The Equal Employment Opportunity Commission is working on new guidance regarding reasonable accommodation under the Americans with Disabilities Act as the ADA Amendments Act, which took effect on Jan. 1, 2009, put new emphasis on accommodating otherwise qualified applicants and employees with disabilities, EEOC commissioners Chai Feldblum and Victoria Lipnic said during a recent American Bar Association webinar.
In the online session co-sponsored by the ABA Section of Labor and Employment Law, the Commission on Disability Rights, and the ABA Center for Continuing Legal Education, Feldblum said the ADA Amendments Act clarified who is a person with a disability under the ADA, but did not change the reasonable accommodation analysis.
The starting point for analyzing reasonable accommodation issues remains EEOC guidance originally issued in 1999 and revised in 2002, Feldblum said. But she said the ADA Amendments Act “sort of hit the reset button,” and EEOC currently is re-evaluating its guidance as it anticipates an increasing focus by employers and courts on reasonable accommodation issues.
EEOC last year issued a final rule revising its ADA regulations to account for the ADA Amendments Act (62 BTM 99, 3/29/11). EEOC also held a public meeting regarding leave as a reasonable accommodation under the ADA (62 BTM 185, 6/14/11).
During the webinar, Lipnic said it helps to consider ADA reasonable accommodation as a “continuum” with issues such as whether accommodation is required, whether proposed accommodations are reasonable, and whether an employer has an undue hardship defense dependent on “individual” situations requiring a case-by-case approach.
Individuals asserting coverage under the ADA's “regarded as” disabled prong are not entitled to reasonable accommodation, Feldblum noted. But individuals who allege an actual disability that substantially limits performance of a major life activity or a record of such disability may request reasonable accommodation to perform the job's essential functions.
Feldblum said that unlike the Family and Medical Leave Act, the ADA places no time limits on leave that may be requested as accommodation so that leaves extending beyond the FMLA's 12-week maximum may be required as an ADA accommodation. While the FMLA covers only employers with 50 or more employees and employees who have worked a certain minimum number of weeks during the preceding year, the ADA covers all employees working for employers with 15 or more employees, she added.
Some distinctions also exist between reasonable accommodations available to disabled job applicants and those available to current employees, Feldblum said. For example, “reassignment to a vacant position” might be available as an accommodation of “last resort” for a current employee unable to perform an essential function of his current job, she said.
But such an accommodation would not be available to a disabled job applicant, Feldblum said. Rather, the employer is entitled to hire the person who is “best qualified for the job,” she said. Accommodations at the application stage are intended to remove barriers that prevent an applicant with a disability from competing on an equal basis, not to require an employer to hire that person, Feldblum explained.
ADA reasonable accommodations generally are intended to remove barriers to job performance, including physical obstacles, modes of communication, and employers' procedures or rules governing when or how work is to be performed, Feldblum said.
The ADA is “intended to ensure” that an employer “can still get that work done,” Feldblum said. She characterized the ADA as a “stop, think, and justify” law that requires employers to explain the reasons for the challenged work rule and to explore alternatives that would allow the employee with disabilities to still get the work accomplished.
Individuals requesting accommodation do not have to invoke the ADA, but they generally have to make a request and specify the barrier preventing them from effectively competing for, or performing, the job, Feldblum said. Current EEOC guidance provides that individuals seeking accommodation may use “plain English” and do not have to mention the ADA, Lipnic said.
The “big thing” is that people “do not necessarily know” they have an ADA-covered disability, but when they request leave for medical reasons, for example, an employer needs to “realize it's an ADA” accommodation request, Feldblum said. Under the ADA Amendments Act, a “short-term but ‘substantially limiting' ” condition may be covered as an actual disability, she said.
It is “absolutely legitimate” for employers to ask for medical documentation to support an individual's accommodation request, Feldblum said. The employer has “the right to know what is the disability” that is causing the individual's problem with the workplace rule, she said. Lipnic added “there has to be a level of awareness” on the employer's part that the individual's statement is an accommodation request.
J. Randall Coffey, a management attorney with Fisher & Phillips in Kansas City, Mo., who moderated the webinar, asked whether courts have relied on medication's side effects as a basis for requesting reasonable accommodation.
Feldblum replied that problems arising because of treatment side effects are equivalent to a barrier arising because of the individual's disability. She added, however, the individual with side effects must still be “qualified” to perform the job. The commission's current position is that if an individual cannot meet the work rule because of side effects, it is the same as a barrier created because of disability, Feldblum said.
Lipnic asked how employers should respond when co-workers ask why an accommodated employee has been granted leave, for example. Under EEOC's current guidelines, the employer may not inform co-workers that accommodation has been granted under the ADA, Feldblum replied.
But EEOC internally has been discussing new guidance on leave as an ADA accommodation, Feldblum said. This question of how to ensure that co-workers understand the need for leave while maintaining an individual's right to confidentiality under the ADA, is “something that's on the table” in EEOC's deliberations, Feldblum said. It is a “sensitive” matter and “an important question” for employers, she said.
If the individual requesting leave as an accommodation already has exhausted FMLA leave, does that affect the ADA analysis, Coffey asked.
Lipnic replied that if a person who has exhausted FMLA leave needs additional leave because of a disabling condition, the parties have “left FMLA-land,” and the question must be analyzed under the ADA. Feldblum remarked that in such cases, an employer's “undue hardship” argument would apply to “all of the time” the individual has taken off, including the 12 weeks of FMLA leave.
Regarding the “interactive process” triggered by an accommodation request, Feldblum said it was not mentioned in the ADA as passed in 1990 but was discussed in the act's legislative history and EEOC's interpretive rules. The Civil Rights Act of 1991 provided no punitive damages would be available under the ADA if an employer had entered into the interactive process, Feldblum said.
During this stage, employers have the right to know what the individual's claimed condition is and how that condition is causing a problem in the workplace, Feldblum said. Lipnic said employers “have to be creative” and work with the employee on crafting an accommodation that addresses the problem.
EEOC's examples of accommodation include accessible facilities, acquiring or modifying work equipment, and modifying workplace policies. The last is “probably the most challenging” for employers, as it can involve proposed restructuring of jobs or work schedules, Lipnic said.
Lipnic asked what happens if someone hired for a job realizes because of disability issues she cannot perform a particular function after taking the position. Feldblum replied employers should specify “essential functions” in their job descriptions prior to hiring but that failure to do so is “not fatal” to an employer's argument that a particular job function is essential and may not be eliminated as an accommodation.
“The bottom line is [that] it's the employer that decides” what is essential, Feldblum said. She added, however, that reallocating or redistributing among other employees a “marginal” job function can be part of a job restructuring and may be a reasonable accommodation.
Lipnic said reasonable accommodation can include altered starting times, reduced hours, or even working from home periodically. Feldblum said one issue could be whether a part-time schedule for a formerly full-time employee is “effective in allowing the person to do the job.” If so, is such an arrangement an “undue hardship” on the employer, economically and logistically? Feldblum asked.
“This is something [Lipnic] sees as ‘difficult for employers' and I agree,” Feldblum said. EEOC's job is “to make clear” when it is an undue hardship to employers to make such workplace modifications, she said.
Unlike part-time work or modified work schedules, leave is not expressly mentioned in the ADA as a possible accommodation, Lipnic remarked.
Feldblum said that unlike the FMLA, the ADA refers to no set periods of leave, so that “large chunks of leave” and “short-term” or “intermittent” leave are subject to the same reasonable accommodation analysis. “It's completely an individualized assessment,” Feldblum said, adding that employers with “rigid rules” risk running afoul of the ADA.
Feldblum said when reassignment to a vacant position is requested as an accommodation, the requesting employee must be qualified for the new position but need not be the “best qualified.” She noted the U.S. Court of Appeals for the Seventh Circuit differs with EEOC on that point, but that no other circuit has disagreed.
Feldblum said that, if an employer creates a light-duty position for injured workers, that would become a “vacant” position after the injured person moves on. The “whole workers' compensation, light-duty piece” is “something EEOC needs to look at,” Feldblum said.
Lipnic remarked that employers can create light-duty jobs as a way to get injured employees back to work. Feldblum said that's a “great example” of a case in which there would not be a “vacant position” for ADA purposes. Lipnic advised employers to be clear about why they are creating a light-duty job in order to avoid ADA reasonable accommodation issues.
Feldblum quipped that courts have yet to address undue hardship under the ADA because prior to 2009, “everything went off on coverage” issues under the act. The act refers to “significant difficulties or expense” from a requested accommodation. Feldblum said undue hardship involves a “very individualized assessment” that considers a particular employer's “resources and circumstances” in relationship to “the cost or difficulty” of providing a specific accommodation.
That difficulty does not include the effects of accommodation on the “morale of other employees,” Feldblum said, but the “impact on the ability of other employees to get their jobs done” is part of undue hardship analysis.
“I am a skeptic of the undue hardship defense,” Lipnic said, adding that Feldblum “is determined to convince me otherwise.” She questioned how an employer can distinguish between “impact on other employees” and “low morale” caused by the granting of an ADA accommodation that increases those employees' workload.
By Kevin P. McGowan
Course materials from the ABA webinar may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8p9qzv.