We will welcome everyone to the session, we have an open Q and A session today with the EEOC and we want to welcome you to the April edition of the ADA audio conference program, the ADA audio conference program is a part of the ADA national network. It is a program of the ADA national network. The national network is funded by the U.S. Department of Health and Human Services administration on community living National Institute on Disability, independent living and rehabilitation search level. We went to welcome all of you. The ADA national network is a leader in providing information and training on the Americans with Disabilities Act. You can locate the regional center that covers your state by visiting ADATA.org. That's the national network website or you can call 800-949-9432. Calls are routed based on the telephone area code where you are calling from.
Alright, with that out of the way, we are pleased to have Jean Goldberg with the US equal employment opportunity commission. Jeanne is senior attorney advisor with the office of legal counsel. We appreciate Jeanne stepping up. She stepped up for Sharon Leonard who was not able to be with us. But, Jeanne is a Veteran of the ADA audio conference series and other programs that the national network has done in the past so we appreciate her joining us. She was with us last year for an open Q and A. This is how it's going to work today. There were questions submitted in advance and we will address those questions first, and then we will take questions from folks that are connected via the webinar room. You can submit your questions throughout the session, so go ahead and do that, and when we get, when Jeanne is done with her remarks we will go to Keith and he will give instructions for phone participants on how they can ask questions.
Real quickly, there was a resource document that Jeanne shared and she will be referring to that during her remarks today. That document was available on the materials page, so that's the page under your account where you access the telephone number or where you found the link to join the webinar room. So when Jeanne talks about that, that is the document and that is where you can find it in your account.
That's enough of me. Now, I would like to introduce and welcome to the audio conference Jeanne Goldberg. Jeanne?
Thanks so much, Peter and welcome everyone. Before we get to the questions you sent in and any you want to add for this afternoon, Peter asked me to start by saying a few words about what's new here at the EEOC. As many of you are aware, EEOC is in a somewhat unique position these days because we are currently led by Victoria Lipnick who has been a commissioner since 2010 who was tapped by President Trump p two years ago to be the acting chair following his inauguration and that's a prerogative that most new president's exercise to select a current commissioner who is a member of their own party to be the actingchairwhile awaiting senate confirmation of their own nominees. EEOC is a five member bipartisan commission by statute no more than three members can be of the same party.
And each year a different member's term expires so they are serving staggered terms. We are in a unique position as I said, because we are now still awaiting Senate confirmation of the president's nominee. So we don't yet have any new commissioners, and we are, as of January 3rd, down to two commissioners given that yearly expiration I mentioned down to two commissioners and three vacancies. But what I would like to say about that as well is that that does not mean that we are in a holding pattern by any means. The day-to-day investigations of charges, the day-to-day litigation and many of the other activities proceed a pay even as we wait the complete leadership change and restoration of a quorum once the Senate confirms the nominees for new commissioner positions at the agency.
In fiscal year 2018, the data about which was just posted on our website last week, you can see that we filed 199 lawsuits under the various EEO laws that we enforce in that fiscal year 2018. 84 of those lawsuits were on the ADA. We also filed 29 amicus briefs, friends of the court briefs on a range of EEO topics. Some of these were systemic lawsuits that challenge across the board employer policies or practices and some of them were on behalf of individuals who allege discrimination.
Also in fiscal year 2018 just looking at the charge data on the private sector on state and local government side we receive of the 75,000 or so charges of discrimination we received about 32% of those had ADA claims included. I also wanted to mention two quick regulatory developments or notes before we dive into the questions for today. The first regulatory sort of status report relates to affirmative action on behalf of individuals with disabilities.
Many of you may know that EEOC issued a regulation in 2017, early 2017 that requires all federal agencies in their role as model employers under the Rehabilitation Act which is the federal government equivalent of the ADA to do more in their affirmative hiring of people with disabilities, and specifically the agencies as employers now have, all have a goal of employing at least 12% individuals with disabilities and 2% individuals with targeted disabilities.
The severe conditions like deafness, blindness, missing limbs, paraplegia or other disabilities that have historically been a barrier to employment. Agencies are striving to meet these goals and at the latest snapshot EEOC led the way with about 22% individuals with disabilities in our employ, and over 4% individuals with targeted disabilities, but the overall federal government average is less than that and we are helping agencies with new affirmative actionobligations. EEOC published a samplescheduled action plans for them that give a lot of concrete details for how to guide, recruitment and advancement and retention efforts.
We gave written feedback to all the agencies on their draft affirmative action plans and we issued a question and answer guide on the new requirement for federal agencies that as part of this special model employer obligation that agencies provide personal assistance services on the jobs for qualified individuals with disabilities. I should also note that private employers have always been permitted, but not required under the ADA to engage in affirmative action based on disability. So it's different than race and sex where there are special legal rules if an employer were to seek to engage in any type of affirmative action.
Congress when they enacted the ADA amendments act sought to clarify that private employers are free to engage in affirmative action on behalf of disability by putting a provision right in the law that says that and individual who does not have a disability cannot bring a discrimination claim saying they were disfavored in favor of someone who does have a disability. And we continue to look for ways to assure private employers that they are free to engage in affirmative hiring and promotion without running afoul of the EEO laws with respect to disability if they seek to do so.
And we have issues of some informal discussion letters through our office of legal counsel on this topic to explain the legal basis for this for private employers and if anyone is interested in those, you can contact me. The other quick regulatory update I just wanted to mention, if some of you may have followed the story of EEOC's regulation on wellness programs. Some employers have wellness programs that involve disability related inquiries or medical exams.
For example, fill out a health risk assessment or get your blood pressure checked or other, your blood sugar checked, other types of inquiries or medical exams that implicate the ADA, or some that ask for spousal health information which would implicate the genetic information non-discrimination act. And because under the ADA participation in wellness programs must be voluntary, employers have long asked the EEOC, well, how great an incentive can we offer without running afoul of that rule of that participation to be voluntary?
In other words, at what point is there a point at which the incentives we offered our employees to participate in our wellness programs would be so great that effectively participation would be rendered involuntary. And EEOC in 2016 issued a regulation that set a certain percentages that would be, of incentive that would be permissible. AARP challenged that regulation and ultimately successfully obtained a court ruling vacating that incentive, specific incentives portion of the regulation. So that was rescinded in December and effective January of 2019 that rescission isformally in effect. But, we do still have the ADA and GINA rules in place for wellness programs just without those specific incentive portions.
So there are for those of you who may be involved in designing employer wellness programs, still the other rules in place that participation must be voluntary, you can't coerce participation by employees or take adverse action against those who refuse to participate where medical information is going to be asked for as part of the program. You have to keep the information confidential that you do obtain, and other requirements.
If anyone is involved in design of these programs and has follow-up questions, again, feel free to contact me off line. As Peter mentioned, there is a handout, and well be referencing some of the cases that are summarized in there today. I tried to give you cases I summarized in the handout as flavor for the kinds of issues that EEOC has been litigating over the past year or two.
A particular, a couple of trends there that I will just mention. On pages 3 and 4 you will see an awful lot of cases that EEOC has brought and settled or successfully resolved involving 100% healed policies. Those are policies where an employer requires that somebody be completely free of medical restrictions before they are allowed to return to work following a medical leave. And many times an employee may have medical restrictions or limitations but with or without accommodation they would be qualified to return to work, and it violates the ADA to require that somebody who could be working who is qualified to work be 100% healed or 100% restriction free as a condition of returning to work.
So you see an awful lot of those cases. Those examples are on pages 3 and 4 in the handout. On pages 4 and 5 and 6 and 7 of the be handout, you will see a number of cases where the employer or the employer's hired doctor assumed that because of an applicant or employee's impairment or diagnosis that they were not qualified to perform a particular job, just made that leap or lurch from the fact of diagnosis to the conclusion that they are not qualified or that they pose a direct threat to safety, that they couldn't perform the essential functions or that they posed a significant safety risk without doing that individualized assessment that would be necessary because some folks with a particular condition may be able to perform those functions and do so safely. Others may not, and you have to look at specifics of the individual employers or their doctor cannot make that decision just of fitness and safety just based on the fact of what the diagnosis is.
Next sort of trend or mini trend, pages 10 and 11 you will see an awful lot of cases we have brought involving denial of sign language interpreters for those who are hearing impaired and need an interpreter or video remote interpreting services VRI, and also a case noted in the footnote there about making materials available in an accessible format in advance of the meeting so that the individual can participate in the meeting, not simply get the information after the fact.
A lot of these cases involve applicants who qualify for an interview on line and then the in person interview when the employer discovered they were hearing impaired, the employer terminated the application process. Some of them involved long-term employees who the employer was simply failing notwithstanding their request, to provide sign language interpreters for staff meetings or other group, usually staff meetings or training purposes.
So those are interesting to look at and we just see more and more of those all of the time. On pages 13-15 lastly I will note a lot of cases you will see they're involving employer no fault leave policies that were found to violate the ADA as applied to individuals with disabilities. A no fault leave policy is where an employer has a policy or rule that if you are absent for six months or you have a total of six months or a certain amount of absence, you are automatically terminated, and while an employer is permitted to have such a rule, if it's applied to an individual with a disability who needs the additional leave due to the disability, you had to have gone through that reasonable accommodation process to see whether it would have posed an undue hardship to grant the additional leave as an accommodation.
So those no fault leave policies improperly apply to the leave as an ADA accommodation for an individual with a disability if it would not be an unduehardship was really tripping up employers so a bunch of examples of thoseon pages 13-15 in the handout. And there are many additional topics in the handout as well. We will touch on the issues as we go through and your answer questions. Peter.
All right. Thank you for that overview Jeanne. Appreciated. Let's go to the questions. Just as a reminder for folks on the webinar, you can continue to submit your questions in the chat area. First question that we had, Jeanne, is extreme sensitivity to chemical scents such as perfumes, colognes body washes for someone with asthma condition that is covered by the ADA.
Well, asthma is an impairment, a physical impairment, and depending on an individualized assessment of the person's restrictions, yes, it may be a disability covered by the ADA. If the asthma substantially limits a major life activity such as respiratory function or breathing. Remember, when you determine if a condition substantially limited a major life activity, you look at the person's underlying condition without the benefit of mitigating measures they might use such as medication. So if someone uses a rescue inhaler or nebulizer or other medication, for example, for the asthma, you would look at whether they are substantially limited in breathing or respiratory functions or other major life activities without the benefit of those medications.
And then also if it's an episodic condition which asthma can be, then you consider if it is substantially limited when active, when the asthma attack is occurring or the breathing limitations are occurring. There are three cases involving asthma or one of them is COPD and one is asthma, one is COPD and one is extreme chemical or fragrance sensitivity. Those are on pages 12 and 13 of the handout. The merit hospitality case on page 12 involves a failure to accommodate an employee with asthma who sought ventilation and certain other accommodations.
There is a case on the top of page, the bottom of 12 and top of 13EEOC versus inside up that involved someone with COPD who wanted to have their office moved to an empty office that would allow them to be on the first floor and not have to take the stairs. And on page 13, the OMG case, this like a few in this handout, is one that is not a lawsuit that EEOC filed against a private sector employer, but rather an EEOC decision in a federal sector administrative claim, and in that OMG case on page 13 the individual had this extreme chemical sensitivity, and the EEOC noted that an entirely fragrance free environment is not reasonable, but that there was a lot that the employer could do by way of accommodation nevertheless and did do in this case.
They moved the person's work station away from other employees and customers close to window that had ventilation. They allowed the use of fans and a mask. The employer sent a generic statement to all employees, all staff reminding them, not identifying the claimant here, but simply reminding everybody concerning refraining from use of fragrances in the workplace lest it aggravate chemical sensitivity, prohibiting staff from spraying perfumes or hair sprays while in the work area, and the employer also changed the cleaning solutions that were used in the facility to have, use a type that does not trigger these types of chemical sensitivity reactions. So there are steps that an employer can take even recognizing that an entirely fragrance free environment is not necessarily achievable or reasonable.
So important to look at what you can do if issues like this come up and the individual does have a disability. Peter?
Yes, those are great points because we do get that question often from people with multiple chemical sensitivities, you know, what is the obligation of the employer to what extent. So those are great ideas that employers can take on their own, you know, without having to implement 100% fragrance free policy. Our next question in the federal sector, so this question is do federal agencies, are federal agencies required to accommodate government contractors in the same way that they are required to provide civil servants with disabilities?
Oh, ok. So this is an interesting question. It's background, the federal EEO laws only apply to employees not to independent contractors or partners, but whether a particular worker is legally considered an employee as opposed to a contractor is not determined by what they are called in their employment documents or what the employer has named them, but rather the facts surrounding their work relationship with the employer. So EEOC and the courts, if there is a question about whether someone is an employee who is, therefore, covered under the EEO laws, look at whether the employer controls the means and manner of this worker's work performance so they look at, you know, who decides when, where and how the worker performs the job? Who furnishes the materials and equipment? Who pays them? Is the work done on the employer's premises? These are just a few examples.
Are they paid by the hour or the week or the month rather than an agreed set total cost for performing a particular job? Are benefits provided? Is there withholding? All kinds of tax withholding, all kinds of facts like that to determine what is this person really under the control of this employer in which, in terms of how they do the work in which case they are considered an employee even if they are called a contractor.
And if they are an employee under this test, then they are covered by the EEO laws. There is an important caveat with respect to disability discrimination though and accommodation that I want to mention. And that is that even if you go through this analysis and somebody you conclude is an independent contractor rather than an employee legally, an independent contractor or federal contractor who is deemed an independent contractor still has two possible routes to go to argue that they have a right to disability non-discrimination and reasonable accommodation.
The first is that there may be a joint employment relationship between, for example, the placement agency that em employees the contractor and the federal agency where they have been placed and do their work. And in which case those would be consider -- both would be considered a joint employment relationship. They are both employers.
Second, there may be a right through the placement agency, even if that's the employer rather than the government agency to have them intervene to advocate for or arrange even through different placement accommodation. And third, and this is very important, even if someone is actually a contractor and there is no employment relationship, a number of courts have held, and the courts are split on this, but a number of courts have held that under Section 504 of the Rehabilitation Act, which requires non-discrimination based on disability in federal programs and activities and entities receiving federal financial assistance, that that provision would apply.
We usually think of that as non-discrimination and accommodation of members of the public who have disabilities who may be coming in to use government programs or services. But a number of courts have held that that provision, Section 504 of the Rehabilitation Act, could also be invoked by federal contractors who can't otherwise show an employment relationship with the federal agency where they work in order to argue for accommodation.
There is a number of different legal ways to approach that, and if you are the person who asked that question, it would either be perspective employer or as the worker, you know, feel free to follow up with me if you want to talk about any specific procedural avenues.
Jeanne, I will ask you a follow-up question in the ADA realm with regards to private employers subject to the ADA that's using temporary employees, and the individual is an actual employee of the temp agency. In those types of scenarios, could you talk through, you know, the responsibility for providing who is responsible for providing that reasonable accommodation, when you have the employee, the individual is an employee of the temp agency but actually working at another employer's location?
Sure, so if they are an employee of the temp agency, we know the temp agency has obligations to assist them with accommodations. In those situations, though, where they are placed somewhere and there is an issue about the placement entity accommodating, often we look at, well, is the placement agency and the entity where the person is placed, whether it's a corporation or a government agency, are they joint employers? Maybe they both have an obligation because they share, and they both share in this manner and means of controlling the worker's work.
So there may be a joint employment relationship. So one, you know, may be -- either or both could be responsible under title 1 of the ADA, and if it's a government agency where the person is placed under section 501 of the Rehabilitation Act which has a parallel requirement to the government. I think an important practical point to keep in mind Peter, though about what you asked is that this type of situation where either or both might have an obligation, we often see each entity pointing to the other. Instead because they both could be liable if accommodation is improperly denied and they are joint employers, they should work it out between them, who is going to make actual arrangements for the accommodation, who is going to pay the cost? Maybe it's going to be split. These are the kinds of things that can be worked out in advance or it's a matter of principle, or with respect to a particular accommodation request.
Those are great points for employers that are in those situations. Those conversations really need to take place before there is an employee that has been placed that may need reasonable accommodation. And the EEOC has an excellent guidance document on temporary employee that you can find on the EEOC.gov.
Let me jump in there to emphasize that sometimes employers mistakenly think that because someone is a temporary employee or a part-time employee or a seasonal employ employee or a probationary employee that they are not covered by the EEO laws, but the EEO laws apply to all of those folks in the same way they would a full time or long-term employee as long that's the person is in the law an employee as we just discussed.
All right. Next question is does an employer have to consider accommodating an employee who cannot drive/commute to work when due to a disability when driving is not part of the essential functions of the job. So basically, What are the responsibilities of an employer when someone can't get to or from work.
Yes, that's a great question, and we get it often. Although an employer does not have to provide transportation as an accommodation if it doesn't provide transportation to other employees, the employer may in fact need to consider accommodations for someone whose disability interferes with commuting to work. For example, somebody may need telework, somebody might need a schedule change. Somebody might need transfer to an employer facility that's closer to their home if their disability restricts or impacts their ability to commute.
So the reason this is the case is that without even getting to whether driving is a major life activity, a disputed point among the courts, we don't need to go there. Often the employee will say, oh, the reason is I can't drive because of my medical condition, but when you unpack that accommodation request, you see that it's, they have an impairment that substantially limits a major life activity such as walking for more than a certain amount of time, standing for more than a certain amount of time, or sitting beyond a certain amount of time, and that's a major life activity at issue.
Remember also major bodily functions are major life activities under the ADA amendments act, so something like a musculoskeletal function could be the major life activity that is substantially limited. So you look at does the employee have a disability? Do they medically need the accommodation they have asked for, which might be things, as I said, like telework, a schedule change, a transfer to a facility closer to their home, and is it a reasonable accommodation that they are asking for feasible in the circumstances, and would it pose an undue hardship? That same analysis that you would do with any accommodation request. Peter?
Excellent. Great. Alright Jeanne, another question from a federal agency wanting to know what other responsibilities, liabilities to an employee who voluntarily violates medical restrictions of their physician and declines to consider alternatives offered by management which do fit into the employee's restrictions?
I don't think an employer under the Rehab Act or ADA has to allow an employee to violate medical restrictions that have been imposed by the employee's doctor, but as a practical matter what I would do in this situation if I was the employer who had received medical restrictions, put accommodations in place and then see that the employee is not abiding by the restrictions, is I would clarify with the employee and with their doctor whether the restrictions still apply. Maybe it turns out they are only needed when pain flares up or maybe they have ceased to be needed at all. Or maybe they have been modified in some way. And the employer is certainly entitled to obtain information about what the current state of the restrictions is and have that dialogue with the employee and his doctor about what the restrictions are now, and about management's proposed accommodations that they have suggested.
So, you know, you could certainly speak with the doctor about did you revoke the restrictions and if so when and why? What changed to justify the removal. If you did not revote the restriction, why do you think, is it still appropriate? Does it need to be in place? Here is what the employee has the tasks that he has been engaging in or she has been engaging in that appear to us to be in violation of the restrictions? Is there a medical problem with that? So you simply describe what task the employee is performing and ask the doctor whether this is allowed or not under the current restrictions.
So it may be a question of updating, clarifying, and then you can go from there. Ultimately, if the doctor says no, they are not allowed to be doing that, I don't think the employer has to allow an employee to violate medical restrictions that their doctor has imposed and has said, yes, are current and ineffect. So I think you would be permitted to rely on what the doctor, what the person's own treating physician said in terms of what tasks they are qualified to do?
Great. And now we have gotten to the moment where we receive the greatest number of questions, service, comfort, emotional support animals in the workplace. So let's start out with this one, very specific question, is a private non-profit employer required to allow a service animal into the workplace that assists somebody with a mobility disability?
So private non-profit employer. Non-profit or for profit employers are covered by the ADA in the same way as any other private employer. As long as they have 15 or more employees combining all locations, they are subject to title 1 of the ADA. And parallel provisions would apply for federal agency employers under section 501 of the Rehab Act. So, yes, making an exemption to the no animals rule could be a reasonable accommodation for an employee if they are an individual with a disability and if they need the accommodation they are requesting, medically need it. And assuming it does not pose an undo hardship.
And I have included on page 2 of the handout some publications to guide you on service animals and the ADA. First, you will see on page 2 with respect to employment, animals that someone seeks to bring into the workplace as an accommodation is a publication from the Job Accommodation Network, I will give you the link on the website that kind of walks you through the process as an employer.
And the second are two publications from, with respect to the non-employment situation, so members of the public who are coming in to access a government program or services or a private what we call a public accommodation under title 3 of the ADA, a theater, hotel, business office, retail shop, whatever it might be, movie theater. These are public accommodations, and the rules are different, whether it's an employer employment situation or non-employment situation when it comes to service animals.
Under title 1 of the ADA, you handle this as you would any other accommodation requests, which means you are allowed to verify, get basic information if it's not obvious or already known that the person is an individual with a disability, and that they do need the accommodation requested, and that this, you know, is feasible, would be effective. All of the usual things you would look at.
And with respect to non-employment situations, members of the public coming into to access your service or program, there there are more restrictions because the Department of Justice which enforces title 3 of the ADA has said that only certain animals usually dogs, are permitted as service animals under title 3, and there are severe limits on what type of confirmation or information the business owner or program runner can ask for because usually we are talking about one off transactions as opposed to an ongoing relationship with an employee.
So the rules are different. So you would want to consult these different publications in the different situations of employment versus non-employment. I have also included a couple of cases on service animals that have come up recently, and if you -- I will just direct your attention to them so you can take this into account if you have this issue come up. The first is EEOC versus CRST, and these are on page 15 of the handout, is a case involving a applicant for a driving position, truck driving position who used a service dog and he sought the accommodation of allowing the dog to accompany him in the cab of the truck, and the employer refused to hire him on that basis, even though he had met all of the requirements and, you know, they had already wise told him he would be hired but they could not permit the dog.
He used the dog, as I said, to perform certain tasks for him related to symptoms of PTSD and he successfully settled that case on his behalf. The other case I want to mention is noted on page 15 at the bottom in the foot note, it's called Malvac versus City of Fairfax by JudgeEllisas the trial came in Virginia, and it's a very interesting decision that lays out the fact that althoughthe Department of Justice has said under title 3 of the ADA dealing with members of the public that only service animals, animals trained to perform a task and limited generally to dogs are coveredor allowed or required under Title III of the ADA, the EEOChas not spoken to those kind of limitations whether they exist or not or what they would be under Title I of the ADA.
He lays this out in a decision and says, therefore, that a request to bring an animal into the workplace by an employee, whether it is as, whether it's a service animal trained to perform a task or an emotional support animal that you treat it like any other accommodation request. And looking at whether the person has a disability, whether they medically need the accommodation requested, you can keep supporting medical information if it's not obvious, and then looking at whether it's feasible and whether reasonable accommodation under the circumstances and whether it would suppose an undue hardship.
In this Malvac versus City of Fairfax case, the individual sought to bring an emotional support animal into the workplace, it was a dog, and Mr. B, and the individual worked, the employee worked in an emergency operations center, sort of in a closed environment. There was no way to have him work in an alternative environment. This was a city emergency preyings command center -- commands center with all of the specialized equipment where you worked with the equipment and other employees doing the emergency operations.
So ultimately it was determined for three reasons that they allowed him to bring the dog in but based on the facts the employer conclude today would be an undue hardship to continue to allow it and the court agreed. The three reasons were first of all that the dog shed a lot, and there were allergic employees and the employee whose dog it was did not clean up adequately after the dog in terms of the shedding that was all over that was causing the allergic reaction of the other employees.
And the court said very specifically that you would rarely have the allergy of others, that would never be a defense in one of these title 3 cases where people, members of the public are coming in to a public accommodation, like a theater or a hotel or a restaurant or movie theater because you wouldn't even know who the other people were going to be, it wouldn't be enclosed in the same way. So an employment situation was unique in that way.
And they found that because it was an emergency command center, there weren't other ways to handle that kind of conflict between one employee needing a service animal to be present and another employee who might have a severe allergy to this animal. Lots of times there are ways to handle that where one person participates in staff meeting by conference call and the other by, in person, and they take turns who is go going to attend in person, different paths of entry and exit to the workplace.
This particular workplace, looking at the facts of the workplace did not lend itself to that because as I said, it was an emergency command center. It wasn't like they could build a separate one or have someone work, one of the people work at a separate location or take turns doing so. The second reason why they found it would be undue hardship is that when the person whose dog, the employee whose dog it was took the dog to outside to relieve itself which required taking more than the usual breaks, he left the command center staffed by somebody who was not qualified to do so. So he didn't arrange appropriate coverage or there was not appropriate coverage possible by qualified employees.
So that was obviously dangerous. And additionally, the court found that there were other aspects of having this dog in the workplace that presented a significant difficulty. So remember, undue hardship can be based not only on expense but significant difficulty impacting the operations of the business. So these are, you know, things to take into account. It's interesting that the employer allowed it at first, and sort of like we always say a trial period can be a good way to find out if an accommodation would pose an undue hardship, and in this instance, the employer could do what it did and the court agreed. Peter.
Great. And the next question is will the EEOC be issuing any guidance on comfort therapeutic or emotional support animals?
I cannot predict. I would recommend that Job Accommodation Network publication that I have linked on page 2 of the handout. I think that walks you through what the analysis would be pretty straight forwardly as we have, you know, currently we don't have something specifically under Title I either in the regulations or the guidance that addresses comfort or emotional support animals as distinct from service animals or what type of animals. So it's all just sought by employers typically under title 1 just like judge Ellis explained in the Malvec case to be an accommodation analyzed as any other accommodation request would be as an scoaption exception to your no animals policy and go through the steps of the analysis.
Great, and then a question came in that you touched on bh you were talking Mr. the second case involving service animals. But, if you could explain a little bit more where you have potentially a competing accommodation need. So two employees with disabilities, and this specific question was when you have one employee that uses a service animal and you have another employee that has allergies and the question is who takes priorities.
Right, so fifty would like at whether there was a way to accommodate both. I mentioned the example of if they have separate offices that they need to come to staff meetings in the same room, they might be able to take turns to who attends in person and who attends by conference call. You might be able to arrange separate pathways that each take into and out of the office building so that the person with the severe allergy is not walking in the same hallways that the service animal has traversed.
If you cannot accommodate those, although I know of no case law on this, I do know some employers as a practical matter have treated it the same as other accommodations that you were able to provide to some people but then at a certain point you had none left. So, you know, they do sort of a, I wouldn't say first come first served but the idea that you were able to accommodate the first person, the second person, the third person you couldn't because you had these other accommodations in place that you couldn't remove. So that could be a way of approaching it if you have, for example, you have already allowed the accommodation of the service animal to be present. There is no way that you can figure out to also accommodate somebody who has a conflicting accommodation made such as the severe allergy of the service animal.
You may, you know, you might end up or at least some employers have in that situation said, well, whichever was in place first, they said I'm going to keep that in place and then it's an undue hardship to accommodate the second person because I have the accommodation in place that I have already granted.
However, I would caution you that more often than not I would think there may be a way to accommodate both and I gave some examples of that, and I would look into that, explore it, work with Job Accommodation Network before concluding it wasn't possible.
And next question I'm going to go to the question on leave. So a person is asking, is saying they are unclear on what constitutes leave under the ADA, and they are asking are they required to use earned personal time in order to go to medical appointments or counseling appointments?
Yes. Leave under the ADA as an accommodation only comes into play where the employee cannot have what they otherwise need, the time off they otherwise need related to their disability. So if the employee has accrued sick leave or vacation leave or personal time off, days that the employer would allow them to use, they would use those first. The accommodation, if you will, is only if it is allowing the employee to do something that they would not otherwise be entitled to.
So if an employer has a restriction, for example, that you can only use three vacation days a month and the person needs additional use of that accrued leave in order to go to disability related appointments or treatments or time off for recuperation, the accommodation might be using more of the accrued leave than you would normally be allowed to use or use it in a different way or time frame than is normally permitted.
. Or accommodation is you have run out of leave.
You have used up all of your sick leave and vacation time and other accrued time that the employer normally allows people to take off and you may not be eligible for FMLA or you have used all of that up, and then that's when ADA comes into play as unpaid leave additional leave, unpaid, if it's still needed as a disability accommodation if it does not pose undue hardship.
So bottom line, yes, the employer can say ADA does not even come into play. You still have sick leave, vacation time, personal days off that you are allotted. You will use those. Then we get to ADA accommodation of unpaid leave if it's not an undue hardship if you have run out of the other leave you are otherwise allowed to use.
Great. And the EEOC has a document on employer-provided leave which is an excellent document.
Yes, and the link to that is on page 2 where the selective resources are listed, employer provided leave and the ADA and that will walk you through the whole thing.
Could you just quickly mention where employers run into issues with their leave policies where, you know, return to work after a particular number of days or you are terminated or where those policies run afoul of the ADA?
I'm sorry, could you clarify?
Where employers can potentially get in trouble with leave policies where they have a requirement that different employees aren't able to return after a certain date, they are automatically, the employee is automatically terminated or let go.
Sure. Those are the no fault leave policies I mentioned earlier, and you can have those, but if, for example, it says after three months or a certain number of absences could even be ten absences, whatever the employer's policy says, if the employee is terminated, it may be that you just go ahead with the termination because the tenth or eleventh whatever it might be, the one that breaks the Camel's back and puts the employee over the limit is not disability-related. They were taking off for a non-medical reason, then you just go ahead and apply the policy, but supervisors and managers on the front line need to know that they might need to make an exception to that policy and grant additional unpaid leave if as an ADA accommodation if the additional leave is needed due to a disability.
And, again, that could be for treatment, it could be for recuperation, it could be because symptoms have arisen. It could be intermittent. It could be long term. The issue there is whether it would be an undue hardship, and that is determined based on not only the lengthable or frequency needed as an ADA accommodation, but also the type of position and all of the surrounding facts.
So recently there was a court case in which an employer successfully argued that allowing the four months of additional unpaid leave that the employee needed for rerecuperation due to their disability was undue hardship because of the specialized training as a nurse in a specialized unit, and the specialized training that was required to work there, the skills you had to and training you had to possess in order to be hired an the training on site on boarding the that you needed to receive meant that the employer could not get somebody on a temporary basis.
Sometimes it is the case that the less training or specialized skill that the job requires, the more likely it might be that the employer can hire someone else on a temporary basis while this individual is out on long-term leave. So the impact on the employer's operation, the ability to otherwise either hire someone on a temporary basis or otherwise get the work done are relevant facts in determining whether it's an undue hardship. So you just need the front line managers and supervisors to know that if there is one of these no fault lead policies in place, they can't just woodenly apply it. In the case of someone who needs more leave for a medical reason, they should know somebody in HR or central person who is trained in this who they can phone home to in order to assess whether accommodation needs to be provided and can be provided without an undo hardship, an exception to the no fault lead policy.
Ok great Jeanne. What are the potential ADA issues employers should be considered when sending an employee out for a fitness for duty evaluation?
Okay. So the first thing that you want to be aware of is do you have a legal basis for sending the employee for a fitness for duty evaluation. You can't just send any employee for any reason. The ADA rules on disability-related inquiries and medical exams require that if you are going to ask a current employee to bring in fitness for duty information from their own treating physician or ask them to go to a medical exam by the employer's own selected physician, contract physician, then the employer has to have a reasonable belief based on objective evidence that due to a medical condition, the employee may not be able to perform the essential functions or may pose a direct threat to the health and safety of themselves or others. Otherwise if you don't have that predicate, the exam itself can violate the ADA. The second thing to have in mind if you do have the appropriate basis for sending the person for an exam, you do have a reasonable belief that due to a medical condition they may not be able to perform the essential functions or may pose a direct threat to safety, you have to make sure that the doctor who is doing the evaluation has the relevant information about the job tasks, and that they consider if it's your own physician who you selected for this fitness for duty exam, that they consider any contrary information from the employee's treating physician.
So your fitness for duty doctor who the employer picks is free to circle back to the treating physician to discuss if they have reached a contrary conclusion, and see if there is any explanation for the difference, if there have been facts or factors that have been overlooked or can be explained. And there is no micro management under the ADA of that interaction between the doctors and fact finding and it can in fact be a very useful thing too make sure your fitness for duty doctor has a solid basis for their conclusion rather than just ignoring any contrary conclusion by the employee's own treating physician that may have already been provided.
Alright great, Thanks, Jeanne. A specific question that is chock-full of different things. Here if an employee is on crutches and is a sift risk on the factory floor and there are no accommodations that can be made without posing an undue hardship, can the employer terminate the employee, and the last piece of it, and the employee is still in a probationary period.
Ok so rememberI said earlier the fact that the employers and the probationary period does not, is not relevant for purposes whether you determine that they are qualified whether they are entitled to accommodation, whether it would propose an undue hardship. In other words, you don't get a free pass on meeting the ADA obligations for an employee simply because they are probationary. The only wrinkle on that is if you are looking at reassigning them. They have to have worked long enough and satisfactory enough in the position they work in in order to have been qualified in the original supposition before you can look at reassignment, but otherwise you treat the probationary employee the same as you would any other employee in looking at another ADA situation.
In this questions not clear whether the employer's concern is due to being on crutches and having this mobility impairment that the individual can't work on the job site, can safely perform their tasks on the factory floor or whether the issue is that a concern on the part of the employer that they would pose a direct threat to safety because in the event of emergency evacuation they would have slower mobility getting out. There have been a number of cases like that.
In either event, whether you are concerned as the employer is it's not safe for them to be on the factory floor on crutches doing their tasks or whether your concern is it's not safe for them to be in this work environment on crutches because they would not be able to safely evacuate, you have to be careful no matter what not to assume that the direct threat standard is satisfied. Remember, you have to have a significant risk of substantial harm based on an individualized assessment of that person's restrictions and abilities in order to satisfy that direct threat standard.
So it's really important to consider if there is some safety risk or potential safety risk whether you are making some kind of assumption, and if not, whether there is a way that whatever safety risk there is can be reduced to an acceptable level by an accommodation. That might be an accommodation that relates to where they stand, how equipment is arranged around them, arrangements that are made to assist with emergency evacuation or any one of many other possibilities.
Now, if there truly is a direct threat in a situation and there is no accommodation possible that would lower it to an acceptable level of risk then you have to consider if it's worth terminating the person. Could they be reassigned to a vacant position for which they are qualified? That's the usual rule and as I mentioned since you mentioned this employee is probation air that assignment rule was kick in only if they satisfactorily performed in the position that they are in.
Thanks. All right. Our next question goes to the what type of accommodations would an employer need to provide to an employee with care giving responsibilities?
Oh, none. There are no such accommodations required by the ADA. Even if the child or parent has a disability, under the ADA, disability accommodation by employers is only required for the applicant or employee who themselves has a disability. The ADA does have a provision that prohibits discrimination based on association with the person with a disability, but that provision is limited to prohibiting dispatreatment or harassment of a worker based on his association with the person with the disability, such as having a child with a disability.
And that provision does not require any accommodation of an employee to assist someone else who has a disability, such as helping, time off or schedule change or telework because it needs to help a child or a parent or spouse with a disability. The ADA does not require that. FMLA may in fact come into play, but the ADA does not.
Thanks. Let's go to our question about documentation. So an individual stated that misinformation about what type of documentation an employer can require as part of the reasonable accommodation process.
Well, it's a basic rule, if the disability or the need foraccommodation is obvious or already known, then the employer can ask for reasonable documentation about the person's disability and their functional limitations and what accommodation they need and how long they will need it for and so on. The employer is entitled to know, in other words, that the individual has an impairment that substantially limits major life activity, that they meet that legal definition of disability which, remember, it is much, much easier after the ADA amendments act, and that they need the accommodation they have requested.
In addition, you can certainly seek clarification. There is this process of obtaining and assessing information in support of the accommodation request is not micro managed like with the FMLA where there is very choreographed process where the employer can only have a certain form filled out and get one second opinion, the ADA is very different.
You can either explain to the employee what information you need, bring the information from your treating physician that tells me what medical condition you have, and what the limitations are that need to be accommodated, and what accommodations you need and how long you will need them for and so on. Or you can ask the employee to sign a limited release that would allow you to communicate directly with the doctor by letter, snail mail, phone or email to obtain this information directly from the doctor.
Similarly, you might receive information from the doctor and want to do follow-up clarification of unclear statements, additional questions, for example, gee, doctor, I see you have suggested this accommodation. Would this other one meet their medical restrictions? And because there is something else you would prefer to do as an accommodation? Remember the employer has the discretion to choose among effective accommodations so if the employee wants, you know, the Mercedes Benz of accommodations of ergonomic chairs but there is a Ford escort version of theergonomic chair that the doctor says will meet their medical restrictions, the employer free to buythe cheaper one or itprovides the cheaper one or it might be that there is a different typeof accommodation. The employee asks for telework and the employer asks the doctor, well, if we change their schedule in this way, would that accommodate them. Or some other alternative under that. So you are free tohave that interchange with employee and or their physician.
Sometimes right at the outset you know you need clarification or additional information because accommodation request from the employee comes in the form of or is accompanied by them providing a doctor's prescription that says, has depression needs schedule change to X hours, well you don't knowfrom that if they have a substantially limiting impairment or what the connection is between whatever limitations they have and the requested schedule change to determine if they in fact need it, how long they will need it for.
So these are all things that you can ask about. Both for purposes of coming up with the right accommodation, and for purposing of determining whether a specific thing they have asked for could be pose as an undue hardship and if there is an alternative.
I should mention finally that sometimes the employee knows exactly what they want. They have an idea of how they can be accommodated. Order this particular type of equipment or I need this particular schedule change, but and you can consider whether that's something you can provide or whether there is an alternative that's effective that I want to provide instead, whether, you know, it would pose an undue hardship or not, but sometimes the employee does not know what the answer would be.
They only know what the problem is that needs to be aaccommodated. And in that situation, it's the employer's obligation to look at whether there is some accommodation solution that you can come up with talking with the employee, their doctor, Job Accommodation Network, other employees who have similar setup may have and work with work descriptions to similar positions may have member with the same functional limitations who has requested accommodation. So all of these kinds of sources of information that you might explore to figure out how can this person be accommodated? Is there a way to accommodate them if the employee themselves doesn't know, does not know what the accommodation solution would be.
But what you do not want to do is just dismiss a request out of hand without going through this process. If the employee asks for something that legally you know you are not required to provide, for example, employee asks to have a poor performance excused or their evaluation performance appraisal waived or to do less work than you uniformly require people in that position, for example. You know that lowering performance or production standards that are uniformly applied is not required as an accommodation.
But if the employee has asked that you do that as an accommodation for a disability, while you don't have to provide that, you do have an obligation, you are on notice of the need for accommodation and so you need to look at whether there is something else you can offer as an accommodation. You can't simply say no because the particular thing they have requested is legally something you have determined you don't have to provide.
You need to go through that process and see is there something you can offer as a reasonable accommodation. Peter?
All right. Jean. E, still on documentation, what types of professionals are able to verify or document that an employee has a disability? I guess turned around, from whom do employers need to accept documentation establishing that an employee has a disability?
It needs to be the appropriate professional. In other words, if you have a heart problem, it can't be from the dentist. It has to be the appropriate professional who has the, you know, is in the appropriate discipline to the particular situation and can speak to the type of functional limitations you have and is able to diagnose that type of condition.
So, you know, I mean it's different in different cases. Sometimes it's a medical doctor. Sometimes it's a psychologist, nurse, could be a physical therapist, could be an occupational therapist writing to say these are the -- this is the course of treatment and the appointment schedule that the person has been prescribed. It could be a speech therapist, Voc Rehab specialist, any kind of licensed mental health professional like a licensed clinical social worker, certainly seen cases with all of those types of medical care providers providing relevant documentation.
Thanks. Another question federal agency, is it legal to require employees to use accumulated sick and vacation time, comp time before allowing them to use unpaid time for an ADA accommodation?
Yes. I think we had this question earlier, and I will just go through it again in a nutshell. The ADA or title 1 of the ADA or section 501 of the Rehab Act for federal government employees either comes into play unless the employee can't have what they need under the employer's existing policies. So if I come to my boss and I say I need six weeks off for hernia surgery and, you know, recuperation or cancer surgery and recuperation. That is an accommodation request. I have asked for something because of a medical condition. Legally it leads to requirements of an accommodation request, but my boss does not have to go through any type of reasonable accommodation process because, guess what, if I have six weeks of vacation leave or accrued sick leave or, you know, a combination of the two that I could use to get the time off that I need due to the disability, all he has to do is approve it, approve the accrued leave.
Where the ADA comes into play is where the person is out of the accrued leave and that's what the accommodation is, the accommodation is an exception or doing something different than what you would ordinarily do. So if ordinarily people can use their leave. So ADA doesn't come into play. If they are out of leave or they need to use leave differently than would otherwise be allowed. I gave the example earlier of you are only allowed to use three days a month. It turns out the person needs 12 days because of the disability.
That would be an accommodation to allow them absent undue hardship to use the 12 days that are accrued. But other wise, the employer simply allows you to use your accrued leave as they ordinarily would and accommodation, the accommodation obligation does not kick in or apply until you need something different than what would otherwise normally be available, which is, in other words, you are out of leave and you need additional unpaid leave as a disability accommodation if it does not pose an undue hardship. So, yes, the employer can require that you use your accrued leave, vacation, sick, personal days or whatever, before you get to the issue of unpaid leave as a disability accommodation.
Great, thanks, Jeanne. Down to the last question. In the issue of medicinal marijuana, how is the EEOC dealing with potential discrimination where someone under state law is using medicinal marijuana but may test positive through an employer drug test and face some type of disciplinary action.
The EEOC hasn't phone to this but the ADA law does, and a number of court cases have come up interpreting this. The ADA in the statute says that the disability can never be, you don't, you can't be this an individual with a disability based on current illegal use of drugs. And illegal use in the ADA is defined under federal law, the federal controlled substances act, which makes marijuana use illegal -- marijuana use illegal, even though there are many states that have legalized marijuana for medicinal purposes or in some states for recreational purposes, it is still illegal under federal law.
And the ADA, the federal ADA defines current illegal use by reference to a federal controlled substances act. So bottom line, there can be no federal ADA claim based of disability based on marijuana use, and that would include, you know, where an employee tests positive even because it's medical marijuana use that was lawful in the state where they live. They don't have an ADA claim.
However, important caveat, a number of states, and I have cited to some of the relevant court cases in my handout Page 8, pages 8 and 9, the foot note, a number of states either by a specific state statute that has been adopted or by court decisions interpreting the state statutes that have legalized marijuana use in that state at the state level, a number of these states have said that employees in that state where they are using lawfully understate law have certain non-discrimination protection under the state law for marijuana use if it's, you know, use is legal in that state. So it's important that you check your state law.
Now, typically those states are still not, those states still allow employers to require workers, you know, not to be under the influence at work, and not to use at work, but the protections would come into play if that was not, it wasn't being under the influence at work or using at work and it was otherwise a positive test result. There could be state law protections against discrimination. So it is critical if you are talking about marijuana to even though the ADA would not provide any protection, to look at what the state, applicable state law is in your jurisdiction with respect to employment non-discrimination based on marijuana use.
Again, I have given you examples of some of these state law court cases on pages 8 and 9. Peter, I want to add in one other point, very important that I deal with on page 9 of my handout, which is that there are other controlled substances that come up in employer drug tests or that the employer simply becomes aware an individual is using, other drugs that the employer might be tempted to think of in the same way as marijuana but that the law treats differently.
Remember I said that the ADA does not allow someone to be considered an individual with a disability based on their current illegal use of drugs. Well, opioids and opioid treatment drugs, those drugs that are prescribed to treat people for opioid addiction and withdraw them like Sub oxone, these can be legally prescribed so you need to, under federal law, so the federal ADA, the federal law treats marijuana which is illegal under federal law differently than anything that is legally prescribed such as legally prescribed opioids, legally prescribed opioid addiction treatment drugs or anything else. They treat those legally prescribed drugs under the usual ADA rule that you need to look at even taking that medication, accepting that the person is taking it, legally prescribed, are they able to perform the essential functions of the job and do they pose a direct threat to health or safety? And that's obviously an individualized assessment. So on page 9 and going onto page 10, you will see a whole bunch of cases that the EEOC has settled in the past year involving employers who unlawfully invoke an employment offer based on -- revoke an employment offer finding out in the post offer exam that the employee was using legally prescribed opioids or legally prescribed opioid addiction treatment drugs or other medications.
And there was not, it was not the case that the individual was not qualified while taking the medication, not qualified to perform that job or pose a direct threat to safety or the employer just assumed it without doing that individualized assessment. So I hopethis helps you understand marijuana under federal ADA is treated differently thanfederally legallyprescribed drugs, and so you need to be alertto that and with respect marijuana while there’s no ADA protections, there could be state law employee protections that you need to take a look at. Peter?
Thanks for that distinction, Jeanne. The employer has a general policy that anyone that works from home must provide their own equipment, desk, light, and the question is would an employer have an obligation if providing work from home as a reasonable accommodation to provide equipment for the employee.
The EEOC has not addressed this. I have received this question from time to time. But EEOC has not addressed it in a policy guidance or administrative decision I'm aware of or staff level discussion letter even. I think that what I can say in this regard is that certainly as with any accommodation, any accommodation request as we have talked about, the employer is entitled to determine first of all that the person has a disability, and second of all needs the accommodation requested. I know that a number of employers have as a threshold matter in this type of fact pattern you described looked at whether the, you know, determined whether the employee actually has the need for that specialized or furniture or equipment or whatever it might be when they are teleworking.
In other words, they may already have it at home. Now, some people might not have the type of equipment that you are referring to because they aren't or they might not have the, because they might not have the occasion, for example, to sit straight for eight hours at a computer so, or there may be ergonomicor other furniture equipmentthat they don’t already possess at home,I know that’s something that a number of employers have looked at this that this is a threshold issuesince inallaccommodation requests, you can considerdoes the employeewith a disability, do they need the accommodation requested, but in terms of whether there is tell obligation assuming the other boxes are checked, requirementsare met to provide that at home, things like specialized furniture, we do not have a position that we’ve taken.
All right. Thank you very much, Jeanne. We are near the bottom of the hour so we are out of time. I want to thank you Jeanne for all of your time not just for the past 90 minutes or so that you spent with us but for your time preparing for today's session, and all of the great information that you provided in the resource handout that is very helpful.
Just as a quick reminder to today's session is being recorded and the audio archive will be available within 24 hours on the ADA audio website and the transcript will be available in a couple of weeks. As a reminder, we have our next ADA audio session coming up on May 21st. This is a follow-up to a session we did back in January on accommodating students in medical and health science programs. Lisa Makes from the University of Michigan will be joining us again and this will be an open question and answer session.
So we are accepting questions in advance for that session as well as following up on questions that were not answered during the January session. Again. Thank you very much to Jeanne Goldberg for her excellent presentation today. Thank you for joining us across the country. We look forward to you joining again in the future. Thank you, everyone, and good day.