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Sept. 29 — Private- and public-sector employers need to keep current on what federal courts and the EEOC are saying about a host of disability issues to stay out of legal trouble, David Fram told attendees at the National Employment Law Institute’s 21st Annual ADA Workshop Sept. 26.
It’s important to understand how different judicial circuits are interpreting the amended Americans with Disabilities Act and how the Equal Employment Opportunity Commission’s positions are evolving, said Fram, NELI’s director of ADA and EEO Services.
“From the EEOC, there hasn’t been much in terms of official policy, but there have been some really important federal sector cases,” Fram said. “The cases are fleshing out EEOC’s positions on certain issues.”
As for official policy, the agency May 9 released an “important” guidance document on leave as a reasonable accommodation under the ADA, he said.
Under the ADA, a disability is an impairment that substantially limits a major life activity. Whether you are a private employer or a federal agency, you have the right to examine whether someone has a disability within the meaning of federal law, Fram said.
“One of the interesting things on disability over the past couple of years is that EEOC has been telling employers, including federal agencies, skip over disability—just get right to qualified and reasonable accommodation, but don’t focus on disability,” Fram said. “I’m here to tell you, whether you’re a federal agency or not, that courts are saying this is a question of whether a person is even covered. You have the right to look at whether the person has a disability.”
Most ADA cases involve hidden conditions, such as mental or back impairments, he said. Even if you’re not challenging disability, an employer needs to know about a person’s restrictions to provide an effective accommodation.
Circuit court decisions examining whether an impairment “substantially limits” a major life activity “are all over the place,” Fram said, as the EEOC omitted a definition for the term in its ADA Amendments Act regulations ( Cannon v. Jacobs Field Servs. N. Am., Inc., 2016 BL 8812, 813 F.3d 586 (substantially limited because of “considerable difficulty” lifting, pushing and pulling objects); Mazzeo v. Color Resolutions Int’l, LLC, 2014 BL 89774, 746 F.3d 1264 (substantially limited because back issues “intermittently affected” ability to walk, sit and stand); Gogos v. AMS Mech. Sys., Inc., 2013 BL 348863, 737 F.3d 1170 (substantially limits if “transitory and minor”)).
“From a safe, best practices perspective, if something looks like it is really affecting a person’s abilities for more than a short-term period, I probably would err on the side of saying I’m going to assume that’s a substantial limitation, until there’s more cases on this point,” Fram said.
The EEOC’s regulation at 29 C.F.R. § 1630.2(j)(4)(iii) states that “the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve.” A federal sector case, Roxane A v. Fanning , suggests employers can examine what a person can do, as well as what a person can’t do, in assessing whether a person is substantially limited in a major life activity, Fram said.
“That’s a super important new case because it’s finally EEOC telling us that what the person can do is important,” he said. “We have court cases saying it, but finally we have an EEOC case saying it.”
An applicant or employee with a disability is qualified for a particular job if he or she has the requisite background and can perform the job’s essential functions with or without accommodation.
As a general rule, employers should focus on whether the person can perform “right now”—at the time of the employment decision—rather than at some time in the future, Fram said. Cases like Aston v. Tapco International Corp., 2015 BL 386677, 631 F. App’x 292 , and Curtis v. Costco Wholesale Corp., 2015 BL 387026, 807 F.3d 215 , are illustrative.
There is an exception for cases in which leave is requested as an accommodation, Fram said. In such instances, the anticipated return date is the proper date for determining whether someone is qualified.
Employers have the right to alter job functions and production standards, “as long as the decisionmaker didn’t change things around to get rid of this guy because of his disability,” Fram said. He explained that employers may get themselves into trouble where they know about a person’s disability and the individual alleges changes to functions or production standards were made to force him out.
“The decisionmaker’s lack of knowledge about the person’s condition where they made some changes to the job is a helpful defense when you’re making job changes for reasons unrelated to disability,” Fram said, referring to the Seventh Circuit’s decision in Dunderdale v. United Airlines Inc., 2015 BL 396695, 807 F.3d 849 .
People who lack required skills, education or licenses generally aren’t qualified. However, employers must be prepared to show a qualification standard is job-related and consistent with business necessity if the reason a person can’t satisfy the requirement is because of a disability. The Third Circuit in Cook v. City of Philadelphia, 2016 BL 157840 , held a psychological fitness-for-duty certification that screened out a city police officer candidate with “unacceptable” problems “of pathological proportions” was defensible.
The easiest standards to defend are licenses and certifications required by federal law, Fram said.
“But a word of caution: if you’re going to say something is required by federal law, be ready to prove that federal law really requires it,” he averred.
For standards not required by federal law, employers at a minimum must show consistent enforcement of the rule—show “you can’t live without it” and “you don’t make exceptions to your rule.”
Moreover, Fram urged employers to be ready to modify a standard if incumbents in the job wouldn’t meet it.
To determine whether a function is essential, courts will consider the employer’s judgment, a written job description, the amount of time spent performing the function, adverse consequences of nonperformance and employees’ actual experience, Fram said. But the piece of evidence courts are honing in on is the job description, he said.
“Most courts don’t really care all that much about [the employer’s] judgment. But what they do care about is the job description,” Fram said. Decisions out of the Seventh and Eleventh Circuits highlight the relevance of this evidence ( Medearis v. CVS Pharmacy, Inc., 2016 BL 103553, 646 F. App’x 891 ; Newell v. Alden Vill. Health Facility for Children & Young Adults, 2016 BL 175243 ; EEOC v. AutoZone, Inc., 2016 BL 178, 809 F.3d 916 ; Jordan v. City of Union City, 2016 BL 88713, 646 F. App’x 736 ).
Distinguishing Galloway v. Aletheia House Inc. from Stephenson v. Pfizer, Fram said the job description in the former case listed “driving” as an essential function of a case manager’s job, whereas the job description for a sales representative in the latter case didn’t. In Galloway, driving was essential, but in Pfizer, the court said “traveling,” rather than driving, may be essential.
For employers stuck with a bad set of facts in court, two useful cases describe the level of detail required for listing essential functions and the effect of excluding a function from a list of “essential” functions. The Eleventh Circuit in Tetteh v. WAFF Television found an employment agreement for a television sports anchor/reporter/photographer supported the employer’s position that an essential function of the job was lifting and carrying a video camera, where being a “photographer” in the news industry includes a person who operates video cameras.
According to Fram, this case supports the idea that the job description “doesn’t have to be terribly detailed” if the function falls under some broader category.
In Swank v. Caresource Management Group Corp., the job description for a community nurse listed face-to-face visits under “work environment/physical requirements,” rather than under essential functions, but the court said this wasn’t fatal to the employer’s argument that such visits are essential. However, the case may have been decided differently had the employer listed the requirement under “marginal functions,” Fram added.
“The job description is either going to help you or it’s going to hurt you. It’s going to help you where it says something is essential, or is at least listed there, and it’s going to hurt you where it’s not even listed,” Fram said. “The moral of the story is if you want to make the argument that something is essential, put it in the job description.”
And if it comes to your attention that a job description is no longer fully accurate, “at minimum, send out some type of message to everyone in that job that says it has come to our attention that the job description is no longer fully accurate and we’re in the process of updating it.”
Generally, the duty to accommodate under federal disability law doesn’t arise until a supervisor has knowledge of a medical condition and is on notice of the need for accommodation for that condition.
“Most of the time, it’s the person starting the process by asking for something. You’re not supposed to be reading his mind,” Fram said.
“Now, if you do know about the disability and you have reason to know the person is needing something, in that case, you should be proactive and talk to the person,” such as where a person has disclosed a hidden disability or the employer observes an obvious disability.
New cases demonstrate what suffices to trigger this duty and what falls short of requesting accommodation ( Foster v. Mountain Coal Co., 2016 BL 239268 (sufficient trigger where employee indicated need for time off to go to the doctor to schedule surgery); Deister v. Auto Club Ins. Ass’n, 2016 BL 149690, 647 F. App’x 652 (employee didn’t adequately request accommodation by urging supervisor to review medical records); Wells v. Winnebago Cty., 2016 BL 133662, 820 F.3d 864 (employee’s statement that her anxiety required her to be separated from the public by a counter not sufficient to link anxiety to a disability)). Despite the court’s holding in Wells, Fram said he “would err on the side of interacting in a case like that.”
Once the interactive process commences, Fram urged employers to consult with the person and to “move expeditiously” because any unreasonable delay will be evidence of discrimination. “How long should it take?” Fram asked. Although courts are giving the government “a little leeway,” Fram said “six months is too long.”
“Courts are really getting into who did what when—they’re naming names, they’re dating dates,” he said. “You want to show that you as the employer did everything right. Remember, the interactive process is your chance to tell your story the way you want it to be told to the EEOC or to a court. So don’t approach this interactive process in an aggressive or mean way.”
The majority of courts and the EEOC are saying the interactive process “is not an independent legal obligation” and that a person can’t sue if an employer failed to engage in the interactive process but no accommodation could have been provided.
Two important things for supervisors to grasp are that the ADA’s reasonable accommodation obligation requires “preferential treatment” and that information obtained during the interactive process is subject to strict confidentiality requirements.
“Supervisors need to understand that they do have to give more, they do have to make exceptions to rules that they don’t for other people” for an individual with a disability, unless it causes an undue hardship, Fram said. “Unless a supervisor understands that, they’re not going to do it.”
Further, when claiming undue hardship, train supervisors not to say “I can’t afford it,” Fram said. “It’s not up to the supervisor to be determining whether you can afford it—it shouldn’t be coming out of the supervisor’s budget anyway. It’s the employer that’s paying” for the accommodation, he said.
According to Fram, better arguments for undue hardship involve the effect an accommodation has on other employees’ ability to get their jobs done.
Although the ADA says employers only have to give an accommodation for the individual with a disability, Fram said that recent court decisions in California are suggesting that, under California’s disability law, employers may be required to give an accommodation to provide care for a relation with a disability. “It’s not an ADA concern. But if you have operations in California subject to California law, it’s something to be thinking about and paying attention to,” he said.
When seeking information about a person’s underlying condition and restrictions during the interactive process, employers should narrowly tailor requests for medical information and should be careful not to violate the Genetic Information Nondiscrimination Act of 2008 by getting information about family members’ medical conditions. Don’t seek information if you “don’t really need it,” Fram said.
Further, keep medical information obtained at any point in the employment process separate from personnel files, he said.
Because confidential medical information must not be disclosed, supervisors need to know that they can’t tell an employee’s co-workers about that employee’s reasonable accommodation. Fram urged supervisors to “use a script” so they don’t violate federal law. For instance, supervisors might tell co-workers that they’re acting for legitimate business reasons or in compliance with federal law, or that it’s private information.
The EEOC May 9 released a resource document on leave and the ADA. The agency’s position on indefinite leave set forth in that document is helpful for employers, Fram said.
Leave is “indefinite” when an employee can’t say whether or when he’ll be able to return to work.
According to the EEOC document, indefinite leave would cause an undue hardship.
On the other hand, most courts have held employers don’t have to provide indefinite leave as an accommodation for a disability because indefinite leave isn’t reasonable, without reaching the undue hardship issue.
Before releasing this resource document, Fram said the agency had “always said leave is an accommodation unless it causes an undue hardship. But now, in this guidance, the one thing they said that is very favorable for employers is that it will cause an undue hardship where the person doesn’t know when he’s going to come back.”
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