VIEWS: 12 PAGES: 24 POSTED ON: 4/9/2011
>> 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 email@example.com. 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.
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