Title: The Reasonable Accommodations Coordinators Handbook: Revised Myrtle Gregg-LaFay Dept of Labor and Economic Growth & Toni McFarland OSE/Employee Health Management
1The Reasonable Accommodations Coordinators
Handbook RevisedMyrtle Gregg-LaFayDept of
Labor and Economic GrowthToni
McFarlandOSE/Employee Health Management
2Disability as Defined by the ADA
- Impairment
- Substantially Limits
- Major Life Activity
- Mitigating Measures
- Qualified Employee
3Accommodations Decision Chart
- Disabled ?
- Qualified ?
- Reasonable ?
4Civil Service Regulation 1.04Reasonable
Accommodation
- C.S. Rule 1-7 EEO
- C.S. Rule 1-8 Prohibited Discrimination
- 1-8.2 Accommodation of Disabilities
- Rule 3-1.4 Reasonable Accommodations in Testing
- Standards
5Disability Accommodation Request by Employee Form
- CS1668 Form
- Available in Text Only format also
- Instructions
6Response to Disability Accommodation Form (to
be initiated by Reasonable Accommodation
Coordinator)
7Reasonable Accommodation Process Flow Chart
- Employee initiates w/CS1668
- RAC (walk thru) approval/denial
- Supervisor - arranges for RA
- RAC - evaluation
8Staff Accommodation Roles and Responsibilities
- Employee
- Departmental RAC
- OHR Director
- Immediate Supervisor
9EHM At Risk Program Procedures
- Referral made to EHM
- EHM covers costs of evaluation only
- Include with request
- Disclosure statement
- Medical that requests chair/ergonomic eval
- Needs only to say there is a problem or pain
10EHM Request for At Risk Assessment Form
- Only accept forms submitted by RAC or their
designee - This form is also used to request WorkSmart
evaluations
11State of Michigan At Risk Services Flow Chart
12Referral Approvals
- EHM staff reviews and approves
- Then the request is sent to the DM-MRS staff for
the evaluation to be completed
13Purchase of Employee Accommodation Services
Equipment
- DMB Procurement of Commodities Services
Procedure 0510.13 - DLEG Sample Guidelines for
- Purchasing Commodities
- Purchasing Services
- Print Requests
- DMB Form AS-1
14Purchasing Equipment for Employees on Workers
Compensation or LTD
- Once the evaluation is complete EHM will receive
a copy of the report and then order the equipment
recommended. - EHM will work with the TPAs and the departments
to coordinate the equipment purchases.
15Space Renovation Modification
- DLEG Sample Language
- State Owned Space
- State Leased Space
- DMB-123 Form
- DMB Procedure 0210.03-Modular Furniture
- DMB Procedure 0210.05-Space Modification
16Staff Accommodations Needed to Participate in
Training Organized By the Department (Samples)
- Employees Responsibilities
- Immediate Supervisors Responsibilities
- Training Organizers Responsibilities
17Training Programs Presented by Other
Organizations (Samples)
- Employee Responsibilities
- Immediate Supervisors Responsibilities
18Michigan Rehabilitation Services Disability
Management
- Return to Work Services
- At Risk Services
- Training Services
19Michigan Rehabilitation Services DM Request for
Services Form
20State Travel Accommodations
- Air Transport
- Assigned State Vehicle (Individual or Office)
- Premium Mileage
21Staff Accommodation Telephone Resource Sheet
- DLEG Sample - Most Common Questions
- Who to Call (updated)
22Parking Policy-Draft
23BREAK
24Legal Case Review Case StudiesCheryl
Schmittdiel, OSE/CANToni McFarland, OSE/EHM
25The Americans with Disabilities ActADA
- Toni McFarland, OSE/EHMCheryl Schmittdiel,
OSE/CNA
26Eligibility
- Employers Subject to ADA
- Employers with 15 or more employees for 20 or
more calendar weeks in the current or proceeding
year. - Individuals Eligible for ADA Protection
- Qualified individuals with a disability
27Definitions
- Qualified Individual With A Disability
- an individual with a disability as defined by
the ADA who satisfies the requisite skill,
experience, education and other job-related
requirements of the employment position such
individual holds or desires, and who, with or
without reasonable accommodation, can perform the
essential functions of such a position.
28Individual with a disability
- An individual with a physical or mental
impairment that substantially limits one or more
of the major life activities of such individual - A record of such an impairment
- Being regarded as having such an impairment
29Essential Functions
- The fundamental job duties of the position.
- - the term essential functions does not
include the marginal functions of the position.
30A function is essential if
- The reason the position exists is to perform the
function. - There are a limited number of employees available
among whom the performance of the function can be
distributed. - The function is so highly specialized that the
person is hired for his/her expertise or ability
to perform the function.
31Reasonable Accommodation
- Modifications or adjustments to the work
environment, or to the manner or circumstances
under which the positionis customarily
performed, that enable a qualified individual
with a disability to perform the essential
functions of that position
32Undue hardship
- Undue hardship means financial difficulty or
actions that would be unduly extensive,
substantial, or disruptive, or those that would
fundamentally alter the nature or operation of
the business - Undue hardship must be determined on a
case-by-case basis
33Key Requirements
- Interaction with the employee
- The employer must engage in an informal,
interactive process with the employee to
determine an appropriate reasonable
accommodation. - The employee may initiate this process.
- The employer should initiate this process without
being asked if the employer knows or has reason
to know that such a discussion should take place. - The employer may ask for reasonable
documentation about the employees disability
and functional limitations if not obvious.
34Types of reasonable accommodations
- Job restructuring
- Leave
- Length of leave based on undue hardship
standard - Employee is entitled to return to the original
position - Modified or part-time schedule
35Reassignment to a vacant position
- Michigan Supreme Court has said that another
position is not considered a reasonable
accommodation (Rourk vs Oakwood Hospital Corp.)
36Medical Information Inquiries
- Require medical information that is job-related
and consistent with business necessity - Inquire into the ability of an employee to
perform job-related functions
37Appropriate questions
- When can the employee return-to-work
- Physical limitations that are job-related/essentia
l-function-related - Whether a condition will create an unsafe
situation - Whether the employee can work a full shift
38Questions that may not be asked
- If an illness or disease is in remission
- The likelihood of full recovery
- Physical limitations that are not
job-related/essential-function-related
39Confidentiality
- Medical information must be kept confidential
- Medical information must be maintained on
separate forms and in separate medical files
40- NOTE Employers can only restrict an employees
return to work under certain circumstances - if it creates a direct threat, which is defined
as a significant risk of substantial harm to
the health or safety of the individual or others
that cannot be eliminated or reduced by a
reasonable accommodation. - if the employees restrictions cannot be
accommodated so that they would be able to do the
essential functions of the position.
41Workers Compensation
42Exclusive Remedy Principle
- The employer is obligated to pay workers
compensation claims no matter who is at fault - The employee cannot sue the employer for
negligence that caused the claim
43Lawsuits still possible
- Employee can sue employer for claims falling
outside the realm of workers compensation - Employees often sue over whether or not an injury
or illness is covered by workers compensation
- Employer not complying with workers compensation
laws (e.g., no insurance) - Injury or illness not covered by workers
compensation - Employer retaliation for pursuing a claim
44Benefits
- Income replacement is generally based upon a
percentage of lost wage up to a statutory maximum - - Permanent total disability
- - Temporary total disability
- - Permanent partial disability
- - Temporary partial disability
- Death benefits for family members
45Compensable Injuries Illnesses
- Illnesses or injuries arising out of and in the
course of employment - In the course of employment can include
situations outside of normal job duties
46Generally non-compensable
- Traveling to and from work
47FMLA Light-duty Alternative Position Rules
48Restoration rule
- Employees can make a voluntary and uncoerced
acceptance of a light-duty assignment while
recovering from a serious health condition.
(29CFR825.220) - The employees right to restoration to the same
or an equivalent position is available until 12
weeks have passed within the 12- month period,
including all FMLA leave taken and the period of
light-duty.
49Additional points
- Additional leave may still be available, but
job restoration rights will have expired. - If FMLA leave time is still available, and
employee takes further FMLA time for another
condition or family member, employer should
maintain job restoration benefits
50Light-duty vs. Alternate Position
- Seemingly contradictory FMLA rules (29CFR825.702)
- Employer cannot require employee to take a
light-duty job in lieu of leave. - Employer can require employee to transfer
temporarily to an alternate position during
reduced schedule/intermittent leave in order to
accommodate recurring periods of leave.
51Alternate position rule
- If employee is physically capable of performing
all the essential functions of his/her position,
and - the employee requires a reduced
schedule/intermittent leave - then the employer may require employee to
transfer to alternate position that better
accommodates employers business requirements
52Examples
- Employee needs reduced schedule/intermittent
leave - Employee cannot work full schedule due to own
serious health condition but can perform all
essential functions
53Light-duty rule
- If employee cannot physically perform one or more
essential functions of his/her position, - Then he/she is entitled to take full-schedule
FMLA leave - But the employer can offer (not require) that
employee take a light-duty position during
recovery - Presumably, light-duty offered by employer would
accommodate employers business requirements
54 FMLA ADA
- The employer should analyze employees rights
under each law separately and then analyze
potential regulatory overlaps
55Issues Before 12-Weeks of FMLA Allotment is
Used
56FMLA leave vs. reasonable accommodation
- If an employee is entitled to ADA protections,
and cannot perform one or more essential
functions of his/her job because of a serious
health condition, he/she is entitled to an FMLA
leave - The employer must allow the employee to take FMLA
leave, if they are eligible - The employer should offer return to work with a
reasonable accommodation (if available), but may
not require it
57Alternate position vs. reasonable accommodation
- An employee may be entitled to both an
intermittent FMLA leave and ADA protections. - If the intermittent leave situation would create
a difficult situation for the employer, the
employer may consider requiring the employee to
take an alternate position.
58However, the employer should first
- Consider a reasonable accommodation that would
allow the employee to return to his/her job and
allow the employee to return to work. - If an accommodation is not possible or the
employee refuses it in favor of taking the
intermittent FMLA to which he/she is entitled,
the employer can require the employee take the
alternate position during the intermittent leave
period. - The employee should receive the same pay and
benefits for the time worked in the alternate
position until FMLA protections are exhausted.
59Employees request for leave
- If an employee requests time off for a reason
related or possibly related to a disability, the
employer should consider this a request for an
ADA reasonable accommodation as well as FMLA
leave. - Medical certification may be required and
disability-related inquiries may be made to
determine whether the employee is entitled to ADA
protections. - If the employee states that he/she wants to
invoke rights under the FMLA, the employer should
not make additional inquiries related to ADA
protection. -
60Medical Certification
- The employer will not violate the ADA by asking
for the medical information allowed under FMLA. - The medical certification must be kept
confidential and should be kept separate from
personnel files.
61Restoration and reasonable accommodation
- When an employee is returning from an FMLA leave
and is also protected by ADA, there are two
issues to consider - - FMLA allows the employer to return the
employee to a different shift, schedule, or
position which better suits the employees
personal needs and - - ADA requires that reasonable accommodations
be considered for the original position before
considering an alternate position - The ADA allows employers to offer as a reasonable
accommodation job restructuring and/or a modified
work schedule
62Restoration to the same or equivalent job
- When an employee is ready to return to work after
an FMLA leave, and is also protected by the ADA,
the employer must return the ADA-protected
employee to his/her original position unless - the employer can show that this would cause an
undue hardship, or - the employee is no longer qualified for his/her
original position, with or without reasonable
accommodation
63Issues After FMLA is Exhausted
- Extending Leave
- Extending unpaid leave beyond the 12 weeks
required by FMLA may be a reasonable
accommodation for an employee covered by the ADA - If leave is extended beyond 12 weeks, FMLA
protections do not apply, but the ADA does
stipulate that the employees job be kept open,
and the employee be reinstated to the original
position upon return when leave is provided as a
reasonable accommodation
64When FMLA is exhausted the employee still
cannot r-t-w
- Attempt to provide a reasonable accommodation
that would allow the employee to perform his/her
regular job - Consider extension of leave as a reasonable
accommodation - Need not create a position as an accommodation
65FMLA Workers Compensation
66FMLA Light-duty
- If an employee is on workers compensation and
has an FMLA-qualifying absence at the same time,
and a light-duty assignment is identified and
available, the employer may offer the light-duty
assignment, but may not require the employee to
take it - Consequences of employees choice
- If FMLA is chosen by the employee instead of the
light-duty assignment - - The employee may lose workers compensation
benefits
67- NOTE After 12 weeks of FMLA and light-duty,
if the employee is still unable to resume normal
duties, it is quite likely that he/she is
protected by the ADA.
68OtherIssues
69Workers compensation and other paid benefits
- When an employee is on an FMLA leave concurrently
with workers compensation, the provision for
substitution of the employees accrued paid leave
is not applicable since the workers
compensation absence is not unpaid. - However, Civil Service Regulation 5.13 states
Leave credits may be utilized to the extent of
the difference between the two-thirds payment and
the employees regular salary or wage.
70Contact with physicians
- Workers compensation rules allow direct contact
with the employees physician, therefore the
employer can contact the physician directly, even
if the leave is run concurrently with FMLA. - The employer may choose not to require FMLA
medical certification under these circumstances,
since the workers compensation medical
information typically provides more information
than FMLA allows.
71FMLA, ADAWorkers Compensation
72FMLA, ADA Workers Compensation
- The employee has an occupationally-related injury
or illness (workers compensation), and - is a qualified individual with a disability (ADA)
whether or not the impairment is directly related
to the workers compensation injury or illness,
and - is eligible for FMLA leave.
73Coordination Considerations
- Allow the employee to take FMLA leave if he/she
wants it. - Do not require the ADA-protected employee to take
a job with a reasonable accommodation in lieu of
FMLA leave.
74- NOTE With the employees approval, it is
permissible to restore him/her to a different
shift, schedule or position
75Light duty assignments or Transitional
Employment (TE)
- Employee can voluntarily do light-duty or TE
- Performing lightduty or TE for more than
12-weeks may result in the employee losing FMLA
restoration rights.
76- NOTE Since leave is occupationally-related,
the employer can contact the physician directly
(the TPA is the SOM contact point for W/C). - - The employer need not require or even request
an FMLA medical certification, since medical
information generated due to workers
compensation situation will be more detailed.
77QUESTIONS ANSWERS QUESTIONS ANSWERS QUE
STIONS ANSWERS
78Thank You!