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  • 2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

    OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 15-1

    MAKING IT WORK AT WORK

    KEY SOLUTIONS UNDER THE ADA

    

    Michael M. Shetterly – Ogletree Deakins (Greenville)

    Nonnie L. Shivers – Ogletree Deakins (Phoenix)

  • 2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

    OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 15-2

    Making It Work at Work: Key Solutions Under the ADA

    by Michael M. Shetterly and Nonnie L. Shivers

    When the Fourth Circuit issued its decision in Stephenson v. Pfizer, Inc., 641 Fed. Appx. 214 (4th Cir. 2016), many who follow legal developments under the Americans with Disabilities Act (ADA) cringed. A pharmaceutical sales person, who admitted that almost the entirety of her 10-hour workdays was spent outside of her home office traveling and meeting with physicians in their practices, disputed that driving was an essential function of her job. Instead, she argued, the ability to travel was the essential function. She argued she was denied any consideration of alternative ways in which she could accomplish the essential functions. While her colleagues drove themselves from appointment to appointment, she argued the ADA permitted her to explore as a possible accommodation how she traveled, and her employer was required to consider alternatives. To be sure, many, if not all, alternatives, such as a dedicated driver or shuttle service, may have been cost prohibitive. But since the employer put up no evidence to show what those costs were, or that they even considered the alternatives, the case was remanded for a trial to permit the jury to decide what the essential functions were and whether any of the accommodations Stephenson contemplated to continue her travels need not have been offered because of the undue burden or costs it would impose.

    Why did ADA practitioners cringe? Because on the surface, it seems an almost certainty that driving is an essential function of a traveling pharmaceutical sales representative position. And yet, the Fourth Circuit, after years of litigation, briefing, and reflection, decided that perhaps that was not the case. Perhaps the employer should have thought about the functions from a different angle. Perhaps the employer acted too hastily. Perhaps the employer’s concern about setting precedent was erroneous.

    To an employer, this is the terror of the ADA. The ADA places immense pressure on the employer to move quickly and forces the employer to:

    • engage both the employee1 and his/her doctor in the interactive process;2

    • consider the essential functions of the position (as compared to non-essential functions, as well as how the employee ordinarily goes about doing his/her job);

    • consider possible ways the employee can perform his/her essential functions;

    • consider which of those possibilities are reasonable; and

    • consider what kind of hardship the employer will suffer by providing the accommodations.

    It is a lot to consider in a short period of time, only to have lawyers, the U.S. Equal Employment Opportunity Commission (EEOC) and state fair employment agencies, courts and others question and critique each step of the dialogue and analysis. This after-the-fact reflection is all being done under, arguably, something akin to a strict liability standard.3 Specifically, the elements of a failure to accommodate claim, the employee must prove: (1) that the employee had a disability within the meaning of the statute; (2) that her employer had notice of the disability; (3) that the employee could perform the essential functions of her job with a reasonable accommodation; and (4) that her employer declined to make such an

  • 2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

    OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 15-3

    accommodation. See Whitney, 641 Fed. Appx. at 219. Thus, an employer who waits, without any (or even full) understanding of the ADA and how it works, therefore, is at a distinct disadvantage in terms of ADA compliance and faces enhanced legal risk.

    The ADA in a Nutshell

    The ADA is a comprehensive civil rights law prohibiting discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications. 42 U.S.C. § 12101, et. seq. Title I of the ADA, the focus of the discussion herein, prohibits discrimination in all employment practices — from application procedures, medical testing, and reasonable accommodations, to workplace policies and procedures, benefits, discipline, harassment, and termination. 42 U.S.C. § 12111, et. seq. Title I applies to all state and local governments, as well as to private employers, employment agencies, and labor unions with 15 or more employees working 20 or more calendar weeks in the current or preceding calendar year. Id. Employers are only required to accommodate a “known” disability under the ADA. 42 U.S.C. § 12112 (b)(5)(A).

    The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual” in the terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” unless the employer can demonstrate that the accommodation would represent an “undue hardship on the operation of the business” of the employer. 42 U.S.C. § 12112(b)(5)(A).

    Reasonable accommodations may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modification of examinations, and/or the provision of qualified readers or interpreters. See 42 U.S.C. § 12111(9)(B); see also 29 C.F.R. § 1630 App., 1630.2(o). Another common accommodation is a leave of absence to enable an employee to receive treatment for a disabling condition. See 29 C.F.R. § 1630 App., 1630.2(o) (noting that “accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment”); see also Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1135-36 (9th Cir. 2001) (“We have held that where a leave of absence would reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified under the ADA.”); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998); Criado v. IBM, 145 F.3d 437, 443 (1st Cir. 1998); Rascon v. US West Commc’ns, Inc., 143 F.3d 1324, 1333 (10th Cir. 1998).

    What Is Required for “Job Restructuring”?

    The phrase “job restructuring” as an example Congress gives for an accommodation lends itself to much debate. Job restructuring sounds like Congress meant large shifts in an employee’s job. But we also know that courts steadfastly hold that an accommodation is provided to permit the employee to perform all essential functions, not remove them. The following key interpretations and tenants of job restructuring will help frame what is required and not required as employers enter this tenuous space:

    • An employer is not required to create a new job or strip a current job of its principal duties to accommodate a disabled employee. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017).

  • 2018 LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

    OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 15-4

    • An employer is not required by the ADA to create a new job for an employee as an accommodation, nor to reestablish a position that no longer exists. Audette v. Town of Plymouth, MA, 858 F.3d 13(1st Cir. 2017).

    • Under the ADA, an employer is not required to accommodate an employee by exempting her from having to perform an essential job function. Jones v. Walgreen Co., 765 F. Supp. 2d 100 (D. Mass. 2011).

    • While a reasonable accommodation under the ADA may include job restructuring, the law does not require an employer to accommodate a disability by foregoing an essential function of the position or by reallocating essential functions to make other workers’ jobs more onerous. Rivera Abella v. Puerto Rico Telephone Co., 470 F. Supp. 2d 86 (D.P.R. 2007).

    • Under the ADA, a reasonable accommodation can never involve the elimination of an essential function of a job. Stevens v. Rite Aid Corporation, 851 F.3d 224 (2d Cir. 2017).

    • Employee failed to show that he was capable of performing the essential functions of his commercial assembler position with reasonable accommodation, as would support his claim that his employer discriminated against him on basis of his dyslexia, in violation of the ADA, where his proposed accommodations (removal of essential functions) were not reasonable, and employer did extend a reasonable accommodation by permitting employee to bid on non-assembly jobs while continuing his medical benefits in the interim. D’Eredita v. ITT Corp., 370 Fed. Appx. 139 (2d Cir. 2010).

    • In a discrimination action under the ADA, because a reasonable accommodation can never involve the elimination of an essential job function, a plaintiff proposing an alternative arrangement, as opposed to a reassignment, still carries the burden of demonstrating that he can perform the essential functions of the

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