10/10/2015
THE AMERICANS WITH
DISABILITIES ACT
Aaron Konopasky, J.D., Ph.D.
Senior Attorney-Advisor, Office of Legal Counsel, EEOC
Presenter
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
Aaron Konopasky
 Senior
Attorney Advisor
ADA/GINA Policy Division
Office of Legal Counsel
 Draft
regulations and guidance
 Perform outreach
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Main Idea for Today
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

The ADA has expanded. It may be relevant in any
situation in which someone at work has a medical
condition
Instead of thinking about the ADA last (after
Workers’ Compensation, short and long term
disability, and SSDI), you should think about it first.
How It Affects You
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

The employer is ultimately responsible for
complying with the ADA
However, if part of your role is to make employers
aware of potential legal issues, or if you are asked
questions that may have legal implications, you
should at least be minimally familiar with ADA rules
 Even
if just to know when not to provide an opinion)
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How It Helps Employees/Patients
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

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The ADA helps people who have medical conditions
to work at full productivity and to stay employed
Can help prevent progression injury or re-injury,
worsening of chronic conditions, and other causes of
lost time
Background
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EEOC
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
Mission: Eliminate discrimination based on race, color,
national origin, religion, sex, age, disability, and genetic
information through enforcement of federal antidiscrimination laws


Workers should be judged on their abilities, not their
demographics
Activities

Explain the laws through regulation, guidance, and training

Required to investigate all allegations of discrimination

Conciliate, mediate disputes

Bring cases on behalf of charging parties and the public
interest
ADA Overview
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

A Civil Rights law
Based partly on Title VII of the Civil Right Act of
1964
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ADA Overview
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
Prohibits discrimination on the basis of a medical
condition
 Bias
 Stereotypes
 Fears

and assumptions
out of proportion to actual risk
Limits employers’ access to medical information,
and imposes confidentiality requirements
ADA Overview
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
Provides a right to “reasonable accommodations”
– tools and flexibilities needed to be fully
productive at work
 Policies,
facilities, equipment designed against a
background assumption of average function & ability
 Not always fair to people who have medical
conditions who can do the job, but who need a
different setup
 E.g.,
lower desks for people in wheelchairs
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ADA Overview
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The Key Idea Is Reasonable
Accommodation
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Reasonable Accommodation
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The ADA Amendments
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

As of 2009, many medical conditions, including
some that are not severe or long-term, are ADA
“disabilities”
Many people have a right to reasonable
accommodation
Definition of “Disability”
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


Functional definition
Functional limitations do not need to be severe or
permanent
Mitigating measures are ignored
A
condition can be a disability even if it can easily be
treated, or is being treated
 E.g., someone with major depression who is able to
function normally with antidepressants and therapy

Episodic conditions are evaluated during a flare-up
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Applying the Definition
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

Condition can still be evolving; does not need to be
stable or reach MMI
Some conditions can easily be determined to be
disabilities , e.g., cancer, epilepsy, diabetes, HIV
infection, major depression, PTSD
29 CFR 1630(j)(3)(iii)
 Many others will be disabilities as well


Many people with a “disability” are still able to:
work (compare: SSDI)
 do the job in question (compare: fitness for duty)
 pull their weight (with accommodation they are “full duty”)

Reasonable Accommodations
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
A change in the way things are normally done that
enables the person to:
 Apply
for a job
 Do a job
 Enjoy the benefits and privileges of employment

Examples
 Assistive
technology
 Flexible scheduling
 Additional leave
 Telework
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Limits on Employer Obligation
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
Things that employer does not have to provide
as a reasonable accommodation:
 Changes
that would cause “undue hardship”
(significant difficulty or expense )
 Permission
to do less work for the same pay
 Eliminating an essential job function
 Lowering production or quality standards
 Caveat: temporary unpaid leave, reassignment
may be reasonable accommodations
Rights, Not Benefits
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


A person with a disability has a right to a
reasonable accommodation, unless it would impose
significant operational difficulty or expense on the
employer
Not a special work status – someone can have a
reasonable accommodation and still be on “full
duty”
Not a “benefit”
 Think
of it as modified terms/conditions of employment
 The employee can require the modification, absent
undue hardship
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1: “Requests” for Accommodation
When to think about the ADA
Triggers for the Interactive Process
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

Very easy to do
Whenever the employee makes the employer
aware that he/she is experiencing difficulty at work
because of a medical condition
 Employer
does not need to know whether the condition
is a “disability”
 Employee does not need to use “magic words”
 No need to have an accommodation in mind

If the doctor is an agent of the employer, then
telling the doctor triggers the process
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Interactive Process
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

Once triggered, the employer now has a legal
obligation
Process does not have to be formal or involve
lawyers
Order of Operations
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0. Disability?
1. Need for accommodation?
2. Accommodation available?
1. Remain on the job?
2. Temporary Transfer?
3. Unpaid leave?
a) Voluntary alternative: Transitional work assignment
4. Reassignment?
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Step Zero: Disability?
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
Is it worthwhile to spend a lot of time on this
question?
 What
would happen if we just assume disability?
 The
less serious the medical condition is, the easier it is to
accommodate
 The more serious the condition, the more likely it is to be
disability
Doctor’s Role in Establishing Disability
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
If the disability is not obvious, the employer may
request limited medical information
 Verification
of a real medical condition/diagnosis
(“impairment”)
 Describe functional impairments in the absence of
treatment
 No
need to be comprehensive – describe the ones that
affect the job
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Doctor’s Role in Establishing Disability
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
Examples of other types of functional impairments
(“limitations in major life activities”)
 Communicating,
Concentrating, Eating, Sleeping, Caring
for oneself, Interacting with others, Learning, Thinking,
Performing manual tasks, Walking, Sitting, Standing,
Lifting, Bending, Seeing, Hearing, Reaching
 Brain, neurological, immune, reproductive, lymphatic,
musculoskeletal, endocrine, bladder, hemic, circulatory,
respiratory, and bowel functions
Establishing Disability
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
Example:
“[Patient] is diagnosed with PTSD. In the absence of
ongoing treatment, [Patient] would have significant
difficulty thinking and concentrating in the presence
of loud noises.”
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Employer’s Responsibility
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
Ultimately, it is the employer’s responsibility to
determine whether the person:
 Has
an ADA “impairment”
 Is “substantially limited in a major life activity”
 Has an ADA “disability”

Employer disability assessment forms or
questionnaires have no legal significance
 If
the employer is provided sufficient medical
information, the ADA imposes the accommodation
obligation regardless whether the doctor has filled out
a form or reached the legal issue
1. Need for Accommodation
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

The person has a medical condition – but is it
affecting the job?
Doctor’s role is to verify that there is a connection
between the medical condition and the problems
experienced at work
 No
need to determine whether better treatment or
treatment compliance would eliminate the need for
reasonable accommodation
 No need to determine the cause or whether there are
other contributing factors
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Establishing Need for Accommodation
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
Example:
“As a result of hyper-vigilance, [Patient] becomes
distracted in environments that are noisy or contain
a lot of visual stimulation. He is therefore having
some difficulty completing assignments in his current
office, which is located next to the factory floor and
which has an open doorway.”
2. Accommodation Available?
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
Once disability and the need for accommodation
are established, the employer and employee are
supposed to work together to develop an effective
accommodation that does not impose undue
hardship
Employee brings knowledge of disability
 Employer brings knowledge of resources

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Order of Preference
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1. Accommodation that would allow the person to
remain on the job
2. Temporary transfer
3. Unpaid leave
a) Voluntary alternative: Transitional work assignment
4. Permanent reassignment
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Doctor’s Role in Choosing an
Accommodation



Very minor: ultimately, it is the employer’s
responsibility to determine whether there is an
accommodation that would fit the employee’s
needs, but would not cause undue hardship
Doctor may suggest certain accommodations
Doctor may be asked whether a particular
accommodation would be effective
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2: Fitness-For-Duty
When to think about the ADA
Getting Info: Timing
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
Fitness-for-duty exam allowed in 2 circumstances:
 After
conditional offer of employment but, before
employment
 Reasonable belief, based on objective evidence, that
the individual cannot do the job, or would pose a direct
threat to safety, because of a medical condition
 Testing cannot be justified by stereotypes (e.g., age
50 – also age discrimination under ADEA), slim
evidence (e.g., falling asleep), or mere performance
problems (e.g., making errors)
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Practice Tip for Employers
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
If an employee with a disability is having trouble
performing essential job functions, or doing so safely, do
not immediately assume that the disability is the reason.
Poor job performance is often unrelated to a medical
condition and, when this is the case, it should be handled
in accordance with your existing policies concerning
performance (e.g., informal discussions with the employee,
verbal or written warnings, or termination where
necessary).
Getting Info: Post-Offer
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
Exam can be comprehensive
 Except:
Employer cannot request, require, or receive
genetic information
 Genetic
Information Nondiscrimination Act (GINA)
 Genetic information includes all family medical history
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Getting Info: Existing Employees
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
Limited scope
 Tailored
to the specific problem triggering the exam
 Again, no genetic information or family medical history


Narrowly-tailored periodic testing may be
permitted for safety-sensitive positions
Test for illegal use of drugs is not a “medical
examination”
Assessment: Ability
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

An employer can only exclude someone based on a
disability if doing so is “job related and consistent
with business necessity”
Need a reasonable belief based on objective
evidence that the person is unable to do the job
 Cannot
rely on stereotypes or assumptions
 Must look at actual duties of specific position in
question
 Must
consider the possibility of reasonable
accommodation
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Assessment: Ability
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
Example: Cannot exclude someone from an advice
nurse position (manning telephones) based on the
fact that s/he needs a wheelchair
 Look

to specific job
Example: Cannot exclude a deaf individual from a
medical technician position because he or she can’t
the buzz of a timer, necessary for a specific
laboratory test, if it would not cause undue hardship
to install an indicator light
 Consider
possibility of reasonable accommodation
Assessment: Safety
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
Direct Threat: You may reject a job applicant or
exclude an employee with a disability from a
particular position if the person poses a direct
threat to health or safety (i.e., a significant risk of
substantial harm to self or others)
 Must consider the possibility of a reasonable
accommodation that would reduce the risk
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Assessment: Safety
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
Examples of what to consider:
 Particular
person's present ability to safely perform the
essential functions of the job, based on objective
evidence and reasonable medical judgment
 Consider
the duration of the risk, the nature and
severity of the potential harm, the likelihood that the
potential harm will occur, and the imminence of the
potential harm
Assessment: Safety
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
Example: You cannot automatically prohibit someone
with epilepsy from working around machinery
 Some
forms of epilepsy are more severe than others or
are not well-controlled
 Some people with epilepsy know when a seizure will
occur in time to move away from potentially hazardous
situations
 Sometimes seizures occur only at night, making the
possibility of a seizure on the job remote.
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Assessment: Safety
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
Example: A deaf mechanic cannot be denied
employment based on the fear that he has a high
probability of being injured by vehicles moving in
and out of the garage if an accommodation would
enable him to perform the job duties with little or no
risk
 E.g.,
allowing him to work in a corner of the garage
facing outward so that he can see any moving vehicles.
Drugs & Alcohol
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
The ADA does not prohibit adverse action taken on
the basis of current illegal use of drugs
 Marijuana

is still illegal under federal law
Employees may ask for reasonable accommodations
related to alcoholism or past drug addition
 E.g.,
schedule changes to accommodate AA meetings
 BUT: employers are permitted to enforce rules of
workplace conduct involving the use of drugs and
alcohol
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Qualification Standards
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

A “qualification standard” is an attribute or quality
the employer requires people to possess in order to
hold a certain job.
Examples of qualification standards:
 must
be able to lift 70 pounds
 cannot have epilepsy
 Achieving a score on a psychological assessment
ADA Still Applies
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


Just because an employer has stated something
generally (“reject everyone with epilepsy”), doesn’t
mean it’s legal
Employer is exposed to ADA liability if it rejects
someone who doesn’t meet a qualification standard
because of a disability, but who can do the job with
a reasonable accommodation
When a disability is involved, employer should
make an individualized determination of ability to
do the job, taking the possibility of reasonable
accommodation into account
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Safety-Based Qualification Standards
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
Safety-related qualification standards (i.e.,
qualification standards that an employer seeks to
justify for safety reasons) must meet the “direct
threat” defense.
 Evidence
must show that the standard is needed due to
a significant risk of substantial harm
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Leave & Light Duty
When to think about the ADA
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Interactions with Other Programs
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
The ADA process runs alongside FMLA, Workers’
Compensation (WC), annual leave, sick leave, etc.
 Reasonable
accommodation may be required at any
time
 These different programs can’t be used against one
another

Under the ADA, unpaid leave may be a reasonable
accommodation
Discretionary Leave
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
If an employee with a disability is eligible for FMLA
leave, then he or she must be allowed to use it
according to the terms of the law
 The

ADA can’t be used to take FMLA leave away
If an employee with a disability has accrued sick or
annual leave, then he or she must be allowed to use
it consistent with the employer’s policy
 ADA
requires equal benefits and privileges of
employment
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Workers’ Compensation
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
Events that occur during the Workers’ Compensation
process may trigger the interactive process
 Employee
must make the employer aware that he or
she is having trouble at work because of a medical
condition

When determining whether an injured person can
work at full capacity, consider the possibility of
reasonable accommodation
Can the Person Work?
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

If the person has a disability, and can work with a
reasonable accommodation (a special schedule,
assistive equipment, etc.), then the answer is “yes”
To make this determination, the employer must know
what the person’s limitations actually are
 “No
work 6 weeks” is not helpful
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“Light Duty”
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


This term does not appear in the ADA
A reduced workload or elimination of an essential
function is not considered a reasonable
accommodation
Allowing injured workers to fall below ordinary
productivity requirements is going “above and
beyond” what the ADA requires
 Employers
can terminate these types of allowances at
any time (assuming no discrimination)
Alternatives to Light Duty
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
Other modifications, like provision of assistive
equipment, special shift assignments, elimination of
marginal job functions, or more frequent breaks,
can be reasonable accommodations
 May
be required
 Cannot be terminated absent undue hardship or
inability to do the job (may be required indefinitely)

“Needs light duty” may not be helpful
 Especially
if there is no traditional light duty available!
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Returning from Leave
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


Danger Zone
Return an individual with a disability to “full duty”
when able to perform the essential functions of the
job safely, with a reasonable accommodation
Example:
A reporter sustains a hand injury that meets the
definition of “disability,” and cannot type now.
 Return to full duty when able to meet writing duties—
 When she recovers sufficient hand function to type, OR
 When a reasonable accommodation (e.g., word
recognition software, one-handed keyboard,
transcription, ...) would enable her to do assignments

Coming Off of Light Duty
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


Danger Zone
Must return an individual with a disability to “full
duty” if able to perform the essential functions of
the job safely with a reasonable accommodation
Example:
A retail worker sustains a back injury that is a disability
and is put on light duty
 Light duty runs out
 Return to full duty if—
 Recovery is sufficient to allow work as usual, OR
 A reasonable accommodation (e.g., permission to sit at
the register) would allow performance of essential job
functions

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Unable to Return
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

Danger Zone
If an employee is unable to return even with a
reasonable accommodation, but is out of FMLA
leave, accrued leave, and temporary disability
benefits, still may be able to accommodate
Provide additional unpaid leave if there is a real
reason to expect improvement, until doing so becomes
an undue hardship
 Reassign to another job that the individual can do
 “Last resort”
 Only if position is open and employee is qualified

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Wrap-Up
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EEOC Online Resources
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

http://www.eeoc.gov/laws/types/disability_guidance.cfm
 Reasonable accommodation*
 Disability related inquiries and medical exams (2)*
http://www.eeoc.gov/laws/types/disability.cfm
 Performance and conduct*
 Information on the new definition of “disability”
 Telework as a reasonable accommodation*
* not yet updated to reflect the amendments
Other Online Resources
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
Job Accommodation Network (JAN)
A free consulting service providing individualized
accommodation solutions and information on the ADA and
services related to employment for people with disabilities
 www.askjan.org


Center for Psychiatric Rehabilitation
A research, training, and service organization with
information on reasonable accommodation and other topics
related to recovery
 http://cpr.bu.edu/

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Contact
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
Aaron Konopasky, J.D., Ph.D.
Senior Attorney-Advisor
ADA/GINA Policy Division
Office of Legal Counsel
Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507
Phone: (202) 663-4127
email: [email protected]
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