Navigating Disability Discrimination and Title Goes Here Accommodation Claims

Navigating Disability Discrimination and Title Goes Here Accommodation Claims Presented By: Danitra Spencer, Consolidated Edison Co. of New York, Inc. Brian Gershengorn, Ogletree Deakins Stephanie L. Aranyos, Ogletree Deakins

Agenda Overview of the ADA Handling Requests for Accommodations Interactive Process practical tips for handling/forms to use/interactive process Reasonable Accommodation LOA, additional leave or indefinite leave Hypotheticals Administrative Termination Policies (i.e., policies providing for termination after being on a LOA for one year) NYCHRL vs. ADA differences, including NY Court of Appeals decision in Romanello 2

ADA Basics Covers employer with 15+ employees Prohibits discrimination against a qualified individual with a disability Requires: Qualified individual with a disability must be able to perform the essential functions of the job with or without reasonable accommodation Employers to make reasonable accommodations for currently disabled individuals where no undue hardship to the employer results Leave of absence may be a reasonable accommodation but not always 3

What is a Disability? Physical or mental impairment that substantially limits a major life activity: Seeing, hearing, bathing, grooming, sleeping, walking, talking, concentrating, lifting, bending, communicating, learning, performing manual tasks, etc. Operation of a major bodily function Record or history of impairment (ex: cancer in remission) Regarded as disabled (ex: individual with a facial scar who is not limited in any way but the employer regards him as not qualified to hold a job where he comes into contact with the public) 4

ADAAA Broadened the Definition of Disability Temporary and Episodic Illnesses - included if they substantially limit a major life activity and even if the condition is in remission Major Life Activity - broadened to include bending, reading, working, learning, concentrating, thinking and communicating Mitigating Measures - not included when evaluating whether someone is disabled with the exception of corrective lenses 5

Reasonable Accommodation The ADA, among other things, imposes an obligation on employers to provide a reasonable accommodation to qualified employees (and applicants) if it would enable them to perform essential functions of their job. 6

Reasonable Accommodation Under the ADA An accommodation that allows the employee to perform the essential functions of the job unless an undue hardship on the employer May include: giving additional leave job restructuring part-time or modified work schedules reassignment to a vacant position modifying company policies 7

Reasonable Accommodation Process Process is IMPORTANT Request is made Management gathers information and considers request Employee and management engage in INTERACTIVE PROCESS Management decides: Grant requested accommodation Propose alternative accommodation Deny requested accommodation 8

Request for Reasonable Accommodation: Triggers Interactive Process Interactive Process is triggered when employer receives a request for change or exception by employee or applicant because of a medical condition What does a request look like? No need for employee to make request in writing No need to say ADA or "reasonable accommodation" Employee does not waive right to request an accommodation simply because they failed to ask for one at the application or hire stage Can be a "representative Spouse, doctor, etc. Employee saying they need time off from work, citing an impairment is a request for accommodation Doctor's note, releasing the employee to "light duty" is a request for an accommodation (although possibly only if employee has been out for a while) There are some instances when the employer must start the interactive process If the disability and the individual s need for an accommodation is obvious. However, beware, approaching an employee about his/her perceived disability carries its own legal challenges 9

What is the Interactive Process? Fact-specific process, Conducted through a series of conversations between employer, employee and often employee s healthcare provider, To determine whether an employee can perform essential functions of his/her job with or without a reasonable accommodation; Identify, if possible, a reasonable accommodation; and Consider whether the accommodation would impose an undue hardship. 10

Interactive Process Tips Keep the conversation interactive and open, and remain flexible. Make sure to get the employee s ideas about how the Company can help him/her perform the job and consider those ideas. Be creative with solutions think outside the box. Remember that there are no blanket rules that apply for accommodating or not accommodating. Ex.) You cannot have a rule that employees can only return to work when they have no limitations at all (i.e., when they are 100%). Have the employee complete a Request for Accommodation Form 11

What are the employee s responsibilities under the ADA? Make the employer aware of the need for an accommodation (i.e., I need a medical leave or I can t lift because of a back condition ) Cooperate in providing medical documentation to support the need for the requested accommodation 12

Interactive Process Timing An employer should respond expeditiously to a request for reasonable accommodation.... Unnecessary delays can result in a violation of the ADA. ~ EEOC 13

Documenting the Interactive Process 14

Document requests through form letters Utilize form letters to document compliance: Letters used to seek additional information regarding employee s ability to perform the essential functions of his/her job. Once Company receives requested medical information, send employee letter granting or denying additional leave/reasonable accommodation. If additional leave is granted, send follow-up letter to employee at the end of the additional unpaid leave period requesting updated medical information for the purpose of determining next steps. (i.e. need for reasonable accommodation) 15

Documentation Rules When impairment and/or limitations are not obvious The employer may ask the employee for documentation: Describing the impairment; The nature; Severity; Duration of the impairment; The activity or activities that the impairment limits; The extent to which the impairment limits the employee's ability to perform the activity or activities Can require that it be medical Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals 16

Reasonable Accommodation Request Form This form and any other documentation provided pursuant to this policy or the interactive process must be maintained in a secure, separate file, such as the medical file. Under the Americans with Disabilities Act, an individual is eligible for a reasonable accommodation if (1) he/she is qualified to perform the essential functions of the employment position and (2) he/she has a qualifying disability that limits a major life function. You must provide written documentation from a medical provider verifying your disability and need for accommodation in addition to the information requested on this form. Employee Information Name EID Job Title Department SBG/SBU Location Telephone Email Supervisor s Name Telephone Fax 1. Describe the limitations your disability places on your ability to perform your job. Please identify the job functions it affects and how it limits you. 2. Describe the accommodation you are requesting. 3. How will this accommodation assist you in performing the essential functions and requirements of your job? 17

Sample Form- Seeking Information From Physician Your physician must produce a brief statement within fifteen days from your request that describes: 1.) The nature and severity of your impairment that is the reason for the accommodation request. 2.) A statement regarding the expected duration of the impairment and the expected duration of the need for accommodation. 3.) A statement describing which, if any, of the essential function of your position you cannot perform due to your impairment. [Note to employee: Obtain a list of essential job functions from your supervisor]. 4.) A statement describing any suggestions that your physician has for accommodations that may enable you to perform essential job functions affected by your impairment. Information from you and your physician concerning your medical condition will be maintained in a confidential file and not in your personnel file. The purpose of this form is to gather initial information about your request for reasonable accommodation. The Company will engage in an interactive process with you to determine whether a reasonable accommodation is required, and if so, what accommodation is appropriate. Filling out this form does not guarantee that the requested accommodation will be provided. The Company s decision to grant you an accommodation does not mean the Company agrees that you have a disability. Employee Name Work Telephone 18

Recommended Process for Determining Reasonable Accommodation Review the job description to determine whether the requested accommodation involves an essential job function. Consider whether the employee will still be able to perform the essential functions of the job with the reasonable accommodation. Talk with the employee concerning the need for the accommodation and discuss whether there are other alternative accommodations that you believe are just as effective. 19

Recommended Process for Determining Reasonable Accommodation (cont.) Consider whether you need medical documentation to support the requested accommodation. Consult with Human Resources before making an accommodation for an employee. 20

What are some examples of a reasonable accommodation? Modified work schedule; Improved access to physical facilities (e.g., a ramp); Time off from work; Modifying equipment (a hoist) Job restructuring; Providing qualified readers or interpreters; Reassignment to a vacant position for which the individual is qualified; Leave of absence. 21

What is NOT a reasonable accommodation? Creation of a new position; Elimination of essential functions; Lower production standards; Providing personal use items to be used on and off the job (i.e., glasses, wheelchairs, hearing aids); Hiring two people to do a job normally performed by one. 22

Will a Reasonable Accommodation Create an Undue Hardship Factors To Consider 1. Nature & Cost of Accommodation Needed 2. Overall Financial Resources of Employer & Facility Involved 3. Size, Organization & Function of Employer s Workforce 4. Impact of Accommodation on Facility, Department, and Other Employees 23

The ADA: Leave as a reasonable accommodation 24

The ADA: Leave as a reasonable accommodation According to the EEOC: Granting a leave of absence may be considered a reasonable and required accommodation under the ADA if no other sufficient reasonable accommodation is available Maximum leave policies do not satisfy the ADA Indefinite leave is typically not a reasonable accommodation under the ADA, extending FMLA or other leaves by a relatively short period of time may be 25

When is Leave Reasonable? An accommodation is reasonable if it seems reasonable on its face, i.e., ordinarily in the run of cases i.e., if it appears feasible or plausible To be reasonable, it must enable individual to perform the essential functions of the job 26

Considerations for Leave As A Reasonable Accommodation Accommodation = Effective Meaning, if I grant you this leave, will it get you back to doing all the essential functions of your position? 27

Considerations for Leave As A Reasonable Accommodation (cont d) Specific end-date Reasonable duration Expectation of return to work Totality of the Circumstances 28

Considerations for Leave As A Reasonable Accommodation (cont d) Undue Hardship = the impact on the employer or other employees. An action requiring significant difficulty or expense, when considered in light of the following factors: Nature and cost of the accommodation needed The impact of such accommodation on the operation of the facilities Overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation The number of employees at the facility The effect on expenses and resources Other impact 29

Tips for Administering Leave as an Accommodation Revise LOA policies to cover ADA accommodations and train administrators Grant leave extensions in shorter increments and require new documentation showing leave is on track to be definite Document indefinite nature of leave in communications with employee and/or physician Require physician to estimate return date with reasonable medical certainty The interactive dialogue is an important part of the process; document it! 30

Best Practices in Handling Additional Leave Requests under ADA Send letter advising employee of leave expiration date If employee calls in response to letter and indicates he/she needs a reasonable accommodation, including additional leave engage in interactive process Consider light duty or other modifications that could constitute a reasonable accommodation such that additional leave is not needed Evaluate the impact on others and whether there is an undue hardship. If employee does not call in response to letter, send follow-up letter that gives him/her second chance. If employee fails to respond, terminate position. 31

The ADA: Leave policies Maximum leave ( Neutral Absence Control Policies ) 32

Accommodations under No-Fault Tardy/Absenteeism Policies Policies Accumulating Absences/Tardies to Reach a Certain Number Generally Upheld. Verizon Settlement In context of collective bargaining agreement, Verizon maintained policy where chargeable absences collected to result in discipline and/or termination No Fault System. EEOC challenges such as being violation of reasonable accommodation obligation. $20 Million Dollar Settlement with Verizon included Mandatory Changes to Absence/Tardiness Policy. 33

Best Practice for No-Fault Tardy/Absenteeism Policies If point system, advise employees of ability to request excuse from assessment of point/penalty as reasonable accommodation. Implement written form/request for employees requesting accommodation. Engage in interactive process with employee to determine whether absence was disability related. If absence was disability related, do not charge against employee. 34

Example: Administrative Termination Policies If an employee is out of work on a substantiated and approved leave of absence that exceeds 52 consecutive weeks in a rolling 24-month period, the employee s employment may be administratively terminated, except (1) as may be required by applicable law and (2) when the leave is for military leave. The Company will contact the employee in writing approximately 6 months after the commencement of leave, and then again in writing and by telephone approximately 11 months after the commencement of leave to determine his/her status and ability to return to work within the 52-week time frame. The employee must provide the Company with an updated mailing address and telephone number while on leave, and has the responsibility to contact the Company if he/she does not receive any notice at the 6-month or 11-month intervals. If the employee is unable to return to his/her job at the end of 52 weeks and indicates a desire to do so, the Company will evaluate whether it is appropriate to provide the employee with a reasonable accommodation, such as an additional amount of leave, a modification to his/her job duties, or consideration for a vacant position for which he/she is qualified. If the employee does not expect to return to work before the expiration of the 52-week leave and he/she wants to request a reasonable accommodation, then he/she must contact the Human Resources Department one month before the expiration of the 52-week period to make that accommodation request. The employee should not wait for the Company to contact them. An employee who is administratively terminated for failing to return to work at the expiration of the 52-week period will remain eligible to apply for a vacant position An administrative termination has no bearing on the employee s ability to collect disability or workers compensation benefits, if applicable. 35

Hypotheticals 36

Hypo 1 Erik had been out of work for 12 weeks, and is scheduled to be back in the Erik office istomorrow. ill. Just this morning, he sent the disability coordinator a note from his physician stating he is unable to return to work tomorrow but should be able to come back to work in 2 weeks at a reduced schedule. 37

Is Erik entitled to a reduced schedule when he comes back from leave? 1. No, because he has exhausted his 12 weeks of FMLA 2. Yes, FMLA requires intermittent leave 3. Yes, the employer has the duty to reasonably accommodate if he has a disability 4. None of the above 38

Is Erik entitled to a reduced schedule when he comes back from leave? 3. Yes, Erik s employer has the duty to reasonably accommodate if he has a disability 39

Hypo 2 Scott s been working for BSI in hospital services since February 2012. On July 3, 2013, Scott was rear-ended while on a delivery. He has been experiencing headaches since the accident. He also has difficulty sitting for more than an hour at a time because his lower back hurts. Scott came back to work right after the holiday weekend. The following week, Scott sees his doctor who won t let him drive until the test results come back in two weeks. Scott wants to work light duty, but the only available position pays $3.00 less an hour. 40

Hypo 2, cont d. Scott rejected the light duty position. He s now been out for 8 weeks. His doctor has diagnosed him with a degenerative disc disease that was only exacerbated by the accident. He needs surgery, and his anticipated recovery will be at least 12-weeks. He does not know if he ll be able to return to work as a driver either. Scott wants to know what his options are. 41

Hypo 2, cont d. It s not clear that he is a qualified disabled person and you don t want to make any assumptions but Consider extending his leave of absence for the duration of his recovery period, another 8 weeks Consider continuing his benefits if you ve done so for similarly situated employees on non-fmla leaves of absence Don t have to promise him his old job back, but don t take it off the table either Also, remember the FMLA, Scott still has 4 weeks left of unpaid, job protected leave, during which he ll receive his benefits 42

Hypo 3 Employer offers hospital nurse, responsible for assisting with the care of patients undergoing surgical procedures, the opportunity to cross-train in a different department due to a downturn in work in the employee s current department. Employee says back problems and an inability to lift heavy loads prevents her from working in a different department. Q: Is this sufficient notice of a disability to trigger the interactive process? A: Yes. Allowing her to continue working without knowing her possible restrictions would create a significant risk for patients because she may not be able to respond to emergency situations or ensure the safety of sedated patients. An employer should ask for additional medical information. 43

ADA vs. NYCHRL 44

NYCHRL: Requirements Covers employer with 4+ employees Prohibits discrimination against a qualified individual with a disability Requires: Qualified individual with a disability must be able to perform the essential functions of the job with or without reasonable accommodation Employers to make reasonable accommodations for currently disabled individuals where no undue hardship to the employer results Leave of absence may be a reasonable accommodation but not always 45

NYCHRL Definition of Disability is Much Broader Than the ADA Extends to persons who have any physical, medical, mental or psychological impairment, or a history or record of such impairment. New York City, N.Y., Code 8-102(16)(a). Under the ADA, disability requires proof that a physical or mental impairment substantially limits one or more major life activities, but the NYCHRL does not. 46

NYCHRL Definition of Disability is Much Broader Than the ADA (cont. d) The issue of the ability to perform essential requisites of a job is not bound up in the definitions of disability or reasonable accommodation. The City HRL defines disability purely in terms of impairments.... There is no subset of persons with disabilities not included among the persons referenced in the affirmative obligation set out in 8 107(15)(a). Phillips v. City of New York, 66 A.D.3d 170, 181, 884 N.Y.S.2d 369, 377, 22 A.D. Cases 621, 2009 N.Y. Slip Op. 05990. 47

NYC Disability Protection Phillips v. City of New York (1st Dep t 2009) Failure to engage in interactive process is a violation of the NYCHRL Need individualized inquiry when making a determination of reasonable accommodation All accommodations are deemed reasonable except for those a defendant proves constitute an undue hardship 48

Indefinite Leave Under The NYCHRL Romanello v. Intesa Sanpaolo, S.p.A. (N.Y. 2013) Indefinite leave can be a reasonable accommodation under broad protections of City law. Burden remains on employer to prove either: Employee could not, with reasonable accommodation, satisfy essential functions of job, or Accommodation places undue hardship on employer. 49

NYC Disability Protection NYCHRL Amendment Pregnancy Discrimination Protects pregnancy, child birth, or related medical condition Under existing City framework, prohibited as gender-based discrimination Under Amendment, creates additional right of action against employers who fail to reasonably accommodate pregnant women 50

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