Reasonable Accommodation Navigating the Interactive Process

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Edgar Atkins
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1 Reasonable Accommodation Navigating the Interactive Process Prepared for: One Person One Job One Accommodation 1

2 Today s Conversation 1. Examine the Interactive Process (IP) 2. The places in the IP where specific techniques or information are used to resolve difficult requests 3. An investigator s approach to analysis of a covered entity s process One Person One Job One Accommodation 2

3 Background 3

4 What is Reasonable Accommodation? An accommodation is: 1. A modification to the work space or an exception to a policy that ensures that a person with a disability can perform a job. 2. A change to how something is done so we can accommodate that particular essential function for the employee in question. 4

5 What is a Reasonable Accommodation? A reasonable accommodation is one that provides resolution to a valid request for accommodation while not stressing an organization s finances, does not change production standards or quotas, and does not negatively affect staff morale. 5

6 Title I of the Amended Americans with Disabilities Act is blind to the source of impairment 6

7 7

8 Title I of the ADA does not penalize an individual for personal traits or behavior 8

9 Title I of the amended Americans with Disabilities Act is a process law 9

10 One Worker, One Job, One Accommodation* *(EEOC ADA Rock n Roll Tour, Detroit, 2012) 10

11 The Phases of Employment 11

12 A Checklist Approach 12

13 A Checklist Approach 1. Request for Accommodation 2. Engage in the Interactive Process 3. Qualified Individual 4. Medical Documentation 5. Specific Type of Reasonable Accommodation 6. Link Between the Reasonable Accommodation and a Functional or Cognitive Disability One Person One Job One Accommodation 13

14 A Checklist Approach 7. Reason for Request 8. Accommodation Different than Requested 9. Alternative Accommodation 10. Reassignment 11. Undue Hardship 12. Barrier Removed Through Reasonable Accommodation One Person One Job One Accommodation 14

15 Request for Accommodation 15

16 Request for Accommodation Did the employee/applicant or a representative let the employer know that s/he needed an adjustment or change at work for a reason related to a medical condition? 16

17 Train Your Supervisors Train supervisors to recognize a request for accommodation 17

18 The Receipt of Request Process Designate a reasonable accommodation program manager 18

19 The Request for Accommodation 19

20 La solicitud de acomodación razonable 20

21 Engage in the Interactive Process 21

22 The Interactive Process Should company staff have initiated the interactive process or provided a reasonable accommodation, even if the employee/applicant did not ask for an accommodation? 22

23 The Interactive Process Did company staff engage in an interactive process with the employee/applicant? If so, describe the actions/statements of both company staff and the employee/applicant during this process. 23

24 Notes 1. Both the employer and the worker must participate in the interactive conversation with good faith. 2. The worker must represent himself in conversations about reasonable accommodation; other counsel is allowed. 3. An employer may ask for substantiation of the link between the work disability and an essential function of the job. 24

25 Notes 4. The selected accommodation must remediate the work disability. A. What is the purpose of leave? B. How will working from home remediate the disability in a way that being onsite won t remediate? C. If the accommodation does not enable the individual to perform the essential functions of the job then he is no longer qualified for that position. 25

26 Notes 5. Use ergonomic evaluation tools to establish: A. The trigger to discomfort B. Suggestions for engineering controls C. Suggestions for administrate controls D. Need for personal protective equipment i. Yovtcheva v. City of Philadelphia Water Department, No

27 Notes 6. You are not required to compromise your conduct standards, safety standards, or your production quotas in the search for a reasonable accommodation 7. You are not required to transfer an employee into a job for which he is not qualified 27

28 Notes 8. You are not required to retain an employee who displays unprofessional conduct 9. You are not required to employ someone who is not able to safely carry out the essential functions of the job even with accommodation. 28

29 The Qualified Individual 29

30 An Individual Can Be in Only One Phase of Employment 30

31 The Qualified Individual Is the employee/applicant qualified for the job except that because of disability, s/he needs a reasonable accommodation to perform the position's essential functions? 31

32 The Qualified Individual The term "qualified individual" means an individual who can perform the essential functions of the employment position that such individual desires or holds, with or without reasonable accommodation. Title 42 The Public Health and Welfare, Chapter 125 Equal Opportunity for Individual with Disabilities, Subchapter I (Employment) Section Definitions, (8) Qualified Individual 32

33 Notes on Essential Function 33

34 A Myth About Essential Function The essential functions of a job are not the physical or cognitive demands of the job 34

35 Essential Functions they are the tasks which must be accomplished to justify the job s existence. 35

36 What is an Essential Function? 1. The reason the position exists is to perform the function 2. A limited number of employees are available to perform the function 3. Highly specialized skills are required to perform the function 4. The amount of time spent performing the function is significant 36

37 What is an Essential Function? 5. The work experience of former workers is included the function 6. Written job descriptions prepared before advertising or interviewing applicants for the job include the function 7. The terms of a collective bargaining agreement include the function 8. The employer's judgment that the function is essential 37

38 Essential Function Statements 1. Confer with supervisory personnel, owners, contractors, and design professionals to discuss and resolve matters such as work procedures, complaints, and construction problems. 2. Evaluate construction methods and determine costeffectiveness of plans, using computers. 3. Inspect and review projects to monitor compliance with building and safety codes, and other regulations. 38

39 Physical Demands Stand Walk Sit Lift Carry Push Pull Climb Reach Handle Finger Talk Hear Near Acuity Far Acuity Accommodation Exposure to Weather Noise 39

40 Medical Documentation 40

41 Medical Documentation Did company staff request medical documentation of the employee/applicant's disability and/or functional limitations? a. What is the reason company staff requested medical documentation of the disability? b. If document of the disability was requested, was the documentation provided? 41

42 Specific Type of Reasonable Accommodation 42

43 Specific Type of Reasonable Accommodation What specific type of reasonable accommodation, if any, did the employee or applicant request? Did the employee/applicant request a reasonable accommodation for the application process? 43

44 Specific Type of Reasonable Accommodation Was the need for reasonable accommodation related to the use of medication, side effects from treatment, or symptoms related to a disability? 44

45 Specific Type of Reasonable Accommodation Did the employee/applicant request a reasonable accommodation in order to enjoy the benefits and privileges of employment? Did the employee/applicant request a reasonable accommodation in connection with aspects of job performance? 45

46 Link Between the Reasonable Accommodation and a Functional or Cognitive Disability 46

47 Reasonable Accommodation to Functional Limitation Link Is there a verified connection between the specific accommodation being considered and the functional or cognitive limitations resulting from the employee/applicant's disability? 47

48 Reasonable Accommodation to Functional Limitation Link Is there a verified connection between the specific accommodation being considered and the functional or cognitive limitations resulting from the employee/applicant's disability? 48

49 Reason for Request 49

50 Accommodation Different than Requested 50

51 Accommodation Different than Requested If the employee/applicant asked company staff for a particular reasonable accommodation and company staff provided a different accommodation, why did company staff provide a different reasonable accommodation than the one requested by the employee/applicant? 51

52 Accommodation Different than Requested a. Why does company staff believe that the reasonable accommodation provided was effective in eliminating the workplace barrier, thus providing the employee/applicant with an equal employment opportunity? b. Why does the employee/applicant believe that the reasonable accommodation provided by company staff was ineffective? 52

53 Alternative Accommodation 53

54 Alternative Accommodation What type of reasonable accommodation could company staff have provided that would have been effective in eliminating the workplace barrier, thus providing the employee/applicant with an equal employment opportunity? 54

55 Reassignment 55

56 Reassignment 1. Was reassignment to another position for which the employee was qualified the requested reasonable accommodation? 56

57 Reassignment 2. If the requested reasonable accommodation involved reassignment to another position and if that change was not made a. Did company staff and the employee first discuss other forms of reasonable accommodation that would enable the employee to remain in his/her current position before discussing reassignment? b. Did company staff have any vacant positions? 57

58 Reassignment c. Did company staff notify the employee about possible vacant positions? d. Was the employee qualified for a vacant position? e. If there was more than one vacant position, did company staff place the employee in the one that was most closely equivalent to the employee s original position? 58

59 Reassignment f. If the reassignment would conflict with a seniority system, are there "special circumstances" that would make it "reasonable" to reassign the employee? 59

60 Undue Hardship 60

61 Undue Hardship If the company is claiming undue hardship 1. What evidence has company staff produced showing that providing a specific reasonable accommodation would entail significant difficulty or expense? 2. If a modified schedule or leave is the reasonable accommodation, is undue hardship based on the impact on the ability of other employees to do their jobs? 61

62 Undue Hardship 3. If leave is the reasonable accommodation, is undue hardship based on the amount of leave requested? 4. If there are "special circumstances" that would make it "reasonable" to reassign the employee, despite the apparent conflict with a seniority system, would it nonetheless be an undue hardship to make the reassignment? 62

63 Undue Hardship 5. Is undue hardship based on the fact that providing the reasonable accommodation requires changes to property owned by an entity other than the company? 6. If company staff claims that a particular reasonable accommodation would result in undue hardship, is there another reasonable accommodation that the company could have provided that would not have resulted in undue hardship? 63

64 Barrier Removed Through Reasonable Accommodation 64

65 Barrier Removed Through Reasonable Accommodation Based on your review, does the employee or applicant continue his/her standing as a qualified individual able to perform the essential functions of the position with or without reasonable accommodation? 65

66 Roy O. Matheson, ADAC Reasonable Accommodation, LLC Reasonable Accommodation.com

MidAmerican Energy Company. Reasonable Accommodation. Policy and Procedures

MidAmerican Energy Company. Reasonable Accommodation. Policy and Procedures MidAmerican Energy Company Reasonable Accommodation Policy and Procedures September 1, 2014 1. POLICY In accordance with the Americans with Disabilities Act, Americans with Disabilities Act Amendments