making it work at work - ogletree deakins · ogletree, deakins, nash, smoak & stewart, p.c....

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)



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



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).



• 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 original job; after the essential functions of the position are determined, the plaintiff must demonstrate that he could have performed these functions, with or without reasonable accommodation, at the time of the termination or discipline. Palmieri v. City of Hartford, 947 F. Supp. 2d 187 (D. Conn. 2013).

• While a reasonable accommodation under the ADA may include adjustments such as the modification of physical facilities, work schedules or equipment or job restructuring, reasonable accommodation does not mean the elimination of any of the position’s essential functions. Hernandez v. International Shoppes, LLC, 100 F. Supp. 3d 232 (E.D. N.Y. 2015).

• Under the ADA, an employer need not manufacture a job that will enable the disabled worker to work despite his disability. Dargis v. Sheahan, 526 F.3d 981, (7th Cir. 2008).

• Although a reasonable accommodation may include reassignment of employee to a vacant position for which he is qualified, the ADA does not require employer to create a new position for employee. Picinich v. United Parcel Service, 321 F. Supp. 2d 485 (N.D. N.Y. 2004).



• Although the ADA does require reassignment as a form of reasonable accommodation in some circumstances, an employer need not reassign an employee if no position is vacant, and the employer is not obliged to create a new position to accommodate the employee. Nieblas-Love v. New York City Housing Authority, 165 F. Supp. 3d 51(S.D. N.Y. 2016).

• Under the ADA, being qualified is determined in relation to the essential functions of a job, and reasonable accommodation by employer does not require the elimination of an essential function of the job; likewise, an employer is not required to create a new job, or recreate an old job, to enable an employee with a disability to work. Allen v. City of Raleigh, 140 F. Supp. 3d 470 (E.D. N.C. 2015).

• The ADA does not require an employer to make an accommodation that would impact other employees in their ability to perform their job duties, such as creating more work. Rudolph v. Buncombe County Government, 846 F. Supp. 2d 461 (W.D. N.C. 2012), aff’d, 2012 WL 3291795 (4th Cir. 2012).

• Under the ADA, an employer attempting to accommodate a disabled employee is not required to reallocate job duties in order to change the essential function of a job. Hawkins v. Smith, 46 F. Supp. 3d 1175 (N.D. Okla. 2014).

• The ADA does not require an employer to relieve an employee of any essential functions of his or her job, modify those duties, reassign existing employees to perform those jobs, or hire new employees to do so. Miller v. Metrocare Services, 809 F.3d 827 (5th Cir. 2016).

• Task reassignment is not a reasonable accommodation of worker’s disability, under the ADA if the task is an essential function of the job. Gober v. Frankel Family Trust, 537 Fed. Appx. 518 (5th Cir. 2013).

• An employer’s duty to make reasonable accommodations under the ADA does not require it to relieve an employee of any essential functions of the job, modify the actual duties, or reassign existing employees or hire new employees to perform those duties. Harville v. Texas A&M University, 833 F. Supp. 2d 645 (S.D. Tex. 2011).

• Under the ADA, an employer is not required to create a new position in order to accommodate an individual with a disability who is no longer able to perform the essential functions of her own occupation. White v. Standard Ins. Co., 895 F. Supp. 2d 817 (E.D. Mich. 2012).

• There is no precise test for what constitutes reasonable accommodation under the ADA, but an accommodation is unreasonable if it requires employer to eliminate an essential function of job. Johnson v. City of Blaine, 970 F. Supp. 2d 893 (D. Minn. 2013).

ADA Principles as Applied to Light Duty Assignments

Generally, the above principles, as applied, mean an employer is not required to create or leave an employee in a permanent light duty position. Sanford v. Thor Industries, Inc., 286 F. Supp. 3d 938 (N.D. Ind. 2018) (an employer need not create a new job or strip a current job of



its principal duties to accommodate a disabled employee; nor is there any duty under ADA to reassign an employee to a permanent light duty position.); Searls v. Johns Hopkins Hosp., 158 F. Supp. 3d 427 (D. Md. 2016) (a reasonable accommodation under the ADA or the Rehabilitation Act does not require an employer to reallocate essential job functions or assign an employee permanent light duty; the ADA simply does not require an employer to hire an additional person to perform an essential function of a disabled employee’s position.); Atwell v. Indianapolis-Marion County Forensic Services Agency, 168 F. Supp. 3d 1125 (S.D. Ind. 2016) (ADA does not require an employer to transfer the disabled employee to a temporary position on a more permanent basis); Cover v. J.C. Penney Corporation, Inc., 187 F. Supp. 3d 1079 (D. Minn. 2016) (an employer is not required under the ADA to create a new position, or transform a temporary position into a permanent position, as an accommodation).

So what does “job restructuring” mean in that case? First, it means reassignment of non-essential functions. Asma Farha, M.D. v. Cogent Healthcare of Michigan, P.C., 164 F. Supp. 3d 974 (E.D. Mich. 2016) (a reasonable accommodation under the ADA may include shifting marginal duties to other employees who can easily perform them; however, shifting an employee’s essential functions to other employees is not a reasonable accommodation); Siewertsen v. Worthington Steel Co., 134 F. Supp. 3d 1091 (N.D. Ohio 2015) (to provide a reasonable accommodation under the ADA, an employer may be required to modify the responsibilities of disabled employee’s existing job or transfer the employee to a vacant position with different responsibilities; however, the ADA does not require employers to accommodate individuals by shifting an essential job function onto others). While job restructuring may be a reasonable accommodation of disability in appropriate circumstances, such an accommodation only applies to restructuring non-essential duties or marginal functions of job. Knutson v. Schwan’s Home Service, Inc., 870 F. Supp. 2d 685 (D. Minn. 2012) (under the ADA, reallocating the marginal functions of a job may be a reasonable accommodation for a disabled employee; however, an employer need not reallocate or eliminate the essential functions of a job to accommodate a disabled employee); Jones v. Allstate Insurance Co., 281 F. Supp. 3d 1211 (N.D. Ala. 2016), subsequently aff’d, 707 Fed. Appx. 641, (11th Cir. 2017) (while the ADA does not require the employer to eliminate an essential function of the employee’s job, the ADA may require an employer to restructure a particular job by altering or eliminating some of its marginal functions).

The second instance where “job restructuring” may be viewed as an accommodation is when the employee works with a pool of employees where collectively, they have to get the job done. If all things being equal, there are some machines the employee can operate with their disability and some they cannot, then an employer may be required to restructure. For example, in EEOC v. United Parcel Services, Inc., 149 F. Supp. 2d 1115 (N.D. Cal. 2000), a driver was excluded from being able to drive a DOT licensed truck because he had monocular vision. The court found that the company used drivers interchangeably and could easily task him with driving lighter trucks that did not have the DOT requirements against monocular vision. It found that UPS’s manual called for making change in usual way of doing things so that qualified person with disability could participate, delivery service had complete flexibility in designing routes and assigning trucks, and could move vehicles around to accommodate disabled employees. Similarly, in Colfor Manufacturing, Inc. v. Ohio Civil Rights Commission, 2017-Ohio-9402, 102 N.E.3d 1157 (Ohio Ct. App. 7th Dist. Carroll County 2017), the court found an accommodation in the form of job restructuring should have occurred because the employee could perform all of the essential functions of the job – a forge press operator. The employee’s restriction was to avoid hot presses. The employer had accommodated work restrictions at employee’s prior work site where he operated a cold press, witnesses testified that cold press



work was performed at new work site, and plant manager testified that he would have tried to accommodate employee’s restriction of no hot jobs.

Extreme care, however, should be exercised to make sure that the “restructuring” does not result in others having to work longer or harder or under more oppressive circumstances. Under the ADA, for purposes of failure to accommodate claim, accommodation that would cause other employees to work harder, longer, or be deprived of opportunities is not mandated. Gesinger v. Burwell, 210 F. Supp. 3d 1177 (D.S.D. 2016).

The third instance concerns how the work is done. For example, telework is certainly contemplated as a viable accommodation under the ADA in certain circumstances. Merrill v. McCarthy, 184 F. Supp. 3d 221 (E.D. N.C. 2016).

Of course, if the employer has existing light duty jobs – as many employers do – it may have to consider reassigning the employee with a disability (as discussed below) to one of those jobs if that is needed as a reasonable accommodation. The EEOC has taken the position that “if an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position.” EEOC Technical Assistance Manual, Ch. 9.4.

Temporary Transitional Duty as a Reasonable Accommodation

One common question is whether an employer can create a light duty job for only a temporary period. The EEOC has stated that “an employer is free to determine that a light duty position will be temporary rather than permanent.” EEOC Enforcement Guidance: Workers’ Compensation and the ADA, No. 915.002 (9/3/96), at p. 22. In Complainant v. McDonald (VA), 2015 EEOPUB LEXIS 198 (EEOC 2015), the EEOC held that although the Veterans Administration put the employee in a temporary light duty job because of his lifting restrictions, it was not required “to transform its temporary light or limited duty assignments into permanent jobs to accommodate an employee’s disability.” Courts have agreed with this position. For example, in Frazier-White v. Gee, 2016 U.S. App. LEXIS 6318 (11th Cir. 2016), the court held that the employer was not required to indefinitely extend the employee’s temporary light duty assignment as an “inactive records desk clerk” where she continued to be unable to perform her security-related duties at the sheriff’s detention center because of an injury. Likewise, in Meade v. AT&T Corp., 2016 U.S. App. LEXIS 14256 (6th Cir. 2016)(unpublished), the court held that contrary to the employee’s argument, the employer was not required to indefinitely continue his temporary light-duty position where could not perform the essential functions of his facilities job due to his inability to climb and work outside in the cold. The court stated that “an employer need not create a permanent light-duty “ or shift essential functions to another employee. In Wardia v. Justice and Public Safety Cabinet Department of Juvenile Justice, 2013 U.S. App. LEXIS 238 (6th Cir. 2013)(unpublished), the court held that the employer was not required to convert temporary light-duty control room positions in a prison into permanent positions as an accommodation. The court rejected the plaintiff’s argument that this was required because the employer may have done this in the past for an employee for sympathetic or administrative reasons. In Ivey v. First Quality Retail Service, 2012 U.S. App. LEXIS 19860 (11th Cir.2012) (unpublished), the court held that although the employer offered the employee a temporary light duty job in which she did not have to perform her manual diaper packaging tasks, it was not required to provide her with a permanent light duty position because this would eliminate her essential functions. In Graves v. Finch Pruyn & Co., 457 F.3d 181 (2d Cir. 2006), the court held that since the ADA does not require creating a new sedentary position for an employee with a mobility impairment, it also does not require the employer to keep the employee in that position



for any longer than it chooses. Likewise, in Johns v. Laidlaw Education Services, 2006 U.S. App. LEXIS 25513 (7th Cir. 2006)(unpublished), the court noted that an employer “does not have to convert temporary positions into permanent ones.” In Buskirk v. Apollo Metals, 307 F.3d 160 (3d Cir. 2002), the court noted that an employer is not “required to transform a temporary light duty position into a permanent position.”

In Beaver v. Titan Wheel International, 2001 U.S. App. LEXIS 7634 (7th Cir. 2001) (unpublished), the plaintiff claimed that he was permanently reassigned to a lighter wheel assembly job because of his leg amputation, while the employer claimed that the assignment was only temporary. Although the court stated that it would not punish an employer for doing a good deed such as a temporary placement, the facts indicated that the assignment was not clearly temporary. Specifically, the court noted that the plaintiff had been assigned to the lighter job for nearly 1-1/2 years, and “there were no meaningful discussions” between the employer and the employee as to whether the new job was temporary or permanent. Therefore, the employer lost its motion for summary judgment on this point. Accordingly, if an employer wants the light duty job to be temporary, it should make this fact clear during the interactive process.

Along these lines, some employers limit the period of light duty jobs to the employee’s “maximum medical improvement” or limit the jobs to employees who eventually will be able to return to their jobs. Employers have a good argument that this practice is lawful since the employer did not have to even create the positions at all. For example, in Smith v. Global Staffing, 621 Fed. Appx. 899 (10th Cir. 2015), the court seemed to suggest that the employer did not violate the ADA by creating a modified duty job for the employee that lasted until his maximum medical improvement and resolution of his workers’ compensation issues. In Ivey v. First Quality Retail Service, 2012 U.S. App. LEXIS 19860 (11th Cir. 2012)(unpublished), the court held that it did not violate the ADA to create a light duty job on a temporary basis to “employees with work-related injuries who were expected to recover.” In Delgado v. Certified Grocers Midwest, Inc., 2008 U.S. App. LEXIS 13497 (7th Cir. 2008)(unpublished), the court disagreed with the plaintiff that the employer’s allowing him to work in a light-duty position for longer than the contractual requirement was evidence that the position was not “temporary.” The court noted that it would not “punish” an employer for maintaining a “flexible rehabilitation program” and for often allowing employees to remain on light duty for “as long as they were reasonably expected to fully recuperate.” In Collins v. Yellow Freight System, 2004 U.S. App. LEXIS 6158 (6th Cir. 2004) (unpublished), the court suggested that limiting a modified work program to employees who were “temporarily” disabled from an on-the job injury does not violate the law. In this case, the employee had a permanent, nonwork-related back injury.

Another difficult – and controversial – question is whether an employer can reserve light-duty jobs for on-the-job injuries. A strong argument can be made that this does not violate the ADA because it does not discriminate based on disability. Rather, it discriminates based on where someone was injured, but anyone with any type of disability can get the light duty job if s/he has a workplace injury. Employers should keep in mind that disability-rights advocates are likely to challenge these policies using a disparate impact argument (i.e., the policy has a disparate impact against certain types of disabilities that are not typically workplace injuries, such as cancer and HIV/AIDS). In addition, the policies might be challenged under Title VII of the Civil Rights Act of 1964 using the theory that they discriminate against pregnant women.

The EEOC has taken the position that an employer cannot reserve existing light duty jobs for on-the-job injuries; rather, the employer must consider reassigning any disabled employee (e.g., including those without on-the-job injuries) to such an existing job if it is vacant and if it is needed by the employee as a reasonable accommodation. EEOC Enforcement



Guidance: Workers’ Compensation and the ADA, No. 915.002 (9/3/96), at p. 22. This Guidance is available on the internet at www.eeoc.gov. Interestingly, however, the EEOC also has stated that an employer may create light duty positions solely for employees who are injured on the job. EEOC Enforcement Guidance: Workers’ Compensation and the ADA, No. 915.002 (9/3/96), at p. 20. More recently, however, the EEOC has further confused the issue by suggesting that this later approach might itself be illegal. In an informal guidance letter, the EEOC has stated that “[w]hether a policy of creating light duty positions for employees who are injured on the job while not creating the same for employees with disabilities that are not caused by work-related injuries would have an adverse impact on employees with disabilities must be determined on a case-by-case basis.”

One federal court of appeals to address the issue did not adopt the approach taken by the EEOC. In Dalton v. Subaru-Isuzu, 141 F.3d 667 (7th Cir. 1998), the court considered whether the employer could reserve light-duty positions for employees recuperating from recent injuries who had temporary disabilities. The court stated these positions could be reserved for such employees, noting that “[n]othing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to intra-company transfers.” On the other hand, although not directly analyzing the issue, in Stephenson v. United Airlines, 2001 U.S. App. LEXIS 11400 (9th Cir. 2001) (unpublished), the court suggested that such a policy – limiting light-duty jobs to work-related injuries – might be illegal. The court stated that United’s “argument that its light or modified duty was non-discriminatory because it applied equally to all employees neglects to consider its duties under the ADA. An employer may not unilaterally adopt a policy exempting it from its obligations under the ADA even if the policy is otherwise uniformly applied to all employees.”

In Young v. UPS, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (2015), the U.S. Supreme Court analyzed whether an employer must create light duty jobs for pregnant employees if it creates light duty jobs for on-the-job-injuries. The Court held that there is no per se requirement, but rather that it will look at other factors, such as whether the employer creates these jobs for additional classes of employees (for example, more than just employees with on-the-job injuries).

Employers will generally not be punished for having been more generous in the past than the ADA requires regarding the offer of light-duty jobs. For example, in Wade v. Brennan, 2016 U.S. App. LEXIS 7961 (5th Cir. 2016)(unpublished), the court held that the employer did not need to create a light duty job for the employee who could not perform the standing required for her position, despite the fact that it allowed her to perform light duty tasks for 10 years. In Skotnicki v. University of Alabama, 631 Fed. Appx. 896 (11th Cir. 2015), the court held that the employer was not required to create a new lighter-duty nursing position for the employee, even though it had offered to create such a position two years earlier for her (which she declined). The court held that it would not punish an employer for generously going beyond the ADA’s requirements by deeming the employer “to have conceded the reasonableness of so far-reaching an accommodation.”



ENDNOTES

1 Wiederhold v. Sears, Roebuck and Co., 888 F. Supp. 2d 1065 (D. Or. 2012); 142 A.L.R. Fed. 311, *2. Under the ADA, an employer has “a good-faith duty to engage with [its employee] in an interactive process to identify a reasonable accommodation.” Id. at 581 (internal quotation marks omitted). Whitney v. Stephenson, No. 14-2079 (4th Cir. 2016).

2 29 C.F.R. § 1630.2(o)(3) (2012). Although the regulation uses the words “may be necessary,” rather than mandatory terms, courts have consistently held that the interactive process is mandatory. Kleiber v. Honda of America Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007) (citing numerous cases from other circuits).

3 Under the Americans with Disabilities Act (ADA), it is an act of discrimination to fail reasonably to accommodate a qualified employee with a disability unless the employer can show that such an accommodation would impose an undue hardship. Daoud v. Avamere Staffing, LLC, 336 F. Supp. 2d 1129 (D. Or. 2004).

1


Presented by

Michael M. Shetterly (Greenville)

Nonnie L. Shivers (Phoenix)

The ADA

Requires employer to offer reasonable accommodation(s) to a qualified individual with a disability

Accommodation = modifications to the workplace or policies that remove barriers

– This can include leave…

– But not only leave

– Today = non-leave accommodations

When Is The ADA Triggered?

According to the EEOC any time:

– Employee says “I am a disabled individual and in need of an accommodation”

– Employee seeks leave citing their own impairment EVEN IF seeking FMLA

– Employee expresses challenges with performing specific tasks or complying with a work rule because of an impairment

– Employee’s return to work note includes restrictions

2

Is there any point in analyzing whether something is a disability?

Depends upon your timing

At summary judgment? Yes!

During the reasonable accommodation process? No.

– If I behave like it is disability, aren’t I admitting that, and foreclosed from arguing it later? No.

The ADA Process

Termination

Consider for Open Positions

Grant Leave if Effective

Accommodation within Job“The ADA provides employees with A reasonable accommodation, not their preferred accommodation”As long as you are in the correct tier

The ADA Process

Termination



Accommodation within Job “The ADA provides employees with A reasonable accommodation, not their preferred accommodation”As long as you are in the correct tier

3

The ADA & Leave Process Merged

Termination


Grant ADA Leave if Effective

Consider Company Leave and FMLA

Accommodation within Job

Position protected leaves first, then ADA position protected leave

FMLA for own SHC is tied to whether they can perform all essential functions of their job

The ADA & Leave Process Merged

Termination





What about light duty?

Light Duty As An Accommodation

Create light duty role as accomodation if provided to work injured, unless

– Light duty to the work injured is completely ad hoc and if only a few days in duration when provided.

But, if you have created light duty roles and they are sitting idle, then must provide to disabled as an accommodation

– Permanently?

4

Light Duty Under ADA v. FMLA

FMLA ADA• Viewed as interference to

remove essential functions of a job to FORCE an employee back to work

• In workers’ compensation, an employer should be OFFERING light duty, not forcing it (if FMLA is available)

• Most of the time, viewed as a “permissible” accommodation (and an alternative to leave)

• Mandated accommodation when light duty positions are created (static) and sitting idle

• Potentially required as accommodation if light duty is offered to the work injured for long periods of time

ADA & Leave Process Merged

Termination





Light duty is an employer option here

Cannot mandate light

duty here

Accommodations that result in employee

performing all essential functions

What we are going to talk about…

Termination




Light Duty

5

Collecting Data and Asking Each Question During Each Tier

Is there an accommodation?

If there is one (or more), are any reasonable?

Will any cause an undue hardship?

If no accommodation within that tier, go to the next tier and ask these questions

Tier 1 Accommodations Permit the Employee to Perform All Essential Functions

Provision of piece of equipment (e.g., ergonomic desk)

Modification of facilities (e.g., ramp or visual alarm)

Elimination of non-essential rules or ways of performing job (e.g., it’s not the way we do it, but Bob gets it done)

Flexible schedules or working from home (e.g., generally we require our employees to be here and work during office hours, but that is not as important for Bob’s job)

– Although the ADA discusses a part-time schedule, generally permanent part time is not accommodation if the essential functions of the employee’s position is full time

Is Job Restructuring Ever A REQUIRED Tier 1 Accommodation?

An employer is not required to create a job that doesn’t exist

An employer is not required to forgo an

essential function

An employer is not required to reallocate essential functions to

another employee to make their job more onerous

A reasonable accommodation can

never involve elimination of an essential function

of the job

Reasonable accommodation does not mean the elimination of

any of the position’s essential functions

An employer is not required to turn a

temporary light duty assignment into a

permanent position as an accommodation

Employers are not required to create a new job or recreate an old job to

accommodate an employee

Task reassignment is not a reasonable

accommodation if the task is an essential

function

6

Then When and What Is Job Restructuring?

Removing non-essential functions

When group of employees are in a pool getting the work done

– Where job rotation is not an essential function,

– No job is more onerous than the other, and

– There are full assignments the employee can do within his/her restrictions.

Temporary removal of an essential function???

– i.e., light duty…

Tier 1 Accommodation

So, 95% of the time, the issue comes down to whether removing the barrier will be removing an essential function of the job

– To decide – three steps

• Job description phase

• Jigsaw puzzle phase

• Sacred cow phase

Job Description Job Title

Time Frame

Duties

Skills

Reference

Description

7

Jigsaw Puzzle

Sacred Cow

What if I discover that we gave what we thought was a Tier 1, but it was really light duty (i.e., we removed an essential function) and we have been living by it for years – am I stuck?

8

What if the requested accommodation is forgiveness of rule violations that occurred before notice of the need for accommodation?

Forgiveness of a workplace rule can be an accommodation

Generally, accommodations are only moving forward

Possible exception – Workplace rule is not essential and

– Violation was caused by disability

Undue Hardship –Is this just a loser, particularly for large employers?

Balance the interests of co-workers vs. the accommodation

– Cost/budget look for impact on co-workers/customers

– Impact on co-workers

Balance the interests of the customers vs. the accommodation

Important Factors to Consider

Timing – being prompt

– You will get dinged for foot dragging• A day or two is okay – weeks are bad – months are awful

Documentation – substantiate contemporaneously and use your forms

Get clarification – don’t guess

Engage! – the employee too…(even if you are talking directly to the doctor) (or the lawyer)

9

When the LAWYER engages

What do you do when the plaintiff’s lawyer takes over the interactive process?

– Can you still get to talk to the employee?

– Are they now a fact witness?

• If you engage too, because your client is represented by counsel, are you now a fact witness?

Vacant Position ConceptsThe accommodation of last resort

Termination




The Line ofDisplacement

Still holds position

Position gone

Vacant Position Concepts

No discrimination = reasonable accommodation – Reasonable accommodation includes “reassignment”

Reassignment is the accommodation of “last resort”

What does “vacant” positions mean?

No promotion required

Looking outside of the facility (at other locations)?

No red-circling pay required

No inferior job, if comparable job vacant

Employee must be qualified

Employee must comply with company prerequisites

10

What if I have a rule that requires an employee to be in the position for a year, or requires the employee to not have any discipline on his or her record?

Accommodations can be removal of a non-structural rule

Suppose we consider the “no discipline” rule to be structural

– What caused the discipline?

New Hires – How do the tiers apply?

Termination





Presented by

Michael M. Shetterly (Greenville)

Nonnie L. Shivers (Phoenix)

making it work at work - ogletree deakins · ogletree, deakins, nash, smoak & stewart, p.c....

Documents