Good afternoon. Or good morning depending on where you might be joining us from. I would like to welcome you to the ADA Audio Conference program which is actually our Legal Webinar. We have a multitude of different programs and series that we offer under our ADA Audio headline. This particular legal issues webinar series started in January of this past year. We will run through September with a total of six programs. So we have a few more to go, I again, welcome you. This is being brought to you as part of the Regional ADA Centers network across the country, also known as the Disability and Business Technical Assistance Centers. This program is hosted by the DBTAC - Great Lakes ADA Center. We serve the Great Lakes region of the country. Our session today will be conducted by Alan Goldstein. Alan is a Senior Attorney with Equipped for Equality, which is the Illinois Protection and Advocacy agency for people with disabilities and manager of the Illinois ADA Project which is the affiliate of the Great Lakes ADA Center. We receive our funding from the National Institute on Disability Rehabilitation and Research otherwise known as NIDRR. Mr. Goldstein has been practicing law for over 20 years and has specialized in the area of disability rights for 15 years. He''s provided employment related training to human resource, businesses, judges, attorneys, service providers, people with disabilities, government agencies, and other organizations utilizing his expertise as an attorney to provide practical information. Mr. Goldstein collaborates with Chambers of Commerce, Business Leadership Networks, SHRM members and others professional organizations to understand and address employers'' concerns regarding the ADA. Our session today, which is one of several that we''re offering throughout the year, is - sorry. I''m having a little blip in my technology -- titled ADA coverage beyond actual disability, regarded as record of and association disability. Again, this is an area that we often dont hear people focus on. A lot of focus is on who is a person with a disability. And the debates around what is happening now with the ADA Restoration Act and subsequent ADA Amendments Act passed by the house a few weeks ago. But this part of the definition of disability also needs attention and needs to understand how its case law is developing. And how people are dealing with it across the country and looking at its impact on people with a variety of different disabilities that may or may not fall into this particular area. I will now turn it over at this time to our speaker Alan Goldstein. Just to remind people that this program is being recorded. It will be made available through the archive on our www.ADA-audio.org website. The materials for today''s session including the PowerPoint presentation and a legal brief addressing this specific topic will be emailed to all of those who have participated in the program today at its conclusion and at the same time we''ll be asking you to complete an evaluation on the program. So understand you will be receiving a copy of the PowerPoint from today, as well as a legal brief which our speaker will be referring to throughout the session. At this time I will turn it over to you, Alan.
Okay, thank you, Robin. Thank you for this opportunity, again. Thank you to all of the participants taking part today. Welcome back to those of you that have been here before and welcome to the new people. Those of you that have taken part in the past we''ve done these sessions with me and Barry Taylor whos Equip for Equality Advocacy Director. Today it''s just me. I apologize for that. But, I think we''ll be able to get through all of the information. One thing I ask is if you have questions I think we''ll save all questions until the end. I anticipate going about an hour with the PowerPoint. Then we should have almost a half hour or so for questions. People are also free to email me after the webinar at any time. Some of you have done that in the past and I try to be prompt in responding to you. So today''s session is on ADA coverage beyond actual disabilities. The three parts we will be talking about are regarded as, record of, and discrimination based on the association with a person with disabilities. The topics are probably not as discussed as the other ADA topics. I think they''re important for employers and they are important for employees. These are the topics we will discuss today, a very general outline. We will talk about disability issues in general and then we get to regarded as in cases, record of in cases and association issues in cases with some practical tips. These seminars are designed to be somewhat technical so we dont do so much ADA 101 or the ABCs of the ADA. So, if people do have questions on that certainly ask your question at the end, we''ll try to answer those. But the focus of these webinars is to provide the more technical information using EEOC guidance and case law to help everyone navigate their way through the ADA. Here''s an overview of ADA issues and well spend a little bit of time on this. First, to be protected under the ADA a person must meet one of the four conditions set in the bullet points. They have a disability that substantially limits one or major life activities. That''s the bullet point we will not be discussing today. Or they must be regarded as having such a disability by the employer. They must have a record of an ADA qualifying disability. Or have a relationship or an association with a person with such a disability. We will be talking about the last three bullet points there: regard as, record of and association. I just want to say a word as Robin alluded to the ADA Amendments Act of 2008, which was called the ADA Restoration Act, has passed the house. It is the result of negotiations between the business community and the disability community. Some of these definitions will change under the ADA. And I want people to know the brief that Robin talked about will be distributed at the end of this webinar is fairly extensive. This PowerPoint is more just highlights from the brief. People that want more information I urge you to look at the brief later, that has more information of the cases that we discuss, cases that we will not discuss, and regarding the ADA Amendment Act. One question I want to address off the bat is the issue of reasonable accommodation under these types of disability coverage. Some of it is less than clear the way the law stands now. As it currently stands people who are regarded as having a disability generally are not entitled to have a reasonable accommodation. There''re case laws that indicate people who are regarded with a disability may be entitled to an accommodation. That case, the case that is on that point is Williams versus Philadelphia Housing Authority which alludes to it. Most courts have held that people that are regarded as having a disability are not entitled to accommodations. The one exception would be if the accommodation would be a change in interpersonal interaction. For example, if a supervisor treats an employee in a derogatory manner assuming they are disabled. That''s a situation where I can see an accommodation in a regarded as situation. Generally it''s tough to get accommodations in these situations although there is case law going both ways. The EEOC has not taken a firm position on that, whether accommodations are required for people who are regarded as having a disability. But one important point is under the ADA Amendments Act it would clearly state that people who are regarded as having a disability are not entitled to reasonable accommodations. Regarding accommodations for people having a record of a disability? The EEOC holds that people in this category are entitled to reasonable accommodations. And most courts have held as well looking at all other considerations for reasonable accommodations. The ADA Amendments Act would not change that. People with a record of disability are generally entitled to reasonable accommodations. What the next category of people that feel they''ve been discriminated against based on an association with a person a disability. Again this group, it is generally held that there is no accommodation based on an association with some with disabilities. So employers do not have to give time off under the ADA for people to care for spouses or children or other family. But very important to know that under the Family and Medical Leave Act the time off may be required but not under the ADA. I think this would probably not change under ADA Amendments Act. One more change that the Amendments Acts would involve is that currently the law is to show that a person is regarded as having a disability they must show that the employer regarded them as having substantial limitations in a major life activity. That requirement would be eliminated under the ADA Amendments Acts. Excuse me; the person would need to show that they are regarded as having impairment and necessarily an impairment that substantially limits their major life activities. I think that was part of the tradeoff in the negotiations. The standards for regarded as have been made easier for people to fit that category. But it is now explicit in the Amendments Act if that passes that people regarded as having a disability would not be entitled to reasonable accommodations. I hope that''s clear. I know that''s a lot of information. I wanted to handle the reasonable accommodation issue off the bat because it is somewhat tangential to the rest of the power point. One thing I also wanted to mention in terms of one of the basics. Any employees must be qualified to do the job, whether they have an actual disability, whether they''re regarded as having a disability, whether they are associated with someone with a disability, a record of the disability they still must be qualified. An employee is qualified for a position under two conditions; one is kind of the general qualification. They must satisfy the requisite skill, experience, education and other job related requirements of the position. And then the second part is the part we''re familiar with under the ADA, the individual must be able to perform the essential functions of the position either with or without reasonable accommodation. A lot of the regarded as cases the qualified issue is key. Generally when an employer regards an individual as being unable to perform some essential job functions but doesnt regard them as having a substantial limitation then that person is generally deemed to be unqualified. If there is medical substantiation that the person cannot perform the essential functions for example, if lifting 50 pounds is an essential job function and a person with a disability cannot do it then that person is not qualified for their job. If you are not qualified it doesn''t matter if you are protected by the ADA or whether you meet the definition of a disability under the ADA or not. I think in some of the court decisions we will see that courts sometimes blend this. In some of the cases that we will talk about, I think, it appears to me the person was regarded as having a disability, but it also appeared to me that the person was not qualified for their job. Sometimes courts don''t take that route. They find that the person was not regarded as having a disability, even though they may well have been regarded as having a disability and their just not well qualified. We will see courts kind of blur the distinction a little bit. Employees with regarded as having a disability. In general, regarded as cases fall into two categories; one, the employer mistakenly believes that a person may have an impairment that substantially limits a major life activity when the person has no impairment whatsoever. Or if the person does have impairment but it is not substantially limiting then the employer mistakenly believes that the impairment does cause a limitation in one or more major life activities even though it does not. That delineation is from the Sutton case, part of the Supreme Court trilogy on the definition of a disability. The EEOC has some guidance where they actually break it down into three categories but I think that gets too confusing. I''m a simple person. So the two categories by Sutton I think sum it up fairly well. As I mentioned employees must be qualified. Generally, employers do not violate the ADA when they have valid nondiscriminatory reasons for adverse employment actions. The employers reasons must be legitimate, job related and consistent with business necessity. In these situations if an employee is unable to meet a job related condition of employment or a job related duty they have to perform then that person would be unqualified again, whether or not they have a disability under the ADA. However, if a reasonable accommodation would enable the employee to be qualified then the employer must provide it and that''s basic ADA law. Here are some examples of valid nondiscriminatory reasons for adverse employment actions. For example, sleeping on the job as the picture shows would be a valid reason for termination. Even if it''s disability-related and again with the caveat if someone is sleeping on the job because of reaction to medication or because they are limited in sleeping the employer needs to investigate whether an accommodation will enable a person to perform their job duties. If there''s no accommodation that will help someone do their job and stay awake on the job then that person is not a qualified person with a disability. Here are some more examples of valid nondiscriminatory reasons for adverse job actions: Either poor job performance on the part of the employee; Violation of legitimate workplace rules even if it''s a disability that in some measure is responsible for an employee violating a workplace rule. As longs the rule is job-related and consistent with business necessity and there''s no reasonable accommodation that will enable the employee to comply with the rule and that would be a valid rule for an adverse employment action. If the employee poses a direct threat to themselves or others that cannot be eliminated or reduced by a reasonable accommodation that would be a reason for taking adverse job action but again the direct threat standard is a very high standard. Employers need to make sure they have the best available objective medical or scientific evidence on that. The next bullet point, if the employee is viewed as unable to perform one or more specific essential job functions. So the employer is not saying I dont see you working in any job. I dont see you working anywhere. They''re not saying that theyre saying I think you are unable to lift 30 pounds. Thats what your doctor says, the job requires that you lift more then 30 pounds all of the time, therefore you are not qualified. We''ve seen case after case -- someone just told me they can''t hear anymore. I''m going to try to lock the talk key again. Okay. Claudia said she can hear fine. So hopefully its working but please let me know if I fade out let me know. The technology still has some glitches. So I''m assuming it okay. In case after case we see where employees are viewed as just being unable to perform a job function, specific job function and are not viewed as limiting in working or something broader. Employers actions in those regards, termination and other discipline have generally been upheld by the court. Again, it''s very important that employers base these decisions on objective reliable criteria. Courts frown upon where employers kind of tilt the medical evidence or rely on their doctor and ignore the treating doctor. Or have a company doctor influence medical opinions. Or when employers make decisions based on stereotypes, fears or misconceptions rather than on actual factual data. Courts generally find employers are wrong when they take those actions. It''s very important for employers to have specific objective reliable fact that they rely on. Its really important that employers focus on conduct of employees and not necessarily the disability of an employee. Again, employees must be qualified and they must meet legitimate business expectations under the ADA. Employers never have to lessen attendance requirements, quality requirements, and quantity requirements. They never have to forgive anyone or excuse anyone from complying with legitimate job-related workplace rules. And again the rules have to be job-related and consistent with business necessity. Employers again always have the duty to investigate whether a reasonable accommodation will enable an employee to be qualified. Um, and then for protection for employers; Employers are often afraid for example if they provide an accommodation to someone who has a backache and clearly does not have an ADA disability. If they buy someone a chair cushion or give them extra rest time employers fear that they may be seen as regarding the employee as being disabled. Courts overwhelming bend over backwards not to make that conclusion. In case after case they say if an employer chooses to go beyond the ADA we''re not going to make them keep that when employers give an accommodation that is not required and some point even arbitrarily decide to withdraw that accommodation. Courts support that. They really bend over backwards not to I dont know if punish is the right word but not to put any extra burden on employers when they go beyond the ADA. I think for employers it''s very important to make sure that''s documented. To say that we don''t think this is an ADA disability case, but we''re buying you a back cushion. I think when employers can be explicit in those regards that can help. In some of the cases an employer statements may help them to show that they did not regard the person as being disabled. Or employer statements may go the other way and show that the employer did regard the person as being disabled. So focusing on conduct and documenting things is very important. And on those lines employers have been found not to be regarding an employee as disabled because they extend Family and Medical Leave or other medical leave. They grant someone a sabbatical; refer a client to an employee assistance program, or provide work place modifications. When its documented that it is not being done with regards to the ADA in those cases courts have held that the employer was just doing more than they wanted to and if they want to stop doing that they''re free to do so. I have some cases cited there at the bottom. All those cased are in the brief that you will be receiving after the webinar. As I alluded to, statements and actions of employers are very important in these regarded as cases. They may show that the employer regarded the employee as disabled which may be evidence of discriminatory conduct. Or they may demonstrate that employer just regarded the employee as just being able to perform a certain job function. Which I alluded to before would not be discriminatory. So it''s very important and you''ll see in some of the cases of how courts have interpreted that. In medical evidence we''ll see several cases that discuss medical evidence. Employers are generally on strong ground if they have medical substantiations for their conclusion that their employee could not perform essential functions. However, when employers rely on company doctors and ignore contrary medical opinions, particularly those of treating physicians, courts are less likely to find for the employers. Well see some cases where the employers doctor had got others doctors to change their opinion after speaking with the employers doctor. Courts pretty much saw through that and said that that was not a valid medical opinion because it was influenced by the employer. Some good EEOC guidance is alluded to at the bottom of the page on medical examinations and inquiries of employees. Just to let you know about great resources, one if you are in the Great Lakes region, the Great Lakes Disability and Business Technical Assistance Center or another area DBTAC if you are outside of this region have a lot of ADA information, protection and advocacy agency which are located in every state and territory can help. The EEOC - Equal Employment Opportunity Commission has some excellent guidance in this area. And when you are looking at accommodation issues I always encourage people to contact the Job Accommodation Network as well. We''re going to get to the first case now and that''s really the company''s name, CHU2A, Inc. That surprisingly is an engineering type of a firm. In this case, Hoard, an employee was terminated one year after being diagnosed with Grave''s disease. And, for the six months immediately prior to his termination he had some problems at work including being unable to account for 300 hours of work time. Obviously, a serious problem he had had several altercations with supervisors and coworkers. In fact after one argument with a co-worker he just left work without leave or any permission and he went a-wall and missed an important meeting at work. And prior to the six months he had favorable work reviews but there was a noticeable change in his performance in the six months immediately prior to termination. Some of the statements -- the supervisors made several comments that the employee developed behavioral problems and was inappropriately aggressive. The employee was also called unreasonable and intolerable by the employer and was told he had become an undue hardship and a liability. Its interesting that they used ADA words in telling the employee what they thought of him and the question that these statements indicated that the person is regarded as being disabled or they just indicate that the person was having problems interacting with others at work. The court found that the supervisor''s comment reflected the employee''s behavior at work. They were he was intolerable and difficulty in conduct which is conduct-related comments. So the supervisors comments reflected the employee''s behavior at work. Not misconceptions about his abilities and the employer had a valid reason to terminate the employee at work. He was having an increasing number of conflicts with co-workers and supervisors and totally unable to account for 300 hours which he had included on his time sheets. Therefore the termination of this employee was upheld by the court. In this case even though the employer''s comments did not hurt the employer, I don''t know if they helped all that much. Although I always urge caution, employers should always be cautious in how they phrase things and how they speak to people with disabilities. Again, focusing on conduct and not medical issues is the best approach. In this case the employer documented their performance concerns, which helped them for sure. And their focus on conduct was also helpful. I think those are the keys in a lot of these cases. For employers to handle things in that regard. One thing, too, I''m going to go back a second. In the Hoard case, the court did spend time talking about when somebody is regarded as substantially limited in a major life activity of working. I don''t want to go into too much depth in this. One, it''s not very clear. There''s hasnt been a lot of guidance in terms of what does it mean to be substantially limited in working. The Supreme Court has kind of questioned whether it is a major life activity. The EEOC considers it a major life activity of last resort. But generally the law says that in order to be substantially limited in the major life activity of a working person, the inability to perform a single particular job is not substantial limitation of a major life activity of working. The person must show they are significantly restricted in the abilities to perform a class of jobs, or a broad range of jobs and that''s what a person needs to do to establish that substantial limitation of working. I just want to allude to that, that''s something discussed in that case. The next case is Squib. In the Squibb case, an employee, a registered nurse was issued a permanent work restriction from lifting more than 25 or 30 pounds. This was actually a result of three work-related injuries which led to this restriction. A lot of times we''ll see a connection between worker''s compensation and disability issues. Obviously injuries at work lead to some type of disability. That''s why I think it''s important for employers to really look at these from the beginning and make sure that they have a cohesive policy. Employers may want to provide for example a wrist rest to somebody using a computer even though they dont have a disability because it might help prevent carpal tunnel syndrome. As long as it documented and made clear it''s not presumed to the ADA. Its just something that the employer wants to do, that''s generally a good policy it can help prevent worker''s compensation liability. Back to the case, because of the nurses restriction she could perform the essential duties of her job and was reassigned to a new one as a patient placement coordinator. She was also given a permanent light duty position and at some point the employer said our light duty positions are really designated as temporary jobs. She sought a permanent light duty position but the employer designated the light duty position as temporary. And the court held there was no duty for the employer to make the temporary light duty job a permanent light duty job. And thats generally the case as long as the employer designates a light duty job as temporary the employer has no duty to make that into a permanent job to accommodate someone with a disability. Because of the employee''s continued frequent absences she was placed under administrative leave and then later terminated when she refused to return to work in a new position. The court also noted that the employee had what it called Luke warm performance reviews. The court ruled that the medical restriction instituted by the employee''s physician showed she was no longer qualified for her position. However, she was not regarded as being disabled in the major life activity of working. And that''s one of the things I alluded to before. I think that what the court could have said is she is regarded as having a disability in the major life activity of working because it seemed that she could not work as a nurse anywhere. But that being said she was unqualified for her job at Squib because she could not do the essential job functions. The court didnt go that route in saying that she is not regarded as and I think even though you get the same result. The employee is losing the case, I think if someone is unable to do is a duty which is seen as standard for that profession then maybe they are being regarded as limited in the major life activity of working, but theyre still not qualified for the job because they have to be able to lift that weight. There are several more of these cases in the brief where I point out where I feel the court may have jumped over the regarded as issue or found a person not regarded as disabled when in fact the person may have been regarded as disabled. But in the end was not qualified for their job. The court held that the employer did not mistakenly believe that employee had a substantially limitation working only that she was limited to the extent of her doctor''s restrictions which leads to another point too, I think it''s very important for people to make sure that medical evidence doesn''t substantiate that they''re unqualified and do nothing further. They may end up writing themselves out of a job if their not qualified for their job and there is no job available for which they are qualified for re-assignment. Then the person can be terminated without any violation of the ADA. I generally think in terms of a tip for an employee, if your going to submit medical evidence and you can''t lift 30 pounds and you need to be accurate but if there''s an accommodation that would help you lift. Or if it''s possible because of the nature of the job to have help lifting or to use a cart or to use some kind of device to assist with lifting I think it''s important to have the medical information mention this as well just to make sure that the duty to accommodate someone with a job restriction is examined as well. Again, this is what I was saying. The employee''s medical information rendered her as unqualified. When an employee is unqualified employers may reallocate essential job functions but there is no legal requirement under the ADA that may require that employers to do so. The ADA only requires that employers reallocate nonessential job functions. An employer never has to reallocate essential job functions. Once a person is no longer qualified for their present job, reassignment, the accommodation of last resort is the only available reasonable accommodation. As I alluded to it may have helped the employee had her physician suggested reasonable accommodations that would have assisted her in lifting. Rather than just the blanket statement that she could not lift more than 30 pounds. In the end that just showed that she was not qualified for her job. The next case is the Heartway case. In this case an employee was terminated from a cooking position after the employer learned she was being treated for hepatitis C. Actually, this was interesting because the employee did not originally disclose this. As you may know this after a conditional job offer employers can ask any medical information they want. And in this case they did and the employee did not disclose her hepatitis C. In other words people do not need to disclose their disability until they need an accommodation. The exception is for new job applicants once they receive initial job offer of employment the employer can ask for medical information as long as it''s done uniformly of all people coming into that position. In this case the employee did not disclose their hepatitis C and often courts feel well, if a person lies it doesnt matter if they were discriminated against or not. But in this case the court did not hold her failure to disclosure against her. Instead, the court looked at some comments the employer made... How would you like to eat food containing her blood if she ever cut her finger? If this got out to the client they would have a mass exodus from the nursing home. In fact these comments were made by the employer to the EEOC investigator... Generally, not a good idea, you don''t want to argue your case with the investigator. The employer also told the employee that if had hepatitis C you will not work in our kitchen. And the employer later argued we just meant they couldn''t work in our kitchen, we didnt mean they couldnt work in any kitchen. The court found the comment even they said you couldnt work in our kitchen because you have hepatitis C. The court was really saying we dont think you should work in any kitchen with hepatitis C. Therefore employee was regarded as being disabled and was protected by the ADA even though her hepatitis C of itself was not substantially limiting. Here I certainly agree and I think that any disability advocate would agree that safety is important. I don''t think anyone wants people with disabilities working in a workplace if it''s unsafe for them, unsafe for other employees or unsafe for customers. It''s very important in the food industry, as well, but here the employer merely acted on stereotypes regarding hepatitis C rather than medical information. In fact, we see in the second bullet point the EEOC has guidance thats titled, How to comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers. In that case they list the four types of conditions: transmittable by food that may disqualify someone from working in food service if theres no accommodation and while hepatitis A is on that list, hepatitis C is not. Again, that''s why employers need to base decisions on objective information, not stereotypes, generalizations or preconceptions. I skipped over the first bullet point. The court also discussed the squib case from before. The employer made the comments that you will not work in our kitchen with hepatitis C. Meaning you should not work anywhere with hepatitis C. The courts said this was different than the squid case, the employers regarded the limitations much more broadly than in squib. The last case is the Taylor case, I actually think its the [?} case, where a fork lift driver had two seizures. A neurologist determined that the medical tests were consistent with this seizure disorder and the employee told the employer that he had infantile epilepsy, was the phrase he used. The employer would not let him return for 18 months, for over 18 months, even though the employee was cleared by two physicians, who originally cleared him from work, but then the day after speaking to the company doctor they reversed their opinions, which is something that the court came down hard on the employer for. The court held that the employer''s refusal to let the employee return to work was based on the assumption that doctors were reporting to and retained by the company, and that clearly the employer used the company doctor to get the other doctors to change their medical opinions, and therefore found that the employer regarded the employee as being disabled and violated the ADA. And I don''t think he used [ Groucho, Harpo and Chico who is up there in the corner, but by having the company doctor influence the other doctors it really hurt the company''s credibility and their decision. And again, it''s dangerous for employers to rely solely on company physicians, and ignoring contrary opinions. A lot of the cases come up on summary judgment, where the court is looking to see whether there is any factual issues, any genuine material issues of disputed fact, which gets to go to a jury, or whether theres just questions of law that need to be decided, in which case the court can decide on summery judgment questions of law without the case going to a jury as long as theres no factual dispute. The Taylor case was not a summary judgment dispute, it was a case on appeal after the jury award, and the jury awarded almost $160,000 in back pay and compensatory damages, and $290,000 in attorney''s fees for the employee. Plus the employer had to pay their own attorney fees, so these can be costly propositions. My favorite thing about the Taylor case is that his supervisors name was Saylor. So it was back and forth between Saylor and Taylor. Justice was an electrician who had a stroke which caused vertigo. While he appeared unsteady he did not have difficulty walking or standing. As an electrician, he had to climb ladders, walk on cat walks, use power pressers and cutters. A medical report said no work at unprotected heights, and even with that restriction he was able to work as an electrician with no problems, but then a new supervisor came on board and had concerns. In many ADA cases we see that problems arise when a new supervisor comes in who doesnt want to continue accommodations or has a different view of disability or often is not adequately trained on the ADA. Because of this new supervisor several medical evaluations were requested. A physical therapist initially cleared the employee and they walked through the site with the supervisor who talked to the PT, the physical therapist. Then the employer''s medical director issued restrictions saying that Justice should not work in jobs that require him to maintain balance, work at heights, at or near moving equipment. They transferred him to a custodial position, which required that he work around moving equipment. The court pointed to that to say that the restriction against working at or near moving equipment was not in any other doctors report, it was only in the report of [employers] medical doctor and then the employer let him work their moving equipment anyway, just in a different position. The employee filed at the EEOC. The court held that the employer regarded the employee as unable to perform a broad range of jobs and therefore disabled and working. The court held that he was able to work as an electrician. He did that before even with the restrictions on working at unprotected heights, and that led to the inference that he was able to do the electrician job despite this restriction. The court held that there was evidence that these hazards were imagined or exaggerated and that {the employers] purported reliance on Justices medical restrictions was a pretext masking [employers] irrational fear about Justices condition. This is a case where the employer attempted to manipulate the medical information. The court held that the Justice did not pose a direct threat. While the harm was severe if he hurt himself the likelihood of that harm was too small to constitute an imminent threat. The direct threat defense is a strict standard. I If an employer says to an employee: because you have epilepsy, we are afraid that you will have a seizure and hurt yourself, therefore you cant work here- I think the employers are pinning themselves in a box, because if you say an employee cant work there because theyre going to cause harm to themselves, because of balance or seizure issues, then the employer is generally saying that the employee cannot work anywhere, which leads to the conclusion that they''re regarded as substantially limited in working. The employee still may feel that they are qualified for the position, but when employers make those broad types of decisions, they are regarding a person as being disabled. Training new supervisors, in this case like many cases, people usually raise, and plaintiffs often should raise, a person with an actual disability, the employer regarded me as being disabled, they have a record of a disability, everything that applies factually should be raised under the various definitions of disability. Now we will move on to employees with a record of disability. One of my favorite albums there let it bleed, which has the great message: This album should be played loud, and it should. The record of the ADAs disability covers employees who have histories of substantially limiting conditions that are not so limiting anymore either because theyre controlled by medication, assisted by reasonable accommodations or no longer active. Or it may cover employees who have latent, episodic conditions that have previously limited major life activities and may do so again. Again, under the ADA amendments act some of these definitions would change. Again, employers to show they have a record of a disability must show that they have a record of impairment that substantially limits at least one major life activity or that they were misclassified as having such an impairment. A key point: they must show that the employer knew of a substantially limiting condition. Some employers avoid liability because they didn''t know that the employee had a record of a disability. Generally, under the ADA employers dont have to accommodate disabilities that they dont know about, and cannot be accused of discrimination, or a discrimination charge will not hold, against an employer who did not know that they had an employee with a disability. We have this [?] case, which involved and an employee with a back condition who had some minor lifting, bending and pushing restrictions, and again the court said, while these restrictions may have impaired his ability to work one particular job, it didnt substantially limit him in working a broad range or class of jobs and therefore the lifting restrictions themselves were not a disability. Because the record did not show a substantially limiting condition, there was not a record of a disability and so the court did not regard the employee as having the disability. It was a trifecta for the employer. The next case is the camp mire case, which involved a woman with endometriosis and several surgeries without complications and some complications during pregnancies. When she indicated that she would need time off for another surgery, she was terminated, essentially because they she did not submit the required doctor''s note. But the court looked at her conditions and her surgeries and found that none of the conditions that she had had in her past were substantially limiting and therefore there was no ADA protection for her. As you can see these cases tend to be a little more intense, a little hairier. Some of these other ones are a little more cut and dried. Next is the Knight case, where an employer refused to reinstate a police officer after the doctor cleared him for work and to return to work from disability leave. And the employee had evidence that supervisors told him the following statement: the city never reinstates officers after disability leave. We have an unwritten and unofficial policy to that effect. He was told that the city was afraid that if he returned to work he might later go back on disability leave and they didnt want to have to deal with the back and forth. And this led to the conclusion, or, he was also told that officers on disability leave are viewed as being disabled, once youre on disability leave then youre just disabled forever. And in this case knight also presented evidence that he was sometimes unable to work at all because of his neck and back injuries, I think thats establishing his record of disability. The court found that there was a record of disability and that they had discriminated against Mr. Knight by not reinstating him. These cases often involve multiple prongs of the definition of disability. In addition, Mr. Knight was regarded as having a disability. The employer felt he could not work, or perceived he couldnt work, regarded him as not being able to work even though he could. Even though he had medical evidence showing that he could. This was another jury award which involved $150,000 in compensatory damages, reinstatement to the job and back pay. Again, the employer statements hurt their case here, I dont know if you want to explicitly acknowledge that policy, but the real problem is the policy. And the fact that even if the employer or no one had ever made the statements we alluded to earlier, there would still be evidence that no officer was ever reinstated after disable leave. I think that was the actual problem in this case. The next case is a very recent one. This came down on July 1 of 2008 Doe versus the Salvation Army. The person wanted to use an alias to protect their privacy. This case involved mental illness. It involved a person who showed up for a job interview at the Salvation Army and admitted that he had used, when they asked him about medication, he told the truth and said that he had used psychotropic medications. At that point the employer, Salvation Army, stopped the interview and said that the insurance would not cover Mr. Doe, end of story. Doe offered to get a letter from his doctor saying that he could work fine, they didnt want to hear of it. The court found in this case that the employee had a record of a disability and that the employer acted improperly when they refused to hire him based on his medical record. The court also acknowledged that the fact that the employer asked medical information before extending a conditional job offer meant they may have violated the medical inquiry provisions of the ADA, employers cannot ask for any medical information until extending a conditional job offer. This case was under the Rehabilitation Act, which is the same analysis as the ADA cases. The Rehabilitation Act covers employers who receive federal funding. The next case is the Amesworth case, which involved a substitute teacher, who at first when he was hired, did not tell the employer that he had a seizure disorder. As he did not require any reasonable accommodation, he was certainly within his rights not to disclose his disability. There was no evidence that the employer actually asked for any medical information, so it wasnt as if the employee deceived the employer in any way. Several months later he told the substitute teacher coordinator that he had a seizure disorder but did not give specifics, did not describe how it affected him and still received substitute teaching gigs, ah, excuse me jobs, after making this disclosure. Go to the next slide. And then one day while on an assignment, the substitute teacher issued some, we call it, erratic, unusual and inappropriate behavior. In an 8th grade math class, this is math class, he wrote sex on the overhead projector. He asked students to discuss their experience. He instructed students to discuss their sex life with one another. The teacher actually, and Im quoting from the case, licked the chalkboard in a lewd and lascivious manner, and at one point forcibly removed a piece of chalk from a students hand and pushed the student into the hallway. The court held one, there was no evidence that the employer knew of his record of an ADA qualifying disability. The employer knew he had some seizure disorder and no basis whatsoever to know that it was a substantially limiting or anything like that. And two, as we talked about, anyone, whether or not they have a disability, regarded as, or a record of, can be terminated for violating rules, for improper behavior, for performance problems. Here the inappropriate classroom behavior is grounds for terminating any teacher''s employment, and was a valid, non-discriminatory reason for the termination. In this case the employer did a good job documenting their concerns. They focused on his conduct in the classroom, and administrative discipline. And again, employees need to be careful about disclosure. It''s generally not a good idea to disclose a disability until an accommodation is needed. But employees do have a duty when they do disclose, to make sure not only to let the employer know about the nature of the disability but any limitations flowing from it. Thats very important, or as in this case, the employer didnt have enough knowledge to be accused of discrimination. They did not know enough about his condition to know that he had a record of a disability. Now were going to move on to the last part of the presentation, which involves discrimination on the basis of an association with someone with a disability. Reaching back into [song] if anyone knows it they can hum a few bars at the end. What I want to point out, that EEOC guidance they mentioned is very helpful and while theres no explicit guidance on regarded as, or record of cases, that guidance is generally contained in other EEOC guidance, in undue hardship and reasonable accommodation, medical inquiries and other ADA issues. The EEOC does have questions and answers about the association provision of the ADA, which I think was last updated in 2005. And generally defined, EEOC guidelines, I open Google, I put EEOC guidance, disability, you can put association and you should be able to get the EEOC guidance very quickly. The association clause protects relatives and caregivers from adverse employment actions based on misconceptions, fears or assumptions related to the individuals relationship with disabilities, or person with disabilities, sorry about that. And again employers make take action against employees for non-discriminatory reasons: poor performance, attendance problems, even if someone has a family member with a disability; they still need to satisfy the attendance requirements of the job. Um, if there really is a direct threat, um, often we see mostly cases involve, for example, someone who has a partner or family member who may be H.I.V. positive. The employer thinks, oh, now this, my employee is going to become HIV positive, and courts have not upheld that type of action by employers. They found that to be discrimination. But if there was a bona fide direct threat that may be a basis for taking action against an employee. And any time theres a reduction in force for a valid business reasons, um, that is generally upheld. I see theres a question from Rick, or should have known, I think it was going back to the last case, the employer knew he had some seizure disorder, but didnt know the limitations. Should they have known the limitations? Possibly, the court didnt get into that issue so much. I think here because the employer so much focused on the conduct of the employee, I think even if the courts held that the person in the Amesworth court case did have a record of disability, their conduct, inappropriate conduct in the classroom, still, would have led to the conclusion that theyre not qualified to do the job. But, ah, I appreciate that. It is uh, interesting you know, based on what they have known, should they have known of the disability. I think, I think thats what I was saying. They knew he had a seizure disorder, but they didnt necessarily know that it was substantially limiting. I think in reality, if they had known, the persons performance still was unsatisfactory and justified termination. Association claims in general. And just so you know the joke, in the Marx Brothers picture on the right, [person] is taking Harpos pulse, and looks at his watch and says, Either this man is dead, or my watch has stopped. Sorry, I''m trying to add something to the legal talk. Courts have identified three situations in which the association clause may apply. One is the situation with adverse action based on expenses that an employer may incur because of an employees relationship with a person with a disability, generally healthcare costs, and medical expenses. The second situation is where an employer regards an employee as disabled because of their relationship with someone with a disability, for example, a relationship with someone whos HIV positive. Or third, its whats kind of called a distraction, the employer fears that the associates, or the employees disability, may distract the employee, or, yeah, the associates disability may distract the employee from satisfactorily completing job duties because of their need to care for the person with a disability who they are associated with. These are some of the factors in association cases. One, whether the associate, and by the associate I''m referring to the person with a disability who is associated with the employee, who does not have a disability, whether the associate has an ADA qualifying disability. Again, like all ADA cases, it requires a case by case determination, and an individualized assessment. And one thing too, just on a tangential point, some of the cases, the courts look at, well maybe, the associate didnt necessarily have an ADA disability but what if the employer regards the associate as having a disability even though they don''t? So can there be an association claim based on the fact that the employer regards the associate as having a disability? And I don''t think the courts have answered that. It seems to make sense if the employers taken the action its their misjudgment that if they regard an employees spouse or child or partner as having a disability when they do not, then the employer still may be liable under the ADA because its the employers subjective view thats involved in that situation. Another factor is whether the employer knew about the employees association with a disability, next is whether the employer took adverse action against the employee because of this knowledge. The adverse action, or the knowledge about the association with a person with a disability, does not need to be the only factor in an employers decision, but if it is a determining factor in an employees decision to take adverse action then it may violate the ADA. The next case we have is, and I believe its pronounced Enis, which involved an employee who was a guardian for a child who was H.I.V. positive. And the employee was warned several times about poor performance their performance, they were late for work, they made frequent errors. The employer terminated her because of this poor performance. And the employee claimed, no, thats not why they terminated me, it was really my son''s expensive medical bills, and pointed to a memo written six months earlier, ah, an internal memo where the employer warned that the few expensive cases could dramatically increase the companys insurance rates. In this case, the employer also documented the employees errors and performance problems very thoroughly, too. The court ruled that the employee did not establish that her son''s H.I.V. qualified him for ADA protection. It was asymptomatic and it was unclear whether he had an actual substantial limitation in the major life activity. And the court kind of raised the question, well, did the employer regard the employee''s son as having a disability then? They never really got to answer that question. The employee also did not establish actual knowledge on behalf of the employer that the employer knew of her son''s condition. Ah, she did not establish any connection between the employers memo about insurance rates and her termination. They thought the seven months in between was a little too much time to indicate whats called a relationship of temporal proximity between the memo and the termination was too distant. Seven months, the court felt, was in this case too long a time, although I think, ah, um, other courts may have looked at it differently. Seven months doesnt really seem to be that far removed from the termination. And the employee did not submit any evidence that the employer specifically feared her sons medical bills. So in some of the other medical cases well see that the employer said, you know, we''re worried about your husband''s medical bills. Do you think, maybe, you know, rather than all this treatment we should just go to a hospice? And weve seen employers saying things like that, which I think would have led to a different ruling in this case. The court held that the poor performance, which was well documented, was a valid nondiscriminatory basis for terminating the employment. And the poor performance was not disputed by the employee. And again, its important for employers to always document poor performance and to follow policies regarding progressive discipline. In this case the court said HIV is not a per se disability, its not automatically a disability. Under the ADA every case requires an individual, individualized assessment, whether a persons condition is a disability. Ah, but its interesting because the first U.S. Supreme course case on the ADA, Bragdon vs. Abbott cited there, involved someone else with asymptomatic H.I.V., who is viewed as being protected by the ADA because they were substantially limited in the major life activity of reproduction. That reason probably didnt apply here because the employees son was too young to engage in reproduction. But in that case, even though the HIV itself was asymptomatic, the limitations imposed on the individual in the Bragdon case, were seen as being substantially limiting. And again, the question they posed: was the son regarded as having a disability? Maybe yes, maybe no- the evidence wasnt clear in this case. The next case Treo vs. Pacific Corp. which involved two employees for the same company and their son developed a brain tumor, and accumulated at least $62,000 in medical bills under the employers health plan. And the employer was self insured, which, ah, I think is evidence that they certainly had concerns about medical bills of their employees and their employees family. Within weeks of the child having a relapse of their, of his, brain tumor, both parents in the company were terminated. Purportedly, they were charged with falsifying timesheets, but the evidence showed that the employer was very inconsistent in the time sheet procedures. Some supervisors would do things one way, others would insist on different documentation and that the parents alleged violations were not that serious, and that other people did timesheets in the same manner and were not disciplined. So there, the employers inconsistency in their timesheet procedures, I think hurt them. Initially there were memos where Pacific Corp designated medical claims over $50,000 as high dollar ones. They urged their supervisors to be aware of such claims. They kept a keen eye on costs. Each employees health care costs were actually factored into the budget, as labor costs. Ah, and I think all of these conditions make it different than the case we looked at before. Here the temporal proximity between the relapse and the time sheet investigation was only 11 days. If you remember the case before, the court said that seven months was too long a time to really show a temporal-time relationship. Here, 11 days really suggested a causal relationship between the relapse and the timesheet investigation. These employees were treated differently, as there were many methods, for, ah, substantiating timesheets, and these employees were treated more harshly than other employees who had similar infractions. And, to determine whether employers have nondiscriminatory reasons courts will look at weaknesses and plausibilitys, inconsistencies or contradictions, in a sense to see if the employers purported reason for the termination, lets say, bad timesheets, was really just a pretext because they wanted to terminate the people to keep their health care costs down. And again the court distinguished, and as the earlier cases, due to the temporal proximity, 11 days, not 7 months, and the heightened concern that Pacific Corp showed with medical costs, that was that was not evident in the Enis case. And again, the employers concerns about medical costs and suspicious discipline created an inference of discrimination. Consistency in procedures in terms of time sheets and discipline and among managers is very important. One of the ADA best practices is centralized decision making, which becomes very difficult when some managers grant accommodations, whereas in similar circumstances other managers do not grant accommodations. All employment decisions should be documented to establish that they''re taken for legitimate business reasons. And again, the burden is still on the employee to demonstrate pretext. And I wanted to briefly mention two cases from the seventh circuit, one is Larimer vs. IBM, a 2004 case where the employee said, well IBM, ah, is concerned that I have two children with disabilities and that''s why they fired me. But they had no evidence, none of the evidence that was here in the [Treo] case and the court found it hard to believe that a company like IBM would really care about health care costs that much. And whether thats true or not, the real problem in the Larimer case was the employee did not submit any evidence to show that the employer cared a great deal about medical costs. The other case I wanted to mention is in the brief but not in the Power Point. Its a 7th circuit case, Dewitt vs Proctor, ah, Proctor Hospital, which was decided in February of 2008. In the brief, if people want it, its 517F-Third 944. And that case, um, this is the same court that decided Larimer and the Dewitt case, the employer was self-insured. And there was that evidence showing that they cared about costs. And I think that becomes the key in some of these cases. The employee really needs to show that the employer did care about costs, and cant just can''t make a blanket allegation that they did. The next case is the Erdman case. I know we''re running a little over, which I apologize for that. Anyone who wants to email me after the fact, if we dont get to all your questions, I will be happy to do so. In Erdman a new supervisor revoked an employee''s part-time schedule, which was given to her in order to care for her child with a heart condition and down syndrome. And again when employers do something not legally required and then decide to revoke it, employers are perfectly within their rights to do so. The employee agreed to go full-time. But then was told her scheduled vacation was no longer approved. And she said, ok, youre going to withdrawal my vacation now, she wasnt happy. But they said she wanted that time as FMLA leave. And the employer then decided to listen in on her calls that day and heard her using improper language. At one point the employee was on the phone and said in a loud voice, this is a personal call and should not be reviewed for quality purposes, and then kind of swore at the coworkers who I guess review calls for quality purposes and was terminated the following day. The court held that the employer may have violated the ADA. One, revoking vacation time and denying FMLA leave showed the employers concern with the employees need for child care. And they also held that there was no ADA violation by revoking the part-time schedule, there are no reasonable accommodations mentioned in record of cases. The analysis is again, it''s important not to put ADA covered employees under a microscope. Oh, you want leave, you need to care for your sick child, Im going to listen real closely to your calls today because todays the day you requested FMLA leave. The court kind of saw through that as not really just objective monitoring of phone calls, its something the employer did because the employee raised some disability issues. There was no FMLA violation as the employee was not FMLA eligible. But again, even when employers are not covered by the FMLA, leave may be available under the ADA. Im going to do some practical tips real quickly and then well go to questions. I just see some typing, Im hoping everyone can hear me ok. Um, most of these weve talked about, so Ill go fairly quickly. Practical tips for employers. Again, base actions on observing conduct, not just conditions, diagnose, assumed traits of conditions or suspected conditions. Employers should always perform individualized assessments, should document all events relevant to decisions, particularly performance related ones. Employers should be careful of relying only on the company doctor, especially if the doctor gives an opinion thats very different from the treating physician, or tries to influence other doctors opinions. Employers should make sure they follow the ADA in seeking medical information. But, again, employers never have to keep any employee who is not qualified and able to perform their job. I think new training for all new supervisors, as well as regular training for staff is very important for employers. I think it would eliminate a large amount of the ADA cases that we see. And remember that adverse employment action is broadly defined. They see termination as an adverse employment action, a demotion is, a pay cut is, but even a lateral transfer to a position of equal pay but lesser status may also be an adverse employment action. Employers should not base anything on fear or stereotypes or assumptions. And in assessing direct threat make sure, the employer should make sure, that they have medical evidence. And again if you say, well we dont think its safe for you to work because you have epilepsy, then employers need to realize theyre pretty much saying the employee is regarded as being substantially limited in working, and the question becomes, does their epilepsy or other medical condition really make them unqualified? It''s always important to look at accommodations and to use the best available object of medical evidence. These are tips for employees. Just like employers need to document everything, I think employees need to document everything. Particularly statements of supervisors indicating date, time, who was present that can be very important evidence. Again, employees do not need to disclose a disability unless or until a reasonable accommodation is needed. Again, employees may need to request a reasonable accommodation, if there are performance problems. Employers can take adverse action, so if youre an employee with performance problems and you think an accommodation will help you improve performance, it''s important to request it. Again, reasonable accommodations are generally not required in regarded as cases...actually theres a mistake there. They are often required in record of cases but not required in regarded as cases or association cases. So uh, sorry for that little misprint. Its really regarded as cases and association cases where reasonable accommodations are generally not required. Although there is case law that accommodations may be required in some regarded as cases, and often, ah, accommodations are required in record of cases. But under the ADA amendments act, accommodations will clearly not be required in regarded as cases anymore. Again, employees when they disclose information for an accommodation request they need to disclose the medical condition, the limitations caused by the condition, suggested accommodation if known, and how the accommodation would be effective if an employee is filing a claim of discrimination. All the prongs of the definition of disability that apply in that employees case, obviously you dont want to let something thats not factually accurate, but everything that may be, maybe you have a disability, maybe the limitations are not that substantial, so you may also want to throw in the possibility of being regarded as having a disability, or possibly if theres a record of a disability, or alleging that as well. That''s it, we''ve reached the end. We will know throw it open to questions. People may either type them in, or use the microphone and headset. So I apologize for running a little over. And I know I went through a lot of information, so I hope we have time for questions and again, people are free to email me as follow up.
That states, Can employer ask for entire medical records from doctors or psychologists upon requests for accommodation? Or only enough to show need? And is it a good idea for an employee to provide these records at the time or reasonable accommodation requests?
Thanks Robin. Thank you, Cindy for your question. Thats a good question from Cindy in Tennessee. The EEOC has guidance, theres not a whole lot of cases on the medical information, but I think the EEOC guidance is very helpful and very clear. In the medical inquiry guidance, which is, I think I alluded to earlier in the Power Point, it says employers can only ask for medical information if either the disability is not apparent or the need for the accommodation is not apparent. So if someone uses a wheelchair and they want to have their desk raised or their door widened so they can maneuver in their office, I dont think medical information would be necessary there; its apparent why the person needs the accommodation. Additionally, accommodation requests need to be limited and tailored only to show the existence of an ADA disability and the need for reasonable accommodation and possibly how the accommodation would be effective. So when we see cases where employers ask for five years of medical records in response to an accommodation request, we fight those, because I think that violates the EEOC guidance and that''s an overbroad request. The medical information sought should be very narrow. I think for employers that''s a good idea, too, because I dont think employers want more information than they need. One, if an employer doesn''t know of a disability or the existence of a disability they cannot be accused of discrimination. Two, once employers have medical records there''s a whole host of laws that come into effect. The ADA has a confidentiality act, there''s HIPAA, many states have medical confidentiality acts, I know Illinois has one related to mental health and developmental so once an employer gets that medical information, one under the ADA they have to keep it separate, they have to keep it locked. Only people who need to know should have access to it. And there''s all of this potential liability if the information is not used properly. And then to get the second part of Cindys question, which I think is great: Is it a good idea for an employee to provide records at the time of a reasonable accommodation request? Great question, I think it is. Ah, I advise clients, if an employer doesnt know a person has a disability, I''m sure there''s people some where who after two years on the job disclose to their employer that they have bi-polar disorder and are HIV positive and the employer says great Ill promote you instantly, well give you a better job, more money, and Im sure that might happen somewhere, um, but generally when an employers get that news theres a little bit of surprise of learning of the accommodation, sometimes theres a feeling that the employee was holding back on them, even though there was no duty to disclose. So I think if the employer will be entitled to medical information, I advise employees to submit that with the accommodation requests. Ive actually talked and spoken with doctors, and helped crafted letters. I don''t think it needs to be long, just a short letter describing the disability, the limitations, the need for the accommodation and then submit that with the accommodation request. I think it makes it easier for not only the employee but the employer as well. The employer no longer has to guess, do I request information, will I get in trouble for asking for information, how much can I get. Youve really given the employer everything they need and everything they are legally entitled to, to make the decision. If the employer still wants more information, generally the best practice is to go back to the employee, and they can get the information from their doctor. I generally dont think its a good idea for employers to be speaking to employees doctors, and I say that as someone who often represents employees with disability. But even the EEOC guidance says the next step, if theres information that is vague or unclear, is to request that the employee seek updated information from their doctor. So, that was a great question Cindy, I hope that answer helps. Are there any other questions at this time?
I don''t have a question, but just compliments on one wonderful presentation, Alan. I learned so much. Ah, nice, nice, nice job.
Well, thank you so much, Steve. I appreciate that. That''s nice, thank you very much. It''s hard to tell sitting here in front of a computer screen. It''s very different than speaking to a live audience, so thank you for that feedback. I see theres a question from Jane Teeter: Is disclosure of disability on a job application for affirmative action purposes considered medical information kept separately? Ah, yes it should be. Usually if its for affirmative action purposes, it should be made clear that the information, or the disclosures requested on a voluntary basis, ah, that should be considered, ah, any, anything thats medical, is medical information should be kept separately. Ah, usually I think they are kept in HR departments and should not be shared with immediate supervisors or coworkers. And if anyone else has any information on that question, please feel free to contribute as well.
I think the thing that, um, this is Robin, that comes up here is that thats on all employees, not just employees with disabilities, but any medical information on all your employees should be kept, um, uh, confidential, even if its an employee that you dont know at this time has the disability, but ifs its medical information, it should be kept separate.
Thanks, Robin. Yeah, I''m sorry for that, not making that clear, that''s absolutely true.
At this time if there are any additional questions just type them into the box. I know this is sometimes an awkward, um, format for people because you dont have that face to face contact or even voice contact, but um, wed uh, encourage you to ask your questions now. Lots of information, uh, that came forward today. And here we have a question, ah, Ill turn it over to you Allan.
Thanks. This question comes from Kristin: Can you discuss requirements improving regarded as substantially limited in working and the need for vocational rehab expert testimony? Oh boy! Not an easy question. A good question, but a really hard one. As I alluded to, and theres more information on this in the brief, ah, in terms of showing that someone is substantially limited in working, or regarded as substantially limited in working, you generally either have to show that they are regarded as substantially limited in working in a broad range of jobs, or a class of jobs. And then the question becomes: well how big is a class of jobs? For example, is nursing a class of jobs? Or is health care professional a class of jobs? How big is the class youre looking at? In the cases we discussed, I think the Squib case, she may have been regarded as limited in working as a nurse, but maybe not as a health care professional. And unfortunately, theres very little clear guidance from the cases. They do often look at the Department of Labor, ah, dictionary of, occu-, occupational duties, or theres a, Department of Labor dictionary which describes certain job duties and classes of jobs, and several of the cases refer to that. I think vocational rehabilitation expert testimony is often a good idea in these cases, ah, because to show the limitation theres also a geographic component, ahm, you have to show, you know, whether other jobs are similar in terms of licensing skill and other qualities. And thats a hard thing about ADA cases, generally you often need medical testimony to establish a disability, and then you also need to have, vocational rehabilitation or other employment, other vocational testimony to show the qualifications the person, even with a disability, is able to do the job. And perhaps vocational expert testimony: You know, theres a lot of nursing jobs, but if its a specialized job, or specialized class, you may want to show, well, you know, theres only ten thousand jobs in a five hundred mile radius, and some of that testimony can be very important in showing whether someone is substantially limited in working a broad range or a class of jobs. So the courts, uhm, really dont give a lot of clear guidance, and I feel that Im probably not giving a lot of clear guidance either. And I think thats why the courts sometimes get confused and find someones not regarded as being disabled when in fact they are regarded as being disabled, but just not qualified for that job. Um, but I think your comment about expert testimony is a good one. It can often be helpful. But those are the general requirements. I think when you look at the brief, thats explained a little more, and probably a little more succinctly than I just did. Ah, but please let me know if you have a follow up. And I''m going to go to the next question from Lee Henson: Did the rules change in litigation? Do employers have broader access to medical information then? That''s a great question, too. And weve had cases here that Ive worked on where one of our allegations is that the employer improperly sought medical information, and then as part of the discovery process, the employer is now entitled to get a lot of medical information. I think that is generally true. It seems a little bit, I dont know, unfair, very Kakfaesque in a certain way, that youre protesting that they asked for the information, and now you have to give them the information youre protesting about and more. And that is true and it is a reality. Part of what we do to resolve that is we generally, ah, enter into protective orders, limiting who sees that information, maybe the company, maybe a few decision makers, but the company should not have generally access to that information, as well as penalties for wrongful disclosure. So generally a protective order as part of a lawsuit is involved in order to protect the medical information. So I hope that helps your question Lee, and certainly feel free to follow up with an email. I can even send you some draft protective orders weve used in different cases. Im just going to keep going on to the next question from a Cherice Sanders: If part of the workplace rules require that employees report to work at a specific time, but if a person''s disability prevents them from adhering to that work schedule at all times, would that count as a valid reason for an employer to terminate the employee if hes regarded as having a disability? Well, again that gets into a couple of questions. Ahm, in the last session, I believe on qualified issues, ah, we discussed, there was a case involving an employee who used a wheelchair, because of inadequate accessible parking was often late coming back, and the court held that the employer had a duty to accommodate him and maybe let him start a little late, as long as he made up the time. In the regarded as situation its a little different because employers generally do not have to accommodate employees who are regarded as having a disability. So, if the court follows that thinking, and the employee does not have an actual disability, but is just regarded as having a disability, and the court rules that there are no accommodations required for regarded as employees, I think that that would pretty much end the case. But if the person is, if accommodations are available to that person, either because they have an actual disability, or because the court follows the ruling in the Williams case that regarded as employees may be entitled to accommodations, then the employer needs to look at, ah, whether its reasonable to modify their punctuality and attendance policy and allow the employee maybe to start a little later. Ah, but the employee would still need to make up the time because employers are never required to lessen the requirements of a position. And then Lee has one more comment about having to disclose medical information. The administrative [Speaker unclear] accessory to go court. Yeah. Once you go to court a lot of the privacy youre trying to protect on the ground, kind of, a lot of that goes out of the window. So it is, it becomes much more difficult and it is a strange situation. I''m not sure what the answer is other than what I alluded to before with the protective orders. So we have a few minutes left, ah, Ill turn it back over to Robin. And we can go to the slide for our next presentation.
Great. Thank you very much Allen. And again, a lot of information as you could see by the number of slides that Alan had and the depth of the conversation that we''ve had today about this particular topic. As youve said, one that has not been given a lot of attention, but it does come, and it is an issue for employers and individuals with disabilities alike. I do thank you for your participation today. I do remind of our next session which is in September on the 23rd, again a Tuesday from 1-2:30 p.m. Central Time. The topic that month is direct threat and safety in the workplace. We invite you to join us for that particular program. And that will be the final session in this series of programs. We will then look to our next year, which we''ll be getting the calendar out in the near future. I also would like to let you know that we also have an ADA audio conference monthly program via the telephone, streaming audio on the internet as well as real time captioning on the internet. That program we have a special session coming up on August 12th related to the ADA Restoration Act. We will be hearing from representatives from the disability community and business community. We have a representative from SHERM who will be joining us, to discuss the various issues around the compromised language between the ADA Restoration Act introduced in 2007 in both the House and the Senate and the ADA Amendments Act of 2008, which was passed by the House in early July and is currently in discussions and debates within the Senate as to what they will do with their version of this particular piece of legislation. So we would invite you if you are interested in joining that session again that''s a special session of our monthly audio conference series to be held on August 12th from 1:00 to 2:30 p.m. again via teleconference. If youd like more information or to register about that program, youll be able to do that by going to the www.ADA-audio.org website. And from there you can link to the ADA audio conference series, and youll be able to access registration for that August 12th program. There''s more information description of the program available on that website as well. So, we invite you to join us. We also ask you to fill out our evaluation form. Youll see the evaluation on a link here in the chat room. But also you will be getting a follow-up email from us with a copy of the, as I said, of the PowerPoint slides as well as and the legal brief prepared by Alan and Barry Taylor from Equip for Equality on behalf of the DBTAC Great Lakes ADA Center. Along with that we''ll send you a reminder for the evaluation form. So again, thank you very much for participation in the program. Everyone can signoff, have a great day and a good rest of the week. Thank you.