I am the director of the DBTAC Great Lakes ADA Center which is a member of the ADA National Network which is comprised of 10 ADA centers across the country. This program is being brought to you as part of a collaborative effort between all the centers that are part of the ADA National Network. This is the 6th session, I mean, I''m sorry. This is 6th month of our new fiscal year and--these sessions, we will hold six of these legal webinar sessions throughout the year. So welcome to our program today and we''re glad to have you. Just want to do a few housekeeping things as we get started to make sure everyone is familiar with the system and what we are going to be doing today. You may have heard me talking a little bit about the close captioning system and the availability of the captioning for those that are interested in using it. If you are not familiar with it, it is in the lower right hand corner; you''ll see an icon for CC or open captioning. You can click on that, it will open up another box, a dialog box, which you then reposition anywhere on the screen for yourself, and you can customize it for your own settings as far as color and font and things for your own use. That will be a running dialog of the conversation we have today. Also, it will be part of the archive so that the archived session will be accessible as well. This program is being recorded as I indicated at the beginning of the hour and the session will be archived on our archive page within 2 weeks after the following of this particular session once we''re able to edit everything in the archive transcript and get it up on to the internet. At the close of this session today, you will also receive a copy of the PowerPoint presentation as well as a legal brief that has been prepared for this particular program that will be sent off to you via the email that you used to register for this session. So if you''re somebody who is working with someone else''s registration then you will need to get a copy of things from them because it will only be sent to those people who actually registered for the session. Someone said they''re not able to see the screen so can I,--Allan, can I ask you to do another where you will do a follow me. I''m sorry. Do a send current page out there. Does that help you, the person who said they cannot see the screen? Sometimes depending on when you''ve come in and when we last refreshed the screen, it may not be available to you; you may not be able to see the presentation. So we''ll go ahead and get started today. Just to let you know how we''re going to be working the program today, we have two presenters who will be presenting for us. They will be taking questions periodically in the program. During the actual session when they''re speaking, I will actually be muting everybody from being able to put anything into the public chat area. That just helps us to eliminate any problems we might have with a lot of chatter going on that might interfere with the bandwidth and the clarity of the program. Once our presenters indicate that they''re ready to take questions, I will unmute that area and individuals can type in the questions that they wish to ask at that time into the chat area and post them and our speakers will be monitoring that system for you and be responding to those questions. So why don''t we go ahead and let me just get th9ings started by introducing both Alan and Barry Taylor. Thank you for advancing the slide. Barry Taylor is the Legal Advocacy Director for Equip for Equality and Alan Goldstein is a senior attorney for Equip for Equality. You can read their full bios on our website for the legal webinar system. I won''t take time out of our schedule today to do that, but Equip for Equality is the state protection--state designated protection and advocacy organization for the State of Illinois. Barry and Alan have been providing a great deal of training and technical assistance to the Great Lakes ADA Center and to the ADA National Network for several years now and doing many things with us and are considered to be experts in the area of how the ADA is being applied from a legal perspective. I see that we have somebody who''s not able to hear. Okay. I guess somebody''s saying that they''re not having sound anymore. Can I get just a read from somebody else whether or not they''re able to hear my sound since it was working previously? Okay. So, those individuals who are saying they have trouble, you might want to try to log out and log back in again to try to see whether it''s a connection problem. Okay, just told people to log out and log back in if they''re having any problem that may be a connection issue then that may work for them if they log back in. Sorry about that. Again, why don''t we go ahead and I''m going to turn things over to Barry and Alan and they will take the session from here. Go ahead.
Hi, everyone. This is Barry and I''m going to start the presentation and we''ll take a break for questions and then we will have Alan speak after the first set of questions. What we''re going to be doing is talking about 10 different issues that commonly come up in reasonable accommodation and this really isn''t a Reasonable Accommodation 101 session but instead, we''re going to be looking at some common issues that come up in cases and how courts have interpreted these common issues in recent days. You''ll see that most of the cases that are cited here have been decided in the last year so we want--this is really a legal update on how some of these issues are being interpreted. And then at the end we''ll talk about some practical tips on using some of these issues in your own day-to-day work. So I''m going to cover the first 5 items that are listed here on the session screen and then Alan will cover the next 5 and between the two, we''ll have a break for questions. So the first issue we''re going to be talking about is a very common issue which is interactive process. It''s probably an issue that many of you are familiar with. Go the next slide. And if you look at any of the reasonable accommodation cases you''ll see this issue is addressed very, very frequently. And as people probably are already aware, interactive process is really talking about the importance of a give and take between the employer and the employee to facilitate the reasonable accommodation process. And you''ll see on your screen there the information from the regulations that you see guidance on reasonable accommodation where they talk about the importance of interactive process, they talk about how once an employer''s aware of a request for an accommodation that really triggers this process of sharing information and gathering information to make the best decision, talks about the employer responding expeditiously. It doesn''t have a specific timeframe like within a period of certain days so it''s really a case by case evaluation on whether the employer has responded expeditiously. But really what the EEOC is saying here is that if the employer engages in this interactive process, it tends to show good faith by the employer to do the right thing and that will prevent them potentially from having any kind of liability or damages against them. Next slide, in many cases you''ll see over the years if you can show that the employer failed to engage in the interactive process, the plaintiff would frequently win. And what we have here on this case, this slide is an example of when the court found a lack of good faith by the employer because the employer failed to engage in the interactive process. This is a case that was decided very recently just in 2010 out of the Tenth Circuit and it involved a teacher who was seeking accommodations and the employer was placing the teacher in a very cramped classroom that was adverse to his particular disability. He used leg braces and it will be problematic for him to be in this very small classroom. And so he requested an accommodation that he not be placed in this classroom and the employer, the school, did not respond for nearly 4 months. And when they did respond, they basically said, no accommodations would be provided. And as a result, the teacher resigned saying that they had been failed to be accommodated and then the person files suit under the ADA and the court found in favor of the employee. At least they said they denied summary judgment for the employer. And we''re going to use this term summary judgment a lot during this webinar. For those of you who aren''t familiar with that term, that means that the case continues on to trial because the court has found some sort of question of fact and oftentimes if a plaintiff is successful at preventing summary judgment from being issued, cases often settle. So this decision on whether summary judgment is granted or not is often a very key time in the case and in this case, the court said we''re not going to throw this case out. It''s going to continue on to trial because we see that there''s a question of fact as to whether this delay by this school in responding to the plaintiff was a lack of good faith and a failure to engage in the interactive process. And the court talked about the obligation to engage in interactive process is really inherent in the obligation to offer reasonable accommodation to otherwise qualified employees. So that''s a good general case in showing how important it is for employers to engage in interactive process. And for a long time, the general view was that if the employer failed to engage in that interactive process, it was almost like a per se ADA violation. But, you know, what we''re seeing now is in recent court decisions that some courts are taking a more subtle view of this and saying you know what the interactive process is really just a method of facilitating the statutory goals of the ADA, but it''s not necessarily a statutory requirement. So the fact that an employer doesn''t engage in the interactive process doesn''t mean that they violated the ADA. In other words, the interactive process is really a means not an end. And so we have an example here, the Richardson case where the failure to engage in the interactive process by the employer was not futile to their case. This involved a gentleman who worked for a restaurant and had some difficulties with his shoulder and had asked for some accommodations. Actually, it was a woman who did that. And she ultimately was not able to perform all the different functions in the restaurant. She was, although she was a manager she had to do a lot of the day-to-day work like cooking and moving things around and taking out the trash and that was very difficult after her shoulder injury. And so she sued under the ADA but when she was deposed in the case, she said I have to be able to do everything and so on one hand she was asking to have a lot of functions in the restaurant deferred to other employees. But at the same time she was saying that she had to perform all the different functions in case other employees weren''t available to do them. And so, the court taking note of the fact that they did not engage in interactive process and basically said this person wasn''t qualified and were not provided with those accommodations was not futile because the fact that you don''t go in to interactive process isn''t necessary when you can''t show that there was some sort of reasonable accommodation that would have been available for the person. Here, there really wasn''t a reasonable accommodation, the court found, because she was needed to do all these different functions that she couldn''t do. And as we''ll talk about later, you''re not required as an employer to remove essential functions as a reasonable accommodation and all these things including her own testimony indicated that a lot of things that she was asking to have other people do were essential functions. And so the fact that the employer didn''t engage in the interactive process wasn''t futile to the employer''s claim because there was nothing to interact about because at least the court found that there was no reasonable accommodation that could be made in this particular case that would have allowed them to be qualified and you''ll see the last quote there on the slide which says, we give substantial weight to the employer''s view of job requirements although it''s not as positive and this is a common theme we''ll see where in many cases the courts will be very deferential to the court--to the employer''s view of what is essential and what can be accommodated and what doesn''t have to be accommodated. On the next slide, you''ll see some other examples where the failing to engage in the interactive process did not result in the employer losing. The Trout case involved an employee with a visual impairment who sought reassignment. The employer basically said, sorry, I can''t give the reassignment, didn''t engage in the interactive process. But the court said you know what, in this case, the employer''s failure to engage in the interactive process, the employer''s lack of good faith was irrelevant because they couldn''t show that there was a vacant position that could meet their qualifications. So reassignment, you know, you''re not going to require an employer to engage in a futile act of interacting with an employee if there really would be no positive result at the end. The McBride case is very similar where the employer failed to engage in the interactive process. But the court ultimately said it was--it didn''t matter because there was no showing that any kind of reasonable accommodation was possible for this particular person. The McKane case, same thing, the employer didn''t engage in the interactive process. But they said it did matter here because the employee could not identify an accommodation that would resolve the workplace problem. And therefore there was no obligation to engage in the interactive process. Now, I don''t want to give the impression that all courts are going this way. But it is something we''re seeing in more courts where they look beyond whether they''ve engaged in the interactive process and look at sort of what would be the result if they had engaged it. And if they had engaged then it would have been futile. The fact that they actually didn''t engage in it isn''t going to necessarily do help against the employer. In the next slide though you''ll see that employers will be held in other courts for not complying with the ADA if it can show that it was their fault for the breakdown of the interactive process, and that interactive process could have led to an accommodation. So the Fifth Circuit case at the top of the slide, the Chevron case, you had a gentleman with a chronic fatigue syndrome and they did not engage in any kind of interactive process at all or consider transfer to another location and the court said, you know when the employer does not engage in a good faith interactive process, the employer violates the ADA. So, you''ll see some of these cases on this slide where the courts are much more definitive saying, you know what by not engaging in the interactive process, you''re violating the ADA whereas the previous slide we saw said, well it''s not necessary futile to the case if there''s no accommodation that would work. So oftentimes, it''s the facts underneath involving what the accommodation would have been if the employer had engaged in the interactive process, but sometimes it''s just a different court takes a different view of the importance of the interactive process. Similarly, in the Ninth Circuit, the Timmons case, the employer didn''t engage in interactive process, this employee had asked for power steering and breaks as an accommodation for driving a vehicle and the employer denied that and didn''t engage in the interactive process to find anything else and so they found that the employer''s failure to engage in the interactive process made the court rule in favor of the employee in that case. And similarly, in the Lafata case out of the Sixth Circuit, you had a person who had shoulder injury and lifting restrictions and in this case, they basically, the employer gave a kind of take it or leave it. You can take a lesser position without really engaging in the interactive process and the court said that they had failed to engage in the mandatory interactive process. So at least the Sixth Circuit in this case talked about the interactive process being mandatory which shows that really courts are taking very different views about sort of the necessity of doing this even if it might be a futile gesture. What we see on the next slide is that it''s not only the employer who has the responsibility to engage in the interactive process. It really is a two-way street and if the employee fails to engage in the interactive process, they will likely lose their case. So, from employee prospective, it''s very important to be responsive to reasonable request for information and to consider all the different options that are going on and when employees take sort of the hard line and say, you know I''m not going to consider that or I''m not going to explore that with you employer. Oftentimes, the employees will lose and you have two examples of that on this slide. The Winbush case is a case involving a postal worker who ultimately the court said was responsible for the breakdown of the interactive process because the post office had identified a proposed reassignment that would fit within her physical restrictions and she refused to take that and said, you know, there is another position that I want instead and that''s the only one I''m going to take and when employees take that sort of inflexible position with respect to accommodations they often lose, because then it shows that they''re not engaged in the interactive process. They''re being sort of hard nosed just like employers were in those previous cases and they''ll often lose. The Nugent case from the Second Circuit is very similar where the employee lost her reasonable accommodation claim because she had not followed up with the employer when they had requested some reasonable information about the accommodation request and so, again, it was the employee here who was at fault for the breakdown of the interactive process. And at the end of the session, Alan''s going to go over some tips about the interactive process in more detail but let''s go on to the next issue which is requesting that talks about accommodating known disabilities. The general rule on the next slide is that when an individual decides to request an accommodation, it''s the responsibility of the individual or perhaps their family member or other representative to let them know that they need some sort of accommodation. You can''t assume that the employer knows that you either have a disability or that you need an accommodation for your disability and that''s according to EEOC guidance and these cases are much more straightforward than some of the ones we have seen before. The Smith case is a case involving someone who made sort of a general complaint. They had some leg pain in the workplace. They talked about that they couldn''t stand on their feet much longer. The employee claimed that he had actually requested an accommodation of doing less standing and not working overtime. The employer said, you know what, you didn''t request that, you just were sort of complaining about how much your legs hurt. And if you had requested an accommodation I would have, you know, asked for a doctor''s note and that didn''t happen. So, there''s a little bit of a factual dispute what happened here but the general thing I think to come away from this is that what the court says here on the slide that employer cannot be deemed to be on notice of a disability every time an employee complains and if the employer is not on notice of the disability, then when an employee says, you know I wish I could have something else different or you know some sort of change. Some courts say that doesn''t trigger an accommodation request because there''s no knowledge of disability. So there''s no knowledge of a need for an accommodation or even the right to an accommodation. So, this is a situation where if it is unclear, it''s going to be hurtful for the employee if they''re not clear about their disability and their need for accommodation and well, it''s not required to put these kinds of things in writing or use magic words like the reasonable-- Okay, I see, Robin says she has lost me but Alan says he can still hear me so I''m not sure. Can people still hear me okay? Okay. I''ve got conflicting views on whether people can hear me or not. Can people here me now? Okay. Great, Thanks Robin. Okay. I''m trying again. Can people hear me now? Okay. I''m not sure what was going on but thanks everybody. Sorry for that. So, on the slide we were talking about before for those who didn''t hear my last few statements. It''s just important for employees to give information about their disability and the accommodation if it''s vague oftentimes courts will say that employer is unnoticed of needing an accommodation. Let''s go to the next slide. A case that went the other way is the Moore case against Wal-Mart and here, you had an employee who had a car accident and had back and neck pain and they had thought to her return to the work after being out and had asked for a shorter day, 5 hours a day, and they never really specifically said that they had a disability and Wal-Mart''s position was that they didn''t really have knowledge of the disability and so they don''t have knowledge of the disability. Okay. I''m still seeing some people who say they can''t hear but--okay. Since most of you can hear, I''m going to keep going. I''m not sure what''s going on but--great, thank you for letting me know that. But generally, what the court here said was while vague and conclusory statements revealing an unspecified incapacity is insufficient to put a person--an employer on notice of disability here that oral request for reduced hours and providing medical information about the job restrictions did show actual knowledge and so it was showed that Wal-Mart did know the person had a disability and was seeking an accommodation so they rejected Wal-Mart''s argument there. Ultimately, the court found that Wal-Mart had terminated the person for other reasons besides the disability but with respect to the disability in the accommodation request, the court said that the employee had provided sufficient information. The next issue is the issue of preferred versus provided accommodation and you''ll see on the next slide, the general rule is that employers don''t have to provide the preferred accommodation to the employee as long as they provide what''s called an effective accommodation. Does it work in the workplace? The EEOC recommends that employers give primary consideration to the employee''s preference because, you know, really part of the interactive process is finding out from the employee about their disability and what would work best for them. So, engaging in that process is very helpful but what the EEOC ultimately says is that the employers are only required to provide effective accommodations, not necessarily the preferred accommodations that the employee has identified. And you''ll see on the next slide an example where the court found that as long as the accommodation was effective, the preferred accommodation was not required. What had happened here was the employee had sleep apnea and had asked for a change in the schedule and the employer for awhile agreed to it for 5 weeks to change the schedule to try and make it work out. But it actually did not work because the employee failed to attend a number of important meetings and so ultimately, the employer decided they couldn''t provide that schedule change and transferred the plaintiff to a different position. That was lower paying that they did not want but it still fit within the doctor''s restrictions that had been presented to the employer and the employee sued and said you failed to provide me with the accommodation and the court found in favor of the employer. Because they said the employer''s accommodation was sufficient. It was effective. So, it wasn''t necessary to provide the preferred accommodation. There''s another case on this slide, the Robbins case which went the same way where they found that a flexible work schedule was an effective accommodation and that the employer didn''t violate the ADA when they refused to provide telework as an accommodation. There had been evidence in that case that the employee had been very unproductive when given telework at home and so the employer had a good faith basis to not give telework and give a flexible work schedule instead. The Edwards case on the next page really goes the same way where a teacher had asked for an accommodation of having a full-time aid in the classroom as a job accommodation and the employer was not willing to do so. They have provided other accommodations you''ll see like a part-time assistant and they provided a scooter and other types of assistance and the employee was saying, you know, that''s just not enough. What would really work best or my preferred accommodation is to have a full-time person helping me in the classroom and of course, you know what, that might be more efficient and it might be your preference but what the employer was providing was effective and that''s all that''s required under the ADA. On the next page though, we have a little bit of a twisted issue, so the general rule is that the preferred accommodation isn''t required, only an effective accommodation that the employer identifies. But what happens if the preferred accommodation turns out to be medically necessary. Well we have a case that came out very recently in 2009 from the Seventh Circuit here in Chicago that really illustrates this point. This involved a woman who is a teacher and she had what''s called seasonal affective disorder and she had some real difficulties because the classroom she was assigned to had no outside windows and was very noisy and she said this classroom is really a problem with my disability and so she requested a quieter room that also had natural light and better ventilation and the school did a lot of work to address some of the issues. They remedied the noise distractions and the ventilation problems but they did not reassign her to a different classroom and ultimately, her disability got worse and she ultimately took leave and was not able to work anymore. Several months after--go to the next slide. Several months after she had requested this change to a different classroom, she then presented a doctor''s note to the school saying how important the natural light was for people with seasonal affective disorder and they showed a real link between the person''s request for the accommodation and their symptoms. What the court ultimately said was is that before the doctor''s note was given, the employer wasn''t really on notice on how important, how medically necessary that specific accommodation was for the plaintiff and therefore, they weren''t going to hold the school liable but then the court said after the school got that note from the doctor which explained how medically necessary that preferred accommodation was for the teacher, the school did have responsibility to provide that accommodation because even though it wasn''t the accommodation that the school thought was the most effective. Here, the preferred accommodation was medically necessary and was actually the most effective for their particular disability. So this is an example where when the medical necessary issue gets involved, that could change the dynamics of preferred versus effective. Moving on to the next issue that comes up often in accommodation cases is the issue of the accommodation of reassignment. As many of you know, the reassignment is an accommodation of last resort. Generally, the EEOC has said and courts said this as well that you should try to first accommodate people in their current position and then if that all fails then accommodation of reassignment should be looked at and the general rule also is that employers are only required to accommodate people in vacant positions that they''re qualified for. So you''re not required to bump anybody out and the Supreme Court has given us some information on this particular issue in the US v. Barnett case that we discussed in the last webinar. And this is the issue of what happens when there is a conflict between seniority policy in the workplace and a reasonable accommodation of reassignment. The general argument in these cases by employers is that, you know, there is really no open position because you''re automatically filling any position through seniority and so since there''s no vacant position, there''s no requirement to provide reassignment and ultimately, the Supreme Court adopted that view and said it would be an undue hardship for an employer to violate any kind of consistently enforced seniority policy in order to place an individual in another position as a reasonable accommodation. So essentially the court was saying that seniority trumped reasonable accommodation generally but the court also said that they''ll make an exception when it can show that the seniority provision that is being relied upon has not been consistently followed by the employer. And since the Barnett case in 2002, we''ve had some decisions interpreting that and you''ll see a couple of examples here on this slide, the King case and the Gamez-Morales case and in both of these cases, the provisions of the policy, both were neutral policies, one was the seniority policy and one was the policy prohibiting transfer of employees within 6 months of a disciplinary action. Those were upheld despite request by the employees to be reassigned and the court said, you know, they have consistently applied. These are neutral polices. We''re not going to get in the way of the employer and force them to provide a reasonable accommodation when the seniority policy is not discriminatory and is being applied consistently. So those kinds of things are upholding the same principle that was laid out in the Barnett case. However, on the next slide you''ll see a case that went the other way and that''s the Tobin case and this a recent case out of the First Circuit from last year and this was a case where the court ultimately said the accommodation should not have been barred by the company policy that they had. This was a situation where the employee had asked for some assistance, he asked for more support staff and also an assignment to a particular account to increase his business and the employer said that this was only given to certain employees that were high performing and he wasn''t a high-performing employee and they were applying this consistently and therefore they shouldn''t have to waiver from their policy by assigning him to this other position that he wanted and the court said, you know what, that''s not true here. The fact showed that they weren''t consistently applying this policy in the workplace and if you''re not consistently applying the policy in the workplace, the employer then has to accommodate people with disabilities if they are accommodating other people in the workplace. And so this is just a good example that if employers are relying on any kind of policy that would allow them not to accommodate somebody in the workplace, they need to apply that consistently and on a very neutral basis and not in a way that would be seen as preventing people with disabilities from taking advantage of an accommodation that they had been seeking. A couple of other questions have come up frequently in the court on reassignment. One is whose responsibility is it to identify if there is a vacant position? If you look at the EEOC guidance, the general rule that they''ve applied is that it really is the employer who is in the best position to know which jobs are vacant and to identify those for employees who are seeking reassignment. And you''ll see an example of that, a court agreeing with that, the Lane case that''s cited there. And so they say basically, it''s the employer''s duty to find vacant positions that are available. But what we''re seeing also now in the last few years are some courts that are really going out their way and saying you know, it''s really, it''s the employee who is seeking reassignment so they should take some responsibility on identifying vacant positions that they''re qualified to do and you''ll see several cases that are cited here that take that position. So, I think the general rule for both employers and employees is that some courts are finding different people responsible for that obligation and so I think if reassignment comes up, both should probably take some responsibility in doing whatever they can to identify vacant positions that the plaintiff could be qualified for before making any kind of decision because the courts as you can see, are going both ways on this issue. The other issue that''s coming up a lot in reassignment cases is, are you as an employee with a disability entitled to move into a position thats open, that''s vacant and that you''re qualified to do or are you only entitled to compete for those positions and the EEOC''s position is that the employee doesn''t have to be the best qualified person. They don''t have to compete with other people in the workplace. If they cannot be accommodated in their current position and there is a vacant position that''s open and they''re qualified to do it, the employer should place that person in that position as an accommodation under the ADA. And some courts have followed the EEOC''s position, primarily the Tenth Circuit and the D.C. Circuit but other courts including the Seventh and Eighth Circuit have not and they said, you''re not entitled to that. That''s affirmative action. You should really just be placed in a position. You should not be placed in a position. You should only be able to compete for that. Okay, so that went out but I think that was back. So, we all thought this issue was going to be resolved last year because there was a case called Huber out of the Eighth Circuit that the Supreme Court agreed to hear and so we have this what''s called split in the circuits where the Supreme Court will often resolve this when there is a difference between the lower courts. But what happened in this case is that the party settled the case and once they settle the case, the issue before the court became moved and so the case was dismissed and the Supreme Court did not have an opportunity. I think if this issue comes up again and is asked--the Supreme Court is asked to review it, they would, you know, likely take it because they showed an interest in this issue and because there is this conflict between the circuits across the country, it looks like the Supreme Court might need to step in to resolve this conflict. The last issue I''m going to cover and then we''ll turn it over to open it up for questions are removing job functions as an accommodation. And if you go to the next slide, the general rule is that employers are required to consider removing marginal job functions as a reasonable accommodation but they''re not required to reallocate essential functions as reasonable accommodation. Certainly, employers are allowed to go beyond the ADA and reallocate essential functions if they want but the ADA doesn''t require it. So what this brings up, the question is, is the function that the employees looking to have removed from their current job a marginal function which should be accommodated? Or is it an essential function which the employer does not have to accommodate? And on the next page you''ll see a list of factors that the EEOC has identified and the many courts have utilized in determining whether a function is essential or not. And this is really a lot of different factors that courts will look at and some courts rely on certain factors more than others so you don''t have to have all these factors here. But some courts will look at a variety of factors in determining whether something is essential. I think the factor of the employer''s judgment is one that many courts rely on quite a bit and then how often people do a certain function is something that courts rely on a lot and then also courts will also look frequently at job descriptions, especially job descriptions that were developed before the employee was hired to determine whether the function was essential or not. Well, let''s look at just a couple of cases that look at this issue in more depth. The first case is the Lane case, and that''s a case out of Kentucky that was decided earlier this year involving an employee with a back injury who had a lot of lifting requirements in the job but after the back injury could not lift that much and basically, the question that came up was whether or not one of the functions in the workplace was to relieve other employees. Whether that was something that this employee would have to do or would they be able to not have to relieve other employees who were doing jobs that was involving a lot of lifting and the company said that''s important. We need you to be able to relieve other employees in case they, they need a break and if that relieving requires you to do lifting and you''re not able to do it then you''re not qualified to do the job. And the court ultimately said we think this is one that is not so clear cut and the problem here for the employer, that the employer should think about in these kinds of cases is they didn''t really provide specifics to the court as to why the function was essential. They sort of just said, we say it''s essential, we want you to defer to us and while some courts have been very deferential to employers about what''s essential, this court was not and said you should''ve provided more information as to why this important--why it''s so important for this employee to be able to relieve all the other employees on the line. And since they didn''t do that the case moved forward to trial. Another issue that comes up a lot is, what the consequences are if you don''t provide the accommodation, or excuse me, what the consequences are if you remove that job function as an accommodation and on this slide you have cases going both ways. The Hennagir case from the Sixth Circuit involved somebody who worked for a prison and she has worked there for 8 years and never had to undergo any kind of safety training, what to do if an inmate gets violent. She never had to do that, she was a physician''s assistant, she said that''s never been a problem for me and because of her back impairment she didn''t want to undergo this training because it was very physically rigorous and the court ultimately said that that training was an essential function and although she had never had this problem of interaction with an inmate, the consequences of if she didn''t have that training, the potential of her getting hurt and other people getting hurt was so serious. The fact that it infrequently happened wasn''t really enough for it to not be deemed an essential function and therefore the court was unwilling to agree to the plaintiff''s request that that particular function be eliminated from her job. But then you have a case at the bottom of the slide, the Johnston case, which raises some similar facts and the court went the other way. So it just shows that you know the courts really have very different views of some of these similar issues. This was a question involving a woman who was a nurse and she had spina bifida and so she had some physical restrictions and they were saying that one of the things they needed this nurse to do is to be able to physically take down patients. And she said I''ve never had to do that before and the court said well maybe it''s not an essential function if it''s not done that frequently. And other people in the workplace could perform that if that ultimately needs to be done. So the fact that something''s done frequently or infrequently sometimes will prevent it from being essential and allow it to be accommodated and removed from a person''s job requirements. But other times if you can show the consequences of removing that are so severe even if it''s done infrequently, the courts may find it essential and therefore say an employer doesn''t have to accommodate by removing the function. The next couple of slides are, I''m going to just go through quickly so that we can move on to the next sections but basically, a lot of times, we will see shift issues and rotating shifts or overtime and that sort of thing and a lot of courts are finding that these kinds of things are essential functions especially if it''s in the job description, collective bargaining agreement, especially if the fact that if somebody doesn''t work those extra hours or rotate the shift how it would adversely affect other employees and so most courts have been fairly deferential to employers on that. The one exception to that on the next slide is the Rohr case, where they were requiring things like overtime and out of field work that they had asked as accommodation and in this case, they showed that it was something that was really required infrequently and so therefore wasn''t essential. But generally, most courts have been pretty deferential when working overtime or rotating shifts have been deemed essential functions and therefore, if they''re essential they don''t have to be accommodated. And then on the last slide, I just wanted to go over is sort of a related issue. Instead of removing an essential function, what you''re doing is removing an accommodation. And courts again surprise, surprise, are sort of split on this and oftentimes because of the facts that you''ve got two cases that go each way. The first one is the Pagonakis case from the Third Circuit and this was an employee who had gotten a number of accommodations, they didn''t have to work at night, they didn''t have to work a number of days in a row, they were able to get a lot of breaks if they needed it and occasionally were able to work at home. But then the accommodations were taken away and the factual scenario here is very common we see here at Equip for Equality and that is you have new management and all of a sudden they come in and see an employee getting certain accommodations and say, you know, what the heck is going on here? Why are you given these accommodations? And instead of reviewing whether those accommodations are still needed and whether they''re effective or if there are other accommodations that could be done that might be equally effective but more preferable for the employer, the employer will just say, you know, we''re getting rid of those, we''re taking those away. And that''s what happened in Pagonakis and the court here said removing accommodations without a legitimate business reason may violate the ADA and so the court said the case should proceed to trial. But then on the other hand, the Hill case, you have a situation where you did allow an employee to have various accommodations. This involved a gentleman who was seeking accommodations of not having to do climbing work for a phone company and they''d allowed him for several years not to do this and then ultimately decided that he needed to be able to do this because of some issues that arose in the workplace and the court said that they were going to defer to the employer and say you know, removing the type of things that you provided to the employee isn''t removing accommodations necessarily. They shouldn''t be punished for doing something that was generous in the workplace. So I think generally removing accommodations is a problem. The Hill case is I think probably the exception to the situation but oftentimes the courts will look and say was that really an accommodation or were they just allowing an employee to have an opportunity to you know readjust to a situation or that sort of thing. So with that, why don''t we open it up to questions if people have that and then we''ll, after the questions, we''ll turn to the other issues that Alan''s going to review.
Hi, this is Alan. I''m not sure what''s happening. It looks like one of the participants was trying to ask a question but I''m not sure if they don''t have a mic, but nothing was coming through. So if anyone has a question, please type it in to the box and if you have a headset and want to speak, that''s fine. I''ll disable my talk key, no pun intended. Okay, so that being 100 percent sure, we''re not thinking there''s any questions I''m going to move on. Oh, I think Robin has her hand up so let me disable.
I just want to give some instructions here. The chat area is open if anyone wants to ask questions. We''re having some trouble here. I''m trying to control it but I do ask our participants to attempt not to multitask while you might be on this system. It can interfere with the program. Some people seem to be also occasionally hitting their control key which is a problem from the microphone perspective ''cause that''s the control that our speakers use so if you could please be careful doing that. I do see we have some questions now. We''ll go ahead and let our speakers address those questions. But I do ask people to take care and not to do too much multitasking while you''re in the system. Thank you.
Hi this is Alan. I guess I see two questions that were typed in. I''ll try to give an answer. The first one says if an employee feels they have a case for accommodation, do you have a suggestion for where they would start. Well, I''m not quite sure where--if you''re talking about after the employer''s already denied it, I think the first step is to request it from the employer and we''ll have some tips at the end in terms of what should be part of the accommodation request. But if there''s already been the back and forth in the interactive process and the employer still denies the accommodation then generally, filing complaint either with the state human rights agency or the EEOC is the next step. The next question asked about how recent medical information needs to be? I think it needs to be somewhat current but part of it depends on the disability. For example, I represented a client with a developmental disability unrelated to their IQ level which was never going to change probably within small limits for the rest of their life so in that case we thought that the older information was relevant. We did enough updating it anyway, but generally, it should be pretty current and recent. I think that''s the best practice in that area. If an employee in telecommunications doesn''t want to answer phones because it causes stress and anxiety obligated to provide them. The issue there becomes is it an essential function of the job. If it is essential it does not have to be eliminated but there may be ways of accommodating them by having them do it at certain hours of the day or something like that by restructuring their work but essential functions do not have to be eliminated. The question why some of the effective accommodations weren''t too effective? Why were they considered effective? It might be the case involving the seasonal effective disorder--affective disorder that you were talking about which didn''t seem very effective, I agree. And it doesn''t say it has to be the most effective so--but I agree that in some of the cases that Barry discussed, I think even though the employers won in court, I would not assert that some of those practices were the best practices for employers. Alright, I''m sorry. I see that I got lost. Regarding the telecommunications question going back and then I''m going to move on in a second just so we get through everything. If a person cannot do the essential functions and cannot be accommodated in them either by restructuring the job, then as Barry mentioned reassignment is kind of seen as the accommodation of last resort so that should definitely be looked at before termination. And someone asked about how to deal with employee perceptions of favoritism on reassignment. Well EEOC has some information that if there is confidentiality for ADA issues and EEOC gives two suggestive answers. An employer can say we''re doing it for legitimate business reasons or to comply with federal law which I admit is not very helpful but that''s really the most you can say. You can''t say someone''s ADA or disclose their disability but I also think that that''s a good reason for employers to do training for the entire staff on the ADA, that way someone will know if there''s something going on that they think it''s favoritism that at least plant the seed in their mind that maybe it''s something related to a legal issue and not favoritism. And then the last question I''m going to do now is any limit on wages if the job is reassigned. The EEOC first--it says first, you look at reassignment into a parallel job of the same position and standards. If nothing is available then you look for reassignment to a job that might be lower paying in status but there is no monetary limit. So with that being said and hopefully we''ll have some more time for questions at the end but I''m going to go through--that''s right and Barry added, you don''t have to give a promotion as an accommodation and that''s true as well. Thanks Barry. So I''m going to move on to the next slide which involves creating new positions and the general rule is to comply with the reasonable accommodation provisions of the ADA. It says an employer does not have to bump an employee from a job in order to create a vacancy nor does it have to create a new position and that''s pretty self explanatory. It has to be a vacant position or one that will be vacant you know within the very, very near future. But employers do not have to create one. And the first case we see there is the Mize case, where the employee requested to work a teller station located in the basement rather in the main floor. The reason being the person had fibromyalgia, scoliosis, high blood pressure, and other conditions which she said caused her constant pain everyday for more than 10 years and the position that she had required that she fill in for some tellers when needed on the main floor. This was for a bank, and the bank had gone through some different ownership and when the new owners came in, there had previously been a position as a basement teller where you did not need to use the high bar stools, you could sit at a regular chair but that position was eliminated with the new ownership. So the employee requested to work in the basement but the court said no, that basement position has not existed for 6 to 8 months and the employer does not have to create a new position and therefore, that request was denied. The employee also requested that another employee inventory safety deposit boxes and the court said that that also is an essential function and in fact, this employee was one of the few employees of the bank who can perform that task. And the list that Barry talked about before regarding essential functions. One of the conditions or one of the factors is whether that employee is a specialized function that only that employee can do. I have a query at the end, and one thing I might have argued in this case that didn''t seem to be argued, that maybe add, do some construction work and add a lower level counter on the main floor so the employee didn''t need to sit in a high stool and many banks in other places provide a lower counter to serve customers in wheelchairs and I would''ve made an argument that this type of construction would''ve been an accommodation but didn''t seem like it was raised in that case. Mize case too, which I won''t go into, but often these cases you''ll find that there was a--there''s a lot of personality issues and this teller was not liked by other tellers because some of them were taking days off following an old policy or afternoons off and she wanted to do that as well. And as a result of her request, the company pulled that ability to leave a half a day early one day a week from everyone and so the other tellers were all angry at her. And whether that affected the decision making, I''m not sure but sometimes it seemed that those situations do creep in to the decision making by the employer. Oh shoot. Alright, can you hear me? Robin says I''m lost.
Yeah, Alan we lost you. I think one of the problems I''m trying to identify; I''ve got one of our participants, Laurie Young, if you are listening to me. It appears that you had your control key down. I''m trying to communicate with you regarding that but not having any success. If you would please let up your control key and watch what you''re doing with your fingers on your keyboard. That would be appreciated and Alan, let''s see if we can get you back on here.
Go ahead Alan, can you try again please?
Hello, is it working now? I see the little bubble by my name. Okay, thanks Barry. So anyway, I was talking about the Myers case and personality issues that I think played into it but let''s move on to the Johnston case. In this case, a tutor developed cervical myelopathy from an auto accident which is a degenerative condition that affects the central nervous system and had the restrictions of no standing for more than an hour a day, no continuous speaking, minimal use of stairs, ambulatory aids and scooter as needed. And to accommodate the teacher, one school created a new position called an academic interventionist and what that involved was them working with students in small groups and also doing programming, professional development for teachers, and writing grants so it didn''t involve a classroom setting which this teacher could not do due to the standing issues and continuous speaking restrictions. Then as Barry mentioned, sometimes a new supervisor, there''s a new sheriff in town. In this case the new deputy chief didn''t like the fact that this teacher wasn''t teaching a classroom, assigned him to a different school where the academic interventionist position did not exist and the teacher was not able to continue working, went on extended leave and was eventually terminated. And in this case, the court held that creating a new position is not an accommodation and even though the school created the position for a while and went beyond the ADA, they''re not required to do that indefinitely. And just some other facts, when the teacher was assigned to a classroom with the classroom on the second floor which had a broken elevator, no climate control, the teacher felt she had to keep going downstairs just to cool off, and I think there may have been some type of retaliation claim that could have been raised there but it wasn''t. And the court really just looked at it that the employer has to create a new position. They didn''t look at the reasons or try to dive into the reasons for the reassignment and the court found that creating a new position was not required. The next issue we''re going to talk about is leave as a reasonable accommodation. This is one that comes up a lot and as you remember the family medical leave factor is also involved for many employers and there is a prior webinar on the intersection between the ADA and FMLA. The first case we''re going to look at is the Clinkscales case. One employee requested medical leave until they were able to return and the actual quote is where they said is when--I''m looking forward to returning when able to do so. And in fact, the employee was on a period of leave for a while and then when they requested leave until they are able to return full time, they are really just looking for intermittent leave. And I think that the fact that they were only looking for intermittent leave is why the court found for the employee in this case. Generally, as you may recall, courts are not or courts often find the request for indefinite leave are unreasonable. And even though there may be some argument that this leave was open ended, the court said it wasn''t really indefinite. It''s just until they''re able to return and I''m not sure what the difference is but I think the real difference is that this request was for leave of intermittent amount. The employee said I just need a day or two off every now and then and the court said well, a request to stay at home indefinitely is not a reasonable accommodation. There are situations in which extended leave is allowed such as when it will enable an employee to perform the essential functions in the near future. One other thing to point out, Barry talked about summary judgment and in summary judgment motions, there is discovery that takes place first with depositions and interrogatories and document exchange, and you get to look at all that evidence. The defendant tried to dismiss this case and was called a motion to dismiss, and in that case you don''t look at all the other evidence. You really just look at the complaint and if there is enough in the complaint to give a claim or to make a claim whether it ends up being found valid or not, you just look at those allegations and the court said for motion to dismiss, there is enough information for the case to move forward. In another issue in that case, there also seemed to be a hostile work environment based on race and part of me wonders if the court also looked at that and that made them a little more prone to side with the employee. In this case we have--in this slide, we have three difference cases. One, an employee with cancer was given 6 months of leave for chemotherapy, or I''m sorry, 6 days--I figured he was given 6 days of leave per month for chemotherapy but agreed to provide notice of the days he''d be off generally the day he received treatment and the day after. But as time went on, the employee became much more unreliable in giving notice and his attendance became much more unpredictable and the court said that reasonable notice and attendance can be required. We see that a lot, that unpredictable or a predictable attendance and reliable attendance is an essential function of the job. In the Verrocchio case, an employee was already on leave for 9 months and sought an extension of leave and it didn''t seem like he needed much more leave, maybe another month, but the employer terminated and the court found for the employee. And then the Mayhew case, an employee exhausted her FMLA leave and one of the additional leave to care for her son who had autism and the court held which is the law that ADA leave is only available for the employee''s disability not the disability of a family member. The association provisions come in perhaps with a failure to hire case or a termination case but you don''t get accommodations based on an association with someone with a disability. And then as we''ve discussed before, courts often find that policies requiring they be 100 percent healed to return from leave or policies that say once you are on leave for a year and you''re out, courts often find that those types of policies violate the ADA ''cause there''s no individualized assessment, and here we have some information from some EEOC cases. One was settled in February with Sears and inflexible leave policies and then the EEOC versus super value. That''s not a settlement, that''s a recent filing challenging the 1 year and you''re out policy. Next, we have a telework case and the EEOC guidance, there was a fact sheet on this and the people are warning that picture does not help. Barry and I do the webinars. We are addressed professionally and hopefully, when people work at home they don''t look like that. But the ADA does not require and this is per the EEOC that employers create a teleworking policy but--and if there is a teleworking policy for whatever reason, if people are allowed to work at home then people with disabilities should be able to participate. If there is no teleworking policy, employers don''t have to create one for the whole staff but they may have to consider it as a reasonable accommodation for an individual worker with the disability. And some courts have been receptive to telework, other courts have not been. And next, we have the Kiburz case. I''m not quite sure how to pronounce it which involved an information technology specialist who work for the navy who wanted to work at home but a lot of the essential functions included providing technical support, attending meetings, having effective working relationships so their request was denied and the employee was terminated for absenteeism and the court granted summary judgment for the navy. Okay, am I back? Okay. It looks like I''m back. The court in this case granted summary judgment for the navy because working at home, the employee would not be able to fulfill a substantial portion of their job functions. And at the bottom of the page, we also have the Page case which involved someone with multiple chemical sensitivities and was actually having problems due to mold at work. And for a library, the court found the telework was not a reasonable accommodation due to the things that a librarian needs to do at the library, and that seems like a pretty clear cut decision. They also wanted an assistant to be at the library while they were at home but the employer doesn''t have to hire someone else to do the essential functions for an employee. The next issue was undue hardship, and for background that''s one of the defenses to providing a reasonable accommodation. Generally, in affirmative defense, that has to be raised by the employer and it''s defined as significant difficulty or expense and generally, courts do not find that accommodations are too expensive but they might find there may be issues in terms of administrative difficulties, arranging schedules, extra workloads for other employees and things like that. And on the slide we have some of the factors listed type of operation, financial resources, cost of the accommodation and impact upon operations. So next, we have the Moore case which involved an instructional consultant who provided in-person training. They developed some mental illnesses and requested some various accommodations including extended leave as well as reassignment and part-time work and the court said, well extending indefinite leave would be an undue hardship due to the expense of hiring independent contractors or canceling classes. And in this case, the defendant presented a memo detailing the economic impact on the company if they provided the accommodation which I think certainly helped them make a clear case. And on this case on undue hardship, we have three different cases, the Frumusa case where an employee was unable to climb stairs or had difficulty climbing stairs and wanted to move to the first floor but there were some functions that the employee could only do from the second floor. There was no secured location for doing financial duties on the first floor and other problems and so the court found that summary judgment for the employer was warranted. The Friends versus Astrue case actually involved the Social Security Administration who did not want to provide an American Sign Language interpreter claiming undue hardship and the court found for the employee in that case. They looked at the entire financial resources of SSA and also noted that SSA didn''t really talk about the financial impact of providing the accommodation. So, in that case they found for the employee. And the Grupp case, someone, an employee wanted to work only p.m. shifts due to their sleep apnea and the court found that would be an undue hardship due to the burden on all the other flight instructors who would have to work more hours and Southwest Airlines would have to fundamentally alter its schedule and policies. One history, we''re seeing a lot more of, there''s the need for a scent-free workplace. And in the Monterosso case, a secretary with asthma sought a no propellant policy and the company said we have no duty to provide a bubble for the plaintiff to work in and cited the Kaufmann case and I''m going to talk about the Kaufmann case for a second at the end. But the court said, the employee here was not asking for a scent-free workplace but rather a propellant-free workplace and found there was a question of fact whether it was undue hardship or not. But therefore, there will be no summary judgment for the company. And actually before I get to the McBride case, I just wanted one thing; my parents raised me as a skeptic. So, the Monterosso--court cited Kaufmann versus GMC for saying that "A scent-free environment was impractical, impossible, and objectively unreasonable under the ADA." I don''t recall having seen that strong language against scent-free policies so I actually looked at the Kaufmann case. And it didn''t say that at all. The court, I think, totally misquoted it. What the Kaufmann court says its definitive reasonable step to accommodate plaintiff. The employer sent emails requesting that employees refrain from using scents. Actually, instituted a no fragrance policy, gave the employee an air purifier, changed the air filters in the workplace, but the court in the Kaufmann case said that it would be--it may be an undue hardship to enforce that against customers of the company and there was no other issue in terms of how the employer should discipline employees who don''t follow the policy. But, that''s why I think it''s very important when courts cite one case to look at it to make sure that they are correctly citing that case. And then we have a very recent settlement. I think it just came down a couple of weeks ago, McBride versus the City of Detroit. At first, the court refused to dismiss the ADA case as an employee with chemical sensitivity wanted a scent-free workplace but then the agreement was reached where the employee received 100,000 dollars. The City of Detroit adopted the scent-free workplace and in this case, not only asking employees to refrain from scents but they actually would post signs asking people who come to do business with the city to refrain from wearing scents such as colognes, et cetera. And the Query I have at the bottom is there are trends towards more acceptance of scent-free policies. And I kind of do sense that and in fact, personally, you know, here at our agency I''m handling several cases for people seeking scent-free workplaces and having trouble getting them and we''ve even had employers tell the employee, well, you''re not entitled to ask someone not to wear colognes. They have a right to wear whatever they want, which in my mind is actually the exact opposite of what the law says, and that situation was even in the hospital where they have a suggested policy of not wearing scents and the employee was just asking that they make it a mandatory policy. But I think there is more acceptances of these in the workplace and these are cases that our agency looks at very strongly. Now, when we look at discipline and direct threat issues, often we see employees requesting an accommodation to excuse misconduct or remove discipline and the general rule is that employers do not have to do that. EEOC guidance says that because the reasonable accommodation is always perspective. An employer is not required to excuse past misconduct as an accommodation even if it''s due to disability. I think there''s an exception that once a disability is disclosed and an accommodation is requested, if that accommodation is denied and it''s the denial of the accommodation that led to the misconduct then there may be some argument that it was the failure to accommodate that caused it. But generally, past misconduct does not have to be excused as accommodation. Excuse me; we have two cases here which I believe we''ve discussed previously. One is Jarvis v. Potter where a coworker instructed their--employees are being instructed not to startle him or approach him from behind and the court said that would not be effective. There is no way to prevent someone from being startled. They were working in a very busy place where there is loud noises happening all the time. So, in that case, the court held the request of accommodation would not be effective. In the Jakubowski case involved a resident with Asperger syndrome who requested kind of knowledge and understanding by the hospital staff and the court said well, even if the staff was knowledgeable and understanding, there''d still be safety concerns not addressed by that accommodation request and in that case it was found that the employee''s disability posed a direct threat to the health and safety of patients. In the Calandriello case, an employee had--the company had what''s called an impact as inspiration posted which was used to boost morale but this employee actually took Charles Manson''s face and put it over the employee''s face in the poster and then put it up on his workspace. He was disciplined for that and other reasons and at that point he disclosed that he had a bipolar condition and asked to be exempt from disciplinary action and the court held no. The summary judgment for the employee was proper. There was a high risk of continued employment and the employer was not required to accommodate the person by exempting them from disciplinary action. In this case also are some other justifications for the dismissal. The company which actually does work for the government and everyone must be cleared by Homeland Security. They looked at the web use of this employee and for 1 month period, they had over 10,000 hits for shopping, 284 hits on military websites, 35 hits for adult material, 21 hits on weapon sites, 13 hits on game sites, and 1 hit each in the militancy extremist and racist and hate categories which violated the company policy prohibiting web use for non-business reasons other than I think in minor personal uses. So there, the termination and the failure to remove the discipline was found to be proper. And then the next case we''ll talk about is the Canales-Jacobs case where an employee was being terminated for misconduct and was at the third stage of the disciplinary process and that''s the point when they disclosed depression. Often at our agency, if someone is starting to become disciplined for an accommodation that has not been disclosed it''s probably better to disclose it earlier in the process rather than late. As you can see, this person was late 24 times, absent 22 times, smoked when they shouldn''t, didn''t follow a fire drill, et cetera, and the court said the employers do not have to excuse misconduct and poor work performance and asking him to do so is unreasonable as a matter of law. And again, the ADA does not excuse workplace misconduct particularly for an undivulged psychiatric condition and then again, as I mentioned earlier, unless the misconduct is rated or is related to the failure to supply a requested reasonable accommodation but here the misconduct was before the disclosure so that note only applies to situations where there is misconduct after a disclosure, after an accommodation is requested, and after the accommodation is denied. I think in those cases, misconduct that''s related to the denial of the accommodation might not fit under this general rule. And in just a few more cases here, the Bodenstab case which happened here in the Cook County where an anesthesiologist said that if his cancer had spread he was going to kill his supervisors and coworkers and described the ensuing gun battle with police and the court held there is no legal obligation to accommodate that type of conduct even if it is related to a disability. In this case, the threat was actually made outside of the workplace and I raised the query, does it matter if the fellow is outside the workplace, and I think courts go both ways on this. But I think it certainly gives a reasonable basis to think that a direct threat exists at work. No matter where the statement is made, it''s not going to help the employee. And the next case is the Turner case where an employee with psoriasis who said his underwear became unbearably uncomfortable would change clothes in common areas, common employees areas because he thought the bathroom was too disgusting to change clothes in and the employer said, well, you''re violating are no nakedness policy and the court said, yes, he is and that''s proper grounds. You don''t have to accommodate him by forgiving his violation of the no nakedness policy. So we''re going to go through some practice tips here and I''ll try to get through these quickly and try to save some more time for questions. So for the interactive process, you know, I think in a lot of the cases, we see employers sometimes drop the ball on this. I think this is a place where employers can really go far to protect them in case there is an EEOC filing later. I know some best practices identify some employers try to run every accommodation denial through the job accommodation network before finalizing the denial and I think that''s a great practice. If their job accommodation network cannot find an accommodation for the employee, then I think the employer can be protected by having gone to that. It shows good faith and good interaction. The general process is the employee makes a request, identifies the impairment, the limitations and preference for an accommodation if known, and if they want reassignment, identifying vacant positions is a good idea as Barry discussed, and that triggers the employer response to engage in the interactive process. If the disability is not known, the need for the accommodation is not apparent, they can seek limited medical information to substantiate the need for the disability and in those cases, we often advise employees to submit some medical information with the accommodation request. If someone is for the first time disclosing, for example, bipolar disorder and needs some leave, we think it''s worth having the doctor draft a one paragraph letter explaining the condition and submitting that with the request. That makes the employer''s decision easier and it helps the employee as well. Employees have to provide necessary information that''s requested or if they provide vague or contradictory information, again employers only have to provide an effective one, not necessarily the preferred accommodation. And here are the lawful bases: undue hardship, not being qualified or posing a direct threat. Those are lawful bases for not providing an accommodation and I think it behooves both the employees and employers to be far reaching in exploring reasonable accommodations, so let''s say an employee wants leave and the employer says no, we can''t do leave. Well then maybe look at working at home or part-time work. Although, again, positions do not have to be created by employers and if the employer doesn''t like an idea, I think a better employer practice is to say no, we can''t give you 24 months of leave, we can give you 2 months of leave or no, we can''t let you work at home 5 days a week, we can let you work at home 1 day a week. So I think employers will look at offering effective alternatives if they don''t want to give the requested accommodation and I think employees are on the top spot. I think if an employer offers an accommodation that the employee does not want, generally, employees should look or should seriously consider accepting it. Otherwise, they might be deemed to be responsible for the breakdown of the interactive process and if it doesn''t work, that gives the employee evidence to show why that accommodation offered was not effective and here are some best policies. One best practice, it''s good for employers to have policies governing how the process will work. Centralized decision making is useful. You don''t want different managers in different departments making different decisions under the same or similar circumstances. As I mentioned, before consulting with the job accommodation network, EEOC or your local DBTAC is a good idea. We generally tell the employees to if more information is needed, it''s best if they get it for themselves rather than having the employer contact the doctor directly. I think employers, it''s a good practice to provide appeal rights from denials of accommodations and a big one which I recommend is regular training for staff as well as training for new staff on the ADA. As Barry mentioned, a huge percentage of cases seem to be related to new supervisors who come in and may not have the same ADA understanding as the prior supervisors. Here are some practical tips for employers. Of course, engage in the interactive process, only get limited medical information when necessary, document everything, job duties, performance problems, accommodation efforts, avoid inflexible policies like the 100 percent healed, 1 year on leave on youre out policies, offering alternatives and using objective evidence. You know do a cost study to show why an accommodation that''s requested would cause an undue hardship. I think that helps employers and court all the time. Some more practical tips, sometimes employers run into trouble when they force someone on medical leave. Oh, you need an accommodation, you''re too sick to work, go on leave and that sometimes backfires on employers. Repeat on the periodic training. That''s how important we think it is. Always make sure there are no reasonable accommodations including reassignment before terminating someone. Make sure that employers identify possible jobs in a reassignment scenario. And one thing that''s really important and we try to stress this to employers is that accommodations generally make good business sense. It''s a way to help an employee become more productive on the job which most employers, that''s a good thing, and in fact the job accommodation network has a fact sheet indicated on the bottom which shows that employers benefit up to 10 dollars for every dollar spent on reasonable accommodations. So it''s not just, you know, do the right thing, help the person with a disability, it''s the right thing to do. It really makes good business sense. And then document--tip for employees is to document everything. Writing is not required but I think it''s a good idea to put it in writing and to use specific language even though that may not be required. Know your company''s procedures, document any perceived retaliation or dispirit treatments, suggesting accommodation if you have an idea. If you don''t, try to contact JAN or the EEOC or the DBTAC to get some suggestions. If medical information is appropriately provided; if someone feels that they''re disciplined improperly, they have a right, I believe in most states, to add information about the performance that''s used to their personnel files and also to request a copy of their personnel files. One thing, I think vocational rehabilitation agencies may often pay for accommodations if it''s something expensive or there may be costly whether computer software or sign language interpreters. If an employee is working with a vocational rehab agency, the agency may help bear some of the expense and if it''s providing hardware, for example, often if the employer provides it, the employer gets to keep it but often for voc rehab agencies, if they provide it, it gets to stay with the employee. I think accommodation requests should be reasonable. So if we have clients who signed these 13 accommodation requests and we always try to narrow it down. Be weary of indefinite leave. If at all possible, try to accept an offered accommodation even if it''s not preferred; utilize unions and other resources as well as JAN. And here are some resources we have at the end. We have of course the Great Lakes ADA Center DBTAC and the general DBTAC Equip for Equality or your local protection and advocacy agency. Every state in the US territory has one job accommodation network and the EEOC are also helpful. And here''s a plug for the next session on June 2nd on invisible disabilities and the ADA, so we hope you all will sign up for that one as we think that those are really important issues and then here is an evaluation form for this seminar. Please fill these out. We encourage you to provide any feedback that can be helpful and I think with that, I will throw it open for questions for the few remaining minutes. If anyone has any questions, either type them in or raise your hand and we will attempt to answer them and I''ll scroll up to see some that I may have missed before. I see one question involves what type of specific info must be given. I think it''s an excellent question. The ADA or this EEOC guidance makes it clear and there''s not a ton of court cases on medical information although if you look back there is a former Great Lakes seminar on this that Barry and I did. I think it''s really limited information, the disability, the need for the accommodation, the limitations caused by the disability, and why the accommodation would help. I don''t think you need to give family histories or go into the real mindset of the employee, really just enough to give the employer notice of the disability, the limitations and the accommodations. And then someone asked about whether or not ER is an abbreviation for employer when an employer can defend an undue burden defense with after-acquired info. Sometimes once the person files suit the employee, then the employers starts digging through things and they find things that kind of justified the termination after the fact. You know, I think there are exceptions. I think generally it''s hard for employers to use after-acquired info. Although, most of the cases I saw went to performance issues. So for undue burden, I think you might be able to use after-acquired info, for example, a cause study or something like that.
Alan, did you receive the question that somebody asked you to repeat that they didn''t hear or I don''t know if that were cut off or whatever related to interactive process?
I was just reading that. I didn''t hear or receive that question. So I didn''t answer it. If someone''s offered a job for less than minimum wage, is this a reasonable offer? Well, I think that might be related to, you know, wage and salary issues which is a little beyond the purview but if someone is offered a job for less than minimum wage based on the disability, I think that might be problematic. The EEOC said if there''s no--in reassignment, if there''s no vacant positions, you can look at lower wage if there''s nothing parallel. If you look in less than minimum wage that may be problematic but Barry, Robin, please feel free to chime in on that one. I think the presentation will be emailed to people after the webinar.
Yes. Besides it will be sent out by email to people at the conclusion of this webinar. Also, I think there were a couple of other questions here, the duties imposed on employers translating to housing providers. I don''t know if you saw that one or the one above it, accommodations without revealing specific conditions.
For the one about specific conditions, I think you probably do have to give the specific condition. I don''t think you just say general mental illness. I think you--it''s probably best to identify it. But if a person has multiple disabilities that they might have depression, anxiety disorder, and a bipolar condition, I think if the accommodation is for one of the ones that don''t have as much stigma attached. I think there''s a lot of stigma attached to someone who is bipolar. I think then you only have to reveal the depression and don''t have to reveal the other disabilities but I think you do have to specify. Regarding to housing providers, actually housing law is a whole different area covered in the Fair Housing Act and actually in many ways it''s broader than the ADA.
I believe someone clarified the minimum wage you showed and if you want to respond back to it in regards to someone who was offered competitive employment and so is looking competitive employment was offered shelter, work shelter is their only accommodation for them to be in versus the competitive employment.
I might be bias because personally I''m not a big fan of sheltered workshop as a general rule. I think in order to justify that the employer would probably have to show that the person was not otherwise qualified to work in competitive employment. I think it would kind of get beyond the accommodation issue but if the person is qualified for competitive employment, I think it would be hard for us, for employers to say that the sheltered workshop environment is reasonable.
Okay, we''re at the bottom of the hour or a little bit pass the bottom hour. I appreciate everyone''s patience sticking with us. Some people have signed off already. Probably they had go on and do other things. I just wanted to clarify a couple of things. One is to remind people about the session next month which we were talking about earlier and then the second to please join us. You can go to www.ada-audio.org. You could get more information on registering for that particular session. Also, just to remind you that you will receive the PowerPoint slides from today''s presentations. They will be sent to you in email following the end of this particular session so you''ll have a copy of everything that you saw today. And Barry, I think there are a couple more questions or Alan. I don''t know whether or not you want to respond to them before we sign off but I will give up the microphone and let you do that.
One of them I responded to in writing. Someone asked how an employer can balance the need for predictable and regular attendance with the FMLA requirement that they get up to 12 weeks of leave or 480 hours. And they''re very different laws, I urge you to go the Great Lakes or ADA Audio website and look at the past webinar on ADA and FMLA. One of the FMLA, it''s not a regular predictable essential function issue. Under FMLA, if a person''s been at the employer long enough for a year, the employer is big enough and has more than 50 employees and the person has a serious health condition, they get the leave. It''s absolute in that regard. The ADA does more of this balancing thing where you look at the essential function of regular and predictable attendance and see whether the accommodation request is reasonable. There are two different analyses, two different standards there and then let me read the--I''m sorry let me read the last question from Suzanne. A person in my work is also an ER nurse, was on staff at night when someone had a suicide attempt. She cannot reveal this. And we''ve actually had cases where someone saw a doctor and someone in the doctor''s office knew the employer and revealed it and we argued very strongly that there are a lot of confidentiality issues. So one, revealing the work--the fact that she works at your place she is covered by the ADA confidentiality provisions. There is also HIPAA issues. Many states might have confidentiality issues. I know North Illinois has Mental Health and Developmental Disabilities Confidentiality Law as well as an HIV and AIDS Confidentiality Law but the ADA does protect confidentiality. So even if the coworker found out the information as part of another job, they should not reveal it to the person''s employer. So Suzanne, the answer to your question is right, they should not reveal it.
Great. Thank you for taking this moment to follow up on those last questions. I do encourage you to follow up on the resources that have been provided to you today. If you have questions remaining from this particular session, you can again refer back to this webinar. Once it is archived, it might assist you in answering some of those questions. Also, please feel free and encourage you to contact your regional ADA center at 800-949-4232 and if you''re not familiar with the center that servers your geographic area, you can go to the website at www.adata.org and locate the center that serves your geographic area. Thank you once again everyone for your participation today. You will receive a copy of the slides via email so hopefully, you''ll get those shortly and we hope to see you again in June. Thank you everyone and have a great rest of your day.