REASONABLE ACCOMMODATIONS UNDER THE ADA November 12, 2015

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1 REASONABLE ACCOMMODATIONS UNDER THE ADA November 12, 2015 By: Jeffrey A. Stankunas Isaac Wiles Burkholder & Teetor, LLC Two Miranova Place, Suite 700 Columbus, Ohio

2 What accommodations must you provide? Title I protects qualified individuals with disabilities in the workplace Title II covers public entities which include all activities, services, and programs offered by governments.

3 Therapy/Service animals

4 Therapy/Service animals A service animal is one individually trained to do work or perform tasks for the benefit of a person with a disability. Employers may have to consider allowing an employee to bring an animal that does not meet the Title II/III definition of a service animal, such as a therapy or emotional support animal.

5 Therapy/Service animals Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal (miniature horse) by an individual with a disability. If the miniature horse has been trained to work or perform tasks for the benefit of the individual with a disability. Employers must consider allowing use of a service animal unless doing so would result in undue hardship.

6 Contact with others in the workplace Sapp v. Donohoe, 2013 U.S. App. LEXIS (5 th Cir. 2013) Return-to-work note indicated Plaintiff could have no contact with subordinates and little contact with others/public. Court found uncontested evidence that supervisors are required to have extensive contact with their subordinates.

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8 Contact with others in the workplace McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012) Plaintiff not qualified where he engaged in sexual harassment of female staff members as a result of his disability. Requiring others to tolerate harassment, attributing behavior to his disability, is not the kind of accommodation contemplated by ADA.

9 Attendance as an essential function EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship No (3/1/99) at p. 33, ft. 61 Attendance is not an essential function of a job. HOWEVER: Williams v. James (OPM), 2004 EEOPUB LEXIS 999 (EEOC 2004) Regular attendance is a uniformly applied conduct rule, job-related, and consistent with business necessity.

10 Attendance as an essential function EEOC Fact Sheet: an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate any accommodation would impose an undue hardship, rendering the employee unqualified.

11 Inability to handle stress Koessel v. Sublette County Sheriff s Dept., 717 F.3d 736 (10 th Cir. 2013) Employee could not cope with high stress situations essential for a Sheriff s Deputy due to residual from stroke. Court held employee s impairments disqualified him from performing essential functions of position of preserving peace at public gatherings, neighborhood disputes, and family quarrels, conferring with prosecutors and testifying in court, and apprehending suspects.

12 Inability to handle stress Hill v. Walker, 2013 U.S. App. LEXIS (8 th Cir. 2013) Employee could not work stressful cases essential for State Family Services Worker due to inability to handles stress from a particular case. Court held that handling stressful cases was an essential function of an employee s position.

13 Work from home/telecommuting EEOC v. Ford Motor Co., 782 F.3d 753 (6 th Cir. 2015) Employee with irritable bowel syndrome requested to telecommute up to four (4) days per week. Court held that regular and predictable on-site job attendance was both an essential function of, and a prerequisite, to perform other essential functions of employee s re-sale buyer s job.

14 Work from home/telecommuting EEOC and most courts take position that where the work is performed is another policy that may be modified for certain jobs. EEOC has written that an employer may choose to make an accommodation enabling employee to work full-time in the workplace rather than granting workat-home request. Trout v. Electronic Data Sytems, Corp., 2005 U.S. App. LEXIS (6 th Cir. 2005) Employer did not fail to provide reasonable accommodation for allowing employee to freely call off work, without penalty, when she felt unable to come in, rather than grant her requested accommodation to work from home.

15 Ability to be on-call Gober v. Frankel Family Trust, 2013 U.S. App. LEXIS (5 th Cir. 2013) being on call, which requires after-hours availability, is essential for a Maintenance Foreman of an apartment complex. Job description requirements After-hours emergencies State requirement of on-call maintenance employee

16 Ability to stay awake/ shift change

17 Ability to stay awake Roetter v. Michigan Dept. of Corrections, 2012 U.S. App. LEXIS 1343 (6 th Cir. 2012). Food service supervisor in correctional facility not qualified where he fell asleep on the job because of narcolepsy. Court determined the employee unable to perform security duties, watching over prisoners in the kitchen, when he was sleeping.

18 Ability to stay awake Donahue v. Consolidated Rail Corp., 224 F.3d 226 (3 rd Cir. 2000) Court s position. Train dispatcher must be conscious and alert because constant monitoring and communication critical to avoid accidents. EEOC s position. Consciousness is not an essential function of a train dispatcher s job. Employee s position. It is not important for every dispatcher to be conscious at all times because several dispatchers work together in the same room.

19 Shift change Shift change can be viewed as a schedule modification, which must be done unless it causes undue hardship. Salim v. MCM Grand Detroit, LLC, 2004 U.S. App. LEXIS (6 th Cir. 2004) Court s analysis of possible shift change (from swing to day) as a modified work schedule reasonable accommodation. Analysis implicitly assumes the shift was not an essential function of an employee s job as a dealer in a casino.

20 Ability to work full-time/ create part-time EEOC s position. Number of hours worked may be an essential part of the job. Law firm may require attorneys with disabilities to produce same number of billable hours as attorneys without disabilities. Reasonable accommodation may be needed to assist attorney to meet billable hours, but not a form of reasonable accommodation to exempt an attorney from this requirement.

21 Overtime Sanders v. First Energy Corp., 157 Ohio App.3d 826 (7 th Dist. 2004) Power plant employee diagnosed with sleep apnea was restricted by doctor from working overtime. Court held that, based upon the evidence, working overtime was an essential function of the position.

22 Unpaid leave on reasonable Court s position. accommodations Melange v. City of Center Line, 2012 U.S. App. LEXIS (6 th Cir. 2012) An employer is not generally required to hold a position open for longer than one year. Allen v. Bellsouth, 2012 U.S. App. LEXIS 1145 (6 th Cir. 2012) Open-ended, indefinite requests for leave are not requests for reasonable accommodation.

23 Unpaid leave on reasonable EEOC s position. accommodations If an employee cannot provide a fixed date of return, employer can deny leave if it shows undue hardship because of the uncertainty. Sipriano v. Chertoff (DHS), 2007 EEOPUB LEXIS 4304 (EEOC 2007) Employee s doctor indicated she could probably never return to work; agency not required to hold position for her indefinitely.

24 Ability to travel Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475 (6 th Cir. 2012) ADA does not require Employer to provide Employee a modified schedule due to difficulty commuting during assigned hours because of narcolepsy condition. Need for travel during lighter traffic periods.

25 Wade v. General Motors Corp., 1998 U.S. App LEXIS (6 th Cir. 1998) Employer is not responsible for getting Employee to work; Employee to find alternate means.

26 Ability to travel EEOC Informal Guidance Letter: Employer not required to provide transportation as a reasonable accommodation for an employee whose disability makes it difficult/impossible to commute. Employer required to make reasonable accommodations in the workplace, not outside it.

27 Assignment of office/parking space Trepka v. Board of Educ of Cleveland City SD, 2002 U.S. App. LEXIS 1357 (6 th Cir. 2002) Employee wanted to be assigned a classroom closer to parking lot due to her back and neck injuries. Employer instead offered her assistance with moving items to and from, which complied with ADA.

28 Creating a job for employee/ light duty position/reassignment Employer has right to choose between effective accommodations. When employee declines offer of accommodation, s/he forfeits status as a qualified individual with a disability.

29 Creating a job for employee/ Court s position. light duty position Kempter v. Michigan Bell Telephone Co., 2013 U.S. App. LEXIS (6 th Cir. 2013) Employer not required to create new light-duty job for employee who could not perform essential keyboard functions. Norsworthy v. The Kroger Company, 2001 U.S. App. LEXIS 497 (6 th Cir. 2000) Employer not required to create temporary, workhardening position for injured production worker.

30 Creating a job for employee/ light duty position Wardia v. Justice and Public Safety Cabinet Dept. of Juvenile Justice, 2013 U.S. App. LEXIS 238 (6 th Cir. 2013) Employer not required to convert temporary light-duty control room positions in a prison into permanent positions as an accommodation. Rejected Employee s argument it was required because Employer may have done so in the past for an employee

31 Creating a job for employee/ light duty position Hoskins v. Oakland County Sheriff s Dept., 227 F.3d 719 (6 th Cir. 2000) Employer not required to create permanent job encompassing only duties of its temporary light-duty control booth operator position for injured prison security guard.

32 Creating a job for employee/ light duty position EEOC s position. Employer cannot reserve existing light duty jobs for on-the-job injuries, but must consider reassigning ANY disabled employees to an existing job, if vacant, and if needed by the employee as a reasonable accommodation. Employer may create light duty positions solely for employees injured on the job. Whether creating light duty positions for employees injured on the job, and not creating the same for employees with non work-related disabilities would have an inverse impact on employees with disabilities must be determined on a case-by-case basis.

33 Reassignment Belton v. Dept. of Veterans Affairs, 2013 EEOPUB 893 (EEOC 2013) Employer was not obligated to reassign employee away from supervisor, despite supervisor being a trigger for employee s anxiety and depression Requests for reassignment are an accommodation; requests for new supervisor are disfavored.

34 Reassignment Employer s reassignment obligations: Reassignment is only available to current employees, not applicants or former employees. Employer not required to bump or displace an employee in order to create a vacancy for another. Reassignment is available only when a position is vacant. See, Bingaman v. Procter & Gamble Co., 2005 U.S. App. LEXIS (6 th Cir. 2005)

35 Irritant free environment

36 Irritant free environment Court s position. Buckles v. First Data Resources, Inc., 176 F.3d 1098 (8 th Cir. 1999) Employee often left work when he thought he would be exposed to an irritant. Unfettered ability to leave work at any time is not a reasonable accommodation because reliable attendance is required for job.

37 Irritant free environment Dickerson v. Dept. of Veterans Affairs, 2012 U.S. App. LEXIS (11 th Cir. 2012) Employee not qualified because she could not perform essential job functions when near irritating substances. Employer not required to create chemical-free environment. EEOC s position. Complainant v. USPS, 2013 WL (EEOC 2013) Employee requested no-scent policy as a reasonable accommodation. Employer requested employees refrain from wearing strong fragrances and offered Employee leave if/when migraines persisted.

38 Questions

39 Thank you Jeffrey A. Stankunas, Esq. Isaac Wiles Burkholder & Teetor, LLC Two Miranova Place, Suite 700 Columbus, Ohio Phone: Fax: