Reassignment as an ADA Accommodation: To Compete or Not to Compete?

Posted on: February 1, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE


Good news for employers: Depending where your employees are located, you might not have to grant reassignment without competition as a reasonable ADA accommodation.

As we administer our ADA management services, we frequently get questions about the employer’s obligation to reassign an employee to a vacant position as an ADA accommodation. Some time ago we addressed reassignment as an accommodation under the ADA. We wrote:

When good faith efforts during the interactive process fail to yield an effective accommodation for the employee’s current position, the ADA requires an employer to consider a possible accommodation that employers frequently overlook or don’t understand well:  reassignment of a disabled employee to a vacant position.  This obligation arises when (1) no other reasonable accommodation will enable the employee to perform the essential functions of his current position without imposing an undue hardship on the employer (thus, the moniker “accommodation of last resort”); and (2) the disabled employee is qualified for the vacant position.

In that blog post we explained the EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he/she gets the job – he/she does not have to compete or be the best qualified candidate for the position. 

Things have advanced a bit since that post was written and it is time for an update. The issue is still not nailed down in most jurisdictions – and the EEOC has not wavered in its position – but the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia) has held that in certain circumstances, an employee with a disability can be required to compete with other candidates for an open position. Although this decision came out several months ago, continued questions from our clients show that they still grapple with the issue.

The Facts. The employee, Leokadia Bryk, was a nurse in the psychiatric ward at St. Joseph’s Hospital in Florida. Due to a developing back problem, Bryk walked with a cane during her shifts. The hospital determined that use of the cane posed a risk as patients in the psychiatric ward might be able to use the cane as a weapon. Bryk was given 30 days to apply for other positions for which she was qualified. St. Joseph’s usual transfer rules required that an internal candidate could not apply for another position if the employee had not been in her current position for at least 6 months and had no final written warnings in her file. Bryk did not satisfy either of these requirements, but St. Joseph waived these rules to allow Bryk to apply for vacant positions. She applied for 3 positions but was not hired because she was not the best qualified candidate for any of the positions.

The Lesson. St. Joseph’s had a “best-qualified applicant” policy – meaning that they had a business policy and practice of hiring the best-qualified candidate for an open position. Relying on an earlier U.S. Supreme Court opinion, the 11th Circuit recognized that an employee’s proposed accommodation must be “reasonable in the run of cases.” The court then affirmatively stated that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases’” and held that the ADA does not require mandatory reassignment:

As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. . . . [T]he ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position . . . [T]he intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities . . . [It] was never intended to turn nondiscrimination into discrimination against the non-disabled.

EEOC v. St. Joseph’s Hospital, Inc. (11th Cir. 12/07/2016).

Lay of the Land. Other courts have addressed the issue of reassignment as an ADA accommodation. In Huber v. Wal-Mart Stores, Inc. (2007) the 8th Circuit came to the same conclusion as the 11th Circuit. The EEOC cites cases from the 7th, 10th, and D.C. Circuits in support of its position. Various district courts (the federal trial courts under the Circuit courts of appeals) in several states have tackled the issue with varying results.

 

Pings for Employers.

  • Employers should not view the St. Joseph’s case as a complete victory. The federal courts of
    appeals are still split on employers’ ADA reassignment obligations, and some haven’t addressed
    the issue at all. It is important to receive legal guidance on the status of the issue where you
    do business; it is likely to vary if you have employees in multiple states. And, if you require a
    disabled employee to compete for an open position in any jurisdiction, you still might find
    yourself wrangling with the EEOC.
  • The St. Joseph’s decision rests heavily on the employer’s “best-qualified applicant” policy. Most
    employers probably believe they have such a policy but now employers should memorialize
    the policy in writing and train hiring managers to ensure it is followed in practice. It might be
    possible to make occasional exceptions but be ready to explain those with business reasons
    that justify the variation.
  • Don’t be inflexible when dealing with the ADA. Even with a best-qualified policy and in the
    11th Circuit, there still may be fact-specific situations that would make reassignment without
    competition a reasonable accommodation.
  • Take a lesson from the way St. Joseph’s handled this employee. Even though it enforced its
    best-qualified policy, it bent other rules in its transfer and hiring policies as accommodations
    to Bryk, enabling her to apply for jobs even though she did not satisfy the company’s rules.

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

 

 

Mental Stability & ADA Evaluations – Part 2: “Regarded As” Liability

Posted on: December 26, 2017 1

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

This is our second entry in this series of 3 blog posts on mental examinations and the Americans with Disabilities Act.  For the first article, discussing ADA mental examinations and the employer’s obligation to provide a safe workplace, click here.

Our second case study poses the question, can an employer require a worker to undergo a psychological exam without creating an ADA “regarded as disabled” claim for the employee?

The facts.  Evangelene Monroe had been a job scheduler for her employer Consumers Energy (CE) for 13 years when she started exhibiting aberrant behavior.  Her supervisor noted that Monroe was losing focus and concentration at work, that she had become increasingly secretive, and was not interacting with her co-workers during staff meetings as in the past.  Monroe’s work performance was suffering significantly.

Monroe filed a complaint with CE’s Compliance Department, in which she reported that she was being tracked and surveilled by coworkers by various means:  interception of personal text messages, listening devices on her phone and in her work cubicle, camera surveillance at work and at home, a GPS tracking device on her car, and eavesdropping via the key fob for her vehicle.  Her complaint was investigated by Kathleen Delaney, CE’s director of Human Resources, who did not find any merit to Monroe’s allegations.  Due to the nature of Monroe’s charges, Delaney arranged to have Monroe scheduled for an IME to determine if she was able to perform the essential functions of her job.

Dr. Dutes performed a neuropsychology evaluation and reported that Monroe showed a high degree of interpersonal sensitivity and a tendency toward paranoid thinking.  He recommended 12 sessions of psychological counseling and then a reevaluation of her ability to return to work.  Monroe refused the counseling and in January 2014 she went out on paid sick leave for several months.  She then worked part time elsewhere and collected some unemployment.

In late 2014 Delaney contacted Monroe about returning to work but told Monroe she would still have to undergo the counseling.  Monroe insisted that she was better, which was confirmed by another neuropsychological exam in April 2015.  Nonetheless, Dr. Dutes still recommended 8-12 counseling sessions.  Monroe still objected and filed a charge with the EEOC.  She was not satisfied with the EEOC investigator because, according to Monroe, the investigator told Monroe she needed to undergo the counseling.  Monroe finally agreed to the counseling and returned to work at CE full time in December 2015.  No surprise, Monroe filed suit against CE in January 2016.

Regarded as disabled?  The ADA extends its nondiscrimination protections to include an individual who does not have an impairment but is regarded as having one.  In her lawsuit Monroe did not claim that she had a qualifying mental impairment under the ADA.  Rather, Monroe alleged that by requiring her to undergo the neuropsychological exams, CE showed that it “regarded” her as disabled.  She further alleged that the exams constituted an adverse employment action by CE.

To establish this claim, Monroe had to show that she had been discriminated against because CE perceived that she had a mental impairment.  The court explained that a person is “regarded as” being disabled under the ADA if: (1) an employer mistakenly believes that a person has a physical impairment . . . or (2) an employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.  In both cases, the employer’s actions are based on a misperception about the individual.

The employer’s Catch-22.  So Monroe’s charge was that CE regarded her as disabled by virtue of its requirement for her to participate in mental health evaluations.  Wow, that would really be a Catch-22 for employers, wouldn’t it?  The employer has the no-win choice of (1) allowing the employee to continue to work with possible consequences of poor performance or safety risks to the employee or his co-workers or the employer’s property; or (2) requiring the employee to undergo a mental exam at the cost of establishing a claim of regarded-as discrimination against itself.  A third possibility is equally untenable:  terminating the employee on the basis of the employer’s unsubstantiated concerns about the employee’s mental condition and risking a true regarded-as claim.

The court saves the day.  Fortunately for employers, the court ruled that an “employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”  Relying on an earlier case from the 6th Circuit the court explained that an employer has the right to determine the cause of an employee’s aberrant behavior and doing so is not enough to suggest that the employee is regarded as mentally disabled.  An employer-requested psychological evaluation is in full compliance with the ADA if “restricted to discovering whether the employee can continue to fulfill the essential functions of the job”; in other words, if it is job related and consistent with business necessity.

You can review the court’s opinion here:  Monroe v. Consumers Energy (E.D.Mich., S.D. 2017)

PINGS FOR EMPLOYERS

  • Track behavioral changes. As with our employer in last month’s case study, CE had numerous examples of
    Monroe’s strange behavior, not just a couple of isolated incidents. Moreover, Monroe’s supervisor noted that her
    behavior and job performance had changed over time. That observation of change can be an important factor
    in supporting the need for a mental health exam.
  • Keep consistent. In requiring the neuropsychological exams, CE focused on whether Monroe could perform her
    job functions. This supported that the exam was job-related and consistent with business necessity.  This is
    permissible even though the exam might reveal an ADA-qualifying mental impairment.
  • Maintain communication. This employer was very diligent in staying in touch with the employee and trying to bring
    her back to work. In fact, Monroe did return to work full time due to CE’s efforts.  Although Monroe sued anyway,
    CE had done the right thing.  This did not play a part in the court’s written decision, but CE certainly gets Brownie
    points for good employment practices.

UP NEXT:  One intriguing issue the court did not address directly is whether an employer can require an employee to undergo psychological counseling as a condition of returning to work.  Stay tuned for our 3rd post in this series, which will take on this and other issues related to the ADA and mental health exams.

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination.  You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

 

Mental Stability & ADA Evaluations—Part 1: Safety

Posted on: December 14, 2017 2

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Consider this situation:  Your employee Melvin is exhibiting alarming behavior – aggressive interactions
with coworkers, loud banging of drawers and doors, unfounded suspicions of surveillance, incomprehensible mumbling or rants.  Melvin has not asked for time off or any sort of workplace accommodation, but you are concerned about whether Melvin is capable of performing his job, or worse, whether he presents a threat to the safety of himself or his coworkers. 

Can you make Melvin undergo an independent medical exam (IME) to assess his mental fitness to work?  In two recent lawsuits, coming at the issue from two different angles, the courts each ruled “yes,” as long as certain conditions are met.  This blog post starts a series of 3 articles addressing these new cases and mental health exams under that ADA.  Read on to learn how coworker safety and “regarded as” ADA discrimination meet in the IME examination room (figuratively speaking).

Setting the stage.  Under the ADA, any type of medical examination must be job-related and consistent with business necessity.  According to the EEOC, this is established when the employer has a reasonable belief, based on objective evidence, that:

(1) An employee’s ability to perform essential job functions will be impaired by a medical condition; or

(2) An employee will pose a direct threat due to a medical condition. 

The employer’s reasonable belief must be based on objective evidence obtained prior to requiring a medical examination.  This requires an assessment of the employee and his/her position and cannot be based on general assumptions.  EEOC Enforcement Guidance on Medical Inquiries and the ADA.  

“Preventing employees from endangering their coworkers is a business necessity.”  Our first case study is Painter v. Illinois Department of Transportation.  Deanna Painter was as an Office Administrator for the Illinois Department of Transportation.  Previous coworkers complained about Painter’s behavior, stating that she frequently snapped and screamed at them, gave intimidating stares, ranted, mumbled to herself, and banged drawers in her office.  Her coworkers were concerned she would “go postal.”  Current coworkers reported that she glared and growled at them, kept a log of all their actions, and was angry, abrasive, and threatening.  She also wrote an email to her union representative about a clock that was 30 minutes fast, stating that the clock “was a tell-tale sign for me.  It told me everything I needed to know.”  She then made a comment in the email about something being dead.  The union rep took this as a death threat and refused to communicate with her further.  (That, of course, speaks volumes when even the union rep is afraid to talk with an employee!)

IDOT put her on paid administrative leave and required her to undergo an IME with a psychiatrist.  The psychiatrist concluded that Painter might suffer from a personality disorder but nonetheless cleared her to return to work.  After her return, complaints from coworkers started anew.  Painter was reprimanded but the conduct continued, including argumentative, confrontational, insubordinate, and disruptive behavior. 

IDOT again placed Painter on a paid administrative leave and sent her for another IME with the same psychiatrist.  The psychiatrist reviewed extensive additional notes, emails, and documents regarding Painter’s behavior.  This time he concluded that Painter was unfit for duty because of her “paranoid thinking and highly disruptive behavior which results from her paranoia,” which is a risk factor for violence. 

Painter sued IDOT, alleging that it had violated the ADA by forcing her to attend “unnecessary” medical examinations.  The 7th Circuit Court of Appeals disagreed and found both psychiatric IMEs to be job-related and consistent with business necessity.  The court concluded, “Preventing employees from endangering their coworkers is a business necessity:  a safe workplace is a paradigmatic necessity of operating a business.”  Both exams followed extensive unstable conduct by Painter and numerous complaints by coworkers about concern for their safety due to her conduct.  Importantly, the court noted the choices an employer faces in this situation and came down on the side of the employer:

Employers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.

Painter v. Illinois Department of Transportation, (7th Cir. Dec. 6, 2017).

Pings for employers

  • Multiple observers. Numerous coworkers observed and reported Painter’s
    actions over many months leading up to the first IME and then the second exam.
    While some situations may require faster action, in this case the amount of
    information about Painter’s conduct was helpful to the employer’s case.
  • Document, document, document! Painter’s supervisor kept detailed notes of
    her actions and his discussions with her, as well as her odd emails.  He also
    gathered written statements from her coworkers.  These proved very important
    in the court’s analysis of whether IDOT had sufficient grounds to require the IMEs
    as job-related and consistent with business necessity.
  • Level of odd conduct. Don’t order medical evaluations based on minor incidents
    of strange behavior.  As the Painter court observed:  “That an employee’s behavior
    could be described as annoying or inefficient [does not] justify an examination; rather,
    there must be genuine reason to doubt whether that employee can perform
    job-related functions.”
  • Direct threat? Maybe not.  The court did not specifically analyze whether Painter’s
    conduct established that she presented a “direct threat” to coworkers.  The burden
    to prove this element is quite high –the analysis includes consideration of how imminent
    and likely the threat is, as well as the anticipated duration and severity of the threat.
    In the Painter case the court chose to focus on the employer’s obligation to provide
    a safe workplace (and perhaps also believed that the facts and psychiatric diagnosis
    of paranoia spoke for themselves).

UP NEXT:  Watch this space for a discussion of a case where the employee claimed that the employer “regarded” the employee as disabled in violation of the ADA because it required the employee to go through a mental health IME.

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination.  You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

 

Pushing Back on the “Inadvertent Leave Law” – Court Rules that a Multi-Month Leave of Absence is not a Reasonable ADA Accommodation

Posted on: September 26, 2017 0

By Marti Cardi, VP-Product Compliance
& Gail Cohen, Director-Employment Law/Compliance

“How long of a leave of absence do I have to grant as an accommodation under the Americans with Disabilities Act?”

I get this question frequently.  I have long advised that employers must consider a new or extended leave of absence as a possible accommodation.  In assessing an employee’s ADA leave request, employers need to look at what the employee will be doing during that leave: Rehabilitative therapy?  Trying new medications?  Learning to work with an assistive device or a support animal?  Maybe recovery from surgery or an injury? 

The Equal Employment Opportunity Commission agrees with me – or rather, I have come to agree with the EEOC.  EEOC Commissioner Chai Feldblum is often quoted as calling the ADA an “inadvertent leave law.”  And indeed it is – the ADA was not designed to be job-protected medical leave of absence.  Rather, the basic goal is to enable the disabled employee to work – with a reasonable workplace accommodation if needed.  But for years, the Commission’s guidance has been that leave is a reasonable accommodation as long as it is of a (somewhat) definite duration and will enable the employee to perform his essential functions upon return to work.  

The 7th Circuit Court of Appeals begs to differ.  In a recent case, the court ruled that an employer did not fail to provide a reasonable accommodation when it denied an employee’s request for a 2-3 month continued leave of absence after exhaustion of FMLA.

The Facts.  Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures from 2006 to 2013.  His position was physically demanding, often requiring him to lift 50 pounds or more.  Raymond had a back problem that first manifested itself in 2005.  During flare-ups, the condition made it difficult or impossible for Raymond to walk, bend, lift, sit, stand, move, and work. 

Raymond had generally performed well and received promotions over the years but was having difficulty in his latest position.  He met with management on June 5, 2013, and accepted a demotion to second-shift lead, but never commenced work in that position.  Earlier the same day, Raymond wrenched his back at home exacerbating his back condition and was in obvious pain as a result.  He left work after the meeting with managers and then requested continuous FMLA leave due to his back. 

 During his FMLA leave Raymond stayed in touch with Heartland’s HR representatives.  He received periodic extensions of his leave based on medical reports that showed he had multiple herniated and bulging discs in his spine.  In mid-August, after steroid treatments yielded little improvement, Raymond informed HR that he was going to have back surgery on August 27 – the last day of his FMLA entitlement – and would need 2-3 more months of leave as an ADA accommodation.  Heartland denied this request but told Raymond he was welcome to reapply when he was able to return to work.  

Raymond never reapplied for work.  Instead, he chose to sue Heartland for failure to accommodate.  Oh, Raymond!  You should have taken a different path!

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.”  So says the 7th Circuit.  After analyzing the relevant sections of the ADA, the court stated:

A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.”  If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.

Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  [Citations omitted.]

And this:  

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The court acknowledged the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such as occasional flare-ups of arthritis or lupus.  

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in [the ADA].  But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. [Citations omitted.]

Of interest and some degree of persuasion, the court compared the FMLA and the ADA as “leave of absence” statutes: 

If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term “reasonable accommodation.”

So there we have it.  According to the 7th Circuit, a leave of absence as an ADA accommodation is not reasonable if it is expected to last more than “a couple of weeks,” or if it will “span[ ] multiple months.”  

Employers have some similar comfort from the 10th Circuit in the case Hwang v. Kansas State University (2014).  In that case, the court ruled that a 6-month leave was not a reasonable accommodation:

 It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

As the court said, ADA accommodations are “all about enabling employees to work, not to not work.”  You can read a great summary of the Hwang case on Jeff Nowak’s FMLA Insights blog here

Other than these two decisions, we are not aware of any other federal appellate court that has addressed how long of a leave is a reasonable accommodation under the Amendments Act (ADAAA).  [The 7th Circuit includes the states of Illinois, Indiana, and Wisconsin within in its jurisdiction; the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.]

Employers, continue to tread softly and act wisely.  Don’t throw caution to the wind just because one or two courts have issued a reasonable opinion.  See our Pings below for recommendations on how to assess requests for leave under the ADA Amendments Act (ADAAA). 

Severson v. Heartland Woodcraft, Inc. (7th Cir. Sept. 20, 2017) 

Pings for Employers

Don’t ignore the possibility of leave as a reasonable accommodation.  Nothing in the 7th Circuit’s ruling changes the employer’s obligation to consider more leave of absence as a reasonable accommodation following the exhaustion of other job-protected leaves such as FMLA or a company policy of allowing a set amount of medical leave.  Any inflexible leave policy could still be an ADA violation.  Read more on this topic at our blog post regarding an EEOC/Lowe’s $8.6 million consent decree. 

Don’t forget the interactive process.  Although the ADA does not require an employer to engage in the interactive process (check out footnote 1 in the Severson opinion), that is still the best way to ensure that you are fulfilling your ADA obligations to consider a reasonable accommodation upon request by a disabled employee.

Review the EEOC’s resource document on leave as an ADA accommodation.  It is always a good idea to understand the EEOC’s thinking on a tough issue, and they have shared with us in their resource document, Employer-Provided Leave and the Americans with Disabilities Act, issued May 9, 2016

 If you are thinking of denying an ADA request for leave as an accommodation, consult with your employment counsel.  Even in the 7th and 10th Circuits, this is still a tricky issue.  And, the EEOC will likely reject this case in its own proceedings.

 MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com

ADA Views – Direct from the EEOC!

Posted on: May 8, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

 

Q:   What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?

A:    They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.

Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum.  We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course.  Here are a few snippets of information Pierce shared with attendees:

Attendance – is it an essential function of a job? The EEOC says no, in most cases.  In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function.  (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.)  Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function.  See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015)  (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).
Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation?   Is this a reasonable accommodation that an employer must consider?  The EEOC say yes, in most cases.  But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation?  Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.   Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial.  As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.

Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard.  A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard.  Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes.  Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.

Keith, the lifeguard, has been deaf since birth.  He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program.   The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination.  The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer.  In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position.  The 6th Circuit agreed.  The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.”  No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities.  Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position.  The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons.  According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.”  Keith v. County of Oakland (6th Cir. 2013).

Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA.  Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.”  The basic intent of the law is to keep employees working, not to provide leaves of absence.  In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose:  to prevent disability discrimination and help disabled individuals obtain and keep jobs.  Well, we’ve come a long way, haven’t we?  For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.

The topics addressed by Pierce at our client meeting present significant ADA challenges for employers.  Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations.  You can leave a message below or contact marti.cardi@matrixcos.com.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.