Michael Griffin Principal, Seattle Jackson Lewis P.C. Disability, Leave and Health Management

Transcription

1 Michael Griffin Principal, Seattle Jackson Lewis P.C Jackson Lewis P.C.

2 Identifying the Challenge Legal Framework The Interactive Process Step by Step Actions 1. Analyze Job & Essential Functions 2. Communicate with EE and HCP 3. Identify Accommodations & Potential Hardships 4. Implement 5. Monitor Effectiveness 2016 Jackson Lewis P.C. 2

3 What is the MOST important attribute for Employers to have when addressing EE medical accommodation? 2016 Jackson Lewis P.C. 3

4 Individualized assessment o No two are alike Consistency o Institutional knowledge o Affected by turnover in HR and management Patience o Business can be impatient for resolution o HR s value: set and communicate expectations o Some can take months/years to resolve 2016 Jackson Lewis P.C. 4

5 LEGAL FRAMEWORK 2016 Jackson Lewis P.C. 5

6 ADA & ADAAA ADA amended to take focus off disability Put focus on can ER reasonably accommodate WLAD (RCW ) Very broad definition of disability Slightly less broad for accommodation analysis Must have substantially limiting effect on ability to do the job to be a disability Oregon Rehabilitation Act (ORS 659A.112) Same as ADA 2016 Jackson Lewis P.C. 6

7 Reasonable Accommodation Generally Modifications or adjustments to the work environment, or the way the job is usually performed that enable a qualified, disabled EE to perform the essential functions of that position; or Modifications or adjustments that enable a disabled EE to enjoy equal benefits and privileges of employment as are enjoyed by non-disabled EEs. 29 CFR (o) 2016 Jackson Lewis P.C. 7

8 Not Reasonable: Removing essential job functions Diluting uniformly enforced productivity standards Excusing or forgiving past misconduct or poor performance Promoting Bumping an employee from a job Creating a job Changing supervisor/subordinate Hiring a second person as a helper though EEOC opines that temporary coach may be reasonable 2016 Jackson Lewis P.C. 8

9 THE INTERACTIVE PROCESS/DIALOGUE 2016 Jackson Lewis P.C. 9

10 ADA WLAD Triggers 2016 Jackson Lewis P.C. 10

11 ADA The interactive process requires both the employer and the employee to engage in good faith in order to clarify what the individual needs and identify the appropriate accommodation." Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) Jackson Lewis P.C. 11

12 WLAD "Reasonable accommodation... envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions. Goodman v. Boeing Co., 127 Wn.2d 401, (1995) Jackson Lewis P.C. 12

13 Employee Request = most common Employer Initiation when Disability & Limitations are Known/Obvious 2016 Jackson Lewis P.C. 13

14 EEOC Guidance: Must ER ask? = Generally no. BUT: ER should initiate without being asked if ER: (1) knows EE has a disability; (2) knows, or has reason to know, that EE is having workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. **If EE states EE does not need a reasonable accommodation, ER s obligation = fulfilled Jackson Lewis P.C. 14

15 WLAD To trigger the employer's duty to reasonably accommodate an employee's disability, the employee must give the employer notice of that disability. Goodman v. Boeing Co., 127 Wn.2d 401, 408 (1995). Once an employee gives notice of a disability... the burden shifts to the employer to take positive steps to accommodate the employee's limitations." 2016 Jackson Lewis P.C. 15

16 Recommendations When in doubt, initiate the process Be careful not to regard as if disability not known/obvious Do: Ask questions based on observations o We ve noticed. Do you need anything from us? Don t: State conclusions/opinions o We believe you are depressed and that you should 2016 Jackson Lewis P.C. 16

17 2016 Jackson Lewis P.C. 17

18 EEOC: using a problem solving approach ER should: 1) Analyze the job s purpose and essential functions; 2) Communicate with EE to ascertain precise job-related limitations and how limitations might be overcome 3) Identify potential accommodations and assess the effectiveness; and 4) Implement accommodation most appropriate for both EE and ER, considering preference 5) **Monitor: for effectiveness and potential hardship** 29 C.F.R. Part Appendix 2016 Jackson Lewis P.C. 18

19 STEP 1 ANALYZE 2016 Jackson Lewis P.C. 19

20 Analyze job s purpose and essential functions EEOC s 7 Factors (29 C.F.R. sec (n)(3)) 1. ER s judgment as to which functions are essential; 2. Written job descriptions (before advertising/interviewing); 3. Amount of time spent on the job performing the function; 4. Consequences of not requiring EE to perform the function; 5. Terms of a collective bargaining agreement; 6. Work experience of past EEs in the job; and/or 7. Current work experience of EEs in similar jobs Jackson Lewis P.C. 20

21 Written job descriptions Annual review and update at least More frequently if changes in organization Communicate with manager(s) Confirm job description is accurate and complete If not, document essential functions not identified 2016 Jackson Lewis P.C. 21

22 STEP 2 COMMUNICATE 2016 Jackson Lewis P.C. 22

23 Communicate w/ EE, HCP, and Managers A. EE Confirm/clarify request in writing B. EE s HCP Authorization & Questionnaire C. Management Past practice/experience Effects of granting preferred accommodation 2016 Jackson Lewis P.C. 23

24 Authorization & HCP Questionnaire Authorization = optional o o Consider obtaining signed authorization if EE is uncooperative Verbal or is OK Questionnaire to HCP with GINA disclosure o No genetic information Limit questions to impairment and limitations at issue o Asking too much = prohibited 2016 Jackson Lewis P.C. 24

25 STEP 3 IDENTIFY 2016 Jackson Lewis P.C. 25

26 Identify potential accommodations and assess the effectiveness A. EE s requested accommodation B. Past practice/experience C. Management ideas D. HCP ideas E. Job Accommodation Network Jackson Lewis P.C. 26

27 Undue Hardship 2016 Jackson Lewis P.C. 27

28 Undue Hardship Generalized conclusions will not suffice to support a claim of undue hardship. Individualized assessment of current circumstances Specific reasonable accommodation would cause significant difficulty or expense Jackson Lewis P.C. 28

29 Undue Hardship Factors: nature and cost of the accommodation needed; overall financial resources of the facility number of EEs at this facility; effect on expenses and resources of the facility; overall financial resources of the ER; type of operation of the employer; impact of the accommodation on the operation of the facility Jackson Lewis P.C. 29

30 Undue Hardship Insufficient: o Client/customer fears/prejudices o Morale negative morale will not be undue hardship. o Hypothetical/speculative concerns Sufficient: o Significant disruption to operations o Significant disruption to other employees' ability to work Jackson Lewis P.C. 30

31 STEP 4 IMPLEMENT 2016 Jackson Lewis P.C. 31

32 Implement the most appropriate accommodation for ER and EE. EE only entitled to A reasonable accommodation Not THE preferred accommodation Must be effective Trial basis might be appropriate Confirm the arrangement/agreement in writing 2016 Jackson Lewis P.C. 32

33 STEP 5 MONITOR 2016 Jackson Lewis P.C. 33

34 Monitor For: Effectiveness of chosen accommodation Performance standards still met Conduct standards still met Disruption; potential undue hardship 2016 Jackson Lewis P.C. 34

35 PRACTICAL ACTIONS 2016 Jackson Lewis P.C. 35

36 Draft/review policies regarding accommodation Handbook HR Policy & Procedure Manual Identify point person in HR who owns the process Outline steps generally to be followed Draft/review forms for interactive process Accommodation request form Authorization to obtain medical information (optional) HCP questionnaire Designation of accommodation (letter) 2016 Jackson Lewis P.C. 36

37 Create Accommodation Checklist 1. Analyze a) Essential functions b) Job descriptions c) Mgt s views 2. Communicate a) EE b) HCP c) Managers 2016 Jackson Lewis P.C. 37

38 3. Identify a) Preferred accommodation b) Past practice c) Mgt ideas d) HCP Ideas e) JAN f) Undue hardship i. Disruption to operations? ii. Disruption to employees? 4. Implement 5. Monitor 2016 Jackson Lewis P.C. 38

39 Patience 2016 Jackson Lewis P.C. 39

40 QUESTIONS 2016 Jackson Lewis P.C. 40

41 2016 Jackson Lewis P.C.