JAN is a service of the U.S. Department of Labors Office of Disability Employment Policy. Best Practices in the Employment of People with Disabilities.

JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy.

Best Practices in the Employment of People with Disabilities in the Federal Government

JAN welcomes Jeanne Goldberg, Senior Attorney Advisor, from the U.S. Equal Employment Opportunity Commission.

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Protections for individuals with disabilities • No disparate treatment or harassment based

on a physical or mental impairment (as long as not both transitory and minor)

• Reasonable accommodation absent undue hardship (for impairments that substantially limit a major life activity)

• Qualification standards that screen out an individual based on disability must be job-related and consistent with business necessity

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Basic Provisions

Protections for all applicants and employees of covered entities:•Rules about when employer can ask for medical information, and how much (“disability-related inquiries and medical exams”)•Medical information kept confidential•No retaliation

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Basic Provisions

• Employer never has to retain an employee in a position if not “qualified.”

• To be “qualified,” employee must satisfy the requisite skill, experience, education, and other job-related requirements, and be able to perform the essential (or fundamental) functions of a position (with accommodation, if needed).

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Qualified

This issue most often arises when: • Employee requests to be excused from

performing job duty due to medical condition; or

• Employer believes employee is not able to perform job duty due to medical condition

Qualified

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• Employer never has to eliminate an essential function of a job as an accommodation.

• Employer never has to or lower production standards (quantity or quality) as an accommodation.

• Individualized assessment: Do not make assumptions about what an applicant or employee can or cannot do based on their medical condition.

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Qualified

But remember:

Employee can be “qualified” even if needs accommodation to perform the job.

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Qualified

Relevant information in determining whether a function is essential may include:•Employer’s judgment•Terms of a written position description •Terms of a collective bargaining agreement•Experience of current or past employees •Amount of time spent performing the function•Consequences of not performing the function

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Essential Functions

If accommodation requested involves removing a duty, is it an essential function?•If so, it need not be removed, but can employee be accommodated to perform it? •If employee cannot be accommodated in current position, can he be reassigned to a vacant position for which he is qualified (the accommodation of last resort)?

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Essential Functions

Direct Threat: An employer may reject a job applicant or exclude an employee with a disability from a particular position if the person poses a direct threat to health or safety (i.e., a significant risk of substantial harm to self or others)

NOTE: An individual is not a “direct threat” if there is a reasonable accommodation the employer could provide absent undue hardship that would reduce the risk below this level

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Safety and Fitness Concerns

What to consider:• The particular applicant's or employee's

present ability to safely perform the essential functions of the job based on objective evidence and reasonable medical judgment

• The duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm

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Assessing Direct Threat

Qualified:

•Wardia v. Dept. of Juvenile Justice (6th Cir. Jan. 3, 2013).

•Keith v. County of Oakland (6th Cir. Jan. 10, 2013).

•Scavetta v. King Soopers, Inc. (D. Colo. Jan. 28, 2013).

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Recent Case Illustrations

Recognizing Accommodation Requests:

Accommodation request is a request for some sort of change for a medical reason; request need not be in writing and need not contain any “magic words”

“Tips” for recognizing requests

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Accommodation Requests

Sufficient Notice:• Individual does not have to call medical

condition a “disability”; inadequate notice when employee does not say enough for employer to know a medical condition is at issue. Syndnor v. Fairfax County, Va., 2011 WL 836948 (E.D. Va. Mar. 3, 2011).

• Oral request for accommodation okay despite contrary employer policy. Kravits v. Shinseki, 2012 WL 604169 (W.D. Pa. Feb. 24, 2012).

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Recent Case Illustration

Insufficient Notice:• Plaintiff notified employer of panic disorder

and agoraphobia, but never requested any accommodation, stating that “if [the employer] believed that I needed certain accommodations . . . [it] would come to me and say so.” Garner v. Chevron Phillip Chemical Co., 2011 WL 5967244 (S.D. Tex. Nov. 29, 2011).

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Recent Case Illustration

Consequences of Employer’s Failure to Communicate and Clarify:•Employer’s failure to tell employee that request submitted on wrong form, or to provide time to return paperwork, can render the employer responsible for the breakdown in the interactive process. Cox v. Wal-Mart Stores, Inc., 441 Fed. Appx. 547 (9th Cir. 2011).

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Recent Case Illustration

Consequences of Employer’s Failure to Communicate and Clarify:•Employer’s denial of request on ground that information provided was not specific enough, without advising employee and asking for the additional details needed, can render the employer responsible for the breakdown in the interactive process. Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190 (1st Cir. 2011).

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Recent Case Illustration

• Request may be made at any time during the application process or during employment, including if the employee is having performance difficulties

• But accommodation is always prospective – request is too late once performance or conduct warrants termination

• An employee does not lose the right to request an accommodation because he did not do so during the application stage

• Employees may make more than one request for reasonable accommodation

Timing of Requests

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Does the Requesting Employee Have a Disability?•When considering if an individual who has requested accommodation has an impairment that “substantially limits a major life activity” or has a record of same, remember the changes made by the ADA Amendments Act of 2008•Now the definition of disability “shall be construed broadly” and “should not demand extensive analysis”

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Disability

Congress Made 4 Changes To “Substantially Limited in a Major Life Activity”:

1.Need not be a “severe” limitation or “significantly restricted”

2.Major life activities include “major bodily functions”

3.Ameliorative effects of mitigating measures not considered

4.Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active

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Disability

Don’t Rely on Pre-ADAAA Case Law on Coverage•See EEOC revised ADA regulations 29 C.F.R. Part 1630 and Q & A: http://www.eeoc.gov/laws/regulations/adaaa_qa_small_business.cfm •See webinar handout with examples of post-ADAAA case law

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Pre-ADAAA Case Law

When and How Much Medical Information Can the Employer Ask for in Support of An Accommodation Request?•ADAAA has not changed the legal rules regarding when and how much medical information employers can request if accommodation is requested.•If not obvious or already known, an employer may obtain reasonable documentation that an employee has a disability and needs the accommodation requested.

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Medical Information

• Employer may ask employee to obtain information from treating health care provider, or ask employee to sign limited release allowing employer to contact doctor directly.

• For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations as well as what accommodation might be effective, and for how long it may be needed.

Medical Information

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• Required for federal agencies under EO 13164

• Can be useful for other employers• If adopting internal reasonable

accommodation procedures outlining your process, consider indicating who is authorized to request and review medical information from employee and/or employee’s health care provider, and to have any follow-up communications

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Accommodation Procedures

• Physical modifications• Sign language interpreters and readers• Assistive technology and modification of equipment or

devices• Modified work schedules• Making exceptions to policies• Job restructuring (swapping or eliminating marginal

functions)• Changing supervisory methods• Job coach• Telework• Leave• Reassignment to a vacant position

Examples of Accommodations

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• Lowering production or performance standards (but pro-rate production requirements for period of leave as an accommodation, and provide accommodation if requested to meet the standards)

• Excusing violations of uniform conduct rules that are job-related and consistent with business necessity (but provide accommodation if requested to meet the standard)

• Removing an essential function• Monitoring an employee’s use of medication• Providing personal use items• Changing someone’s supervisor (though changing

supervisory methods may be required)• Actions that would result in undue hardship (i.e., significant

difficulty or expense)

Actions Not Required

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Consider the following factors:•Nature and cost of the accommodation (“significant difficulty or expense”)•Resources available to the employer overall (not just individual department)•Impact of the accommodation on operations

Undue Hardship

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• Employer should engage in an interactive process with the individual asking for the accommodation.

• May involve determining (1) whether the requester has a disability, (2) whether requested accommodation is medically needed, and/or (3) what accommodations are possible.

• Implications of “good faith” provision in 42 U.S.C. Section 1981a.

Interactive Process

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• Employer has discretion to choose among equally effective accommodations where there is more than one possibility.

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Selecting an Accommodation

• Respond to requests promptly, as undue delay may constitute a denial of accommodation.

• Determine the limitations at issue caused by the medical condition for this individual, what accommodation he or she needs for those limitations, and determine if it can be provided without undue hardship.

• Communicate, exchange information, search for solutions, consult resources as needed.

• AskJAN.org

Keys to the Interactive Process

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Mistakes in the Interactive Process:•Flatly turning down requested accommodation and failing to offer available alternative. Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010).•Ignoring request because employer believes employee does not have a disability. Zombeck v. Friendship Ridge, 2011 WL 666200 (W.D. Pa. Feb. 14, 2011).

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Recent Case Illustrations

• If requestor only knows the problem, not the solution, employer must search for possible accommodations

• If requestor specifies particular accommodation but it is one that legally need not be provided (e.g., request to lower production standards), employer must offer an alternative accommodation if one exists that would not pose an undue hardship -- search for and consider alternative accommodations

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Keys to the Interactive Process

Cost Issues:• EEOC v. Creative Networks, LLC (D. Ariz.

Sept. 20, 2012).

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Recent Case Illustration

Breakdown in the Interactive Process:• Goonan v. Federal Reserve Bank of New York

(S.D.N.Y. Jan. 7, 2013).

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Recent Case Illustration

Attendance Issues:•Samper v. Providence St. Mary Vincent Medical Center (9th Cir. 2012).•Thomas v. Bala Nursing and Retirement Center (E.D. Pa. 2012).

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Recent Case Illustrations

• Employer cannot disclose disability (or fact that something is being done as a reasonable accommodation) to managers or co-workers without a need to know.

• Employer cannot deny accommodation because co-workers may be resentful. Carter v. Pathfinder Energy, 662 F.3d 1134 (10th Cir. 2011).

• Sometimes reasonable accommodation may require providing a change that the employer denies to other employees who request for non-medical reasons. Ekstrand v. School Dist. of Somerset, 2012 WL 2382313 (7th Cir. June 26, 2012).

• Special rule for seniority systems: US Airways, Inc. v. Barnett (2002).

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Reactions By Co-Workers

Conduct Issue:•McElwee v. County of Orange (2d Cir. Nov. 15, 2012).

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Recent Case Illustration

• Accommodation of last resort• Position must be vacant• Must be equal in terms of pay, status, etc., or

as close as possible• Is not limited geographically• Employee must be qualified for the new

position, but does not have to be best qualified

Reassignment

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• Vacant means that the position is available or will become available within a reasonable time

• Employer does not have to reassign to a position that would be a promotion

• Employer does not have to bump another employee to create a vacancy

• Reassignment that would violate seniority system generally is not reasonable

• Employer does not have to pay cost of relocation, unless it does so for other employees who transfer voluntarily

Reassignment

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Reassignment:•Petted v. Dept. of Veterans Affairs, EEOC Appeal No. 0120090266 (Dec. 14, 2011), request for reconsideration denied, EEOC Request No. 0520120240 (Dec. 7, 2012).•Sanchez v. Vilsack (10th Cir. Sept. 19, 2012).

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Recent Case Illustrations

Jeanne Goldberg

Senior Attorney Advisor

Office of Legal Counsel

U.S. Equal Employment Opportunity Commission

[email protected]

(202)663-4693

Contact Information

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Federal Winter Webcast Series

Contact (800)526-7234 (V)

(877)781-9403 (TTY) AskJAN.org & [email protected] (304)216-8189 via Text janconsultants via Skype

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