Docstoc

transcript

Document Sample
transcript Powered By Docstoc
					     >> Marisa: Good afternoon. Everyone. Welcome to our
webinar, Developing A Successful Reasonable Accommodation
Process, Part I with Julie Balinger, a disability rights
consultant in Albuquerque, New Mexico.
     I'm Marisa Demaya with the DBTAC Southwest ADA Center here
at ILRU. I'll be assisting with the questions for today's
presentation. For those of you tuning in today, you may submit
your questions by typing them into the text chat area located
on the bottom right of your screen there. What you will do is
type in there and press the enter key when you finish typing
to submit your question to our moderator. You will not
immediately see your question. Once again, you will not
immediately see your question once you hit the submit button.
We're going to be taking questions at the end of the
presentation. So, rest assure, if you type in your question
and hit submit, we are getting them. Okay? Basically if
you've got any trouble typing your questions in today, you can
also e-mail them to us directly at swdbtac@ilru.org. Again,
thanks for tuning in today. I'm pleased to welcome Julie
Balinger.
     >> Julie: Thank you, Marisa. I appreciate that
introduction. I hope everyone is having a pleasant afternoon.
Yes, I am a disability rights and issues consultant. Just tell
you a little bit about myself. I have been in the disability
rights field for over 23 years, including I've directed a
nonprofit where the majority of employees had disabilities and
the majority of the governing board had disabilities. So I
really come from both sides of the aisle because I have been
an employee who has been reasonably accommodated and I have
granted and even denied employees reasonable accommodation.
So it puts me in a bit of a unique situation to see both sides
of the aisle, so to speak.
     As Marisa said, we will take your questions at the end of
my presentation, and I do encourage you all to ask questions.
I think the best learning process is the interactive one.
     I just want to point out that the best ADA resource out
there for region 6 is indeed the DBTAC Southwest ADA Center.
They're great. I have worked with them for years, and their
800 number is something absolutely to be utilized, and their
web site and their Podcasts -- one of the things I like about
their webcasts that we're doing today is that it's archived.
If you go to their web site you'll see numerous, numerous
archived web casts around the ADA, and I can bet that you will
find the topic that you need to learn in here about.
     All right. Developing a successful reasonable
accommodation process. This is part I of a two-part webinar
series. Today we'll be covering covered entities, public
versus private employer requirements, a brief overview of who
is covered now. Obviously we have to talk a little bit about
the Amendments Act. A sociological perspective on reasonable
accommodations. Getting to the workplace accommodations
process, determining if an ADA reasonable accommodation issue
even exists. Enacting the reasonable accommodation process.
What satisfies the RA requirements. Direct threat and
reasonable accommodations, how -- what do they have to do with
each other. What is unreasonable? We'll talk about undue
hardship. And we'll talk about and give you a little preview
of next week's part II webcast.
     Marisa? Next slide.
     I just want to start off with this wonderful phrase here
by president George Bush, our first president George Bush at
the signing of the Americans with Disabilities Act. This act
is powerful in its simplicity. It will ensure that people with
disabilities are given the basic guarantees for which they have
worked so hard: Independence, freedom of choice, control of
their lives, and the opportunity to blend fully and equally into
the rich mosaic of American mainstream.
     So when you put the ADA in that context, hopefully
employees and employers alike approach the law in this spirit,
of understanding that what the ADA is truly about is integration
and full productivity. It's my personal belief that we live
in a country that gives opportunity and that I can't imagine
making our country more strong -- let me put it this way, more
strong when we really truly create opportunity and access for
all Americans. I think that makes a country unstoppable when
we're able to do that.
     Let's jump into the meat and potatoes. Public versus
private employer. What entities are covered under the ADA. I
suspect a lot of you know this basic information. Private
employers, you have to have 15 or more employees to be covered
under the ADA, but I urge you to always check your state and
local city laws. Here in New Mexico our human rights act
states four or more employees are covered. And as you probably
know, ADA will bow to the more stringent law.
     Government employers are obviously covered under the ADA
and the rehab act of Section 504 as well as section 501.
     Government employers are covered regardless of the number
of employees. And their obligations under 504 are essentially
the same as ADA, but what 504 requires is a more formalized
documentation of compliance efforts. Obviously an
appointment of a 504 ADA coordinator and the establishment of
a grievance process to address disability-related complaints.
Also what government employers need to do is they need to make
sure that they widely publicize the grievance procedures
through -- throughout their institution.
     Also covered, and I think this is interesting to note, is
that employment agencies, labor organizations, and joint labor
management committees are all covered. Keep in mind that if
you work for an employer or you are an employer that is
unionized, collective bargaining agreements must comply with
the Americans with Disabilities Act.
     There are coverage exceptions. Religious entities can
give employment preference to people of their own religion, but
they are covered if they have 15 or more employees.
     The U.S. Government is not covered by the ADA in terms of
employees but by section 501 of the rehabilitation act. The
good news there is that the regulations in 501 and ADA are
essentially the same.
     American tribal governments are not covered. I think
that's very important to know. If you live in a state where
you have, for example, casinos and they are run by the tribal
government itself, they are exempt. However, I just want to
say that the Southwest ADA Center, they have a very good ADA
publication on American tribal governments and disability
rights coverage, and it's their legal E bulletin June 2003.
Idle titled "federal disability rights law as applied to Native
American tribes." It's well worth reading if any course of
your work that you're dealing with American Indian tribal
governments and disability rights. It is a complicated issue
because tribal governments are indeed sovereign. I would
highly recommend that for reading.
     What does the ADA Amendments Act have to do with it? I
understand that the EEOC commission has voted to approve the
notice of proposed -- sorry -- the notice of proposed
rulemaking regulations and that those regulations are now going
to OMB. Keep in mind that it still may be months before we see
final regulations. So what does the act, the Amendments Act,
have to do with reasonable accommodation? I think that's
probably fairly obvious in that I'm only entitled to reasonable
accommodations if I'm covered under the act itself -- if I'm
covered under the act itself. We know the Amendments Act
retains without amendment the existing definition of the term
disability. The clarifies the key words and phrases in the
definition. So we know, and I'm sure you're familiar with the
three prongs of the disability definition. So to be covered
you can fall in one or more of these prongs. The first is who
has a physical or mental impairment that substantially limits
one or more major life activities. Or has a record of such an
impairment. Or is regarded as having such an impairment even
if you don't, in fact, have that impairment. The last, of
course, is discrimination through association. That's if, for
example, I'm a mother of a child with disabilities, I live in
small town U.S.A., I go and apply for a job. It's common
knowledge that people know, including this potential employer
knows, that I have a child with disabilities and doesn't hire
me because they're thinking, oh, my goodness, this mother will
miss a lot of work due to her child, it will raise my insurance
rates. So the mother could, indeed, be covered under the ADA.
     Let's kind of break down the three prongs. Go ahead,
Marisa, and let's go to the next slide.
     So, the first prong. A person who has a physical or mental
impairment that substantially limits one or more major life
activities. What are major life activities? Well, we know
that was one of the big issues that the Amendments Act has
tackled, and we know in terms of if you read the act itself
Congress went to great lengths to actually as examples list
these activities within the law itself. They added to, they
reemphasized. Three of the activities that the courts have
previously rejected is bending, reading and communicating.
Congress very intentionally included those examples. Now,
it's important to note that these are examples. They're not
exclusive. It will be interesting, I think, when the
courts -- when all of this is going -- I'm sorry -- let me take
a breath here. And start over. I will be glad to share with
you all that one of my disabilities is learning disabilities,
and so at any time if I am not making sense, it's perfectly okay
to submit your question to Marisa, and I'll be glad to
reexplain. So bear with me.
     So we know what Congress' intent was, is to expand
coverage. Also it's important to note that the notice of
proposed rulemaking has also included interacting with others,
reaching, and sitting. Congress also added major baud will he
functions such as the immune system, digestive, bowel, bladder.
This obviously includes folks who have been not included and
have not made the text of the a ADA pre-amendment act such as
diabetes, epilepsy, et cetera.
     Substantial limitation. What is that? The amendments
act is very clear that out the door, out the window, is no more
significantly restricts. So we know an individual is
substantially limited in a major life activity if the
individual is substantially limited as to the condition, manner
or duration in performing a particular major life activity. As
compared to the condition or manner under which the average
person in the general population can perform the same major life
activity. Very clearly here the intent of Congress is for the
courts to focus on covered -- if the covered entity had complied
with their obligations. What Congress wants the courts to move
away from is that intensive analysis of whether I'm even covered
or not to seek the protections of the ADA. I do think it will
be interesting to look over the last couple years and years to
come how the courts will continue to define substantial
limitation.
     [ Slide 11 ]
     So who is protected now? We know the definition of
disability equals broader coverage, but we also know it's only
broader coverage for those individuals who are qualified and
can provide -- and can prove disability -- sorry -- and can
prove discrimination. So you're only entitled to relief if
you're a qualified individual and you can prove that a
discriminatory act has taken place. We know now that
substantially limits is to be interpreted consistently with the
Amendments Act, that Congress has reject the prevents or
severely restricted as a too demanding standard. We know that
substantially limits only has to be one major life activity.
Episodic and in-remission impairments are covered. If they
substantially limit a major life activity when active. A good
example of that, of course, would be someone with epilepsy or
possibly multiple sclerosis. We do know that the Amendments
Act has eliminated the mitigating measures test. As you
probably knew pre-Amendments Act to see if a person was covered
under the ADA you had to not only look at the person and the
disability but what they were doing to mitigate that
disability. I'm not going to spend much time on this. The
only mitigating measure that can be considered, this was a
compromise in Congress, is ordinary glasses or contact lenses
that fully correct visual acuity or refractive error. So if
you don't hire me simply because I wear glasses? Guess what,
I'm probably still covered. Now, let me explain that.
Congress went on and said, look, you can look at someone with
ordinary glasses, but the only way you can discriminate against
somebody who has ordinary glasses is you have to show that the
job itself, the qualifying criteria itself, means that you have
to have complete corrective vision to do that job. Transitory
and minor impairments are not included.
     [ Slide 12 ]
     Let's go to the second prong, record of disability. We
know that the Amendments Act have not made any specific changes
to this second prong. This is important that the notice of
proposed rulemaking notes EEOC's long held position that
accommodations are available for record of if still needed. A
good example of that is I may be an employee who is a past drug
user or a recovering alcoholic. A reasonable accommodation
may be that during the day I would be allowed to take a few
moments to call my AA sponsor and get support in that way or
maybe attend a meeting, et cetera. So just in mind that record
of, you still have to look at if needed reasonable
accommodations.
     [ Slide 13 ]
     Regarded as is the third prong. Very clearly that is the
sweeping arm of the ADA. Basically what this is about is that
if an employer perceives that I have a disability, whether I
have one or not, or I have a disability that does not
substantially limit any major life activity but they perceive,
they act -- their adverse action is based on what they think
is a disability, that's regarded as, and I may well -- very well
be covered.
     I think it's real important to know that in regarded as
that the employer does not have to provide reasonable
accommodations to individuals who are in that category.
What's important in regarded as, though, is it just shows the
sweeping arm of the ADA. It puts the ADA much more on par with
Title VII of the Civil Rights Act in saying that we're looking
at the intent of the discrimination. Was the intent that I
discriminated because I perceived that you had some sort of
disability? I did not like that, I was uncomfortable with
that, I didn't think you could do the job, therefore I took an
adverse employment action.
     [ Slide 14 ]
     Transitory and minor impairments. I think this is really
important to talk about because in terms of reasonable
accommodation, because I have been talking to employers who are
pretty confused, actually, about this, and so what EEOC is
saying in their notice of proposed rulemaking is that
impairments are not usually disabilities if they're temporary,
non-chronic impairments of short duration with little or no
residual effects such as your common cold, your seasonal or
common flu, a sprained joint, et cetera. Those are not
substantially limiting to a major life activity and they're
brief. They're temporary. Regarded as does not apply if the
impairment is both transitory and minor. So if it's brief and
minor, you as an employer can treat it as such and the person
cannot claim ADA protection. So we're looking at in the
regarded as that it's lasting or expected to last for six months
or less, but this only -- the six-month rule, so to speak, only
applies to regarded as. So it's important to note in terms of
actual disability. An impairment may be substantially
limiting in one or more major life activities even if it lasts
or it is expected to last fewer than six months. A good example
of that is an employee may have two broken arms from a car
accident. It may be expected that this employee will heal
within four to six months, but very clearly this person is
substantially limited. They don't have a transitory and minor
impairment.
     [ Slide 15 ]
     There are some conditions that the ADA does not cover, has
never covered, and probably will never cover. I am just going
to point out a few because you have the slide, but one is current
illegal drug addiction and use. If someone is currently
illegally using drugs, they are exempted from the ADA. Please
note that that is different from someone who has a past record
of using drugs or having an addiction. I think this is really
important because very clearly someone with a past record who
is clean and sober is most likely going to be covered under a
record of.
     [ Slide 16 ]
     So let's start thinking about reasonable accommodations
now that we have the foundation laid of who is covered an who
is entitled to reasonable accommodations. In terms of a
sociological perspective of access, I want you to all to do a
little exercise in your minds. Sociologically,
categorization and labeling of some people as disabled and
others as non-disabled depends upon society's relative ideas
of what activities people should be able to do and how they
should be able to do it. Let me give you an exercise here. I
want you to pretend and to think about and let's say as long
as the history of man that the vast majority of people born their
main learning modality, how they learn, is touch. So obviously
because the vast majority of people historically and present
day born, that the main way they learn is through their sense
of touch, that becomes what we call normal, the norm. So think
a minute, what would a classroom look like? What would a house
look like? What would a computer look like? What would a car
look like? What would the environment look like? And the
reason that I put it in this framework is that it brings the
understanding that how access is created in society is based
historically on how a majority of people have and do physically
function, think and feel. So those of us who physically
function, think or feel differently from that norm, access is
very clearly not really -- readily available to us in many
situations in life.
     So by creating access for historically ignored group of
people, that's reasonable accommodations. You can define that
as reasonable accommodations. It's the removal of workplace
barriers which are presented in relation to the disability.
     So the point of view that I take of reasonable
accommodations is not that it's special treatment of the
employee, that it's doing something extra for someone, but
actually what reasonable accommodations should be designed to
do is to stop historically ignoring access needs of a minority
group of people and to figure out -- to be creative and to figure
out how a broader access can be offered to people with
disabilities, which, as we all know and have learned for years,
usually results in greater access for all people in the
community.
     [ Slide 17 ]
     Getting to the workplace accommodation. Before even
considering reasonable accommodation, first ask yourself: Is
this even an ADA issue? Now, even if it isn't, you still may
want to provide accommodation to encourage high work
productivity, but having said that, know the difference between
your ADA obligations and what you want to do voluntarily.
     [ Slide 18 ]
     Determining if you have an ADA issue. Here's your
formula. This is your Bible, so to speak in determining if you
have an ADA situation. The relevant portions of the ADA
require an employer to provide reasonable accommodations to
qualified individuals with disabilities who are employees or
applicants for employment unless to do so will cause an undue
hardship.
     So let's break down these ingredients.
     [ Slide 19 ]
     For each employee, go back to the basics. Does the
individual have a disability under the ADA?
     Is the individual qualified?
     Is the accommodation needed reasonable?
     Does the accommodation remove application or employment
barriers?
     Is the accommodation made being monitored to make sure that
it's effective?
     If you don't take anything else away from this presentation
today, take away the slide before this and this slide. Know
your relevant portions of the ADA. An employer to provide
reasonable accommodations to qualified individuals with
disabilities who are employees or applicants who are employed
unless to do so would create an undue hardship. Take that
analysis and apply it.
     So, the person requesting a reasonable accommodation, do
they have a disability that's covered under the ADA? Are they
qualified? We're going to talk about qualified in a minute.
     What are they asking for? Is it reasonable? Is it
something that the company, the employer, the state and local
government employer, whoever the employer may be, is able to
do? Does the accommodation requested or even the
accommodation the employer suggested -- is suggesting, does it
truly remove the employment barriers?
     I think this last part is what a lot of employers that I
have found that I've worked with tend not to do or think about,
but that is to make sure that whatever reasonable accommodation
was granted, that it indeed, number one, works in the first
place, it's removing the employment barriers in the first
place, and does it remain effective? So it's a good idea to
always go back and visit that throughout time.
     [ Slide 20 ]
     So we know that the ADA requires reasonable accommodation
in three aspects of employment: To ensure equal employment in
the application process. To enable a qualified individual
with a disability to perform the essential functions of the job.
And to enable the employee with a disability to enjoy equal
benefits and privileges of employment.
     I really -- I think we understand the first two. The third
is also fairly obvious. I mean, we know in terms of insurance
and other tangible benefits, but I just want to take a moment
and talk about the privileges of employment. Some are very
tangible. Some are not -- are intangible. It's very
important as employer that you step back and you look at those
intangible benefits. For example, if I am a wheelchair user
and I work on the first floor, I'm able to do my essential
functions on the first floor, I'm he -- employment barriers are
removed for me on the first floor, things are rockin' and
rollin', I'm doing good, but there may be an intangible
privilege I'm denied. It may be that the supervisor or the boss
or the CEO of the company office is located on the 2nd floor.
There is no elevator. I'm not able to get to the 2nd floor.
The rest of the employees are able to go in and out of the CEO's
office, have conversations, talk with him, get to know the CEO,
but as a wheelchair user, I can't get to the 2nd floor and do
that. So that's very important as an employer to sit back and
analyze what are the intangible privileges of employment. It
may be that you have a company picnic every year and it's a time
to hobnob with the boss, to network with fellow employees that
you don't see very often, et cetera. Well, if I'm a person who
is deaf, as an employer, make sure that even though it's not
an official work function, but an interpreter is available at
that picnic so that as an employee who is deaf I have the same
privileges of being able to hobnob with the boss and to network
with the other employees.
     [ Slide 21 ]
     So, disability, disability inquiries and how do they
relate to reasonable accommodation. So is there an
impairment? You need to know that if you're going to
reasonable accommodate. So how do you know that? We all know
there are three stages of employment inquiries to the ADA, the
pre-offer, the post-offer pre-employment, and the employment
stage. I have found that most employers have a pre-offer.
Obviously the application stage. And then they have the
employment stage. But some employers do, indeed, have the
application stage and then they make an offer contingent upon
whatever it is the contingency is upon, such as the police
department may offer the person the job of becoming a police
person, but that's contingent upon them passing agility tests,
medical tests, et cetera.
     Now, that's a whole training within itself, and so I won't
go into that today because this is a reasonable accommodation
training, but what I'll talk about is in terms of does your
reasonable accommodation policies and procedures address each
of these three stages. In other words, does everyone in your
company, in your employment, or if you're an employee, do you
know that there are reasonable accommodations available? So
if I go and I apply to work for you, then do I know pretty much
immediately that if I need a reasonable accommodation to remove
application process barriers, I know that it is available, I
know how to request for that reasonable accommodation, and I
know that, obviously, I will receive that accommodation in a
timely manner so that I have equal employment opportunity to
apply for the job.
     Post-offer pre-employment, obviously I have a right to
reasonable accommodations to be able to perform whatever
requirements is there for me to perform so that I can move on
into employment and, of course, reasonable accommodations so
that I can perform the essential functions of the job during
employment.
     [ Slide 22 ]
     It is important here in our formula, as you know, is that
is the person qualified? Only qualified employees with
disabilities are covered under the ADA. So, the person, do
they have the pre-requisite skills, education, et cetera,
which makes them qualified? What's real important around
this, and what I want to point out around this, is if I'm asking
for a reasonable accommodation as an employee, of course, there
is an assumption, I am an employee, I am doing the job, I must
be qualified to do the job. Where it can get messy for
employers is around this term qualification, and for employers
to keep that clear, especially if they're going to have to at
times deny a certain reasonable accommodation request, it's
very important as an employer that you really do run a lean,
clean employment machine, basically meaning are all the job
related functions -- sorry, let me resay that. What are the
job related qualifications? If you're having someone do
something on the job that is not related to the job, is not
essential to the job, you can't disqualify someone because you
say they're not qualified in that area. What you want to make
sure that you're doing is that your employees understand what
the qualifications are, you understand what the qualifications
are for the job, and how do you express those qualifications,
and how clear are those qualifications. Are they listed in the
job descriptions? It's always a very good idea to review job
descriptions to make sure, number one, what shows in the job
description indeed is what the person is actually doing on the
job so the essential functions of the description is, indeed,
matching the reality of the essential functions of the job,
which, then, of course relates to the qualifications. So what
steps as an employer are you taking to ensure that each
qualification is actually job related? Also, in terms of
guiding your screening tools to disqualify on a
non-disability-related basis. So a lot of times we kind of
skip over, well, of course people are qualified because they're
doing the job, but do these sorts of analysis and knowledge
accumulations so that as an employer you're on good solid ground
around qualifications.
     [ Slide 23 ]
     Here's the meat and potatoes in terms of the RA process.
I want to note that next week for the webcast we're going to
be going in much more in depth in this process. We're going
to be talking about types of accommodations as well as very good
models for reasonable accommodation policies and procedures.
     So, the process of reasonable accommodation. RA policies
and procedures. You want to make sure to include a process to
monitor how the accommodations are working. It's also a good
idea on how leave as reasonable accommodation interacts with
the family medical leave act. I get a lot of those questions
when I go out and train in terms of the differences between the
two, in terms of when does the FMLA kick in as opposed to the
reasonable accommodation. I do want to point out the EEOC has
put out an excellent publication, technical assistance
publication, on this very subject, and you can find it on the
Southwest ADA Center web site or you can find it directly on
the EEOC web site. If you're an HR manager or worker, it's well
worth downloading that and reading that and having that in
reach.
     Now, individuals must let employers know that an
adjustment or change is needed for a medical condition. An
employer is certainly not required to second-guess or assume
disability. An employer is not obligated to observe an
employee for any behavior that may be disability related and
then decide, ah, you're disabled, I observed that and I've
decided you're disabled. An employer is not required to do
that. But let me point out here, though, that as an employer,
if you know a person is disabled, then you know they're
disabled. Don't ignore the fact that is obvious. So if you
have knowledge that a person has mental illness, maybe you
gained that knowledge because the person had at some point,
maybe six months ago, just shared that with you in a casual
conversation that they deal with some sort of aspect of their
mental illness, you know. So don't -- you can't -- it's not
advisable that you go to court and say, look, I wasn't obligated
to observe an employee for any behavior and so I didn't know
anything. So as an employer, just be aware. If you know, you
know. And at that point, step up to the plate if you need to
for reasonable accommodations.
     It is important to note here that the request, there are
no magic words. Wouldn't it be a nice world if every employment
with a disability who needs a reasonable accommodation came to
the employer and said, hey, here's my disability, here's the
proof of disability, here's how the workplace is presenting
barriers as it relates to my disability, and here's the exact
reasonable accommodation I need for me to do my job. That would
be a great world. But a lot of times that's not how reasonable
accommodation requests happen. What employers face, HR
personnel, supervisors, many times they will get conversation
that goes like this. An employee will come up and say, "Hey,
you know what? I'm on a new drug, and this new drug has a side
effect that makes me really sleepy in the morning, makes me
groggy, makes me sleepy, even gives me some headache in the
morning. So what I want to happen here is I want to come in
at a later shift." So this leads the employer to go, okay, was
that a reasonable accommodation request? Was that not? Is
this person even covered? What do I need to do here?
     I think this is where it's very, very important to point
out having good reasonable accommodation policies and
procedures are extremely helpful in these situations in that
in terms of the employer thinking, well, am I allowed now to
go forth and ask disability inquiries? Can I do that? Is this
a Trigg center has an RA request been triggered here? It's very
helpful at that point to say to that person, you know, we
reasonably accommodate people who are covered under the ADA,
and here's our policies and procedures to do that. If you would
like to enact the policy and procedure, that's great, and I'm
here, and I'll be glad to go through the policy with you. What
you may get from that is, oh, no, no, no, I'm not interested.
It's just a short-term drug for a very short-term condition.
Or you may get, yes, let's have more dialogue. Let's have more
dialogue. So that's just a good best practice to have.
     It's also important to notice the words interactive
process. If you go through any of the employment case law
around the ADA, you'll see that the courts are really big on
good faith interactive process. That's very key for the courts
to see that the employer is, indeed, doing that. Even if at
the end the conclusion is a denial of a reasonable
accommodation, what the courts are going to look at is that
interactive process. So, again, we'll talk about next week how
to include that in your policies and procedures.
     Please note that the reasonable accommodation request does
not have to be in writing for it to be triggered, for an action
on the part of the employer to start looking at triggering their
RA process. Obviously documentation is always a good thing to
have, but what you can't do as an employer, or you shouldn't
do as an employer s turn around to the employee who requested
a reasonable accommodation, you ask that employee to put it in
writing, you did not get it in writing, two months go by, and
all of a sudden EEOC is knocking at your door. As an employer,
it is not a defense to say, look, I asked for that reasonable
accommodation in writing and it never came my way. That's a
very poor defense. In terms of documentation a good best
practice, of course, is to sit down with the employee, write
it out yourself, go through it with the employee, and have both
of you sign it and say, great, we understand each other.
Writing is a good way to make sure we're clearly communicating.
Let's get the RA process going here.
     [ Slide 24 ]
     What satisfies accommodation requirements? An employer
does not have to give the accommodation requested -- requested
by the employee, but obviously the accommodation must be
effective. It must enable the employee to perform the
essential functions of the job. It obviously must enable an
applicant to have equal opportunity to apply and to move through
the application process. And it must enable an employee to
enjoy the privileges and benefits of employment. What's
important to point out here is that primary consideration as
an employer that must be given to the employee. That goes back
to that whole interactive process of talking with each other,
opening communication, finding out what the barriers are,
finding how the employee thinks those barriers can be best
removed. People with disabilities are the best expert about
their own disability. They have pretty good ideas most of the
time on how to remove those barriers. If you have an employee
who is newly disabled or is becoming disabled through a disease
process, there may be more conversation that needs to be had
there and that the employee may or may not know what will work
for them. The whole key, obviously, there is communication,
interaction, primary consideration.
     [ Slide 25 ]
     Direct threat and reasonable accommodations. How does
that work? We know if an individual poses a direct threat,
significant risk -- which is defined significant risk of
substantial harm to the health and safety of the individual or
others. We know that the employer to declare a direct threat
you have to look at the nature of the risk, the duration of the
risk, the severity of the risk and the probability of likelihood
that harm is going to happen with this risk. The evidence has
to be based on good medical evidence and statistics, not
obviously on stereotypes, or, I knew a guy way back when that
had your same condition, therefore, you're dangerous. It has
to be based on good medical fact.
     How reasonable accommodation comes into play with direct
threat is that the employer must determine whether reasonable
accommodation would either eliminate the risk or reduce the
risk to where a substantial harm no longer exists. So that is
a very important component that if you are an employee that is
posing a direct threat, an employer who has an employee who is
posing a direct threat, then you all need to sit down and look
at is there a reasonable accommodation can that eliminate the
risk, or at least reduce it to an acceptable level.
     [ Slide 26 ]
     What accommodations are unreasonable? Are going to be
[ INAUDIBLE ] most likely all the time just simply unreasonable
accommodations? Eliminating an essential job function is
unreasonable. Lowering production standards is unreasonable.
Personal use items for the most part, such as eyeglasses,
hearing aids, et cetera, are not reasonable requests.
Creating a job for someone, a job that didn't exist before, can
be considered unreasonable. Bumping an employee for his or her
job so you can move the employee with the disability in that
job. That's obviously not reasonable. Placing a disabled
applicant in a job for which he or she did not specifically
apply. Placing an individual in a job if doing so would create
a direct threat to the health or safety of others or to that
individual. But remember, you have to look at reasonable
accommodation, which could possibly lower the risk to an
acceptable level or even eliminate the risk. Maintaining a
salary of an employee reassigned from a higher paying job to
a lower paying job if the employer does not do so for employees
who are not disabled.
     I do want to point out here that EEOC is very big on looking
at job reassignment. It may be the last resort in terms of that
the employee was unable to be reasonably accommodated in their
existing job, and so looking at other job openings, EEOC is very
big on that, and as an employer it's very important that you
do that. The courts tend to be very split on who looks for that
open job, whether it's the employee or the employer, but I think
in terms of best practices for employers it's a good idea for
the employer to take the lead and do that. For obvious reasons.
It shows the employer is acting in good faith in trying to
reasonably accommodate the individual.
     [ Slide 27 ]
     Undue hardship. So we know that employers are required
to reasonably accommodate barring undue hardship. It is the
responsibility of an employer to provide reasonable
accommodation in -- sorry -- it is the responsibility of an
employer to provide reasonable accommodation but it's limited
to the situations that would not cause undue hardship.
     I think what we're going to see around undue hardship is
we're going to see a lot more litigation in this area, because
pre-Amendments Act getting covered was the real challenge to
show that you even had protection under the ADA because you were
looked at in your mitigated state. Now that more people are
clearly going to be covered under the ADA due to the Amendments
Act, I think we're going to see more litigation around undue
hardship because we'll actually get to that point in terms of
the discrimination process. Or at least looking to see if
discrimination has taken place.
     So we know to claim undue hardship, the limitations to look
at, please notice there's not an "and" behind every one of these
bullets. It can be costly and/or unduly expensive and/or
substantial and/or disruptive and/or a reasonable
accommodation would that fundamentally alter the nature of the
operation of the business.
     So in terms of -- well, next slide. Let me talk about this
in the next slide.
     [ Slide 28 ]
     In determining undue hardship the employer is the one who
is required to show that the accommodation is an undue hardship.
Now, keep in mind that one accommodation may be an undue
hardship, but as an employer there may be an alternative
accommodation that may not be impose an undue hardship or do
what you can as an employer to remove the barrier up to point
of an undue hardship.
     Employers must determine undue hardship on a case-by-case
basis. As an employer you can't say, well, you have multiple
sclerosis, we had somebody last year in employment with
multiple sclerosis, and we couldn't do that reasonable
accommodation for her, so we can't do it for you. Don't take
that approach. The best practice approach is the case-by-case
basis of the individual, their particular disability, how the
disability affects them as it relates to the workplace barrier,
and having that interactive process.
     Considering an undue hardship is in relation obviously to
the size of the employer. What's hard for the Kohl's
department stores to do is probably very different for a mom
and pop restaurant with 25 employees. The resources
available, the nature of the operation and also the employer
should be looking at tax incentives on how that comes into play
to be able -- to be able to or not able to provide the reasonable
accommodation.
     So the assessment of an undue hardship is not a one-time
process. It's an ongoing process as the resources and
situations change for that employer. One of the very helpful
things for employers in best practices is that if you do have
to show undue hardship in denying a reasonable accommodation,
it's a good idea to actually sit down and do the analysis of
that undue hardship. Do an undue hardship impact analysis.
If it's an economic reason, do that analysis. Show
economically how that's an undue hardship. If it's an
extensive, substantial, disruptive, do an analysis of how,
indeed, that it is extensive, substantial and disruptive. Do
it in writing. Go through the steps. Show the fundamental
alteration, if that I grant this reasonable accommodation, it
will take away essential job functions, which will
possibly -- or which will fundamentally alter the job. Just
good best practices.
     All right.
     [ Slide 29 ]
     What we're covering today is just a really good foundation
for us to launch what we want to do next week, January 26th at
2 p.m. central time, the second part of this webinar series,
and what we'll look at, now that we've covered all of this meat
and potatoes, what we will look at is some good, successful
reasonable accommodation process tips and more best practices.
     We're going to look at reasonable accommodation policy and
procedure models. The DBTAC in conjunction with the
New Mexico division of voc. rehab have developed excellent,
excellent PNP models on government and I'm excited to talk about
both of those P and P's. Why reinvent the wheel when you can
take a model and fashion it to fit your employment situation.
We'll talk about types of accommodation and including the not
so obvious. And more reasonable accommodation resources.
     [ Slide 30 ]
     I do want to talk about the Job Accommodation Network. I'm
sure most of you are familiar with JAN. They're a free
consulting service funded by the federal government designed
to increase the employability of people with disabilities. I
also want to point out that they will provide technical
assistance even if you're not an employer or an employee or an
applicant. If you're a university, for example, looking to
reasonably accommodate students, they're very good at that.
So if you're thinking reasonable accommodations, workplace or
other types of situational barrier removal, JAN is excellent.
Excellent at helping you be creative, figure out the best thing
to do, and what to do.
     [ Slide 31 ]
     Again, the ADA resource, the DBTAC Southwest ADA Center.
They are a leading resource on ADA, the Amendments Act, and
other disability-related laws such as IDEA. They are also very
good at working with you to make information technology
accessible. They serve everyone, employers, businesses,
government agencies, the work force system schools. Free
hotline. Great web site. Good pod casts, great webcasts.
     [ Slide 32 ]
     All right. Questions and discussion? I do hope that you
all will join us for part II of this webinar series on January
26 at 2 p.m., just a week from today, and, Marisa, I'm going
to turn off my mic and hand it over to you.
     >> Marisa: Thanks, Julie. Thanks, everybody for being so
patient. Julie, that was great. We've got -- Julie, that was
great. We've got so many questions. I want to give a quick
reminder to everyone, if you have a question or a comment,
please type it into that chat window. We will receive it and
relay it. And if we run out of time before we answer everyone's
questions, I want to just say we will have Julie answer them
and post those answers on the webinar archive page so that you
can get your answer to your question.
     Let's get started here. We have a ton of questions. So
I'm going to start. Again, we're going to be going over the
questions in the order they're received. So, just get your
question into us and we'll do our best to get it answered.
     Our first question is: In a situation where there is a
large corporation with individual businesses that operate as
franchises, would ADA still apply? Some businesses seem to be
of the notion that since they are franchise owned and maybe have
less than 15 employees on duty the ADA does not apply.
     >> Julie: You know, that's a very good question, and I'm
probably not going to give you a complete satisfying answer.
What I would like to do is take this question and research it
a little more. My understanding with the franchises, such as
McDonald's, is that the courts is are going to look at the whole
company and that the franchise is, indeed a branch, an extension
of the bigger company. But I want to do a little more research
on that. Marisa will be able to -- Marisa, you get the e-mail,
right, and I'll be able to do that. But my understanding, and,
Marisa, please feel free to comment, is that the courts are
going to look at the franchise as a whole company.
     >> Marisa: Thanks, Julie. I think -- we'll go a little
bit more into that, but you can always call our 800 number if
you want answers to a question like that. For instance, if it's
a specific situation, feel free to give us a call at
1-800-949-4232 and we can help you out a little bit more in depth
with something like that.
     Next question: Could you explain a bit more about undue
hardship? How would an employer or business be able to claim
this? And can you give an example?
     >> Julie: Okay. You know, undue hardship, first of all,
I want to acknowledge that I do think employers struggle with
this. Especially employers that are mid-size. Because they
have some resources, but they don't have endless resources.
Really, the best practice of that is to truly listen to the
reasonable accommodation request, have that interaction with
that person, find out why they think that particular request
is the best way to remove the employment barriers. Once you
have that understanding with each other, then that opens up a
whole world for as an employer for you to do the research, for
you to look at the tax incentives that you can claim if you grant
this reasonable accommodation, such as putting a ramp to the
front door of your business, et cetera, so the employee can get
in and out.
     So you have that basis of completely and totally
understanding what it is the employee wants, why they want it,
and how it removes the workforce -- workplace barrier for them
to perform their essential job functions. That's imperative.
     Now, from there, then, as an employer, you get to look at
how much is this going to cost? Is it going to be really
expensive to do? How substantial is it for us as, let's say
a mid-size employer to be able to even implement that? Is what
the person's asking for, is it disruptive? Or, are they asking
for something that's just going to change what they do here in
the company?
     I think a good example is a court case where an individual
was using a guide dog in a hospital setting, and the hospital
had a very long history of allowing guide dogs in, whether it
be the patient's, patient's families or even the employee
themselves, and so they allowed the St. Bernard in, but what
they found was that the St. Bernard was consistently not clean
and very smelly, and what they had to do is, say, you know, this
is substantially disruptive and we're getting complaints, that
we need to rectify the situation. The dog needs to be cleaner
and not smell and be brushed and groomed, et cetera. The court
ruled in favor of the employer because they could show a couple
things. They could show that granting the allowance of this
dog coming in was because of the health and safety to the other
patients, that that was not only a direct threat but that it
was unreasonable around the direct threat. Other sorts of
examples of an undue hardship may be someone who wants to come
into work later due to disability, but you're a small business,
you have 30 employees, you have to have certain shifts covered,
or you have to have three salespeople on the floor at any given
time, and to shift the rest of the employees is just not feasible
and it's very expensive and it's substantial and it's
disruptive.
     The best thing to do is truly have the foundation of
communication with that employee. Listen to them. It may be
that you come up, you call JAN, you call the DBTAC, and you find
that you can remove those employment barriers by different
approaches, different reasonable accommodations.
     So I have to ask, Marisa, if that was helpful in answering.
     Before I give you back the mic I'm getting a little
technical assistance from the DBTAC. You can, indeed, count
the number of employees a franchise has if the original
franchiser holds no ownership stake in the franchise. If the
franchise has less than 15 employees, then they're not covered.
Let me read that again. You can count the number of employees
the franchise has if the original franchiser holds no ownership
stake in the franchise. There's the key. Holds no ownership
stake in the franchise. If the franchisee has less than 15
employees, they're not covered by the ADA, but keep in mind they
may be covered under a state or local law. Okay. I'll give
you back the microphone.
     >> Marisa: Thanks, Julie. Wow, that was pretty good.
     Our next question is: What are -- what requirements are
there for the discovery of just who is the employer's -- and
they say mine is a state agency ADA coordinator. For example,
my employer does not publish this and will not respond to who
asked about this. So they're wanting to know what requirements
are there for the discovery of just who that employer's ADA
coordinator is.
     >> Julie: If I understand the question, and I'm not sure
I do, but let me give it a stab, is if you are working for state
or local government, how do you find out who your ADA
coordinator is? Is that the question, Marisa?
     >> Marisa: I believe so. I believe that's what our
question says.
     >> Julie: Okay. Thank you. As I talked about earlier,
that should be information that's widely publicized throughout
the state or local government agency. If it's not widely
publicized, you should be able to call the state personnel
office and be able to say, I just simply need the name and
contact information of the ADA coordinator. Your state
personnel office should be able to provide you with that.
Technically hopefully your supervisor should be able to provide
you with that. I'm trying to think where else in state
government -- if you have a trainer on staff, they should be
able to know because they obviously give employment trainings
to the department. So you should even be able to call your
governor's office and find out. But 504 coordinators are going
to be found in each of the state or city departments or you may
find, depending on the state and city location, that you have
an ADA coordinator, a coordinator, that oversees a couple
departments in the city, or oversees all of the city
departments, and so your HR department should absolutely
provide you with that information.
     >> Marisa: Next one: What is the recourse for an employee
who does not receive an answer to a request for an ADA
accommodation given that provided evidence supports it, the
requested accommodations are low cost, non-invasive,
sustainable and effective? They say situations like this
exist for months to years at their employer. Wow.
     >> Julie: Wow is right. The best way, if I understand the
question, the question is, what if I have submitted a request
for reasonable accommodation and basically it's been ignored?
Is that the question, Marisa?
     >> Marisa: Yes, that's what it sounds like from our
question.
     >> Julie: Okay. Well, first of all, all I can say with
that is that's a good way for the employer to put a big target
on themselves for a lawsuit. In terms of ignoring reasonable
accommodation requests, I can answer this in a couple of ways,
and it's really up to the employee and what they want to do about
it, quite frankly.
     An employee can immediately go to the EEOC and file a
complaint. You can go to your state human rights department,
lush very found in the Department of Labor -- usually found in
the Department of Labor and file a complaint opinion. If you
don't want to move that fast at first, it's probably a best
practice, good idea to write out your complaint. If the
company has a grievance process for any kind of grievance, go
through that grievance, that you submitted the request and
you've not been responded to. So utilize the companies'
grievance process to express that. Exhaust that grievance
process if at all possible. What's left, of course, is EEOC
or your human rights division in your particular state or city.
You know, there's just -- there's not -- this is a tough one.
This is a tough one. Because you know as an employee you've
got quite a road to climb there. Sometimes it's helpful to so
it's how quickly as an employee.
     >> Julie: Sit legal to ask the prospective employee either
verbally or on an application if they have a ticket to work from
Social Security? Test.
     >> Julie: I followed until the last part of that, the
medical separation. Would you clarify that, Marisa?
     >> Marisa: Sure. I guess they're basically saying: What
if an employer does not have an established process as far as
the good practices and they prefer to simply, I guess, maybe
terminate the employee. They're saying exit employee under
the guise of medical separation.
     >> Julie: I have to admit right up front I am not familiar
with the term medical separation. So I may or may not be
answering this properly for this individual. You know, all I
can tell you is that whether the employer has best practices
or not, they're not exempt from the ADA. They're not exempt
from their obligations under the ADA. And they're not exempt
from the process in which they're expected to go through and
the process we talked about for the last hour. They're not
exempt that from. So best practices are always a good idea.
No practices are always a bad idea. It puts a big bull's-eye
target on the employer to be sued when they have no practices
or poor practices. And so if it means I'm asking for a
reasonable accommodation and the employer says, "Well,
medically prove it," and you proved that you not only have the
disability but how it relates to the workplace barriers and how
workplace barriers can be removed through reasonable
accommodation, and, the employer comes back and says, well, you
have a medical condition, therefore, I'm going to terminate
you, that's a very clear violation of the ADA and is an adverse
action of discrimination.
     >> Marisa: Okay. Says that answers my question mostly.
However, if there is an online application that specifically
asks the question: Do you have a ticket to work -- I'm sorry,
I'm getting this confused. This is going back to the previous
ticket to work question that we had. They ask: If there is
an online application that specifically asks the question "Do
you have a ticket to work," it would seem if that the answer
is yes, the employer could use that info to not respond to the
application or discriminate?
     >> Julie: Okay, Marisa. Let me look at this. If there
is an online application that specifically asks the questions
"Do you have a ticket to work" it would seem if the answer is
yes the employer could use that info to not respond to the
application or to discriminate. Yes. Yes, they could. They
could ask that. What I'd like to do, because I'm getting a
little technical assistance from Vin here is take the time and
answer this a little more in depth in terms of pre-employment
questions. I do -- I can tell you that EEOC puts out an
excellent, excellent technical assistance on pre-employment
disability related questions. They talk about what an
employer cannot ask and what an employer can ask. There are
some very, very, very narrow few exceptions in terms of
disability inquiries in the application stage and that EEOC
technical assistance piece talks about that. It's a few pages.
I think it's like 20 pages. But it is well worth the read in
terms of pre-employment questions, what is allowed and what's
not aloud. In terms of the -- what's not allowed. In terms
of the ticket for work I think what VIN is telling me is the
only disability question they can ask is pre-offer if the person
needs a reasonable accommodation for the interview, that other
disability related questions need to come to the post-offer
pre-employment stage. I think this is a bit of a complicated
situation in terms of the ticket to work helps employers
actually hire you and gets you employed. So, Marisa, I would
like to actually take the time -- Marisa, I would like to take
the time to answer that online so we can give a long, extensive
and clear answer on that because that's an excellent question
that should be answered.
     >> Marisa: Absolutely, Julie, and we will post that answer
and the answers to any other questions that are left out today
on the web. I will give out the address in just a second.
     One last question is -- we're going to go back up here.
What are the relative responsibilities of an employee -- an
employer to engage in the interactive process? Does the
employer have a higher duty to get the process happening? That
may require more time, but, Julie, I'll turn it over to you.
     >> Julie: I think that both the employee and employer have
an obligation of the interactive process. That's very, very
important. As the employer, though, when someone requests a
reasonable accommodation, and like we said, remember, there are
no magic words in a request, it is absolutely incumbent on the
employer to pursue, to pursue the interaction, community
indication and to get the ball moving. The reason for that is
the employer is the one who has the power to get the ball moving
on the reasonable accommodation process. So it is absolutely
clearly incumbent on the employer to step up to the plate, to
fully communicate, to enact, to get the best practices rolling,
to get the policies and procedures rolling, because that's what
employers do. That's what it's all about. And so I would say
that the employer has a very high obligation to get it moving.
     Now, having said that, the burden on the employee is to
respond to that movement. So the employee asks for the
reasonable accommodation, and the employer starts moving on the
process, the employer comes back to the employee and says, okay,
I need some medical documentation because the disability is not
obvious, and so, therefore, reasonably accommodating is not
obvious due to disability. So I need medical documentation
from you as the employee. I need to know what the disability
is and how it relates to the workplace barriers, and I need to
get that from you in a very timely manner so I can continue the
reasonable accommodation process so we can keep things moving
for you. So very clearly both parties have responsibilities
in this process, and it works well when both parties step up
to their responsibility in enacting the process. I hope that
answers the question, Marisa.
     >> Marisa: Very much so. And I do apologize. We are out
of time. We still have a ton of questions. So what we will
do is we will send these to Julie, and probably in the next day
or so we'll get those answered and up on the web.
     Again, we invite everybody to join us back here next
Wednesday for the continuation. That's part II of this webinar
series. Julie will go much more in depth, including a
successful reasonable accommodations policies tips. We'd
like to remind folks to complete the evaluation. You should
see the link to it up there on your screen. If not, it is
available up on our webinar page. As we always welcome your
feedback. But you can to our webinar page at www.ilru.org and
you'll be able to click on the webcast calendar link to get to
that.
     Once again, a recording of today's presentation will be
available on our web site. Please feel free to share this with
anyone you feel might benefit. This is sponsored by the
national institute on disability rehabilitation and research,
NIDRR, who fund your host for today's program, the DBTAC
Southwest ADA Center. Many, many thanks to our presenter Julie
Balinger for talking with us today. She is so awesome. Thank
you to our webinar team here at ILRU and to Closed Caption
Productions for providing our captioning today. We'd like to
remind everyone that the opinions and views expressed today are
those of the presenters and, therefore, no endorsement of the
sponsoring agency should be inferred. Thank you so much for
joining us everyone. We will again post the answers to all of
your questions on that web page accessible at www.ilru.org.
Please join us next Wednesday. Thanks again. Bye-bye.

				
DOCUMENT INFO