What Are Reasonable Accommodations Under the Amended ADA?

1

• What Are Reasonable Accommodations Under the
  Amended ADA?

Sponsored by ADA Minnesota and Minnesota
Vocational Rehabilitation October 19-20,
2009 Presented by Barry Taylor, Legal Advocacy
Director and Alan Goldstein, Senior Attorney at
Equip for Equality Materials Prepared Under a
Grant from the DBTAC Great Lakes ADA Center
2
Overview

• Introduction to the ADA
• ADA Amendments Act Changes
• Reasonable Accommodation Overview
• Types of Reasonable Accommodations
• The Reasonable Accommodation Process
• Resources

3
Introduction to the ADA as Amended

• The ADA in the Workplace

4
Protected Individuals

• An person is protected under the ADA if
• They have a physical or mental impairment that
  substantially limits one or more major life
  activities
• They have a record of a disability
• They are regarded as having a disability.
• Discrimination is also prohibites based on an
  association with a person with a disability.
• The definition of disability is more broadly
  construed under the ADA Amendments Act of 2008.
• 42 U.S.C. 12102(2), 12102(B)(4), 1211229 29
  C.F.R. 1630.2(g).

5
The ADA and Section 504 of the Rehabilitation Act

• The ADA used the same definition of disability
  as found in the Rehabilitation Act.
• Under Section 504, the Supreme Court in School
  Board of Nassau County v. Arline, 480 U.S. 273,
  284 (1987), interpreted the definition of
  disability very broadly and acknowledged that
  societys myths and fears about disability and
  disease are as handicapping as are the physical
  limitations that flow from actual impairment.
• Under the Rehabilitation Act, there are no
  reported cases of individuals found not to meet
  the definition of disability.

6
Court Interpretations Narrow ADA Coverage

• Unfortunately, ADA goals have not been met due to
  restrictive court decisions
• Sutton Trilogy mitigating measures ruling
  restricted definition of disability
• Toyota v. Williams established that
  definition of disability should be interpreted
  strictly to create a demanding standard.

7
Lower Court Decisions Finding No ADA Disability

• Under Sutton and Williams, no ADA disability was
  found in cases where people had impairments of
• Intellectual Disability Littleton v.
  Wal-Mart, (11th Cir. 2007)
• Epilepsy Todd v. Academy Corp., (S.D. Tex.
  1999)
• Diabetes Orr v. Wal-Mart Stores, Inc., (8th
  Cir. 2002)
• Bipolar Condition Johnson v. North Carolina
  Dept of Health and Human Services, (M.D.N.C.
  2006)
• Multiple Sclerosis Sorensen v. Univ. of Utah
  Hosp., (10th Cir. 1999)
• Hard of Hearing Eckhaus v. Consolidated Rail
  Corp., (D.N.J. 2003)
• Back Injury Wood v. Crown Redi-Mix, Inc., (8th
  Cir. 2003)

8
Lower Court Decisions Finding No ADA Disability

• Vision in Only One Eye Albertson's, Inc. v.
  Kirkingburg, 527 U.S. 555 (1999)
• Post-Traumatic Stress Disorder Rohan v.
  Networks Presentations LLC, (4th Cir. 2004)
• Heart Disease Epstein v. Kalvin-Miller
  Intern., Inc., (S.D.N.Y. 2000)
• Depression McMullin v. Ashcroft, (D. Wyo.
  2004)
• HIV Infection Cruz Carrillo v. AMR Eagle,
  Inc., (D.P.R. 2001)
• Asthma Tangires v. Johns Hopkins Hosp., (D.
  Md. 2000)
• Cancer Burnett v. LFW, Inc., 472 F.3d 471 (7th
  Cir. 2006)

9
ADA Amendments Act Purposes

• Reject the reasoning in the Sutton Toyota
  cases and reinstate reasoning from Arline
• Ensure that a primary focus in ADA cases is
  whether entities have complied with their
  obligations Convey that whether a persons
  impairment is an ADA disability should not demand
  extensive analysis and
• Make clear Congress expects that the EEOC will
  revise its current regulations that defines the
  term substantially limits as significantly
  restricted.
• Notice of Proposed Rule Making (NPRM) Issued by
  EEOC Sept. 23, 2009 at http//edocket.access.gpo.
  gov/2009/E9-22840.htm.

10
ADA Amendments Act Major Life Activities

• caring for oneself walking standing
• seeing lifting
• hearing learning
• eating speaking
• sleeping breathing
• performing manual tasks concentrating
  thinking
• working (type of work) reading (new in ADAAA)
• bending (new in ADAAA) communicating (ADAAA)
• Interacting with others (Very New - Not in
  ADAAA)
• List is Not Exhaustive - no negative implication
  by omission

11
ADAAA New Category Major Bodily Functions

• In ADAAA Added in NPRM
• immune system neurological special sense organs
  skin
• normal cell growth brain genitourinary
• digestive respiratory cardiovascular
• bowel circulatory hemic
• bladder endocrine lymphatic
• reproductive functions musculoskeletal
• EEOC NPRM contains three lists
• 1. Impairments that should consistently be a
  disability,
• 2. Impairments that may be disabling for some but
  not others,
• 3. Impairments that are usually not disabilities
  . Prop. Rule 1630.2(h)

12
EEOC Proposed Regulations

• An impairment is a disability if it
  substantially limits'' the ability of an
  individual to perform a major life activity as
  compared to most people in the general
  population.
• An impairment need not prevent, or
  significantly or severely restrict, the
  individual from performing a major life activity
  in order to be considered a disability.
• Note EEOC NPRM comments suggest that people now
  covered under the ADAAA will not require
  extensive or expensive accommodations. NPRM also
  contains a nice survey or reasonable
  accommodation research.
• NPRM 29 C.F.R. 1630.2 (j)(1).

13
Regarded As Prong

• The bill broadens coverage under the ADAs
  regarded as prong of the definition of
  disability.
• This prong may apply whether or not the
  impairment limits or is perceived to limit a
  major life activity.
• No reasonable accommodations for people who are
  only covered under the regarded as prong.
• Exception Impairments that are both
  transitory (lasting or expected to last for six
  months or less) and minor.
• Sprains, fractures that heal completely, mild
  intestinal virus,
• Exception to the Exception According to EEOC
  NPRM comments, transitory conditions may be
  covered under the actual disability prong of the
  definition of disability

14
Additional Provisions

• The definition of disability shall be construed
  in favor of broad coverage to the maximum
  extent permitted
• Episodic conditions are examined when active.
• No cause of action for reverse discrimination.
• Mitigating measures are not examined (except
  ordinary eye glasses and contact lenses).
• Note Comments to Proposed EEOC Regulations
  state people who use eyeglasses may be regarded
  as being disabled if they must take a vision
  test without glasses or contacts.

15
Additional Provisions

• EEOC NPRM Mitigating measures may include
• Medication, medical supplies, equipment, or
  appliances, low-vision devices, prosthetics ,
  hearing aids and cochlear implants or other
  implantable hearing devices, mobility devices, or
  oxygen therapy equipment and supplies
• Use of assistive technology
• Reasonable accommodations or auxiliary aids or
  services
• Learned behavioral or adaptive neurological
  modifications or
• Surgical interventions, except for those that
  permanently eliminate an impairment.

16
Additional Provisions

• Employers cannot use qualification standards,
  employment tests, or other selection criteria
  based on an individuals uncorrected vision that
  are not job-related and consistent with
  business necessity.
• EEOC Proposed Regulations note that this issue
  may be raised by a person without a disability.
• The effective date of the law is January 1, 2009.

17
ADAAA Ramifications

• More coverage for people with
• Episodic conditions
• Mitigating measures (except glasses/lenses)
• Limiting conditions that do not meet the old
  standard
• Who are regarded as being disabled (no RA)
• Emphasis will be on employers conduct rather
  than employees medical condition.
• Make sure job criteria meets business
  necessity test.
• Having training on the new requirements,
  periodic ADA training, and reevaluating ADA
  policies may be helpful.

18
Title I of the ADA

• Overview on Reasonable Accommodation

19
Workplace Protections

• Discrimination is prohibited in any facet of
  employment, including
• Job application procedures
• Hiring
• Benefits and Compensation
• Advancement
• Training
• Discipline / Termination
• Company events
• Any terms, conditions, or privileges of
  employment
• 42 U.S.C. 12112(b)

20
Reasonable Accommodation General Requirements

• Discrimination under the ADA may include
• Not providing a reasonable accommodation for
  known limitations caused by a disability.
• Discrimination does not have to be intentional.
• Policies or actions that have the effect of
  discriminating against an employee with a
  disability may also constitute discrimination
  under the ADA.
• 42 U.S.C. 12112(b)(5)(A),(B)

21
What are Reasonable Accommodations?

• EEOC Regulations define reasonable accommodations
  as
• Modifications or adjustments to the work
  environment, or
• to the manner or circumstances under which the
  position is customarily performed,
• that enable a qualified individual with a
  disability to perform the essential functions
  of that position or
• enjoy equal benefits and privileges of
  employment.
• 29 C.F.R. 1630.2(o)(1)

22
Essential Job Functions

• Essential Functions
• Fundamental Job Duties
• Employers are not required to reallocate
  essential functions but may chose to do so
  anyway.
• Job descriptions may be used as evidence but are
  not necessarily determinative,
• If they are outdated and/or
• Do not accurately reflect the job duties.
• 29 C.F.R. 1630.2(n) EEOC Enforcement Guidance
  on Reasonable Accommodation and Undue Hardship.

23
What are Reasonable Accommodations?

• Employees often use the following accommodations
• Job restructuring
• Part- time or modified work schedules
• Reassignment to a vacant position
• Appropriate adjustment or modifications of
  examinations, training materials or policies
• This List is Not Exhaustive
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630.2(o)

24
Reasonable Accommodation

• Other possible accommodations may include
• Acquisition or modification of equipment or
  devices
• The provision of qualified readers or
  interpreters
• Making the workplace accessible
• Providing auxiliary aids and services
• Other similar accommodations
• This List is Not Exhaustive
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630.2(o)

25
Reasonable Accommodation Limitations

• An Accommodation does not
• have to be provided if it
• Is unreasonable
• Requires reallocation of essential job functions
• Will not enable the employee to be qualified
• Causes an undue hardship to the employer or
• Results in a direct threat to the health or
  safety of the
• employee or others
• 29 C.F.R. 1630.2(o)

26
Reasonable Accommodation Limitations

• Undue hardship
• Significant difficulty or expense.. in light
  of
• The nature and net cost of the accommodation
• the impact upon the operation of the
  facility, including
• the impact on the ability of other employees to
  perform their duties and
• the impact on the facility's ability to conduct
  business.
• 29 C.F.R. 1630.2(p).

27
Reasonable Accommodation Limitations

• Direct threat
• A significant risk of substantial harm to the
  health or safety of the individual or others
• that cannot be eliminated or reduced by
  reasonable accommodation.
• Requires an an individualized assessment
• based on a reasonable medical judgment that
  relies on
• the most current medical knowledge and/or
• on the best available objective evidence.
• 29 C.F.R. 1630.2(r).

28
Title I of the ADA

• The Reasonable Accommodation Process

29
Reasonable AccommodationThe First Step

• The reasonable accommodation process usually
  starts with a request from the employee
• The request need not be in writing but employees
  may want to do so anyway
• Employers can follow-up an accommodation
  request with a written confirmation.
• There is no specific language that must be used.
• Another person may request an accommodation on
  the employees behalf.
• EEOC Enforcement Guidance on Reasonable
  Accommodation and Undue Hardship.

30
The Request for a Reasonable Accommodation

• The request should describe
• The nature of the disability and resulting
  limitations
• The need for an accommodation
• A requested accommodation, if known
• Note In limited circumstances, employers may
  have a duty to investigate accommodations absent
  a specific request from the employee.
• EEOC Enforcement Guidance on Reasonable
  Accommodation and Undue Hardship. See also,
  Bultemeyer v. Fort Wayne Community Schools, 100
  F.3d 1281 (7th Cir. 1996).

31
Requirements of the Accommodation Request

• Employers are only required to reasonably
  accommodate known limitations and disabilities.
• An employee was not entitled to an accommodation
  prior to being diagnosed with depression.
  
• Estades-Negroni v. Assoc. Corp. of N. America,
  377 F.3d 58 (1st Cir. 2004).
• --------------------------------------------------
  ---------
• The request must relate to an employees
  disability.
• An employee with depressive disorder and anxiety
  was not entitled to a change in his shift time to
  accommodate his daughters school schedule.
• Boutin v. Home Depot U.S.A., Inc., 490 F.Supp.2d
  98 (D.Mass. 2007).

32
Accommodation RequestCase Examples

• Employee with bipolar disorder stated I need
  to leave and I need to leave right now before
  leaving early.
• This was not a reasonable accommodation request
  as she did not mention a medical basis for her
  statement.
• Russell v. TG Missouri Corp., 340 F.3d 735 (8th
  Cir. 2003). 
• --------------------------------------------------
  ---------
• An employee disclosed bipolar disorder
  requesting a reduction inobjectives and
  lessening ofpressure.
• This was not a reasonable accommodation request
  as no limitations were disclosed.
• Taylor v. Principal Financial Group, Inc., 93
  F.3d 155 (5th Cir. 1996) But See, Bultemeyer
  (next slide).

33
Accommodation RequestCase Example - Bultemeyer

• A custodians psychiatrist requested a less
  stressful environment.
• Court said
• The psychiatrists letter can be seen as
  requesting that accommodations previously in
  place be reinstated.
• Employer should have engaged in interactive
  process.
• This decision, from what is considered a
  conservative circuit, contains empathetic
  language concerning people with mental illness.
• Bultemeyer v. Fort Wayne Community Schools, 100
  F.3d 1281 (7th Cir. 1996).

34
Bultemeyer Court Quote O the Day

• Courts Quote
• The employer has to meet the employee
  half- way, and if it appears that the employee
  may need an accommodation but doesn't know how
  to ask for it, the employer should do what it
  can to help. The employer must make a
  reasonable effort to determine the appropriate
  accommodation. internal citation omitted.
  Bultemeyer at 1285 - 1286.

35
Accommodation Request Yay or Nay

• An employee tells her supervisor, "I'm having
  trouble getting to work on time due to my medical
  treatments.
• An employee's spouse phones the employee's
  supervisor and says that the employee had a
  medical emergency due to his MS and needs to be
  hospitalized.
• An employee tells his supervisor that he would
  like a new chair because his present one is
  uncomfortable.
• An employee who has been out of work for six
  months with a WC injury is released to return to
  work, but with certain work restrictions.
• EEOC Enforcement Guidance on Reasonable
  Accommodation, and Undue Hardship.

36
The Interactive ProcessMedical Information

• Employers may request medical information if the
  disability and/or need for accommodation is not
  obvious.
• The request must be job-related and consistent
  with business necessity.
• The request should be limited in scope, related
  to the accommodation request.
• Employees must comply with reasonable requests.
• Employers should seek clarification if the
  information seems vague, incomplete, or
  contradictory.
• 42 U.S.C. 12112(d)(4)(A) EEOC Enforcement
  Guidance on Disability-Related Inquiries EFE
  Disability Disclosure FAQ

37
Medical Information

• In most cases, an employer cannot ask for an
  employees complete medical records.
• All medical information must be kept
  confidential.
• In a separate location
• Only staff who needs to know should have
  access.
• Other federal or state confidentiality laws may
  also apply, e.g., HIPAA.
• As discrimination can only be found for known
  disabilities, employers may not want extraneous
  medical information.
• 42 U.S.C. 12112(d)(4)(C) EEOC Guidance on
  Disability-Related Inquiries and Medical
  Examinations of Employees Under the ADA

38
Title I of the ADA

• Specific
• Reasonable Accommodations

39
Identifying Reasonable Accommodations

• The four main categories of possible reasonable
  accommodations are
• Job restructuring
• Part-time or modified work schedules
• Reassignment, and
• Reasonable modifications of the work
  environment
• and/or policies.
• The Job Accommodation Network (JAN) is a useful
  Resource, www.jan.wvu.edu.

40
Job Restructuring In General

• Job restructuring may include
• Reassigning non-essential functions
  (reallocating essential job functions is not
  required, although employers may choose to do
  so).
• Work at home / Telework
• Altering the time or manner in which a job
  function is performed
• Interpersonal interaction changes among
  employees or between an employee and a
  supervisor.
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630 app.
  1630.2(o), 1630.9 EEOC Enforcement Guidance
  on Reasonable Accommodation

41
Job Restructuring Interpersonal Interactions

• Reasonable modifications in interpersonal
  interactions depend on the situation involved and
  may include
• Providing for regular or informal meetings
• Modifying the manner in which expectations are
  communicated, (using written means instead of
  oral communication or vice versa)
• Utilizing checklists, and
• Redirecting activity when necessary
• JANs Searchable Online Accommodation Resource on
  Psychiatric Impairments, www.jan.wvu.edu/soar/psyc
  h.html.

42
Job Restructuring Work at Home / Telework

• The ADA does not require that employers create a
  teleworking policy if none exists.
• If a telework program does exist, people with
  disabilities should be able to participate.
• If there is no teleworking policy, employers must
  still consider it as a possible reasonable
  accommodation.
• Some courts have found working at home is a
  reasonable accommodation.
• Other courts have strictly interpreted these
  types of reasonable accommodation requests.
• EEOC Fact Sheet Work At Home/Telework as a
  Reasonable Accommodation

43
Job Restructuring Work at Home / Telework Cases

• Work at home not reasonable where physical
  attendance at the administration center was an
  essential function of the service coordinator
  position, a low-level position requiring
  supervision and teamwork.
• Mason v. Avaya Communications, Inc., 357 F.3d
  1114 (10th Cir. 2004).
• --------------------------------------------------
  ---------
• Working from home was not reasonable as presence
  at the workplace was necessary for meetings
  mediations.
• Accommodation of a distraction free environment
  was effective.
• Mobley v Allstate Insurance Company,
• 2006 WL 2735906 (S.D. Ill. Sept. 22, 2006)

44
Job Restructuring CaseWork at Home / Telework

• Working at home, (or leave), might be a
  reasonable accommodation for a medical
  transcriptionist with obsessive-compulsive
  disorder (OCD).
• Allowed for others in the same position
• Employee had previously been provided a
  flexible start time as an accommodation but it
  proved ineffective.
• Humphrey v. Memorial Hospitals Association,
• 239 F.3d 1128, (9th Cir. 2001).

45
Part-Time or Modified Work Schedules In General

• May be need by someone who requires active
  treatment or whose stamina is limited due to
  their disability or medication.
• Leave for a period of time
• Intermittent leave
• Extra break time
• Modifying shifts
• Flexible work schedules
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630.2(o).
  See JANs Searchable Online Accommodation
  Resource.

46
Part-Time or Modified Work Schedules Leave

• Leave may involve the ADA and Family and
  Medical Leave Act (FMLA), 29 U.S.C. 2601 et.
  seq. (1993).
• FMLA provides up to twelve weeks of leave per
  year
• ADA provides for reasonable amount of leave
• May apply at expiration of FMLA leave
• If both ADA FMLA apply, the law providing the
  broadest protection to the employee applies.
• Under the ADA, it is best to specific a period
  of leave
• Requests for indefinite leave may be unreasonable
  (though still requiring an interactive
  process.)
• EEOC Fact Sheet The FMLA, the ADA, and Title
  VII of the Civil Rights Act

47
Part-Time or Modified Work Schedules Leave
Cases

• Medical leave of 4-5 months for treatment for
  an employee with PTSD was reasonable as the
  employers other leave policies provided up to
  one year of leave.
• Rascon v. U.S. West Communications, Inc.,
• 143 F.3d 1324 (10th Cir. 1998).
• --------------------------------------------------
  ---------
• A request for extended, indefinite leave may
  not be reasonable where the employee could not
  show it would enable him to become qualified to
  perform the essential job functions.
• Byrne v. Avon Products, Inc., 328 F.3d 379 (7th
  Cir. 2003).

48
Reassignment In General

• Reassignment to a vacant position for which the
  employee is qualified may be an appropriate
  accommodation under the ADA .
• Reassignment may be useful for an employee has
  limitations in handling a heavy workload,
  workplace stress, or who needs periodic leave.
• Reassignment is generally not reasonable where it
  is sought to obtain a new supervisor or to escape
  certain co-workers.
• EEOC Enforcement Guidance on Reasonable
  Accommodation and Undue Hardship See, U.S.
  Airways, Inc. v. Barnett, 535 U.S. 391 (2002)
  Gile v. Untied Airlines, 213 F. 3d 365 (7th Cir.
  2000).

49
Barnett Reassignment and Seniority Policies

• U.S. Airways v. Barnett, 535 U.S. 391 (2002)
• Reassignment may be available to a cargo handler
  despite a policy granting vacant positions by
  seniority.
• However, a person must show the seniority
  provision was not strictly followed in other
  cases in order to prevail.
• Otherwise, the seniority policy trumps
  reassignment.
• Of Note
• Refers to reasonable accommodations as special
  and preferential.

50
Reasonable Modifications In General

• Reasonable modifications may involve policies
  for
• Attendance
• Working from home
• Leave
• Training
• Service animals
• Personal assistants
• Job coaches
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630.2(o)

51
Reasonable Modifications Cases

• Providing a teachers aide to assist a school
  librarian with classroom control may be a
  reasonable accommodation.
• Borkowski v. Valley Central School District, 63
  F.3d 131 (2nd Cir, 1995).
• --------------------------------------------------
  ---------
• A medical facility nurse with depression could
  not fulfill the essential function of
  administering drugs to patients.
• It was not a reasonable accommodation to have
  another employee perform this essential function.
  
• E.E.O.C. v. Amego, Inc., 110 F.3d 135 (1st Cir,
  1997).

52
Additional Reasonable Accommodations

• Acquisition or modification of equipment or
  devices
• Software or hardware for computer access
• Tape recorder to record review instructions
• Use of color or pictures to mark
  files/bins/controls
• Large button telephone
• TTY / NextTalk / Other Communication Devices
• Providing Auxiliary Aids or Services
• Readers
• ASL (or similar) interpreters
• Pagers
• Assistive Listening Systems
• Demonstrating job tasks
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630.2(o).

53
Additional Reasonable Accommodations

• Additional possible accommodations
• Information in alternative formats.
• Large Print
• Braille
• CD-ROM / Electronic
• Graphic (pictures, charts, color coding, ).
• Making the workplace accessible
• Including computer, intranet, and web access
• Other similar accommodations
• 42 U.S.C. 12111(9)(B) 29 C.F.R. 1630.2(o).

54
Title I of the ADA

• The Interactive Process

55
The Interactive Process

• After an accommodation is requested
• Employers should initiate an informal,
  interactive process with the individual
• This may include the employee, their supervisor,
  and possibly HR, Drs., VR agency, computer
  experts, etc.
• Employers may request limited medical info if the
  disability or need for accommodation is not
  apparent.
• The nature, severity, and duration of the
  impairment.
• The activity or activities that the impairment
  limits.
• The extent of the limitations of the impairment.
• How the impairment(s) relate to the
  accommodation.
• 29 C.F.R. 1630.2(o)(3) EEOC Enforcement
  Guidance.

56
The Interactive Process

• The process should identify the precise
  limitation and potential reasonable
  accommodations that could overcome those
  limitations.
• The employer must take affirmative steps to
  assist the employee in identifying a possible
  accommodation.
• Both employee and employer must act in good
  faith.
• The employees preference gets primary
  consideration.
• Employers must provide an effective
  accommodation, but not necessarily the requested
  one.
• The duty to accommodate is ongoing.
• 29 C.F.R. 1630.2(o)(3) EEOC Enforcement
  Guidance.

57
Resources

• ADA Minnesota www.ADAMinnesota.org
• Minnesota Vocational Rehabilitation
  www.deed.state.mn.us
• Equip For Equality - www.equipforequality.org
• DBTAC Great Lakes ADA Center -
  www.adagreatlakes.org
• Equal Employment Opportunity Commission -
  www.eeoc.gov
• Job Accommodation Network - www.jan.wvu.edu

58
What Are Reasonable Accommodations Under the
Amended ADA?

• QUESTIONS?

59
What Are Reasonable Accommodations Under the
Amended ADA?

• THE END

Sponsored by ADA Minnesota and Minnesota
Vocational Rehabilitation October 19-20,
2009 Materials Prepared Under a Grant from the
DBTAC Great Lakes ADA Center