any other reasonable accommodation that we can talk about because you are not talking about really an adjustment in the work place, you are asking for time off and so there are some courts you will see in a second that have been very antagonistic cause they just don''t feel like it fits, that leave doesn''t really fit with what they consider to be a reasonable accommodation but the theory is and I thinks it is the right theory is that time off from work for certain disabilities will often enable the person to be qualified to do the essential functions of the job which is really what the ADA is all about but as I mentioned some courts do not take that position. So why don''t we turn to the first case which does take sort of a hostile position and that is the Byrne case and this involved an employee who is a night watchman and he had depression and he was falling asleep on the job and you know ended up not showing up for work and it was a real sort of drastic change because he have been a great employee and then all of a sudden he was really having some major problems on the job and the court said you know time off may be an appropriate accommodation for certain kinds of conditions where you have to maybe be off for a little bit for intermittent conditions but they really did not believe that providing an accommodation for an extended time was appropriate and their analysis was that if you are off then that means you are saying that you can''t do the job and therefore you are unqualified and so they didn''t take the position that taking the time off will enable you to be qualified. They said you know you are off that means you are saying you can''t work, that means you are not qualified therefore you can''t proceed under the ADA. And the language is if you read the case it is really hostile. They talk about the two-month leave that the person requested that they needed to address their depression was a confession that they weren''t qualified and I just thought the use of the word confess was really pretty harsh and that is here in the Seventh Circuit where we work in Illinois, Wisconsin and Indiana. So the Seventh Circuit, in particular, has not been a great supporter of employee rights in these cases and so I think in this case it shows at least within the Seventh Circuit that leave is going to be often times a difficult type of accommodation to get based on the language of this case. And again what the court said was the employee could not show that the leave would enable him to become qualified to perform the essential functions and they said that the inability to work remove him from the class protected by the ADA and therefore there was no leave available as a reasonable accommodation. Interestingly though the court was much more receptive to the Family and Medical Leave Act claim and they said there was a question in fact whether his very drastic change of behavior gave sufficient notice that he did have a serious health condition for FMLA leave. So even though they denied the ADA case from moving forward they did allow the Family and Medical Leave Act case to proceed. So we move on the next case, the Brannon case which is out of the Eighth Circuit and this involved a person who was a packer in an employment, excuse me, in a manufacturing plant and she had diabetes as well as neuropathy and had some surgery on her foot and had been accommodated and then needed additional surgery and a time off and eventually after a variety of surgeries and accommodations that had happen, she was terminated because they found that she was having too many extended absences and deficient work quality. And so she was fired and she filed suit saying she was failed to accommodate because they didn''t give her the leave she requested that she thought would be necessary for her to become able to continue to do the job. And the court said that you know, the employee had failed to demonstrate the accommodation would enable her to have this consistent attendance at work, would enable her to be qualified and here the court had an extensive discussion about attendance being an essential function of the job and that she really couldn''t meet that and they perceived that she would not be able to meet that even if she had some additional leave. And I think the other thing that they really were concerned about was that there was not a clear ending point in the leave that she needed and that it was unlimited absence policy that was problematic and if the court, I think the court might have been more receptive to this case if she had shown maybe a specific time when she would have been able to return. So let''s move to the next case, the Epps case and this involved a police officer and he had had several on the job injuries and he needed a six months leave of absence and it was denied by the police department and the court upheld their denial and said that what he was taking was really not reasonable at least to apply to this particular situation. The court said six months maybe reasonable in certain circumstances but here we had a really small work place, a small municipality and they found that reallocating his job functions while he was on leave, it was going to be an undue hardship. The other thing that was, I think, really problematic for this employee is that in addition to the leave that he requested, he had had prior excessive absenteeism and so like in the case we just talked about the absenteeism raises the question whether he can meet the attendance function of the job so they kind of combine the undue hardship of the fact that when he is gone other employees would had to fill in and that would been hard for the small work place and the fact that he had this excessive absenteeism in the past that they were concerned it wasn''t gonna get any better by the leave that he had done. And so they felt that since the leave would make him qualified it wasn''t a reasonable accommodation that had to be provided. So we move on to the next case, and this is the Garcia case out of the First Circuit, Puerto Rico and the background facts on this, this is the woman who had extensive time off over a lot of years before the actual issue in the case came up. She was diagnosed with cancer in the 80s and from 1986 to 1996, she was up for a number of cancer-related treatments and surgery and recovery and there were accommodations provided throughout that time period. And then she learned that there was an experimental treatment that came up and that is when we get back sort to the beginning of the case which is in 1996 and she had sought leave to go into this experimental treatment and the company had a policy that you had to, you could go up to a year for leave and that leave expired in March of 96 and so in June they said, you know what, you have been out for over a year and therefore you are out because we are going to terminate you because you have exceeded the one-year policy. And her doctor had provided support that she would be able to return at the end of July and asked just to extend her just a little bit longer and she would be able to return but the employer was not willing to do so as the power point says, ''request denied'' and so she ultimately got a "return to work" confirmation from her doctor in August but, you know, at that point she had been terminated. She didn''t tell the employers she could return to work, she didn''t apply to return to work and so once this problem of not being able to return or being terminated had come forth. She filed suit under the ADA. And the court went through a variety of analysis here and talked generally that, you know, that employers are not required to retain employees who can''t perform the essential functions and, but in this case what happened was, they were able to get some temporary help. She was really the only administrative person at the job and they were able to get some administrative help and because she was on leave unpaid, the court lifted the analysis and said you know they won''t really out of any additional money because they weren''t paying her during this leave. And so therefore, they didn''t find that there was a financial hardship and they didn''t find that these temporary employees were having any problem doing the job either and so the work place wasn''t disrupted either so ultimately, the court said that they didn''t show undue hardship and that this sort of inflexible one-year leave policy, it was not something that the court was going to uphold and while it maybe reasonable in certain circumstances to have a blanket policy that after year you are out and not to consider her just a couple of more months was violative of the ADA sort of concept during an individualized assessment. And you see some quotes here from the case that talk about the whole policy that is involved here, that is you know, the court acknowledged that sometimes it is unrealistic to expect someone to perform the functions temporarily until the person comes back. But here, it really wasn''t an undue hardship. If we move to the next slide, thanks Alan. Okay I am sorry. Can you go back one slide on that? One more. There you go. Okay. In any events, the other thing that the court pointed out that they wanted to mention in this case is that the employer had refused to look at any kind of accommodation beyond the one-year policy and they said that really what they were doing was ignoring that they have a duty to accommodate the best of continuing accommodation requirement and it is not exhausted by one effort and because they did engage in the interactive process when her doctor said that she could be back within, you know, two months or so and relied upon this first-day rule, it was problematic for the court and they found in favor of the plaintiff. And then you see a cite here on this page to the Supreme Court''s case in Nassau County versus Arline talking about the individualized assessment as being essential and then they listed with the factors that they think are important when you are looking at leave is the request for the indefinite leave with no indication as to when the employee might be able to return to work but that wasn''t the case, they told the employer that she would be able to return to work within a couples of months after that one year had expired. And then some other factors like where the absence is erratic or unexplained, will the employee be qualified once the leave is over as we have been talking about before and also company policies regarding temporary employees? Here, they had a temporary employee who was doing the job while she was out and the company resources they found that it wasn''t a real problem with the company resources since she wasn''t even being paid during this leave. So as I said before, this is a case where a person was out over year. And in some cases courts had said that is too much but in this case when they applied the facts to this individual situation, the court found it was reasonable to extend the leave beyond the one-year policy. And I think, you know, it is a situation where whenever an employee has sort of inflexible policy and doesn''t show a willingness to engage interactive process, the courts are going to be much less differential to the employer''s decision. And then one more leave case is the Rascon case and this involved the gentleman who is a Vietnam veteran and here he had some anger and fighting in the workplace problem. Ultimately, he was warned that he had post-traumatic stress disorder and he requested leave as an accommodation and he had estimated that he was going to go through this program, this Anger Management program that would last about three to four months. The employer wasn''t willing to give him that amount of time and said, well, we will do it on a 30-day basis and renew that as appropriate and ultimately within about three of those 30-day renewals, they found that it was too long and terminated him after three months. And the court said, you know, medical leave of four to five months for treatment for PTSD was reasonable and it was a situation where an employer should have provided that type of accommodation. The thing I think that really hurt the employer here was that they did have a policy that let people have up to a year of medical leave and here the employer was making it shorter than their one-year medical leave so they were treating him differently than they had as their general policy. The court said we understand that indefinite unpaid leave is not reasonable but here the person gave a reasonable estimation of when he would be returning. I mean, you can''t really tell in the facts to this case but I think, maybe there might have been some concerns about the person''s behavior in the work place and the potential of future violence because of the post-traumatic stress disorder diagnosis. So I mean, again it is not discussed in the case but this maybe a case where there was sort of a perceived direct threat and they thought you know maybe it is just not best to let this person return. And that is maybe why they cut the leave off earlier than when he had requested. So now we are going to move to reassignment and talk about that as an accommodation and then we will take a quick break and see if there is any questions and then we move on to some other issues. So reassignment is an accommodation that is listed in the ADA and the EEOC provides lot of information about reassignment but it has been one that is, there has been quite a bit of litigation. In many cases, reassignment has not been something that courts have upheld in certain situations. And there is lot of components to the reassignment that a lot of moving parts when we talk about reassignment. So you will see the definition here is, reassignment is to a vacant and equivalent position for which the employee is qualified and qualified to do. And so when we talk about qualified, we are talking about that, you have to have both the experience and education as well as perform the essential functions here. You have to show that you could do that job but you are willing to be reassigned to. You also have to show that the position is vacant and basically the EEOC is to find that and saying it is a position that is available at a time of the request or the employer knows it will become vacant in a reasonable amount of time. Now, the EEOC doesn''t define what the reasonable amount of time, but they give examples like well four weeks will be reasonable in this case but maybe six months wouldn''t be and so I think that is sort of a guideline that people can use as far as when a position is vacant. If it is going to open up within the next few weeks probably it would be considered vacant. If it is not going to open up for six months or even longer then that probably wouldn''t be considered a vacant position. The EEOC is very clear that you don''t bump a person out of a position. You are not required to do that as an employer. You are not required to create new positions to reassign somebody to or even a temporary position. And also, as far as the scope, the EEOC said you are supposed to look beyond sort of the current place where the person works, beyond their office branch or facility, or even geographic location when you are trying to find possible places to have them reassigned. The other thing that is important in this definition is equivalent, and when we are talking about equivalent, we are talking about something that has the same pay, and status, promotion opportunities, benefits, that kind of thing, and the general rule is if there is no equivalent position available, then the employer is not required to promote the person to a vacant position as an accommodation. If there is no equivalent position that is available but a lesser position is available, then they are required to look at that as a reasonable accommodation. They certainly don''t have to provide the same benefits that is at the original position if the lower position doesn''t have the same pay, or status, or benefits. They can choose to do so, but they are not required to do so. And the other thing I was just going to mention before we get to this next slide is just that generally, the courts have said that reassignment is a sort of the accommodation of last resort. And this goes both ways in that some employees will want to be reassigned and it is better for the employer to keep them in that same position because of the logistics in the work place, and so, if they can find a way to accommodate them in the current position, the courts have said that is okay, and similarly, an employee may not want to be reassigned, and the employer is trying to push reassignment the employee can push and say, look, that is the last thing we should look at. Let''s try to figure out a way to make it work in my current position. So, the EEOC said if both parties don''t agree it really should be the accommodation of last resort. Then the other issue that comes up a lot is whether or not you are allowed from a reassignment to be placed in that position cause that was required by employers or you are just allowed to compete for the position. The EEOC takes the position that you don''t have to be the best qualified person to be reassigned. It just says if there is an open position you are qualified to do it and you can''t be accommodated in your the current position, you should be placed in that position as an accommodation, and the rationale is it would just be of little value if you were able to compete for position, anybody can compete for a position. And, some courts have all the EEOC''s position, the Tenth and DC Circuits have cases going in favor of the EEOC''s position, but other courts, the Seventh and most recently, the Eighth Circuit, have said, no, you are not allowed to be placed in a position. And the Seventh, you should just be only able to compete for the position. The Seventh Circuit defines the EEOC''s position as affirmative action with vengeance, and they really don''t like the fact that the EEOC is sort of getting into the work place on that detailed level, and so, they have really not follow the EEOC at all on this issue. It was interesting, we thought that the split in the Circuits was going to be resolved by the courts this year because the Supreme Court had accepted this case from the Eighth Circuit, the Huber case, which is cited at the bottom of the slide and while that case was pending before the Supreme Court heard the case, the party settled. And so, the case became moot and the Supreme Court didn''t hear it. And so, we now still have this sort of split in the country as to whether or not when you are seeking reassignment, you are able to get placed in that position as long as you are qualified and it is vacant, or if you are just allowed to compete for the position. The Supreme Court has addressed this, an issue of reassignment and how it interplays with seniority rules. This was a case about almost 6 years ago now, and basically in this case, we had a gentleman who was a cargo handler for US Airways and he got injured and obtained a transfer to the mail room, and then he learned that a more senior person was going to be bidding for the position in the mail room and he asked to remain in the position as a reasonable accommodation, even though the other person had more seniority and they had a policy in the workplace that if you have seniority, you get to bump other people out from positions every so often when bidding occurs within the workplace. This wasn''t a collective bargaining agreement but it was a seniority policy that they had adopted, and the court said that you know, so the question came up is what trumps the seniority policy or the reasonable accommodation of reassignment? And the court said that generally, the reassignment is going to be trumped by the seniority policy, and that the employer had showed that the requested accommodation conflicted with seniority policy, and therefore, whenever they can show that conflict, it is ordinary sufficient to deem the accommodation as unreasonable, as a matter of law. And so, you don''t look at those sort of the facts or you know what is reasonable, what is unreasonable, those things are matter of law, if you can show there is a conflict between the reassignment request and the seniority policy, the seniority policy is gonna tramp. Now, the court did allow a little bit of wiggle room and said that if the plaintiff can show evidence that there should be an exception to the seniority policy, then they maybe able to give that reasonable accommodation, and this really would come up in two contexts. One is if the employer has already made other exceptions to the policy in the past. They don''t unilaterally follow their seniority policy. Therefore, they wouldn''t necessarily have to follow it in the reasonable accommodation request either. Or if the policy itself has other exceptions to the seniority, then maybe the reasonable accommodation exception wouldn''t make a difference, material difference and should be allowed. So, it is important for employees who are in this situation to look at the policy and see if there are exceptions, or also look at the practice of the implementation of the policy, and see if exceptions have been made. But generally, if there is a conflict, the seniority policy is going to trump. And then, if you look at the next case that''s cited here is sort of an implementation after Barnett. It was actually a few months after the Barnett case. It was a gentleman, who was a truck driver and had a lifting restriction, and he requested to get reassigned to a different route where he didn''t have to do heavy lifting, and the employer said that it would violate the seniority policy because it is possible more senior employee could bid in the future. They didn''t have an actual conflict at this time. Nobody had bid on the position and the court said, you know, we are not going to uphold the seniority policy when there is only a potential violation of the seniority system. There has to be an actual conflict between the seniority system and the reassignment request and here there wasn''t a conflict. There was a potential conflict. They said, you know, if that conflict arises later, then perhaps you wouldn''t have to keep that person in the position. They could be bumped out under the seniority policy. But here, you didn''t have an actual conflict. So, the person was entitled to an accommodation into that position at the time. The next case is the Chapple case, and this was a person who was a driver, and sometimes they acted as a dispatcher but for the most part they were a waste management driver, and he got this cut on his leg that resulted into a condition called lymphedema and left his leg really swollen and would not, it would be permanently larger than before. And so, he couldn''t return to the driving position. He asked to be reassigned and this particular employer had a policy of only hiring people who were the most qualified applicant and the court found that when they looked at him applying or asking for the positions that he wanted to go to, other than his current position where he wanted to be reassigned, although he may have been qualified for some of those positions, the one particular position that they focused on, he wasn''t the most qualified person and they found that the fact that they had traditionally had this policy of only hiring the most qualified person, if that was a legitimate non-discriminatory policy, and therefore wasn''t necessarily going to be something that the court was going to interfere with. So, they found him to be qualified, but not the most qualified person, therefore, they denied the accommodation of reassignment. And so, the court was, said, you know, you have got to be careful of this policy because whether somebody is the most qualified person is pretty subjective, but here we had a situation where somebody had done the job in the past, had a lot of experiences as customer service representative whereas the plaintiff here did not have that specific experience. They said, you know, he is qualified to do the job but he is clearly not as experienced as the other person and therefore, they allowed that other applicant to get the job despite the reasonable accommodation request. Okay. The next case is the Gaul case, and this was a case involving a person, an employee who had depression, anxiety disorder, and obsessive-compulsive disorder, and they went on disability leave. The employer allowed that, but when they returned, they were put into a position with a coworker that cost a lot of stress for this particular employee. And so, he said, you know, I am going to have a nervous breakdown and if I don''t get reassigned to a less stressful position. And the employer said, you know, we can''t really accommodate that because it is sort of hard to know when it is going to be stressful for you and that is too amorphous and basically, you just want us to move you away from someone who is causing you stress but maybe someone else will cause you other stress. And so, it was sort of a vague request that the employer wasn''t willing to do and the court upheld and said, this isn''t going to be something we are going to require somebody to do and they have found that this, because of the vagueness of it moving him out to this less stressful type of thing was administratively burdensome. I think if he had asked for a specific position that he wanted to go to and identified one that maybe was vacant, that would have been a much more possible successful strategy than what he did in making this sort of more vague keep me away from the stressful people. And likely it was mentioned on the earlier slide, reassignment from a different supervisor, this is sort of reassignment from stressful other employees that are causing stress in the work place. Courts are generally not going to be receptive to that. The isolate case at the bottom is a case where somebody wanted to be reassigned from a stressful supervisory position, and they said, you know, reassignment from a supervisory you are not working well with is not going to be considered a reasonable accommodation. And then the last case we want to talk about before we open up for questions is the Williams case, and this was a police officer who again was seeking reassignment and he was being, trying to be reassigned from a traditional police officer''s position to working in the radio room or a training room assignment where he wouldn''t have to carry a weapon. He had been diagnosed with depression and was no longer able to carry a gun, and the court said that the accommodation should have been provided. The employer had refused the accommodation, and here, the employer had failed to engage in the interactive process to determine if the request was reasonable but instead they sort of just denied it outright, and it appeared that the plaintiff was qualified for the position and that it was vacant and should have been strongly considered by the employer. But in fact, the employer didn''t do so. You''ll also see the Mustafa case listed at the bottom of the slide, another situation where the court found that the person with the disability should have been accommodated to move from the classroom setting to a non-classroom setting. And the one final point we wanted to make about the Williams case was that this was a case where the person wasn''t able to prove that they were actually disabled, but they were able to show that they, at least raised the question that they were regarded as being disabled, and this court took a position, which is not a common position that even if you are only, if you are regarded as having a disability, you are entitled to an accommodation, and you guys will see in the citations below on that slide most courts don''t believe that people who are only able to show that they are regarded as having a disability are entitled to an accommodation and that accommodations really are reserved for those who have an actual disability. But this court at least said that we believe that somebody who is regarded as should also be provided with reasonable accommodation. So with that, we will move on to any questions the people have and if there are no questions, we can then go with Alan''s presentation on job modifications. So I am going to stop here and see if you do have a question, you can either write it in or you can press the control key and ask your question through the mic.

Robin Jones

Barry, while we are waiting for people to get their thoughts together, in relationship to this issue, often times, we hear through our training or through our technical assistance especially those with environments where seniority, whether it is unionized or otherwise, will say that really is for reassignment purposes, never really any vacant position because it is filled by the next person with seniority or whatever else that would mean any thoughts or comments on that?

Barry Taylor

Well, that is a great point. I mean that is really and probably to make this clear but that is really what the court was saying in the Barnett case is that there really isn''t a vacant position when you are filling places by seniority and so inherently you are not able to show reassignment to a vacant position because you are automatically filling it with the next senior person or at least giving that person an option and so that sort of rules out the vacant component of the requirement for reassignment. I saw there was a question also about when we were talking about reassignment within other agencies and Alan says there is, he is not aware of any cases. I mean generally, there are some cases where people have, employers have policies that say you can''t be reassigned to a different department and courts have in many of those cases been deferential. I don''t know if this involves state agencies or not, but I know when they were talking about reassigning to different aspects of the employer''s workplace or structure that if they do have an exclusive policy ahead of time that they are not putting in later, but if they have it ahead of time that says that people can''t be moved to different departments because of a variety of reasons, training reasons, or some sort of disruption on the workplace that some courts have been deferential to those kinds of policies. And then, got a question here that, can the FMLA and short term disability run concurrently? Alan is a little bit more of an expert on this area than I am, but my understanding is that they can run concurrently.

Alan Goldstein

Hi. Thanks, Barry. I will take over. My understanding is they can also although management has only a brief period of time, I believe a day or two to identify whether leave is FMLA leave but it can run concurrently with short term disability as well as with vacation or sick time. That is my understanding. And hi, this is Alan. I want to welcome everyone who is joining us. I am going to handle the rest of the presentation and I may end up moving quickly through some of the slides. So, if I move too fast, I apologize in advance. I just want to make sure we got through everything in the time we have left. So, looking at job modifications, this is kind of a phrase that we included a lot of things in. So one, it could include reasonable modifications of policies, practices, and procedures and listed on the Slide 33, are some of the policies that might need to be modified, attendance, leave, policies working from home, policies regarding providing training, regarding animals on the premises, and exception that need to be made for service animals, or for allowing personal assistance on the premises, as well as job coaches. And some additional items involved with job modifications might be some things related to earlier. It could be extra break time, modifying shifts, flexible work schedules, anything that modifies the time or manner in which a job function is performed and the modification may also involved reassigning non-essential functions. As Barry mentioned, reallocating essential functions is not required under the ADA, but employers may choose to do so anyway. Modification maybe allowing or permitting working at home, or telework, or also a modification maybe the way an employee interacts or a supervisor interacts with an employee or the way employees interact among each other. As Barry mentioned, you cannot seek reassignment to escape a supervisor or coworkers who you don''t get along with, but you can seek as an accommodation a modification in the way the supervisor interacts with the employee. First, we are going to look at working at home or telework, and you will see at the bottom of this slide, this reference to an EEOC fact sheet on this topic and just as a basic point, EEOC.gov, the EEOC''s website, has a lot of great information and guidance and fact sheets on various issues and also one of the attendees today is from the Job Accommodation Network, which is another resource as well as the Great Lakes Disability Business Technical Assistance Center and other regional DBTACs are all places where information can be obtained, and as well as local protection and advocacy agencies. From the EEOC fact sheet regarding telework, it says that the ADA does not require that employers create a policy for teleworking if there is no policy in place. It notes that if there is a telework policy or program in place then people with disabilities should be able to participate, and if there is no teleworking policy in place, even though employers do not have to create one, they may need to allow a specific employee with a disability the opportunity to telework if it is reasonable under the circumstances of that employer and that employee. So, if there is no policy, the employer does not have to create one but they still may need to allow an individual to work at home for reasons related to disability. Some courts have found working at home is a reasonable accommodation. It is listed in the language of the statute. It is also a part of the President''s New Freedom Initiative. Other courts have been less sympathetic to working home as a reasonable accommodation request, and as with all situations under the ADA, it involves an individualized assessment, both of the employee and the nature of their disability but also looking closely at their job, what are the essential functions and looking at the employer''s operations, how, what type of policies are in place? What type of procedures? So it really needs to be an individualized assessment for both the employer and the employee. A couple of cases here regarding telework, in the Mason case the court held that working at home was not reasonable when physical attendance at the administration center was an essential function of the service coordinator position. It was a low level position requiring supervision and team work and the court held in such a case working at home was not reasonable because the employee needed to be present in order to be properly supervised and to work with their team. Likewise in the Mobley case at the bottom of the slide, working at home was not a reasonable as presence in the workplace was required for meetings and mediations and it was an accommodation in place with distraction free environment which was proven to be effective and again this shows what Barry mentioned earlier, employers do not have to provide the accommodation requested by an individual with the disability, they can choose a different accommodation but it needs to be effective. The Mobley case did not discuss why the person could not participate via phone or webinar or computer. For some of the meetings or mediations I think it maybe possible in some circumstances to argue that teleconferencing in some meetings can be a substitute for physical attendance at the meetings but it wasn''t discussed in the Mobley opinion. Moving on to the next case we have Humphrey versus the Memorial Hospitals Association. You see a happy medical transcriptionist on the corner of the slide and in this case it was held that working at home might be a reasonable accommodation for a transcriptionist with obsessive compulsive disorder. The court looked at the employer and noted that telework was allowed for other medical transcriptionists at the employer''s office and that the employee had previously been given a flexible starting time and accommodation. But in this case that accommodation proved ineffective which I think demonstrates the point which is important is that the duty to accommodate is ongoing and one or two or three attempts of accommodating an employee is not enough until there are no more effective reasonable accommodations that can work. So if an accommodation is provided but it is not working then a new accommodation may need to be examined then, the interactive process engaged all over again. The Woodruff case is a very recent case out of the Washington D.C. Circuit which had a good discussion of telework. It involved someone who is a team leader who was injured in the fall at work and had back surgeries and was off and on for several periods of time receiving treatments. At one point his manager signed a telecommuting agreement to allow him to work at home for two days a week. Those two days were not identified. It was listed as variable type of accommodation and the FAA, the employer, Federal Aviation Administration, part of the US Department of Transportation encouraged working at home agreement at least in part due to the positive effect or the positive environmental impact in terms of lessening commuting time and gas consumption, pollution and items like that. The FAA had a telecommuting handbook which required that the agreements identify in advance the days when the employee would work at home. This agreement that was in place originally did not have that with the supervisor was comfortable just listing two days a week but the days themselves could be variable. And what often happens, we see, is that a new manager comes in who does not want to continue an accommodation that was previously in place and here at Equip for Equality we see such situations fairly frequently and we feel that that demonstrates the importance of the employers undergoing periodic ADA training in ensuring that new employees is included and part of the orientation for new employees to avoid this problems. Usually, items like centralized decision making and training can ensure consistency across departments which is a desirable thing to have in these situations. So the new manager came in and refused to continue the telework after the employee went on another leave and added his own requirement that the employee need to exhibit "regular full time attendance." The employee actually got up and was able to provide full time attendance, was working 40 hours per week although needing to work at home occasionally and the manager said, well that is not regular enough and therefore would not permit the working at home and ended up docking the employee for the time off work. However, telecommuting handbook permitted up to five days a week of telecommuting time, a very generous policy but the manager in this case would award the employee or would grant the employee no time at all to work at home as a reasonable accommodation. The telecommuting handbook did say that the telework is a supervisor approved work option which the FAA argued that it was up to the supervisor to grant it or not and there was evidence that there were some personality conflicts between the new manager and the employee but the court looked at how the FAA administered the telecommuting policy, saw it in another employee in the same division led a team from out of state, led a team in Washington DC while working in Florida and looked at Woodruff''s team that he was directing and saw that most people were self-directed, so presence in the work place for Woodruff was not an essential function. And prior to the new supervisor revoking to the telework agreement, the employee was allowed to work at home for months with no problems at all and the court looked at the whole situation and noted that even though the policy says it is up to a supervisor''s discretion in awarding telework, in this case it should have been awarded and a supervisor''s defective use of discretion by the denying working at home as an accommodation. Excuse me. The next case is the Rask case which involves a kidney dialysis technician with depression who had irregular attendance resulting from side effect from the medication. She requested an accommodation of just allowing sudden unscheduled absences and that the employer should have provided this to the employee before her employment was terminated. The court denied her claim and said, while it may have been great for the employee to come and go whenever they wanted suddenly in an unscheduled manner, there was no evidence submitted by the employee that allowing this accommodation would assist her in performing the essential functions of her job. It seem to the court to be more as a personal convenience without really enabling the employee to do the job. And that is what is really important, that is why it is really important for employees to show how any requested accommodation enables them to perform the essential job functions. The court even went farther and said the employee was raising the reasonable accommodation request only after being terminated, never specifically requested an accommodation prior to her termination when there were attendance issues but only stated that she was having problems with her medication and might miss a day here and there because of it. And the court held that even if her statements suggested what a reasonable accommodation might be, Miss Rask failed to specifically identify her resulting limitation. It is important in submitting an accommodation request if the need for the accommodation or the disability is not apparent both the disability and the resulting limitations need to be identified as part of the accommodation request. The next case we are going to look at is Earl versus Mervyns which involved a store area coordinator with obsessive compulsive disorder who also wanted to have the accommodation of clocking in whenever she arrived and thought that the employer modified their tardiness policies and not discipline her for being tardy. However, the employee psychiatrist submitted a letter ostensibly to help in the accommodation request but state in the letter that no reasonable accommodation would enable the employee to arrive to work at time and the court used that statement against the employee saying in effect the psychiatrist''s letter show that the employee was not qualified. Predictable attendance was an essential job function and the psychiatrist would say there is no way and no accommodations that will enable to employee to have any type of predictable attendance and as a result the court concluded that the employee was unqualified. And under the third bullet point there is a sub bullet point there, it is very important for employees that when submitting medical information support for the accommodation request in some ways it is kind of like walking a tight wire. You need to have enough information to show the disability, the limitations, the need for the accommodation request but you want to make sure that the medical information also substantiates that the accommodation will enable the employee to be qualified. You want to avoid language that can be interpreted in such a way to show the employee is no longer qualified to do their essential functions. And as the bottom bullet point notes regular attendance is often seen as essential job functions by the courts. The Holly case involved a mold polisher who was a wheelchair user and frequently arrived late to work due to his disability and I believe there were issues on parking in getting to his office. For a period of time, the employee was able to start late and was allowed to finish his duties by staying late and they did not negatively impact the production at all. And when the employer started to crack down and then enforce more strictly the punctuality, policy the court held that punctuality was not an essential function due to the fact that the employee was able to not be punctual make up the time and there was no hardship to the employer. And again, when people seek an adjusted schedule as an accommodation, an employer is not under an obligation to lessen the amount of time the employee has to work but they maybe required to change the employee’s schedule to enable the employee, like in this case, to start later and finish later but still do the same amount of time as other employees in this position. Next case is another one involving attendance and punctuality and also involving an individual who used the wheelchair, EEOC versus Convergys. This individual due to a lack of accessible parking and the case didn''t really discuss how many, if there was enough accessible parking but the employee had even tried changing shifts so he would come to work earlier at a 7 o''clock or 7:30 shift and still was unable to locate any parking or accessible parking. And at the support place, works stations were not assigned in advance, it was first-come first-serve and that all the work stations worked. So, when the employee came back a little late from lunch or from breaks due to parking problems, et cetera, he also had trouble locating a work station that was functioning. And in this case, the court held at allowing the employee an extra 15 minutes to return from lunch. It did not require that the employer eliminate the essential job function of punctuality, it was just really redefining what would be punctual, a punctual time to return to work. And the employer was saying, well it is the employee''s responsibly to identify accommodations which was a little bit of strange argument because the employee actually in this case did identify accommodations but the court held the opposite approach and it is really the employee may suggest accommodations but it is really the employer''s responsibility to identify or try to identify potential accommodations by engaging in the interactive process. As I mentioned earlier, another modification might be modifying the way a supervisor interacts with an employee and this may include providing for regular informal meetings, modifying the manner in which expectations are communicated, for example, in writing and then orally or having set times, utilizing items like checklist and perhaps redirecting an employee''s activity when necessary. A very interesting case on this point which we had talked about some in other context in other presentation is this Taylor versus Phoenixville School District. This involved, I believe, it was actually a secretary not that a teacher who had worked to the school for 20 years and was hospitalized for bipolar disorder and while she was hospitalized; the school had a new principal come in. Prior to her diagnosis, the employee had an exemplary work record, good performance evaluations, however, the new principal had concerns probably related to her bipolar disorder and put her under a microscope which is generally as a practice not a good idea to put an employee under a microscope due to the fact, you know, they have a disability. The employer started following her around, making bullet point list of all typographic errors, pulling files out of her garbage can to show some of the errors. When the employee was out on leave, the principal had her office redesigned and threw out some of her materials, increased her job duties from 23 to 42 job duties. Refused to provide any extra training either for the new job duties or if the employee was slow in existing training, the employer refused to provide any additional training or tutoring. And this was all done, the Principal did these in the school based on the advice of an Administrative Assistant and as noted in the bottom, the court held that these actions were not proper. The school has argued that the employee is not qualified because of all her mistakes, et cetera, and the court held, no, before you can find someone who do not re-qualify under the ADA, you must make sure than any possible accommodations that can be given or given any reasonable accommodation. So, before coming to a conclusion that someone is not qualified, reasonable accommodation, the whole process needs to be exhausted. And the court had quoted some language in the EEOC compliance manual saying that supervisors play essential role in achieving effective reasonable accommodations for their employees and that supervisors maybe able to adjust their methods as a reasonable accommodation; for example, communicating assignments, instructions or training by the medium most effective for particular individual in writing, conversation via electronic mail. So, this is one of the cases which show that the supervisor needed to take a different approach with his employee rather than making the claim the employee was not qualified and terminating the employee. We have a couple of bonus cases here. The first case is one that comes up frequently when an employee or when an ADA litigant, when an employee serves an ADA claim and he also happened to be a Social Security beneficiary. And for years and still to the present day, employers would argue that it seemed inconsistent for someone who was telling the Social Security Administration that they are not able to work, to be telling a court at an ADA case, "Well, I''m able to work" and the employer discriminate it against me. And the Supreme Court in this case found that there was not an inherent inconsistency between asserting Social Security claim and as well as also asserting an ADA claim. The court said to that and more often that not, both claims would not conflict. However, the court put the burden on the individual with disability, on the plaintiff to explain any apparent inconsistency that may exist. And the court gave some guidance on these and identified five different explanations to try to explain why a Social Security beneficiary can also make an ADA claim. And the court looked to the fact when the ADA considers reasonable accommodations, in fact, reasonable accommodations are fundamental to the ADA, Social Security law determining whether someone can work or not does not look at reasonable accommodations. In effect, the ADA definition of having a disability or being able to work, the court was saying it is very different than the Social Security definition of being able to work which is true. There are different laws written for different reasons with different definitions. The court also looked at the different analysis under the two laws, for example, Social Security has listed disabilities which if the person has one of those conditions, they jumped ahead in the determination process and this many list of disabilities but some of the ones most utilized are people who blind or people who deaf. If you have one of those conditions then if you jumped ahead in the determination process of Social Security but it does not anticipated that no one who is blind can work, it just mean that you have this listed disability under a Social Security Law. The court went farther and noted that Social Security had worked inside the rules which anticipate working. For example, people who received SSDI benefits from Social Security have a 9-month trial work period where they can work or earn any amount of money and still collect the Social Security check. So, even the Social Security Administration recognized that people can work and one important law that came out since the Cleveland decision is that they get work at which even, I think, demonstrates much more clearly with several explanation points as Social Security knows people can work and receive benefits and is really trying hard to help people who received benefits work more. So, Social Security recognizes that people can work. And some other reasons, the court noted that people''s conditions change overtime. They can say, I am disabled now but I wasn''t disabled at the time I, you know, I needed an accommodation so that can be an explanation for any apparent consistency or if there has been no determination in the Social Security hearing, a person is allowed to plead in the alternative until there is a determination whether they are disabled or not under Social Security law. Some language from the Cleveland case, the Supreme Court said that pursuit and receipt of SSDI benefits does not automatically stop the recipient from pursuing an ADA claim nor does the law erect a strong presumption against the recipient’s success in the ADA. Without getting too technical what courts would do, is say, oh you told Social Security you can''t work, we don''t even want to hear you ADA case, you are stopped from even arguing it and we presumed that, that your not qualified of the ADA. And the court held that despite the appearance of conflict, the two claims do not inherently conflict. There are too many situations where an SSDI claim and an ADA claim can comfortably exist side by side. And importantly, the court noted the legal context is a necessary representation of total disability differs from a purely factual statement, and that it often applies a context-related legal conclusion, “I am telling the Social Security I am disabled for working under the Social Security Act”. Then, I think it is important when, for example, preparing an ADA plaintiff for deposition to make sure that they are aware of one of this case, and of the explanations and say, you know, when I told Social Security I couldn''t work, I was talking about Social Security Law, and when I am telling the court I may be able to work under the ADA, I am talking about the ADA. I am talking about the two different laws, and then again, trying to show that one of the exceptions noted, whether it is reasonable accommodations or at least an impairment implies in your case. And again, some more quotes on Slide 53, that the person may still be able to perform the essential functions even though they qualify for disability benefits. But, it is important that the explanation offered by the disabled employee be sufficient to warrant the reasonable chores including that the plaintiff could perform the essential functions of the job with or without reasonable accommodation. While also, believing what they state to the Social Security Administration is true as a look in the cases. A person cannot seek to, so that the two claims do not conflict by just saying, "Well, I was just, you know, saying stuff to Social Security. I was just telling them what they needed to hear, but really, I was able to work." That is not an argument that is gonna fly. In the first case and this is Johnson versus Exxon, where Mr. Johnson stated that he became unable to work because of his disabling condition on the day he was terminated, and then later said, "Well, I was mistaken when I told Social Security I was not able to work." And that was part of his ADA case and the court held that claiming a mistake was not sufficient. The plaintiff did not present any evidence that he has taken any steps to correct the mistake, and relinquish the benefits, and so in effect saying you made a mistake to Social Security then where are your actions to back it up by, you know, sending back the Social Security checks or providing updating information saying you really are able to work. The claim of mistake on Social Security applications is not a good method for explaining why a person can receive Social Security benefits and still avail themselves of the protection of the ADA. And at the bottom is a similar case, Gilmore, where the plaintiff said, "Oh, I didn''t know what I was saying because I didn''t have any legal training”, and the court held that that was not a sufficient explanation either. In the Voeltz case, which was a little different, the employee applied for Social Security benefits at the suggestion of the company''s human resource department, stated he will be able to work just fine, if the company had accommodated his multiple sclerosis. He had evidence that the physician has suggested some practical, reasonable accommodations, modified job duties, and modified schedule, consulted within the occupational therapist, and this case actually went to jury, which found for the employee, and the court stated, you know, any discrepancy was for the jury to resolve. The jury heard all the evidence. They were instructed on the Cleveland standard, Mr. Voeltz put in his evidence that he could work just fine. And I think that one of the thing that may have been important even though it wasn''t emphasized in the decision, I think, when the employer actions, for example, terminating of the employee or telling them to apply for Social Security benefits because they are not able to work. When the employer takes that approach, of course, I think they are more willing to say, well the employer forced them into this situation to apply for Social Security benefits by: (1) Terminating their employment. (2) Telling them to do so, et cetera. So I think the employer''s action to this case play the role of the decision. And the second bonus case, we are running a little short on time, and I wanna see if there are some questions, I am gonna move to this case fairly quickly, but it does demonstrate some good points. It is the aptly named Mr. Canny who worked for Dr. Pepper. He was a route supervisor who became legally blind, and wanted to keep his position although he could not drive a car, but he claimed he still could drive a forklift and wanted to transfer to a merchandiser position or to a warehouse. Human resources did not have evidence best practices in this case. They said, no, we can''t reassign you, there is a hiring freeze. We can''t transfer to the warehouse if you drive a forklift, "You will either kill someone or you will lose an arm” truly, not something good for a human resource person to say to an employee. Human resources spent a whopping 5 minutes meeting with the employee. I think that was their effort to engage in the interactive process. Forced the employee on medical leave and he didn''t apply for disability and Social Security benefits. His Vocational Rehabilitation counselor tried to contact human resources, and human resources did not return the call. Never informed of any vacant positions, stating they thought he was unqualified to drive a forklift even though the company did not have any visual acuity standard for operating a forklift. After the employee filed the lawsuit, and the company was in the litigation process, they said, "You know, maybe we should offer him a merchandiser position in a different city." The employee refused at that time, since this claim originally rose he had gotten married, had children, and relocating was personally not an option for him. But importantly, when offering this position, the company was in de facto meeting that this time they said that the employee could go from site to site, either using taxis or transportation services or riding with another employee, where previously, they add to the driving was the essential function, in effect now, they were saying it wasn''t really driving that was the essential function. It was getting from place to place, and I think that is always important distinction to make in these cases. And then, in some ways which helped proved his case, after leaving Dr. Pepper, the employee found 2 other jobs, driving forklift, did so safely, managed to keep the both of his arms, didn''t kill anybody, and was able to safely operate a forklift. Some of the issues, was the individual a qualified individual with disability, could the employee do the essential functions of the merchandiser position, which required going to different sites, or the warehouse drive which required operating a forklift, and those are the 2 issues there. Under reasonable accommodation is reassignment to a vacant position a reasonable accommodation? Did Dr. Pepper have a duty to reassign the essential functions, or create a new position? One thing the employee suggested was sharing management duties where he wouldn''t drive but someone else would and then the important question is that did Dr. Pepper show a good faith effort to engage in the interactive process? And the court looked at that issue as well. And when I looked at the issues regarding the qualified individual with disability, the court said the employee could do the essential functions of either the merchandiser or the warehouse position. He could travel between sites for the merchandiser position as the late coming company offer for a transfer to that position showed, and his driving of forklifts and other jobs after being terminated from Dr. Pepper showed that he could also do the essential functions of the warehouse jobs and drive a forklift. And again, looking at the merchandiser position was driving between job sites in essential function? No, the employee could arrange his own transportation and Dr. Pepper seemed to agree and they eventually offered that type of job to the employee, although of course, in an out-of-state type of job, which the employee was unable to accept. Regarding the warehouse job, was the employee not qualified to drive a forklift? Of course it is visual condition, the court said that well, there were no visual acuity standards for forklift drivers. I think if the company had a standard or a policy, and consistently followed it, that might have changed the outcome on this one issue. And again, the fact that the employee seriously handled this position elsewhere showed that he was qualified to operate a forklift, and the picture in the bottom there was not a forklift from this case. It is the other fallen forklift. Regarding accommodations as reassignment to a vacant position, a reasonable accommodation, yes, and regarding drive restructuring, is there a duty for a company to reassign essential functions for example to create a kind of high bred management duty where job duties are shared among 2 managers, the courts said no. There was no duty as we have discussed before for a company to create a new position or to reassign essential job functions. And then looking at Dr. Pepper''s efforts to engage in the interactive process, the court said that was not a good faith effort. There was only a 5-minute conversation. No evidence of any research. The employer did not return calls to the Vocational Rehabilitation counselor, did not advise the employee on vacant positions, and it is generally the employer''s obligation to look at vacant positions. I think it is often not enough to say, well, just check our web site. The employer does have at most cases, the court has held the employers do have a stronger duty than just saying, check our web site. And they actually should notify the employee of vacant positions then speak with the VR counselor and they admitted we thought he wasn''t qualified due to vision and again the lack of any visual acuity standards hurt their argument there. Quickly, here are the elements of a case, when you are trying to establish the employer failed to engage interactive process, the employer need to know of a disability, neither accommodations were requested nor there was a reasonable basis to think accommodations were needed. The employer did not assist in seeking accommodations and then the employee also has to show one thing more, it is not enough to win this type of claim to show that the employer did not assist in seeking accommodations, the employee still has to show that there was a reasonable accommodation that existed that could have been applied but for the employers lack of good faith. These are some of the lessons learned, it is dangerous to assume an employee is unqualified; it is always good to take individualized assessments, engage in interactive process. Base decisions on facts not stereotypes and don''t say things like you will kill someone or lose an arm. And then this case was costly for Dr Pepper. The $100,000 punitive damage was not upheld on appeal but back pay and emotional damages were. Attorney''s fees which I am sure run a hundred thousand or up to a quarter million easily in a federal law suit are expensive. And when an employer loses this they not only have to pay their own attorney which they also have to pay if they win but they may have to pay the employee’s attorneys as well. I think it is always important for employers to decide where they want to draw the line because it is important to recognize once an accommodation is denied then problems can result down the road. And I wanna quickly go through this practice tips and then we will leave a few minutes for questions and people can always contact us after the webinar. As we mentioned, always an employer should always engage in interactive process, making individualized assessment. If medical documentation is necessary, get it. If it is not necessary, it is only best not to ask for it due to all the legal responsibilities that attach to medical information and employers should always document their efforts that they are providing accommodations. Employers should feel free to offer alternative effective accommodations. Beware of inflexible policies for leave as Barry noted whether it is 100% healed to return to work or no more than four months or no more than one year of leave. Be careful embracing an undue hardship defense. It should be objective but it also opens up the companies finances for scrutiny. Periodic training is helpful and before termination, makes sure there are no available reasonable accommodations that can work. Again consistency is important in involving accommodation requests. It is generally not a good practice to have one manager accommodating an employee in a situation whereas a different manager will not accommodate an employee in a similar situation and some of our cases demonstrated that with Woodruff, Rascon and Barnett. There are benefits of centralized decision making that helps maintain the consistency. And some quick practice tips for employees, make sure that what you are requesting is reasonable, suggest accommodations if you know one. It is always a good idea to submit a time frame for a response to an accommodation request, for example two weeks so at least you know if you are being responded to or not. If you feel that medical information is appropriate, generally it is a good idea to submit it with the accommodation request. You can have your doctor draft a short letter outlining the disability and limitations needed for the accommodation and that makes it easier for the employer too, they don''t have to try to decide, "Shall we get medical information, how much?" It is a good idea to give the employer the information they need to make the decision. And make sure that the medical information documents everything you need but make sure it also shows that you are qualified to perform the essential job functions and doesn''t go so far to contain language that maybe, give rise to an argument that an employee is not qualified to perform the essential functions. Again document all conversation. If the employer seeks more information which they may be entitled to, make sure to respond properly to those request otherwise the employee may be deemed for the breakdown of the interactive process and it is generally better for the employee to obtain information from your doctor than to have the employer, speak to the doctor directly if more information is needed because the usual information is vague or incomplete. So, that is the end of the presentation. I know I had to race it at the end and I apologize for that and I will turn it back over to Robin and to talk about the up coming sessions.

Robin Jones

But before we do that let''s just see if there is some question that people from the audience might have with the little bit of the time that we have remaining. These are very packed, sorry, these are very packed sessions and so obviously there is a lot of content in it that it becomes problematic to provide so much information and our opportunities. Just to clarify, did you get the question that was asked by Rick? Alan?

Alan Goldstein

I did, I am trying to type an answer now.

Robin Jones

You don''t have to type the answer, you can provide the answer orally. He can hear. So, it might be easier just to respond to that. Also if there is anyone else who has any questions at this time, that would be a time to ask those questions. So I will let go of the mic for a second and to see if Alan wants to respond Rick''s question as well as, any other questions that may come from the audience?

Alan Goldstein

Sure that is fine. Rick''s question is- what if an employer has an obligation to do more that just say check the web site, what would that obligation be? And I started to type it all, I will finish this but I think it means an employer must search for vacant positions for which the employee is qualified and then to notify the employee of those positions. You can imagine if the employer has a web site might contain hundreds of job listings and it seems burdensome to the, expecting the employee to sort through them all to see which ones are qualified for. The employer, who has better knowledge of which jobs might fit the employee''s qualifications, in my opinion, has some duty to narrow down the job openings and to notify the employee if there are any vacant position for which they qualified.

Robin Jones

I think that this also speaks to the issue of interactive process. Interactive process you know does include that there is an active dialogue between the employer and the employee on these issues, and not just, you know, giving me a handout or you know a fact sheet. I think it is a shared issue and probably would be individualize to the organization and still depending on how they post jobs and how they handle those kinds of things too is what I would think. Okay any other questions from anyone in the audience? Yes, you will be receiving as follow up e-mail at the end of this session; you will receive a copy of the presentation as well as the briefs that were alluded to by Alan and Barry in relationship to this topic and legal briefs. So, you will receive those by e-mail, the e-mail that you registered with, so every one will receive that as well as a link to the evaluation of the session to give us some feed back. I would first like to thank our speakers today for once again sharing their information and knowledge and expertise in this particular area. Complex issues, lots of information and you can see how the case law is developing in this area, it is not always as clean as some of the documents and things that have been provided. I know Alan and Barry both alluded to resources that are available including the Equal Employment Opportunity Commission, the regional network of ADA Centers. And I also would like to allude to the fact that other resources such as the Office of Disability Employment Policy with the Department of Labor as well the Job Accommodation Network which is funded by the Office of Disability Employment Policy is available as well. So, those are resources that are available and will be on the sheet that will be sent out to you with the final materials for more information, additional websites, telephone numbers and such if you are not familiar with those resources in addition. Our next seminar series is on July 22 right before the 18th anniversary of the American with Disabilities Act. It will be at the same time 1 pm to 2:30 pm Central time. Make those adjustments accordingly depending on where you are in the country, and the topic for the July seminar is ADA Coverage Beyond Actual Disability, looking at the other prongs of the definition such as regard as, record of, and association with someone with a disability. And I think that timely discussion here in July are that because as things are also moving along as it relates to the ADA Restoration Act, there maybe some discussion and comments about how this prongs by definition play in, since some of the modified language that is being propose for ADA Restoration Act as well. So we invite you to join us for this session that celebrates both the anniversary of the ADA as well as hope to give you some information. So thank you once again every one for your participation today and look for the materials by follow up e-mail and again thank you Alan and Barry for your time and efforts today. We will sign off.