labor & employment annual seminar

EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE

Suzzanne W. Decker | Deborah K. St. Lawrence Thompson

April 26, 2012

2April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE

ACCESSIBILITY

OF TECHNOLOGY FOR

EMPLOYEES AND APPLICANTS


Government Pushing Employers to Make Websites Accessible for Disabled Applicants and Employees

The OFCCP issued an Accessibility of

Online Application Systems directive in July

2008.► Compliance evaluations now include a review of the

contractor’s online application systems.► Best practice to tell applicants near the beginning of

the online application how to request a reasonable accommodation to complete it.


Government Pushing Employers to Make Websites Accessible for Disabled Applicants and Employees

In July 2010, the Department of Justice

issued Advanced Notice of Proposed Rule

Making indicating that it was planning to

issue regulations ensuring that disabled

individuals could access employers’

websites.


How to Ensure Website Accessibility: A Matter of Common Sense

Can you navigate the site with the keyboard

only? Can you fill out and submit forms

without using a mouse?

Do color contrast and text size look

reasonable, even for someone who has low-

vision? Can your mother/grandmother read

the text?



Does the link text make sense on its own

(i.e., not "read more" or "click here") for

users who utilize screen reading software to

navigate, such as those who are blind?

Do your videos have captions or transcripts

for the hearing impaired?

Does the site rely on being able to

distinguish colors?



Does the site avoid blinking, marquee, or

other auto-scrolling text which might trigger

epileptic seizures?


Advanced Issues

Often you can seek professional assistance with things

like: For images of text (which should be avoided if possible),

alternate text should match the text in the image.

Evaluating the page structure.

Checking actual color contrast.

Ensuring things like data tables and timed responses are

accessibly implemented on your site.


WORKING FROM HOME AS

AN ACCOMMODATION


Telecommuting as a Reasonable Accommodation

According to the EEOC, employers must

consider telecommuting as a possibility for a

reasonable accommodation.

On the other hand, the federal courts are

reluctant to impose telecommuting on

employers. As one recent decision noted, it is a

rather common sense idea that if one is not able

to be at work, one cannot be a qualified

individual.


Telecommuting as aReasonable Accommodation

Scenario: Emily has lymphedema which causes a buildup of lymphatic fluids in her

right leg. The swelling is painful and makes it very difficult to walk, thus

affecting Emily’s ability to commute to work. She provides

documentation from her doctor confirming that the lymphedema is a

chronic condition that has worsened in the last few months, and that he

does not expect any improvement in the next several months.

As a reasonable accommodation, Emily requests that she be allowed to

work from home three days a week. Much of her work involves writing

and reviewing documents which she can do using a computer. She also

can communicate with clients and colleagues through use of the phone

and e-mail. The doctor’s letter explains that the three days working at

home will ease the pain and make it tolerable for Emily to commute the

other two days.

What Should You Do?

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1. Terminate Emily. She is unable to perform her job duties.

2. Politely refuse the request. Her job requires her to be in the office.

3. Allow Emily to work from home.

4. None of the above.


Telecommuting as aReasonable Accommodation

Scenario:

Emily is not accomplishing the tasks that she

is supposed to be doing when working from

home.

What Should You Do?

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1. Fire her.2. She’s got a doctor’s

note so we cannot do anything.

3. Counsel her on the performance issue.



Too Bright

Scenario:

Doug gives you a doctor’s note saying that he

suffers from migraines and that the lighting

in your office is a trigger. The doctor

suggests that Doug work from home 4 days a

week.

What Should You Do?

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1. Allow him to work from home. Once you receive a doctor’s note, there is too much potential liability if you refuse.

2. Engage in a dialogue with Doug to discuss if there are other ways to reasonably accommodate his migraines while still working at the office.

3. Provide Doug with paid time off as an accommodation.

4. None of the above


What Should Employers Do?

Adopt and distribute a formal policy on

telecommuting.

Re-examine existing job descriptions.

Avoid mechanical application of eligibility

rules when a disabled employee asks to

telecommute; engage in a dialogue.

Think of creative alternatives to

telecommuting.


INCREASED PUSH TO BRING

DISABLED VETERANS BACK

TO WORK


EEOC Releases Two Guides

for Disabled Veterans

In February 2012, the EEOC released a guide for

employers on veterans and the ADA, and a separate guide

for wounded veterans on understanding their ADA rights.

The EEOC noted that approximately 25% of recent

veterans have a service-connected disability, compared to

about 13% of all veterans, according to 2011 U.S. Bureau

of Labor statistics.

The guide also states that some service-connected

disabilities, such as deafness, blindness, missing limbs,

mobility impairments, major depressive disorder and post-

traumatic stress disorder will easily be concluded to be

disabilities under the ADA.


Hiring

Employers in the private sector may decide to give

veterans with disabilities a hiring preference.

During a job interview, an employer may not ask

about an injury. However, if it seems likely that the

applicant will need a reasonable accommodation, an

employer may ask if an accommodation is needed

and, if so, what type. An employer may also ask to

describe how the veteran would perform the job

with or without an accommodation.


Hiring

The EEOC reminded veterans that they can request

an accommodation at any time during the

application process or when they start working –

even if the applicants did not ask for one when

applying for a job or after receiving a job offer.

Also, the injured veteran might request a different

or additional accommodation later if the disability

and/or the job changes or if another accommodation

becomes available.


Recruiting

State on an advertisement that an employer is an

equal opportunity employer and that individuals with

disabilities, including disabled veterans and veterans

with service-connected disabilities, are encouraged to

apply.

Ensure that online recruiting information and

application processes are accessible to individuals

with disabilities, including disabled veterans.

Make written recruiting materials available in

alternate formats such as Braille and large print, and

assist disabled veterans in completing application

materials when necessary.


Recruiting

Send vacancy announcements to, and ask for

referrals from, government, community and

military organizations and One Stop Career

Centers that train and/or support disabled

veterans.

Post advertisements and vacancy

announcements in publications for veterans.

Attend job fairs and use online resume

databases that connect veterans with

employers.


Reasonable Accommodations

Written materials in accessible formats, such

as large print, Braille and on computer disk.

Recruitment fairs, interviews, tests and

training in accessible locations.

Modified equipment and devices, such as

assistive technology, a glare guard for a

computer monitor used by someone with a

traumatic brain injury and a one-handed

keyboard for a person missing an arm or

hand.


Reasonable Accommodations

Physical modifications to the workplace,

including adjusting the height of a desk or

shelves for someone in a wheelchair.

Leave for treatment, recuperation and

training related to their disability.

Reassignment to a vacant position when a

disability prevents performance of the

employee’s current job or where

accommodating the employee in the current

job would result in undue hardship.


PTSD

Scenario:

You have hired a veteran who has PTSD. He was

assigned to work in a cubicle in an office setting.

Because of the cubicle’s placement, the employee

had no choice but to have his back to the opening.

He becomes startled each time a co-worker

approached his cubicle, and has violent and loud

flashbacks from when he was in combat.

What Should You Do?

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1. Tell him that his outbursts are distracting to his co-workers. Place him on a Performance Improvement Plan.

2. Engage in a dialogue with the employee. Accommodate him by attaching a mirror to his computer monitor so that he can see when co-workers enter his workspace.

3. Allow him to work from home, where he will not be startled by others.



EEOC’S CHALLENGE TO

INFLEXIBLE LEAVE/NO-

FAULT ATTENDANCE

POLICIES


Employer Policies are the Subjectof Increased Enforcement Activity

Over the past few years, the EEOC has

aggressively targeted inflexible leave of absence

policies and no-fault attendance policies.

There have been a number of multi-million dollar

settlements against employers in 2011 alone. In

July 2011, Verizon agreed to pay $20 million to

employees who were fired or disciplined under the

company’s No-Fault Attendance policy, the largest

EEOC disability discrimination settlement in

history.


What are Inflexible Leave of Absence Policies and No-Fault Attendance Policies?

Inflexible leave of absence policies provide for the

automatic termination of employees who cannot

return to work after exhausting a fixed period of

leave.

No-fault attendance policies charge an absence

against an employee regardless of the reason for

the absence. Thus, problems arise when the

employer fails to recognize – and exclude from the

policy – absences that relate to a disability or that

fall under the FMLA.


Medical Leave for Prolonged or Indefinite Periods are Generally Not Reasonable

Employer does not need to give bus driver with

diabetes, hypertension, and a chronic heart

condition indefinite leave to try to recover.

Employee had received only 10 days of leave, but

his condition indisputably made him unable to

perform the job. The ADA does not require an

employer to provide an accommodation in the

hope that sometime in the future the disabled

individual will become qualified for the position in

question. Myers v. Hose, 50 F. 3d 278 (4th Cir.

1995).


Medical Leave for Prolonged or Indefinite Periods Are Generally Not Reasonable

Diabetic food service worker who could no

longer stand because her feet were

amputated was not entitled to one year of

unpaid medical leave to become

accustomed to a prosthetic device. One

year medical leave is inherently

unreasonable when such practices are not

standard for all employees. Peyton v.

Fred’s Stores of Arkansas, Inc., 561 F.3d

900 (8th Cir. 2009).


Medical Leave for Prolonged or Indefinite Periods Are Generally Not Reasonable

Supervisor with high blood pressure

cannot take two months’ additional

leave, where he had already taken ten

months’ medical leave during which

time his condition failed to improve.

Duckett v. Dunlop Tire Corp., 120

F.3d 1222, 1226 (11th Cir. 1997).


Medical Absences for Definite Periods May Be Reasonable Accommodations…

…Especially if the Length of the Leave Falls

Within the Employer’s Leave Policies. Where a disabled employee requests medical leave for a short

and determinable period, the ADA requires the employer to

allow such leave as reasonable accommodation, especially if the

length of the leave falls within the maximum amount of time

granted by the employer's leave plan.

Sales representative with depression and anxiety was unfairly

denied additional time off after he took one month’s leave. The

court noted that the employee’s leave request was for less time

than the employer's medical leave plan provided to nondisabled

employees (which was 1 year). Criado v. I.B.M. Corp., 145 F.3d

437 (1st Cir. 1998).


Medical Absences for Definite Periods May Be Reasonable Accommodations…

…Especially if the Length of the Leave Falls

Within the Employer’s Leave Policies. Similarly, a network technician with PTSD was entitled to a

four-to-five-month medical leave for an inpatient treatment

program that his treating psychiatrist had recommended, even

though he had already gotten 5 weeks of leave. Rascon v. US

W. Commc'ns, Inc., 143 F.3d 1324 (10th Cir. 1998).


Attendance Policies

Scenario:

Good Heath Hospital believes in rewarding good behavior and

awards bonuses to employees with perfect attendance over the

course of a year. For employees with absences, there is a “no

fault” system that grants employees five unplanned absences

during a rolling 12-month period. Rachel is a neonatal intensive

care unit nurse who has received numerous above average

performance evaluations. Rachel suffers from fibromyalgia, a

condition that causes body-wide pain and tenderness in the joints,

muscles, tendons and other soft tissue of the body. In 2011,

Rachel took five unplanned days of leave because of her

condition. She has now requested as an accommodation for her

deteriorating condition an unspecified number of unplanned

absences.

What Should You Do?

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1. Award her a perfect attendance bonus for 2011 as she did have “perfect” attendance aside from her ADA-related absences.

2. Count Rachel’s days off against her five-day threshold of unplanned absences.

3. Politely refuse Rachel’s request. Her job as a neonatal intensive care nurse is exceptional and regular attendance, team coordination and continuity for this group of patients is an essential job function.

4. All of the above.


Compliance Strategies

Review your policies and practice to ensure that

they communicate a willingness to consider

excusing absences under the ADA and other similar

laws.

Train your employees to understand to recognize

situations that may implicate the ADA and FMLA, to

refer leave of absences request to Human Resources

for proper handling, and to understand the

company’s legal obligations.

Ensure that attendance programs and policies are

applied uniformly.


Compliance Strategies

Confirm that ADA-protected absences are not

counted against employees in performance reviews.

Engage in the interactive process – and document it.

Don’t forget about ADA employees on leave; develop

documentation to show that you considered return-

to-work options along the way.

Don’t be afraid to follow up with the employee when

leave is unpredictable, chronic or more frequent

than expected.


NEW DISABILITIES:

EXTREME OBESITY AND

NO HIGH SCHOOL DIPLOMA


Obesity: EEOC Enforcement

The EEOC’s position has always been that morbid

obesity (defined as having a body weight more than

100% over the norm) and obesity caused by a

physiological disorder are “disabilities” under the

ADA.

In the past, courts have been split on whether the

ADA covers morbid, or severe, obesity by itself, or if

the obesity must be the result of some underlying

physiological disorder (i.e., hypertension, diabetes,

thyroid disorder).


Obesity: EEOC Enforcement

A federal court has recently found severe

obesity, regardless of the cause, to be a

disability under the ADA. E.E.O.C. v.

Resources for Human Development, Inc.,

2011 WL 6091560 (E.D. La. Dec 07, 2011).► The plaintiff in that case weighed about 400 pounds when she was

hired. The employer terminated the plaintiff when it found that her weight severely impaired her job performance. At the time of her termination, she weighed 527 pounds.

► The case recently settled for $125,000.


Terminating a MorbidlyObese Employee

Scenario:

Robert is a morbidly obese employee who has been

a forklift driver in a manufacturing company for

many years. His boss saw him driving the forklift

without a seatbelt, which is a safety violation, and

requested that he wear one. Robert said that he

could not wear the seatbelt because it was too

tight.

What Should His Boss Do?

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1. Provide Robert a seatbelt extender so that he can wear the seatbelt.

2. Terminate him. He cannot perform the essential functions of his job, which is safely driving a forklift.

3. Tell him to wear the seatbelt on the forklift. Giving a seatbelt extender would be preferential treatment.



EEOC Lawsuit: ADA Discrimination Against Morbidly Obese Person

This scenario is based on a lawsuit that the EEOC filed

against BAE Systems on September 27, 2011, alleging

that the company violated the ADA by firing a morbidly

obese employee 2 weeks after he requested a seatbelt

extender so that he could safely drive his forklift. In its

complaint, the EEOC alleged that BAE terminated the

employee, after telling him that it “had reached the

conclusion that he could no longer perform his job

duties because of his weight.” BAE denied the

employee’s request to be moved to another position. It

also allegedly made no attempt to discuss reasonable

accommodations.


Lack of High School Diploma as a Disability: EEOC Enforcement

On November 17, 2011, the EEOC issued an informal opinion

letter stating that if an employer adopts a high school diploma

requirement that “screens out” an individual who did not

graduate because of a learning disability, the employer may

not apply the standard unless it can demonstrate that the

diploma requirement is job related and consistent with

business necessity.

Due to the significant commentary and conjecture about the

letter’s meaning and scope, the EEOC back-tracked and

issued a “Q&A” document to clarify its position in March

2012.


Lack of High School Diploma as a Disability: EEOC Enforcement

In this document, the EEOC stated that employers can still

require job applicants to hold a high school diploma, but

should allow the employee to demonstrate qualification for the

job in some other way if the applicant didn’t receive the

diploma due to a disability. Employers can require applicants

to provide documentation showing that they have a disability

and that the disability was what prevented them from

obtaining a diploma.

Applicants who did not receive their diploma by choice rather

than because of a disability are not protected by the ADA.

Even if a disabled applicant demonstrates that he or she

meets the requirements by means other than possession of a

diploma, the employer is still free to select the best qualified

candidate.


Can A High School Diploma Requirement Be Discriminatory?

Scenario:

A nursing home employer made a new requirement

that nursing assistants needed to have high school

diplomas. A nursing assistant who had worked

successfully in the job for 4 years did not have her

high school diploma. The employee tells her boss that

she had tried to obtain her GED several times, but

could not do so because of her disability.

What Should The Employer Do?

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1. Work with the employee’s GED instructors to find an alternative way to assess the employee’s ability to do the job.

2. Revoke the high school diploma requirement.

3. Place the employee in a different job where a high school diploma is not required.



EEOC Lawsuit: High School Diploma

This scenario is based on an ADA lawsuit the EEOC filed in 2003.

Nearly four years into her employment, a nursing facility

notified an employee that she would be terminated unless she

obtained her GED within 90 days. The employee had a full-scale

IQ of 66. She completed the ninth grade of high school and was

unable to pass the GED test despite 10 years of studying. She

was licensed by the state as a certified nursing assistant based

on her years of experience in the field and favorable job

references.

The employee’s GED instructor contacted defendant's Executive

Director to discuss alternative measures of job skills, and

offered, at no cost, to perform alternative testing to measure

employee literacy skills. Defendant refused to consider any

alternatives and fired the employee because she was unable to

pass the GED. The case settled for $80,000.


Bottom Line

In the United States, approximately 34% of adults

are obese.

Maryland has almost 613,640 adults without a high

school diploma. In Baltimore City, 38% of adults are

either unable to read or read below the fourth grade

level, and over 142,000 adults do not have a high

school diploma.

Employers should recognize obesity and a lack of a

high school degree as potential disabilities that may

require reasonable accommodation through the

“interactive process” called for by the ADA.


INABILITY TO WORK

OVERTIME NOT

NECESSARILY A DISABILITY


Boitnott v. Corning, Inc. – Employee’s Inability to Work Overtime is Not a Per Se Disability

In February 2012, the Fourth Circuit Court of

Appeals concluded that the inability to work overtime

is not, in and of itself a disability under the original

version of the ADA.

The plaintiff was a maintenance engineer who was

diagnosed with a mild form of leukemia that did not

require medical treatment. However, his doctor

limited him to eight hours of work per day due to

fatigue related to the condition. Corning responded

that the job required the ability to work overtime,

and removed him from his position.


Boitnott v. Corning, Inc. – Employee’s Inability to Work Overtime is Not a Per Se Disability

The plaintiff contended that his leukemia substantially

interfered with the major life activity of working, in that it

prevented him from working overtime.

The Fourth Circuit disagreed, holding that an inability to work

overtime does not constitute a disability. An employee is not

“substantially limited” if he or she can work a 40-hour

workweek, but is unable to work overtime hours.

Numerous federal appellate courts previously have addressed

the question of whether the inability to work overtime is a

substantial limitation on the major life activity of working. The

Fourth Circuit’s recent opinion comports with the law in the

First, Third, Fifth, Sixth, and Eighth Circuits.


The Decision’s Implications

The Fourth Circuit was careful to make an individualized inquiry

into the facts. Employers should not assume that the inability to

work overtime can never support a successful ADA claim.

This case was decided before the ADAAA. Under ADAAA, it is

likely that the leukemia itself, even in the absence of significant

symptoms, would qualify as an ADA disability.

In addition, the ADAAA broadens the definition of restrictions

that limit persons in their ability to work. The inability to work

overtime may qualify as a restriction that would classify

restricted employees as disabled under the ADA.


The Decision’s Implications

Post-ADAAA litigation in this area will shift from the threshold

issue of disabled status to the reasonable accommodation

question. Is the ability to work overtime an essential job

function? If so, what steps can the employer take to allow an

employee with hours restrictions to work some overtime? Can

work schedules be changed to accommodate the employee's

medical restrictions? Can the disabled employee trade

schedules with other employees to allow him to work within his

medical restrictions?► Most federal courts presented with this issue have concluded that the ability to

work overtime is an essential function of the job, and employers are not required to provide the employee with a blanket exemption from overtime work.


CONTINUED CHALLENGE

WITH MENTAL HEALTH

ISSUES


The Challenge: A Disability In One Person May Not Be A Disability In Another

A mental impairment which is considered disabling in

one individual may not be considered disabling in

another individual.

Examples of such emotional or mental illnesses that

may constitute “disabilities” under the ADA include

major depression, bipolar disorder, anxiety disorders,

schizophrenia, and personality disorders.


The Challenge: A Disability In One May Not Be A Disability In Another

However, not all mental disorders are disabilities, or

even impairments, for purposes of the ADA. For

example, various conditions listed in the American

Psychiatric Association’s Diagnostic and Statistical

Manual of Mental Disorders IV, including sexual

behavioral disorders, compulsive gambling,

kleptomania, pyromania, and psychoactive substance

use disorders resulting from current illegal use of

drugs, are specifically excluded from the ADA’s

definition of a disability.


The Challenge: No Limit to Types of Accommodations

There are many types of reasonable accommodations set forth in the ADA, regulations, and EEOC guidance. Examples include job restructuring, part-time or modified work schedules; reassignment to a vacant position; acquiring or modifying equipment or devices; providing additional unpaid leave; and changes to workplace policies, procedures or practices.


The Challenge: No Limit to Types of Accommodations

The employer has an ongoing responsibility to consider additional accommodations as circumstances change.

The most important factor to remember is that reasonable accommodations must be examined on a case-by-case basis, and the employer must make a good faith effort to engage in the interactive process with the employee.

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Scenario 1:

Selina, who supervises Andrew, heard

through the grapevine that Andrew might

have an anxiety disorder and that some days

he can’t get out of bed. Andrew asks Selina if

he can have two weeks off of work. A big

project is coming up, and Selina would like

Andrew at work.

What Should Selina Do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE

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1. She is free to deny the request.

2. Since she knows that he has a disability, she should grant his request.

3. Ask his co-workers if he really does have an anxiety disorder.


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Scenario 2:

Keith is a “Team Leader” at a facility that

cares for severely disabled people. He suffers

from severe depression and has attempted

suicide twice by overdosing on medication.

His supervisor worries that he will hurt

himself, and/or the patients he cares for since

dispensing medication to patients is an

important part of his job.

What can she do?April 26, 2012 | EXPANDING WAYS DISABILITY IMPACTS THE WORKPLACE

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1. She cannot terminate him.2. She can terminate him

because he is a direct threat to others. Dispensing medication to patients is an essential function of his job, and there is an increased likelihood that he would mishandle medication or use drugs available to him at work for a third suicide attempt.

3. She should find another employee to dispense medication.


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