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Wednesday, December 7, 2011

Editor's Note: Hitting the Reset Button on Reasonable Accommodation

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So, what does the ADA Amendments Act really mean for practitioners analyzing issues pertaining to reasonable accommodations?

This week, Daily Labor Report’s Kevin McGowan covered  a webinar hosted by the American Bar Association, where EEOC Commissioners Chai Feldblum and Victoria Lipnic shed some light on the question.

Equal Employment Opportunity Commission guidance first issued in 1999 and updated in 2002 is still the starting point for analysis, the commissioners said. But the ADA Amendments Act, which took effect nearly two years ago, “sort of hit the reset button,” Feldblum said, adding that the agency is re-evaluating its guidance, anticipating that employers and courts will have an increased focus on the issue.

EEOC also weighed in last week on whether or not an employer can require applicants to have a high school diploma without running afoul of disabilities law. After all, some applicants who are perfectly capable of doing a particular job might have been unable to complete high school because of a learning disability covered by the act.

The bottom line, according to an informal discussion letter posted online last week:  a high school diploma requirement  must be job-related  and consistent with business necessity. But even if the requirement clears these hurdles, the employer still might have to determine whether a particular applicant--whose learning disability prevents him or her from meeting the requirement--can perform the essential functions of the job, with or without a reasonable accommodation. Maybe the applicant has held a similar job in the past or is able to show the employer during the interview process that he or she can do the task at hand. But there is no need for the employer to place a preference on these applicants if other, more qualified applicants, are also in the mix.

Over at the Labor Department, DOL has announced a deal with Colorado to work together to reduce the misclassification of employees as independent contractors, becoming the 11th state to join DOL’s battle against the practice.

Meanwhile, the National Employment Law Project posted a report on steps state and federal governments are taking to address the practice of misclassification.

And mark your calendars: here are some of the labor and employment conferences coming up this month.

  • Class Actions and Arbitration: Assessing Current and Future Practice After AT&T Mobility LLC v. Concepcion, Dec. 8, New York. Sponsored by the American Arbitration Association and the Cornell University International Labor Relations (ILR) School, Scheinman Institute on Conflict Resolution. For more information, contact Tracy Jusay at JusayT@adr.org (212) 484-3283.
  • Across Boundaries: An Interdisciplinary Conference on the Global Challenges Facing Workers and Employment Research, Dec. 13-14, London. Sponsored by the Labor and Employment Relations Association, 504 East Armory Ave., Champaign, Ill. 61820; telephone (217) 333-0072.
  • Ethics in Labor & Employment Law, Dec. 14, teleconference. Sponsored by the National Employment Law Institute, P.O. Box 1189, Golden, Colo. 80402; telephone (303) 861-5600; e-mail registrar@neli.org.
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