John L. KnorekTorkildson, Katz, Moore, Hetherington & Harris

jlk@torkildson.com523-5384

April 23, 2014 Plaza Club

Honolulu, Hawaii

An impairment that substantially limits one or more major life activities

A record of a substantially limiting impairment

Being regarded as having a substantially limiting impairment.

According to the National Alliance on Mental Illness, 1 in 4 adults – about 57 million Americans, experience a mental health disorder every year.

In October 2010, a California jury in Martinez v. Rite Aid, No. BC401746, awarded $3.4 million in compensatory damages and $4.8 million in punitive damages due to harassment/discrimination due work-relatedanxiety.

Supervisors allegedly called the employee a“basket case,” “bipolar,” and “crazy.”

1. A physical or mental impairment that substantially limits one or more major life activities;

2. A record of such impairment; or 3. Being regarded as having such an

impairment..or4. Associated with disabled

Anxiety disorder Panic disorder Bi-polar disorder Depression Post-traumatic stress disorder Schizophrenia Adjustment disorder

Pyromania Kleptomania Compulsive gambling Current illegal use of drugs Certain sexual disorders

Poor judgment Chronic lateness Irritability Inability to get along with supervisor or co-

workers

ThinkingConcentratingInteracting with othersSleepingCaring for selfWorking

Unable to perform a major life activity; or

significantly restricted in the condition, manner or duration under which a major life activity can be performed as compared to the average person in the general population

Duration – more than several months Severity Permanent or long-term impact of or

resulting from the impairment

Substantially limiting in the past Includes individuals mischaracterized as

having a disability May be relevant in cases where someone is

using a mitigating measure to control a condition

Impairment is not substantially limited, but individual is treated as such

Impairment is substantially limited as the result of the attitudes of others

No impairment, but employer treats an individual as if he or she has a substantially limiting impairment

Meets the basic skill, education, training, and other job-related requirements; and

Can perform the essential (or fundamental) functions of a position with or without reasonable accommodation

Job exists to perform the function Limited number of employees among whom

function can be distributed Job is highly specialized

A change in the workplace or in the way things are customarily done that provides an individual with a disability with equal employment opportunities

Accommodations are available for the application process, to enable an individual with a disability to perform essential job functions, and to provide equal benefits and privileges of employment.

Generally, an individual with a disability must request reasonable accommodation.

A request for reasonable accommodation is a request for some change in the workplace or in the way things are done that is needed because of a medical condition.

Physical modifications Modified work schedules Job restructuring Changing supervisory methods Job coach telework Leave Reassignment to a vacant position

Lowering production or performance standards

Excusing violations of conduct rules that are job-related and consistent with business necessity

Removing an essential function Monitoring an employee’s use of

medication Actions that would result in undue

hardship (i.e. significant difficulty or expense)

An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position.

Nor is an employer required to lower production standards -- whether qualitative or quantitative -- that are applied uniformly to employees with and without disabilities.

An employer does not have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Thus, an employer is not required to provide an employee with a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices if they are also needed off the job.

Requests do not have to be in writing. Requests do not have to use “magic words.” Requests may come from a third party (e.g.,

an employee’s family member or doctor).

Stephanie Gambini told her supervisors she had bipolar disorder. She found herself increasingly irritable and easily distracted; had a hard time concentrating or assigning priorities between tasks.

Her supervisors met to give her a written performance plan. She began to cry. After they finished reading the plan, she threw it back across the desk, used profanities to say that the plan was unfair and unwarranted, slammed the door on her way out, and kicked and threw things in her cubicle.

Gambini was terminated when she returned from FMLA leave.

“Conduct resulting from a disability is part of the disability and not a separate basis for termination.” The Court clarified that where an employee demonstrates a causal link between disability-produced conduct and termination, a jury must be instructed that it may find that the employee was terminated on the impermissible basis of her disability.

Former college employee’s statement to her supervisor that she would ―”kick your ass”, was not sufficiently egregious as a matter of law to bar the employee's claim that her subsequent termination was motivated by disability discrimination

The employee‘s outburst, even if the threat qualified as criminal conduct under state law, was found by the court to be arguably symptomatic of the employee's mental impairments of traumatic brain injury and post-traumatic stress disorder.

Primary consideration should be given to the employee’s choice

Employer may ultimately choose from among accommodations, as long as the one provided is effective

Police officer with ADHD discharged after harassment complaint alleged that city failed to engage in interactive process.

His request only after he was placed on administrative triggered duty to engage in interactive process.

EEOC guidance requires accommodation to allow those disciplined for misconduct to meet standards in future, he raised factual issue as to whether he is disabled under ADA and city did not allege that he was not qualified individual, and he specifically requested “all reasonable accommodations”

Requests for reasonable accommodation may be made at any time during the application process or during employment

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

Employees may make more than one request for reasonable accommodation (e.g., if the nature of a condition or the job changes)

Once a request has been made, an employer should engage in an interactive process with the individual asking for the accommodation.

The process may involve determining whether the requester has a disability, what accommodations are possible, or both.

◦The duty to reasonably accommodate is an on-going one

◦Must continue to explore alternative accommodation unless undue hardship

◦Duty ends if employer can show that all plausible reasonable accommodation involve an undue hardship

“Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability.”

(Q18: ADA Requires Employer to hold position open for employee provided leave is reasonable accommodation).

 No. … An employee requesting leave because of cancer, therefore, may be able to provide only an approximate date of return (e.g., "in six to eight weeks," "in about three months").  In such situations, or in situations in which a return date must be postponed because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their progress and discuss the need for continued leave beyond what originally was granted.  The employer also has the right to require that the employee provide periodic updates on his condition and possible date of return.  After receiving these updates, the employer may reevaluate whether continued leave constitutes an undue hardship.

No. Medication monitoring is not a reasonable accommodation.

Employers have no obligation to monitor medication because doing so does not remove a barrier that is unique to the workplace. When people do not take medication as prescribed, it affects them on and off the job.

significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.

ADA permits qualification standards that exclude individuals who pose a direct threat (a significant risk of imminent substantial harm) to the health or safety of themselves or others if that risk cannot be reduced or eliminated by reasonable accommodation.

Risk requires objective medical support

Nature of the risk and severity of the potential harm

Duration of the risk Likelihood that the potential harm will

occur Imminence of the risk Availability of reasonable

accommodation

ADA prohibits pre-offer medical inquiries or exams (excludes testing for illegal use of drugs);

ADA permits one time post offer pre-employment full blown medical exam (for all in same job category);

ADA limits post hire medical exams during employment to “job related and consistent with business necessity”

An employer may obtain reasonable documentation that an employee has a mental disability and needs an accommodation.

Employer may require that documentation of the existence of an impairment come from a health care professional.

Health care professionals other than psychiatrists may provide documentation of the existence of an impairment.

Documentation must be sufficient, but the amount of documentation required must be reasonable.◦Sufficient: Means that the documentation

establishes the existence of an impairment and the degree to which the impairment limits major life activities.

◦Reasonable: means that the employer is entitled to no more information than is necessary to determine that the employee has a disability and needs accommodation

Information about an employee’s disability and reasonable accommodation must be kept confidential

Exception: Information may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations

Exception: Information may be disclosed to individuals involved in making decisions about reasonable accommodations

Exceptions: Where necessary for emergency treatment; to officials investigating compliance with Rehabilitation Act; for workers’ compensation and insurance purposes

Before a job offer is made, questions about disability and medical examinations are prohibited

Exception: All applicants may be asked if they will need accommodation for the application process

Exception: Specific applicants with obvious or known disabilities may be asked if they will need reasonable accommodation for the job if the employer has a reasonable belief that accommodation will be needed

After a job offer is made, employers may ask questions about disability and may require medical examinations if they ask such questions and/or require examinations of all entering employees in the same job category

Eeoc WEBSITE: WWW.EEOC.GOV

Job Accommodation Network (JAN): www.jan.wvu.edu

My contact information: John L. Knorek 523-5384 jlk@torkildson.com