So again, we are at the session of open dialogue with EEOC and our speaker today is Joyce Walker-Jones, senior attorney advisor with the office of legal counsel, counsel, with the U.S. Equal Employment Opportunity Commission otherwise referred to as the EEOC. At this time, I will be able to give you questions and I have someone asking me about captions. Captions are available. You have to open up the closed captioning, again the CC icon in the top of your screen, and the audio and video panel. That will open them for you. At this time, Joyce, I'm going to go ahead and turn over the session to you, and as I said earlier, folks, once we are ready to take questions, we will give you instructions again on how to submit questions to Joyce. Joyce, go ahead.
Good afternoon. Robin told me this is an informal session so there is no structured format. But I thought I would start off with telling you about some of our recent initiatives and publications, tell you about what we have in the pipeline, and then we have received, Robin did submit questions that people already submitted. I thought I would start with those questions first, which might be a segway to other questions that people have along similar lines.
So, if any of you follow our website, you probably are aware of a lot of what I'm going to say, because any time we have a meeting or issue a new publication, first we issue a news release, and those are available on our website, and if there are any publications those are also available on our website, EEOC.gov and it's on our disability page, for everything that relates to the ADA.
We launched a new direct video access service that will enable individuals who are deaf and hard-of-hearing and whose primary language is American Sign Language to communicate directly with agency staff about issues with discrimination they may be facing. The way this works is that an intake rep who is fluent in ASL will answer questions and guide the process using video phones. This will be huge in terms of eliminating barriers for people who are deaf or hard-of-hearing, and who are facing discrimination and want to know about getting the process started. We have been holding a series of public meetings with our select task force on workplace harassment. We held one recently where a panel of experts emphasize that the basis of harassment extends beyond sex and race to include disability. That is really important. A lot of people only think about sexual harassment or harassment based on national origin, protected basis under title 7. But we are seeing more instances of people alleging harassment based on disability. Usually these are disabilities that are visible disabilities. But we have had some charges based on the people feel they are harassed on, because of mental impairment.
We recently issued two publications on the right of job applicants and employees who have HIV. This is part of the White House national HIV AIDS strategy, the first publication, living with HIV infection, your legal rights in the workplace under the ADA, explains that applicants and employees with HIV are protected from discrimination harassment and that they have a right to request a reasonable accommodations.
The second publication is helping people with HIV infection who need accommodation at work. This explains to doctors and patients accommodations that might help people with HIV to stay productive and employed and provides instructions on how to support requests with medical documentations. We issued our fiscal year 2015 performance report. In that report, we highlighted that we had secured more than $525 million for victims of discrimination in private, state and local government and federal workplaces. Mediation set amends, conciliation and litigation, so this is 525 million on all of the bases on which people filed -- settlements. If you look at our website, you can track when we have, when we have filed charge against employers, based on allegations of discrimination, based on disability. We also issued press release when we have settled, and in those press releases, we always say how much a case was settled for. So if you want to track how we are doing or what kind of results we are getting in terms of specifically disability charges, one of the best ways to do that a until we issue a final report summarizing it, is to look in our newsroom on EEOC.gov.
Let's talk about what is in the pipeline. You are aware that in April we issued a notice of proposed rulemaking addressing whether the ADA permits employers to offer financial awards to employees who participate in workplace wellness programs, or to issue penalties against those who do not. You may be aware that this has been a big issue because under the Affordable Care Act, employers and the HIPAA regulations that govern wellness programs, the HIPAA regulations allow employers, group health plans to give financial incentive, and financial incentives can include rewards or penalties. There is always a question, if HIPAA allows this, does it mean that this is permissible under the ADA. And until this year, we had never formally said, and we had just said in our guidance on disability related inquiries and medical examinations that employers can ask disability related questions, or conduct medical examinations that are part of a wellness program, as long as they are voluntary.
In that guidance, we said that voluntary means that employees can neither be required to participate nor penalized for nonparticipation. Many people on disabilities rights community interpreted that to mean that employer can never penalize an employee for not participating. But that clearly would have been in conflict with the HIPAA regulations and Affordable Care Act. In attempt to harmonize the ADA with regulations that were already in place, we issued a notice of proposed rulemaking saying that a wellness program can still be voluntary, even if it offers a reward or it imposes a penalty. We gave some parameters for that, saying that it cannot exceed 30 percent of the total cost of insurance coverage. It also, employers cannot coerce employees into participating. They cannot take adverse action against employees. They had to give a written notice. Some of you I'm sure saw the notice of proposed rulemaking, and also submitted comments. It was issued in April and there was a 60 day comment period that ended in July. We received more than 2700 public comments. We are currently in the process of drafting a final rule. We also recently issued an NPRM on whether employers may offer financial incent He was for spouse to participation in workplace wellness programs -- incentives. The reason, so we issued a proposed rulemaking to amend our regulations because they prohibit employers for giving incentives for people to disclose their genetic information, and so after those rules were issued, we got questions about whether, and how this affected wellness programs, because in employees, if a employees' spouse participates in a wellness program and that spouse gives his or her current medical information, then that is family medical history of the employee or genetic information. We wanted to clarify that that was an unintended sort of consequence of our regulations, and so those proposed rulemaking on revisions to that part of Gina are still open and they were to close at the end of this month but we got a request from one of the senators asking us to extend the comment period, given that this is a holiday season, so now the rule is open until the end of January. If you are interested in submitting comments on that regulation, you have until January to do so. You can find the proposed regulation on regulations.gov.
Our intent is to wait for the, for all comments to come in on the Gina regulation and to issue the ADA final rule and the Gina final rule at the same time. The reason is because a lot of the comments that we got on the ADA wellness reg asked about spousal participation. Because the ADA does not cover disability related inquiries in medical examinations of spouse or dependents, that was not an issue that we addressed or that we feel that we will address in the final rule. That is an issue that we will address in the Gina rule, but to avoid any confusion, by issuing the ADA regulations first and for people to say this doesn't address spouses, our intent is to issue both of those regulations at the same time, sometime this spring.
With that being said, I thought I would move on to some of the questions that I've received. One of the questions that was submitted was, has to do with the emergency evacuation procedures. The question was that, a state employee, state employer has an employee who works in an older building on the third floor. The procedures that they have in place is that they have identified a safe refuge area, with a button that the employee can push to alert responders of his position in the building. The employee, however, is in a motorized wheelchair and doesn't want to wait in the safe refuge area, but instead wants to be able to evacuate the building with all the other employees. He wants other employees to carry him down the stairs. The question was, whether they had to allow that to address the employee's concerns.
So, the ADA doesn't explicitly address this, as you may be aware. We issued, right after the attack, 9/11 attack, we issued a technical assistance guidance on what kind of questions or if employers can ask disability related questions, to prepare for emergency evacuations. So we did say that employees could ask questions, and employees have to have the right to voluntarily give that information. So in that case, they know that the employee is in a wheelchair, so there were no questions to ask. But the idea of the procedures is to get people out safely and quickly. This is really pretty much a standard procedure, it seems, in most places of employment, where they do have a designated area for people to go, and generally these are people who would need some assistance getting out; people who have mobility impairments; people who have visual impairments. So in most buildings, I know in our building, we have designated places on each floor for safe refuge, and so the emergency responders would know to go to those places and to get people out. In terms of whether or not employees have to provide for the employee to exit with other employees, the issue I see with this is whether this would be safe to do. It seems to me that there would certainly be issues about it posing a risk not only to the employee who needs to be carried out, but to the employees who would be tasked with carrying the person out. The other issue is that the employees aren't always around. So it would be sort of, it would be difficult to train any particular employee to help this one employee evacuate, when those employees may not be around on the day that an evacuation is called for.
So, it seems that the procedures that are in place, having this person to go to a safe refuge area and giving him a button so that his a-- whereabouts can be quickly ascertained is a good practice. One of the things an employer could consider, could consider investing in his own evacuation chair, again, this would be a best practice. Our building, for example, we have people who are designated as fire marshals, these are EEOC employees who wear vests and are easily identifiable, and make sure we are exiting quickly through the stairwell, and that once we are outside the building that we go to the designated place until we are told that it's safe to return.
It's possible that employers could investigate whether, if it has that kind of a procedure in place, whether the people who help the employees, who help people exit, might be trained to handle an evacuation chair. This might eliminate the need to wait for the emergency personnel to arrive to help people to exit. If there is more than one emergency person, fire personnel, then you wouldn't have the same issue, if it's just like one or two employees who are designated with this task, so if you have ten people who are sort of these people who are designated to help people exit, and one person is not there, two people aren't there, then it's possible that the other people who have the same designation might be able to help. It's, especially if they have been trained on using an evacuation chair. These are just some of the ideas. But in terms of whether or not an employer would have to make sure that there are people there to help the person exit, I talked to people in my office, and no one could see that making that a requirement of the ADA.
So, that is sort of my answer to that question. If there are some follow-ups or people, if somebody else has a similar question, with different facts, then certainly I'll take those at the end. Another question I received is about, on an application where the application asks people, applicants whether they have a disability, and the person submitted a question, wanted to know if this was permissible. You may be aware of the regulation, the 503 regulations, section 503 of the Rehab Act requires contractors that means independent contractors who are trying to do business with the federal government, they are required under 503 to take affirmative steps to hire and promote qualified individuals with a disability. So obviously in order to do so, they have to know which of their applicants have a disability. A lot of people think, wonder if this is in conflict with the ADA, and it is not, because under the ADA, in fact question 23 of our enforcement guidance on disability related inquiries in medical examinations of employees, we also issued one on disability related inquiries to medical examinations of applicants, and so the same principle applies, and we say there that employers can ask employees and applicants to self-identify as a person with a disability, where an employer is undertaking affirmative action because of either a federal, state or local law, including the veterans preference law that requires affirmative action for individuals with disabilities. So it's in harmony with section 503 actually. And, or an employer could ask people to identify as an individual with a disability if the employer is voluntarily using that information to benefit individuals with disabilities. The employer doesn't have to comply with the state or local federal law, but the employer has decided that it wants to increase its, the number of employees, with disabilities, in its workforce. So if an employer is voluntarily using that information to benefit individuals with disabilities it does not violate the ADA for employers to ask applicants to self-identify.
With this caveat, applicants must, of application, must conspicuously state that the information is being requested for affirmative action purposes, and must state that providing the information is voluntary, and that it will be kept confidential and used only for the purposes for which it was collected, and should also state that failing to provide this information will not result in any adverse consequences. In other words, by employee, an applicant's application will still be considered whether or not they voluntarily self-identify.
Another question I received, and this is the last one that I have received, so then we will open up after my answer to this one, this question concerns leave as a reasonable accommodation, and the question is, assuming that all FM L.A. discretionary leave is exhausted, what is employer's obligation to accommodate a disabling condition with additional time off under the ADA. The questioner says that he or she recognizes that all cases are fact specific and they depend on the nature of employer's operation but wants to know if there is an additional guidance on what constitutes a reasonable amount of leave time.
Unfortunately, the person pretty much answered the question that they were asking. And that it is fact specific. There is no bright line rule as to when enough is enough. Certainly, we have given examples in our reasonable accommodation guidance, and so if an employee, for example, has exhausted twelve months of FMLA leave we say that an employer can take that into consideration when determining whether or not any additional leave would be an undue hardship. We also talk about maximum leave policies. Sometimes employers have leave policies that allow only for a flat twelve weeks of leave for both extended and minimum leave, there are some other varieties out there. Some maximum leave policies have caps higher than 12 weeks. Others, particularly those not covered by the FMLA set lower caps. We say that an employer can have those maximum leave policies, but they have to consider modifying them when a person with a reasonable accommodation needs leave as a reasonable accommodation. It is not the employers can't have those policies, that if a person needs leave beyond the amount of leave that is provided for those policies, an employer has to consider additional leave as a reasonable accommodation, and so the answer, the best practice, we say if an employer or their handbook says, talks about maximum leave policies, that we should notify employers that, they have a right to request additional unpaid leave as a reasonable accommodation for disability. But again, there is no bright line rule, and will depend on the nature of the employer's workforce, how many people do the same job, you know, how difficult is it to switch marginal functions, so that someone else can take over, the marginal functions while somebody is on leave. And certainly, employers should consider whether or not there is any accommodation other than leave that might be effective. A person may be asking for additional leave, but it may be possible that that person can work at home, telework until they are ready to come back to work. It may be that they are not able to come back to work, either because of the hardship that would pose but the person might be able to work at home. So we certainly tell employers that they should consider other alternative accommodations, certainly not force an accommodation on a person that is requesting leave, because in many instances leave is going to be the only effective accommodation. But if this is somebody that maybe is extending leave, it certainly would be I think wise to explore the possibility of other accommodations, like I said, like telework, like whether or not the person is able to maybe work part time. These are some of the accommodations that you might consider, and if there aren't any other available effective accommodations, then you have to consider how much leave time, and you can ask a person to be specific, although we say that a person may not be able to give a definitive answer, they might be able to say, particularly a person who's already been on leave and extending the leave, they may not be asking to be off indefinitely, but maybe saying, I know I asked for six to eight weeks to recover, I've had some complications, my doctor is saying that I now need another two weeks. So that is not indefinite leave. That is a finite period of time. So employer now is not considering whether they can continue to let the person be off indefinitely. But whether they can just continue to let the person be off an additional two weeks. Again, that is sorts of my answer. I know it's probably not as definitive as the questioner would like. We can certainly follow up, if you have more facts or somebody else has a similar situation. With that being said, I am ready to open it up to general questions.
Great. Operator, can you give us instructions for the folks that are on the telephone on how to ask questions, please?
If you have a question on the phone, please press the star, then the 1 key on your touch-tone telephone. If you have a question on the phone, press the star, then the 1 key on your touch-tone telephone. A moment for questions to queue up.
Sure. While we are doing that, I'll give some that I've gotten already through this process. Joyce, what is the EEOC's position regarding approval of intermittent absences for an employee that is not FMLA eligible? Would excusing intermittent absences be deemed a reasonable accommodation?
Certainly, excusing intermittent absences can be a reasonable accommodation, as you know with the changes in the definition of disability in the ADA, we always believed that it did before, but certainly with the amendment, makes it clear that people who have episodic conditions are covered, if those impairments are substantially limiting when active. Many times, people with episodic conditions require leave intermittently. Certainly, the employer would have to consider whether or not they could reasonably accommodate someone who requires intermittent leave, but one of the things an employer may do is to ask the person about the likely frequency of the unplanned absences. Sometimes people know that they have flare ups of certain conditions, maybe in the winter months, or depending upon the condition and how long they have had it, they may be able to sort of reasonably anticipate when they might have a flare-up, and again, yes, granting intermittent leave or certainly considering whether you grant intermittent leave would be a form of reasonable accommodation. But, again, you can also explore other possible accommodations. For example, if when a person is having a flare-up, they are still able to work but may need to work from home or they are able to work but -- work from home, or they are able to work but not able to work full time until the flare up subsides. But yes, granting or considering intermittent absences is a form of reasonable accommodation and is required.
Again, if you have a question on the phone line, please press the star and the 1 key on your touch-tone telephone.
I thought I lost everybody.
Sorry about that. Another one here I have that has been online while we’re waiting for the telephone, I was hoping that you would be able to address what is meant by undue hardships when reviewing reasonable accommodation requests, particularly financial hardship, with respect to a state agency employer? Is there any case law that can clarify what factors should be considered when determining whether a reasonable accommodation would cause an undue hardship, specifically financial hardship, this would be of Title 2 entities.
Again, so much of the ADA is case specific. It depends on the nature of the employer, what resources are available. Obviously, in the federal government, financial hardship is, I don't know any instance when an agency has been able to show financial hardship. Mostly it's, when you talk about hardship we are talking about the disruption of the operation of the business, that it would impose an undue burden on the way the business operates. So, I'm not saying that it couldn't ever be shown, but it would probably be a very small employer. It would also depend on what the amount of the accommodation. But again, before concluding that something would be a financial hardship, I always tell people that they should contact the job accommodation network, and talk about what the issue is, what the barrier is they are trying to overcome, because a lot of times, there are other accommodations that are less costly, so somebody might have requested an accommodation that is quite expensive but there may be an equally effective accommodation that doesn't cost as much, and that is always the test under the ADA. It is not giving the person the preferred accommodation, but giving the person one that is effective. And if an effective one is less expensive, then an employer met his obligation by providing that accommodation. There are no real factors in terms of X percentage equals an undue hardship. It does look at the resources of the building—I’m sorry, of the employer, whether or not that employer is, yes, a small employer but part of a bigger sort of umbrella or parent company, and whether the parent company's resources also have to be considered. The accommodation network, most accommodations cost under $500. I'm sure that there are accommodations that cost much more than that, but again, it would be case specific, and it would depend on whether or not the only effective accommodation.
Great. Thank you. Here is a question of, this is somebody who is saying that they work for a large box store, and they had requested an accommodation for their mobility disability in 2007, so a while ago. They completed their accommodation form and provided information from their doctor, the request was approved and the accommodation was put in place. They are stating that even though their condition is permanent, their employer comes back to them from time to time, and telling them they have to fill out a request form again, and provide documentation from the doctor again. The question here is how many times can they require information from the doctor in this kind of a situation?
That is a good question. We get that question, you know, often. In instances in where the impairment is permanent, a mobility impairment where the person is in a wheelchair or a person has, you know, is blind or a person is deaf or hard-of-hearing, we say that, that is a given, that is known, so employers really shouldn't be requiring somebody to keep reaffirming that yes, I am deaf, yes, I use a wheelchair, yes, I need Braille or some other kind of assistive technology, when it's clear that the disability is permanent and is not changing. Now, the employer should be checking in to make sure that the accommodation is still effective. I think you said the person initially got the accommodation in 2007. While the disability hasn't changed, it is possible that the accommodation may not be effective, maybe there is something better out there now, certainly with improved technology that may be an even more effective accommodation. It could be a more cost effective accommodation that is there. While the employer should not be asking the person to reaffirm that the employee, to reaffirm that he or she still has a disability, they should be checking on the effectiveness of the accommodation. With other disabilities, while the disability itself may be permanent, say someone who has epilepsy, so they are always going to have epilepsy. It is possible that, again, with improved technology, different medication, maybe the person had surgery, maybe the limitation stemming from the epilepsy are not the same. So, in that instance, maybe whatever the accommodation the person initially requested, maybe they don't need that accommodation anymore. So again, it is not asking the person to affirm the disability, but to check in to assess the accommodation. For example, somebody was asking for accommodation of telework, because their condition was not well controlled. They were having frequent seizures, or we had an issue with somebody who had irritable bowel syndrome, and so they needed to work at home, because of the proximity of the rest room and to avoid embarrassing accidents. That is a situation where maybe the person does need to work at home permanently, if the condition is under control, either with medication, change of diet, then the employer could certainly assess whether or not they still need that particular accommodation. But the emphasis always should be on how well is the accommodation working, do we need to tweak it, adjust it, do we need to come up with something different? Not on re-documenting that the person has a disability.
Great. Operator, were there any questions queued up from those on the phone?
There are no questions on the phone line.
I'll keep going with those that are being submitted electronically then. Here is a question that is from an entity that says that they have two employees that are married who work in different departments, they are—one of the employees has a disability and is asking for accommodation. That accommodation request is for her husband's hours to be changed back to match hers, so she can continue to ride with him to work because he is her caregiver. Her husband's hours were changed due to his department's restructuring of work hours for all employees. Are they required to change the husband's work hours as an accommodation under the ADA?
That is an interesting question. But the right to request an accommodation always is of the person with a disability. So an employer has no obligation to accommodate a person who doesn't have a disability, even if that person is the sole support of the person who has the disability. This, the association provision is what kicks in. This could be a parent who has a disabled child, the parent is not entitled to a change of hours to care for the person or child with the disability. But employers in that instance should look at what they do in other circumstances. Do they ever change policies or procedures for people who just commute together, who happen to live in the same place that maybe isn't serviced by public transportation? Do they make adjustments to allow people who rely on each other to commute, again not as accommodation, but just as a changing workplace policies?
If that is not the case, in this case, it may be that the employee with the disability is the one, the wife may need to change her hours, to match the husband's. Now, that would be an accommodation, if that is, would be effective, if changing the wife's hours to match her husband's, since he is her source of transportation, would that impose a undue hardship on whatever the wife does, you know, giving her some sort of flexibility, would allowing her to work at home, since she no longer, her husband's schedule isn't in sync with her, would that be an effective accommodation? Again, you are looking at what kind of accommodation you can provide to the wife or who has the disability, not to the husband who does not.
Great. Thank you again. Parking is always an issue that people bring up. Here is a question, someone who has a state issued parking placard due to a disability that they have, so it was issued by their state. They just started working for a new employer, and they requested as a reasonable accommodation an accessible parking space in the employer's parking lot, and they showed them the parking placard that had been issued by the state. The employer said that they needed to provide information from their doctor in order to get the space, and the question here from the individual is, shouldn't the parking placard be sufficient for their employer to grant that accommodation?
Again, this is a sort of interesting question, because I know in Maryland, where I live, there have been a big crackdowns on people who have parking placards. They have a placard that says that they are entitled to park in an accessible space. A lot of times that isn't, that placard wasn't issued to the person who is actually using the space. The fact that whatever means the person got it, and I'm not saying that the person didn't legitimately get it for a disability that meets the criteria for this state to issue that, but in this instance since the person is asking for an accommodation from the employer, I would say the employer has the right to verify that the person has a disability for which an accessible parking space would be an accommodation. I certainly will take this one back to my office and see if someone thinks differently. But my take on it is that this is two separate entities, in that the fact that someone has, it may be different criteria, so it may not be even the same criteria that follows the ADA's definition of disability. So again, it also may not be that person's placard. So I would venture to say that an employer does have a right to get documentation that establishes that the person has a disability for which she needs accessible parking.
Great, thank you. Parking is always a tricky one. There are so many different variables. Along that same vine, here is another parking question, since we are doing parking. This is a company who says they have a specific, they have parking for employees, designated parking for employees, and they have the correct number of accessible spaces, based on the applicable standards for accessible design in regards to how many spaces they are required to have that are accessible spaces, based on their overall parking spaces.
However, they have more employees who are requesting accessible spaces than they have designated parking spaces according to the standards. Do they need to provide more accessible spaces than what the standards require?
Yes, that is tricky, and we do get this question. The answer is, they have to consider whether or not they could obtain more spaces, and whether or not it would be an undue hardship, looking at the nature of the available parking spaces, are there additional spaces that the employer could obtain. Is there, or would this alter how the parking garage or parking lot works. So certainly, if it is possible, and it would not be an undue hardship, the employer does have to consider obtaining more spaces. If it is an undue hardship, they have to consider other possible accommodations. Is it possible for the person to park in a non-accessible space, but be escorted to the building as a reasonable accommodation? The person has to park further away, but can the employer provide either a wheelchair or some other kind of transport to eliminate the barrier. But this is one I definitely will take back, because Sharon I think who you have talked to on these calls, has actually handled more parking accommodation questions than I have. I will certainly take this question back and ask her if she has any additional information to provide, any other tips. This will be a good time to say that if there are questions I didn't answer or didn't answer to your liking, or didn't answer, we didn't get to your questions, and you would like to submit it, you can submit questions directly to me, at joyce.walker-jones@EEOC.gov. And I will promise I will get back to you.
Great, thanks. I'm going to check back with the operator for a minute, were there any questions queued in from the telephone yet?
If you would like to ask a question, press the star and then the 1 key on your touch-tone telephone. I'm showing no questions on the line.
Great. Thank you. I'll continue. We have plenty here. This is a question, service animals are always an interesting discussion that we have, but this is a question that says, does EEOC specifically have a position on service animals on the job, in regards to what type of animal would constitute or be a service animal? I think this is in relationship to the definition of service animal under title 2 and title 3 of the DOJ and how is that viewed by EEOC.
We have not defined service animal, so generally we follow DOJ, says the service animal generally is a dog, and I think miniature horse. I assume it would be if there was not a dog or one that certainly DOJ recognizes, that we would look at that on a case specific basis, and see if in fact this is, there is documentation that says that for this person, this animal would be an effective accommodation.Taking into consideration whether it would impose a undue hardship on the employer to allow an, animal just for purposes of example I guess, a bird or something, if a bird was flying around the office, it wasn't properly contained, would this be a undue hardship—hardship. But again it's something we look at on a case by case basis, and whether or not, what about the animal helps the person to overcome a barrier in the workplace, in terms of the ability to do the central functions -- essential functions of his job or to participate in the fringe benefits that are available to other employees. What is it about this particular animal? So again that would be a situation where we have to examine them on a case by case basis. But I'll ask Sharon who does a lot of accommodation issues whether, what she knows about what we have said or about instances where we have decided that, in this particular, in a particular instance that an animal that is not a service dog has been found to be a reasonable accommodation.
As a follow-up to that, secondary part of the question is, what about emotional support animals? So you may have individuals with anxieties or other types of disabilities, sometimes we will see a PTSD, or something, where they will have an emotional support animal. What would be the EEOC's position on emotional support animal as a reasonable accommodation? Would it be any different?
Again, that is really tricky, because obviously, emotional support, essentially, with certain disabilities, in order for the person to be able to do the essential functions of a job, but usually emotional support comes up more in the context of title 3 accommodations, or people who need an animal because of their anxiety when flying, or traveling. It's more complicated in the context of title 1 in terms of again, what does this animal do, what is the barrier in the workplace that needs to be overcome, and so again, it's easier to see certainly with, I guess with PTSD if somebody is easily startled or easily distracted, and the emotional support animal alerts them, that somebody is approaching. Certainly, I think that is something an employer would have to consider, whether or not that would be a reasonable accommodation to allow the person to bring the animal. But again, I think this is one where the interactive process is going to be really critical, because in the sense that when does a person need an emotional support animal, is it something the person uses 24/7? Is it something the person only needs when they are at work? Is it more a personal comfort situation? I feel more comfortable when I bring my ferret with me, again, I think it's going to be something that we have to look at on a case by case basis. I can't say definitively, no, we would never say that is a requirement under the ADA, but again it would be a very case specific, and I would venture to say in such a situation that there would have to be some pretty good documentation about what this animal does, that allows a person to be able to perform their job.
Great. It's always an interesting discussion.
Yes, it is.
It does come up, this issue. I'll continue with some other questions that are being submitted on-line. This one is, if an employer requests ace tans or help -- assistance or help transferring from wheelchair to the toilet is that accommodation that the employer must provide? This submitter says that to them it appears to be a personal need and should not be the employer's responsibility, but is interested in the EEOC's perspective on that.
Again, this is a question that we get, and it's sort of a touchy issue. We have said that employers have to, if a person has a personal assistant, that allowing that personal assistant to come to the workplace and help a person with their bathroom needs could be a reasonable accommodation. But we have always said that an employer does not have to assign somebody to do that as an accommodation. The employer has to make, obviously, make sure that that the bathroom is accessible, and may have to give the person more time, if this is somebody who only has, hopes there is no employers that give limited bathroom breaks, but it could be that a person does have to go to the bathroom more frequently or takes more time and if this is a person that needs to be away from the desk or workplace for a while, the employer may have to accommodate the fact that the person has to be away from his or her desk more often. But generally, we say that because a person would need, presumably need assistance both at work and away from work, then that is sort of considered sort of a personal issue, and as a reasonable accommodation, that is not a barrier that is presented by the workplace. So in such instances, I know we have said that that is more considered like more akin to a personal use item, that an employer does not have to provide that. So, again, if there is some particular barrier in the workplace where this person is, even though an employer is compliant with what, in terms of providing accessible stall and grab bars, the person still is unable to use the rest room, it would seem that an employer would have to have a personal assistant even if the person has sort of voluntarily, asked another coworker maybe to step in in that role.
Great. Thank you. This is another question from an employer. They have an employee who has a visual impairment that prevents them from driving in the dark. During the winter months, when there is less light, she has requested to alter her work hours. Does the employer need to provide an accommodation so that the employee can get to and from work?
Again, I think that the fact that the employee has difficulty driving at night would depend on whether or not the employer's, employees' hours are such that it's unavoidable, you know, that she would have to drive home at night. Is it possible to change the person's hours, such that she leaves work at a time before it gets dark? That would be sort of more of a reasonable accommodation than providing a driver. Are there other ways for the person to get to and from work? For me, it almost becomes an accommodation issue if in fact the person has to work late shifts, and because of the late shifts and no other accessible transportation, the employee has to drive at night and is unable to do so, then I think the employer would have to consider possible accommodations, suggest is it possible to take the person off the night shift. Is it possible that the person can ride with another coworker? Are there other ways or other means of transportation to get the person home?
Great. Thank you for those comments. I’ll go back to the telephone. Were there any questions queued in while we were taking some on-line calls at this point? Or questions?
No questions have queued up.
Great. We have another one here. This is an individual who is actually asking something specific about federal government, and the role of the EEOC. This is a statement more than I guess a question as well, but the first one is asking when will the EEOC start to take disability issues in the federal government seriously? What training have they rolled out for their employees in this regard? And in the past, the EEO specialist at the EEOC and the departments across the government, federal government, have been ill-intentioned and income tint in handling complaints based on disability -- incompetent. I think they are asking for what the EEOC is doing related to these issues, or what you have done. Maybe they are disgruntled, I'm not sure. But—
I can give only a limited comment. EEOC has a new disability program manager who has experience in dealing with accommodation requests. I have said, he has done a number of webinars for EEOC employees on the accommodation process, and has vowed to make the process more user friendly, and more efficient and more timely.
We are also working on writing new sort of model employer guidelines, not just for EEOC but for all the federal agencies, and this has been through a process of coordination with Department of Justice and other agencies. So I assume that those guidelines will be issued hopefully sometime in the next year. But in terms of, I guess I would need to know specifically what it is that the person has an issue with, and if it's particular to EEOC or to the federal government. Obviously, the president has issued sort of a mandate that the government should be doing more to hire more people with disabilities, and obviously not just to hire them but to make sure that they are in line for training and promotions, to ensure that accommodations are, the process runs smoothly. But in terms of what the person says something specific, I suggest the person send me an E-mail and I can follow up with my coworkers or with other managers to give a more specific answer about what EEOC is doing.
Yeah, I think that when you are referring to the executive order that Obama issued related to hiring of people with disabilities, I think there was a recent report that was issued this last fall that gave an overview of where that hiring initiative had been. But I think the particular issue that this person is more about handling complaints.
Complaints, I'm sorry. Um-hmm. Again, I think that one of the issues that I talked about earlier, one of the initiatives is about having the service where people certainly who are deaf or hard-of-hearing now, rather than having the barrier of only being able to communicate their concerns in writing, that they will be able to speak directly with somebody, an intake person who is fluent in ASL. That is certainly one positive step we have taken. In terms of complaints, I mean we have always rigorously investigated charges of discrimination. We have some of our most successful settlements and litigations have been in terms of disability charges, and so that will continue. We have put more emphasis on systemic charges of discrimination, on all bases, including disability. We have also, as I said, the task force is looking into harassment, and emphasizing that harassment occurs on many protected bases, including disability. Those are some of the things that we have done. But again, in terms of, you have questions about either the complaint process -- I'm not really sure what the person is getting at. So I'm not sure how to tailor my answer to address the person's concerns.
Yeah, I think it was maybe the person feels that they have not been treated properly or maybe others that they know have not been. But the other side part of the conversation or that question is, is there a mandatory training that EEOC staff as well as EEO individuals within the individual federal departments are required to undergo? Or is that something that is left up to the department? Or what is actually the process there, I think they were asking that question.
Again, I'm not sure about what kind of training, in terms of sensitivity training, in terms of training on the ADA, in terms of rights and responsibilities. So in terms of rights and responsibilities, obviously, those of you who are familiar with O O.C., office of legal counsel, we do a lot of outreach and training on the ADA, both to people with disabilities to advocacy groups, to employers. We emphasize the definition of disability and how you determine that. I would say that with the amended definition, more of our focus has been on the reasonable accommodation process and talking about that in terms of what employers should be doing. As a caller asked earlier, in terms of how much can you get from a person, how often can you ask the person to verify a document, we certainly talk about that, that asking a person to continuously submit documentation is a form of harassment, if it's no question that the person has a disability. So we say that when we go out in training, we have said that in technical assistance documents. We do webinars like this. So we are very active in terms of providing training on the ADA, both in, in-person training, webinar training, audio conference training, technical assistance training. If there are areas where you think that there is still a lack, certainly send me some suggestions and ideas, and I will pass those on to the people who make these decisions about what kind of training we do.
Great, thank you for follow-up on that. This is a, somebody is asking a question about how you do things or how EEOC does business, I'll interject this next question or inquiry from a participant. This is someone who has a question related to the process of the EEOC in regards to addressing the complaint process. This is stating that it takes a long time for the EEOC to call back, when an individual has filed a complaint with them, and then they feel or they are stating that they get the call back and they feel that the entity who is calling them back and asking them questions and things is very congenial, asking a lot of questions, interested in the issue, things of that nature. But then several weeks later the complaining party gets a form letter that says that due to the volume that they are unable to take the complaint, and telling them to basically, what other options they have like getting their own attorney, things of that nature. The question here is, is this due to EEOC's volume? What is the process? Because this person feels obviously that they didn't get a fair shake in the process, and that they were misled maybe to the perception that the EEOC was going to take the case because they spent time with them on the phone taking all the inquiry and information and everything but then they send them a letter saying no, we can't take the case.
I think that certainly that is a testament to EEOC's commitment and dedication that every charge or anybody calling is taken seriously. So it is not going to be the role of the intake specialist to tell a person, yeah, this sounds, you know, it doesn't sound very strong or it does sound strong. That is not the role of the intake person. An intake person is going to take every call, every inquiry about the process very seriously, and not mislead, but to let the person know, yes, this is, we are taking your charge or your allegations seriously. Yes, it is a matter of resources, both in terms of number of people employed, in terms of resources to investigate a charge. A lot of the emphasis is on not exclusively, because we have gotten some significant victories on individual charges of discrimination, but the resources are certainly more effective in systemic litigation, where you can use resources to affect a greater number of people. So there is an emphasis on looking at, okay, are these like infamous disability related inquiries in exams for example, is this something systemic, are we seeing a lot with employers, are we seeing this a lot in terms of employers having mandatory leave policies, is this something that could have a broader impact that affects more people than an individual charge. Not to say that whoever's individual charge is not important, but we all react more to whatever is affecting us personally. If you have a charge, an issue with a customer service rep, it is like this issue is more important, with Verizon or any, BG and E, your credit card bill, of course, everybody calling believes in his or her own particular issue or allegation or, you know, and it is valid. But you know, we cannot, we just do not have the resources to follow up on and to investigate every charge that we receive. I don't have the statistics in front of me, but obviously, we get thousands, hundreds of thousands of charges every year. And each person I'm sure is as emphatic as the next about this is a wrong that happened to me. It could very well be a wrong that happened. I'm in the role sometimes, we have what is called attorney of the day, and we field calls from the public, and these are sort of preliminary calls about people wanting to know whether or not they even have a valid charge. Is this something that is unlawful, is this something that I should be concerned about, am I entitled to reasonable accommodation? And I'm sure a lot of times people don't like the answers, because sometimes what they are calling about is like, yeah, that is really poor management, or yes, this supervisor is not a great supervisor. But that there is nothing, there is no violation of the law. And I'm sure that is not what the person wants to hear. So, I don't know, these people are the ones that called the intake people and say, well, I'm going to try it with by calling my local EEOC office and they get an intake person that says, takes the information and so they do feel encouraged, I might have said I don't really think that you have anything here, that this isn't really a violation, but the person talks to an intake person who sounds as if it may be, and then it goes on up the ladder, and somebody determines that we don't have the resources to investigate, and that is why it is a two tier process, the fact that we can't possibly take every charge, doesn't deprive a person of going forward with the charge on his or her own.
Great, thank you. I know that is a tough one. And you did a good job of describing, the process across the board, whether it be EEOC or DOJ or any of the issues, it's always been an issue of resource allocation and the available resources, that congress and others provide the agencies to be able to follow through and do some of these things too. Tough one on that as well. Here is another question for you that came in on-line. Does the EEOC have any new guidance on commuting related accommodations in light of the existing circuit split on this issue, of particular interest is parking as an accommodation when parking is not normally provided to employees. They cite two cases, Price versus state of Louisiana, and Lions versus legal aid, both of which held that an employer is obligated to provide parking to employees with disabilities if it enables them to benefit from or have access to the workplace. There are very specific facts in both those cases, but that is the question from the participant. Do you have any thoughts or any word on those? Are you familiar with those two?
What was the exact question again though?
Do you have any additional guidance on commuting related accommodation, in relationship to parking as an accommodation when parking is not normally provided to employees, so the legal aid case was one out of New York. Yeah.
Again, some of these issues are issues that we are, because we keep getting asked questions, we are looking into them and trying to decide whether or not we need to either revise our enforcement guidance to cover these issues, or to issue technical assistance. I know that people have been looking at these issues. Again, I will ask when I get off this call and shoot a E-mail to my colleagues to see if they have any more insight on these issues, as parking has come up several times. But right now, I do not. So whoever asked the question, if you want to send me an E-mail, just reiterating the question, I will certainly present it to my colleagues and see if they can add more than I can. (Pause). Hello?
Sorry about that. I was on mute. Those of you that are in the webinar platform, I posted Joyce's e-mail. For those of you on the telephone, it's Joyce.walker-jones @ EEOC.gov. She's offered a few times here to allow you to submit questions directly to her, especially those that wanted additional clarification on some of the topics that were brought up during the session, would be great if you wanted to go ahead and follow up with her.
I'll ask one more time from the telephone, if there are any additional questions from those that are on the telephone, operator?
There are no questions on the phone.
Great, thank you. Additional here, in relationship to a question, specific to the issue of some, what happened in the circuits, this is a question related to the issue of reassignment to vacant position, and there have been some differences in the circuits in relationship to whether or not an entity would be required as a reasonable accommodation to give preference to someone, vacant position, and position that has been advertised, and you have someone who is requesting or needs a reassignment, of that person being given preference in relationship to the hiring of that, in that position, versus only being competing if they are not the most qualified candidate, then they would not, I believe 7th circuit court and there are other ones, the 7th circuit recently reversed itself on that issue, but can you provide any additional insight into where things stand nationally in relationship to this issue of reassignment, and whether or not there is any thoughts from the EEOC to provide additional guidance on this issue, or whether you think that it will have to come at the Supreme Court resolving the split.
EEOC's position has always been that the person doesn't have to compete for the position that it has to be a vacant position, employer doesn't have to create a position to which to reassign someone. But if the position is vacant, and the person is qualified, then the employer has an obligation to consider that person, not in the pool of other people who are also qualified but to consider whether or not that person should get the position.
As you said, the 7th circuit reversed itself and is now in line with the EEOC. I'm not aware, I don't know where we stand in all the circuits certainly. But certainly, the EEOC is not, we sort of -- our policy, sometimes, is in line with the majority of the circuits and sometimes as you well know, our policy is not. So in instances where the only instance where we are obligated or mandated to follow policy is if the Supreme Court speaks on, you know, speaks on an issue.
Right now, EEOC's position is that the person is entitled to the position as reassignment if the person is qualified. But we will have to see if that is something that the Supreme Court takes on.
Okay. I have a question here from, is there a specific website where the EEOC posts their decisions, court decisions? For example, the Department of Justice has the ADA.gov where they list settlement agreements and things of that nature. Does EEOC have any specific website where they do that? Or is it just something posted on the main website? Or any guidance you have on that, where someone could monitor the EEOC.
Case law, no. We do a sort of annual case law update on various subjects like reasonable accommodation. So if there has been a new case that came out, we would certainly cover that case, do a summary of the case. We do those for the [inaudible] something I'm pretty sure is available on our website, or if it's not, I can again, if a person sends an E-mail I can send you our last case law update which would be a summary of where the circuits stand on various issues. But we don't do that on our website, no, just as a, you know, we don't keep a sort of running sort of explanation of where the courts are on various issues, but we do this annual ADA case update.
There are different, I know, there is private websites that people can subscribe to, that, often legal firms too, I know the ADA national network has a ADA case law .org website where not every case but major cases with major implications are tracked, and are on synopsis of those cases and information relating to those that are on there as well. I think there are sources. The person is looking is there a one stop shop where the EEOC is maintaining that information. But I think you have answered that question.
I think we have done it for your ADA center, Robin that occasionally we are asked to come and speak and give an outline where we stand, so we have done that, and in various conferences, we have done an ADA sort of case law update. But we don't as a rule --
Post that kind of stuff.
This is a good time. I'll put a plug in. We host as part of ADA national network legal webinar series in our January session for that program, will be a review of key case law in 2015. So if you are interested in that, ADA-audio.org, is there a place that you can register for that program as well. That is just another program, if you are interested in following along, seeing what the major case is, work from last year across the board that is another option as well. Here is another question, we are getting towards the bottom of the hour. But if people have more questions, please feel free to submit them. Does the EEOC have any new guidance on -- sorry about that. I got the wrong one. I'm scrolling through here. An employee whose essential job duty is to receive incoming calls and process the transaction of those callers, has asked as an accommodation for 30 minutes of additional break time per day to address their disabling condition. It is not operationally possible for the employee to make up those 30 minutes. Is it sufficient to say that the performing 30 minutes less per day of a primary job duty removes an essential job function or does the employer have to evaluate whether this poses an undue hardship on the business? (Overlapping speakers).
It's hard to say that, you know, conclusively that removing 30 minutes changes the nature of the job. Probably, most jobs where people leave, not every day but leave 30 minutes early, can you say that that person then, that works 7 and a half hours instead of 8, didn't do the essential functions of the job? Obviously not all of the job functions are essential. Is it possible that it's the marginal functions that aren't getting done, in which case that would be an accommodation to say, well, unless the way it's set up is that the person has to do certain functions can only be performed at the end of a shift or at the end of the day. Otherwise, it's just sort of making the adjustment, so that the person is doing the essential functions in the 7 and a half or whatever number of hours the person is there, and not leaving those until the last 30 minutes. Of course the employer doesn't have to pay the person for doing eight hours of work if the person is only doing 7 and a half. But it's hard for me to say that just not, since a person can't make up those 30 minutes, that the person is not doing is essential function of the job. It would be hard for me to say that or to believe that that is true, based on what I just said. But throughout the course of a day, people generally are doing essential functions and marginal functions.
As a clarification, the issue is that, if the individual, take it away from the essential functions, and the person is asking for additional break time, which is time above by which I would be providing what you already have your requirement, so you issue is requirement for break time and things of that nature, this would be additional break time, would I be required to pay somebody, so everyone is paid based on a 7 and a half hour, 8 hour day. This person that already factors in your available break time by law and other kinds of things. But this person is asking as an accommodation, additional break time so it's additional time that they are not working during that 8 hour day that they are being paid. Would that entity be required for clarification to have to pay that person (overlapping speakers).
Don't have to pay, like a person doing, can't work full time, is working part time. You don't pay them for full time work. You pay them for the work they actually do. If the person is actually, yes, if you have already factored in half an hour lunch and two 15-minute breaks, you already know the person has an hour of time that they are not working, so there, but they are working 7 of the 8 hours, then and they are getting paid for those 7 hours, then they get paid for that. If the person now is not working, in addition to the half hour lunch and two 15 minutes break, is taking another 30 minutes, that person is not working for an hour and a half, then that person only gets paid for the six and a half hours that he or she is actually working.
The one issue is whether or not the person needing those additional 30 minutes makes that person no longer qualified because of the whole argument of essential function of the job, versus the issue of the person being paid for that time, which is totally different issues.
I just wanted to make sure that we are clear, and we separate out those two.
Great. We are at the bottom of the hour. It is a few minutes before the end of the session today. At this point, I just want to thank everyone for your participation in today's audio conference session. Thank you for dialoguing with us and submitting your questions both in advance for those of you who did, and those of you that submitted throughout the session today. I think we have had an interesting array of different questions submitted. Again, Joyce did provide her E-mail and has openly, it's on paper, it's on record, Joyce.
Provided her E-mail for people who do want to contact her and ask questions, again, directly. You have that again it's Joyce.walker-jones@ EEOC.gov. Our next session in January follows along the same line as this particular session did. It is going to be an open dialogue with the disability rights section of the U.S. Department of Justice. That session will be held on January 19, 2016, which is the day after Martin Luther King. If you are interested in that session, please consider signing up for it and joining us. The specific speakers from the Department of Justice have not yet been identified but they have committed to the session and are putting together who their pool of people would be. So we do encourage you. For people who are participating today, you will receive an E-mail at the conclusion of the session, which will include a link to an evaluation. We do value your input. Please provide us, take a few minutes to fill that out. Also will be instructions related to receiving any type of certificate of attendance for participation in today's session. Again I want to thank Joyce Walker-Jones from the EEOC for spending time and taking the questions and being on the hot seat for today, and again thank you for your willingness to also take questions directly from participants. At this time, we will conclude today's session. I hope everyone has a great rest of 2015, and we will see you all hopefully one way or another virtually and otherwise in 2016. Everyone have a great day and a great holiday season. Take care.
Thank you, everybody. Bye-bye.
Thank you for participating in today's conference. This concludes today's program. You may disconnect. Everyone have a great day.