The American Bar Association sponsored a webinar this
week on the Americans with Disabilities Act, which was noteworthy for its
inclusion of EEOC commissioners Chai
Feldblum (Democrat) and Victoria
Lipnic (Republican).
I'm usually such a doom-and-gloomer when it comes to the
amended version of the ADA. But 'tis the season to be jolly, so I have
decided to be more positive (just this once, anyway). The EEOC commissioners
raised a number of points that work in favor of employers.
Feldblum and Lipnic said that the EEOC is drafting new
guidance on reasonable accommodation. The guidance may include what an
employer can say to resentful co-workers who don't realize that the employee
has a disability. Some realistic, practical advice in this area would be most
welcome -- as it is now, confidentiality rules prohibit employers from saying
anything, even if it might help co-workers understand and be more tolerant.
Regarding leaves
of absence and the ADA, Lipnic recommended that the employer contact an
employee who is at the end of a medical leave and ask whether the employee
needs an accommodation to be able to return to work, or whether some additional
leave (a limited amount, we hope) would allow the employee to return. Lipnic believes
that this would probably satisfy the employer's obligation to avoid an
"automatic" termination when the employee reaches the end of the
leave.
Feldblum cautioned that "people who know about the
ADA" should make termination decisions when employees reach the end of
their medical leaves of absence rather than third-party administrators who may
not have ADA expertise.
All right, it's "happy time" now!!! Fa-la-la-la-la-la-la-la-la.
Here are your rights as an employer under the ADA, straight from the EEOC's
mouth:
1. You have the right to make reasonable
accommodation decisions as you always have in the past. The
ADA Amendments Act changed the definition of who is "disabled" but
did not change the employer's reasonable accommodation obligations.
2. You have the right to make reasonable
accommodation decisions on a case-by-case basis, and, indeed, you should. In
some ways, this is a negative (because you can't just follow a flat policy in
all cases), but in other ways it's positive for your business because you can
and should consider the employee's job, the employee's specific medical
condition, and the specific abilities and limitations of that employee.
3. You have the right to deny reasonable
accommodation to an employee who claims only that he or she is "regarded
as" having a disability. (Note, however, that a
"regarded as" disability can overlap with an "actual"
disability. You do have to consider reasonable accommodations for the latter.)
4. In accommodating a job applicant, you must
remove barriers to the application process, but you still have the right to
hire the most qualified candidate for the job. Yay!!!!
5. As Feldblum noted, an employee must
"get the work done" notwithstanding the disability.
Thus, even though the employer must "stop, think, and justify" work
rules and make changes to the rules where needed, the employer does not have to
forgo having the work performed.
6. In most cases, you have the right to do nothing
until an employee or applicant makes an accommodation request.
Generally, it is the employee/applicant's responsibility to request an
accommodation unless the disability is obvious. However, the employee may make
the request in "plain English" and does not have to specifically
mention the "ADA" or "reasonable accommodation."
7. You have the right to request
documentation before making a decision on a reasonable accommodation request. As
Feldblum said, this is "absolutely legitimate" on the employer's
part. In addition, Lipnic said, the employer has to have "a level of
awareness" that the individual is requesting a reasonable accommodation.
(But see #6.)
8. Although you may have to grant additional
leave as a reasonable accommodation (in excess of what is required under the
Family and Medical Leave Act, or even your own policies), you do not have to
worry about compliance with the FMLA once the 12-week/26-week entitlement has
been exhausted. Moreover, in determining whether additional
leave would be an "undue hardship," any leave already taken --
including FMLA leave -- should be included.
9. You don't have to specify "essential
functions" in a written job description, although it's a nice thing if you
can do it. According to Feldblum, failure to put essential
functions in writing is "not fatal," presumably because the EEOC and
the courts give more weight to the way the job is actually performed, not
what's on a sheet of paper.
10. You have the right as the employer to
decide which job functions are "essential."
(But don't forget that accommodation of "marginal" functions may
require you to remove the function completely from the disabled employee's
job.)
OK, I realize these are kind of weak, but they're the
best we're gonna do. Strike the harp and join the chorus, man.
Fa-la-la-la-la-la-la-la-la!
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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