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Workplace Accommodations: Practical and Legal Issues for Employers

Presented by: Rick Grimaldi, Esquire & Lori Armstrong Halber, Esquire

Phone: (610) 230-2136 and (610) 230-2174

Special Guest: Janet Fiore, CEO, The Sierra Group

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Rick Grimaldi and Lori Armstrong Halber

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Janet Fiore – President/CEO, The Sierra Group

• A national authority on disability, diversity & compliance policy.

• Frequent SME in the media: Forbes, Inc. Magazine, SHRM, Business Journal.

• Advocate on the Hill, 300+ visits to Members of Congress & Administration,testified on Small Business

• A woman, social entrepreneur, person with disabilities, and accommodationsexpert.

• Has made over 10,000 workplace accommodations

• The Sierra Group Academy trains/places approximately 300 adults withdisabilities annually.

• Runs RecruitDisablity.org, premier job board matching people with disabilitieswith employment

• Responding to corporate demand for practical skills/certification, Janet released an online course that provides step by step tools for business professionals to grow their skills as a CERTIFIED DisabilityRecruiter©

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A Brief History of U.S. Federal Disability Law

• 1973 – Rehabilitation Act of 1973

• 1986 – National Council on Disability recommends enactment of federal law

• 1990 – Americans With Disabilities Act (signed by Bush)

• 2002 – Sutton v. United Air Lines, Inc.

• 2002 – Toyota Motor Manufacturing, Kentucky, Inc. v. Williams

• 2008 – ADA Amendment Act (“ADAAA”) (signed by Bush II)

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EEOC – ADA Charge Statistics

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Americans With Disabilities Act, 42 USC §12101 et seq.

• Prohibits discrimination against a “qualified individual with a disability”: including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

• Requires employers provide reasonable accommodations to job applicants and employees with disabilities, unless doing so would result in an “undue hardship” (significant difficulty or expense)

• Association: protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability).

Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are mostly the same.

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Note that:

• While the federal anti-discrimination laws don't require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps.

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What is a “Disability?”

• Disability = physical or mental impairment that substantially limits a major life activity

• Major life activities = functions that are important to most people’s daily lives.

• breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working.

• Also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

• Do NOT take into account mitigating measures

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What is a “Disability?”

• Actual disability

• Record of disability (e.g., cancer that is in remission)

• Regarded as having a disability: an individual who is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment)

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What does it mean to be “Qualified”?

• Education/experience/skills standards

• Able to perform essential functions

• With or without reasonable “accommodation”

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What are “Essential Functions”?

• Fundamental to the position

• Not marginal

• How about

• Attendance?

• Ability to work in stressful environment?

• Ability to work peacefully with co-workers?

• Punctuality?

• Essential Functions v. Qualifications

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The Basic Rule

• You must reasonably accommodate a disabled employee or applicant unless doing so is an undue hardship or creates a direct threat to health or safety.

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Duty to Reasonably Accommodate –What is an Undue Hardship?

• Undue hardship • high burden

• accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business

• cannot refuse to provide an accommodation just because it involves some cost

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Reasonable Accommodations

• Provide equal opportunity for individual to be considered for the job he or she holds or desires

• Enable employee to perform essential functions of job employee holds or desires

• Provide equal opportunity for individual to enjoy equivalent benefits and privileges

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Reasonable Accommodations

• Focus on the job restrictions, not on the diagnosis

• Not every diagnosis will impact an employee’s ability to work

• If limitations on employee’s ability to work are not clear, obtain medical certification

• Never assume that an employee’s problems are the product of a disability

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The Interactive Process

• A timely good-faith exchange of information between employer and a disabled employee or applicant to explore both:

• Necessity for accommodation

• Accommodation options

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When To Start The Interactive Process

• Initiate the interactive process when the employee’s disability is known or apparent. For example, when:

Employee requests an accommodation

Employee presents doctor’s note with work restrictions

Employee exhausts FMLA leave

Employer otherwise becomes aware of need for accommodation through third party or observation

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Who to Engage as an Expert

• Someone who has the educational and practical background to be an expert in the field

• Someone who can objectively analyze the facts of the scenario and suggest and evaluate possible accommodations, for example:

• Former Department of Labor & Industries vocational rehabilitation analyst

• Vocational rehab /ergonomics analyst who works full time in assessing return to work and job modification scenarios

• Someone who has been accepted as an expert witness in accommodation litigation in various litigated cases

• NOTE: it is especially helpful if the person truthfully can say that they often advocate on behalf of employees with alleged disabilities, or that at least on many occasions in prior situations has proposed an accommodation that the employee accepted and resolved the inquiry

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The Sierra Group Approach to Accommodation Solutions

• Get involved as early as possible. Take a look at all of the possible approaches. Get creative. An out of the box solution is usually what’s needed by the time we hear about the matter.

• Analyze the facts

• Consider possible approaches

• Ask for input• Learn the employee’s desired approach• Learn the employer’s initially desired approach

• Synthesize the information

• Recommend a path forward

• Always remember accommodations start and end with a human need. It’s best to remember that all people desire to be fully heard and understood. Doing this before helping (accommodating) leads to long-lasting results.

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Accessibility in the Job Application Process

• Paper Applications

• Job Fairs

• Employment Kiosks

• Online Job Boards

Impairments• Sensory• Intellectual• Cognitive• Physical• Mental Health• Chronic Disease

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How to Identify and Accommodate the Work-Related Impairment

Types of Impairment

Sensory

Cognitive

Physical

Chronic Disease

Mental Illness

Intellectual

• Obesity

• Migraines

• Multiple Sclerosis

• Repetitive Stress Injuries

• OCD

• Bipolar Disorder

• Fibromyalgia

• Depression

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Accommodation Scenarios to Consider Today

We will examine accommodations that might be put into place:

• Manufacturing settings• PTSD on the manufacturing floor• Autism and Reading Deficit in an industrial Setting• Vertigo on the Assembly Line• Narcolepsy on an Assembly Line• Hearing impairment in a factory

• Administrative Office settings• Autism and Numeric Dyslexia in the Call Center• Attention Deficit Hyperactivity Disorder (ADHD) and Social Anxiety or Myophonia in

an office setting• Ergonomic Seating and Workstation Access at a desktop computer• Depression in a Supply Room

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Case Study: Post-Traumatic Stress Disorder on the Manufacturing Floor

In a vehicle manufacturing setting, the opening of large exterior doors is signaled to employees by a visual and auditory warning – a red strobe light and brief alarm. The flashing light can take an employee with PTSD by surprise and can trigger an episode.

After examining all factors, a recommended approach is put forth:

• An advance warning via text one minute before the door opens• This assures that the employee is not startled and the PTSD is

therefore not triggered• Enables the employee to perform the essential functions of the job,

yet little to no impact on the business or the manufacturing process

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Case Study:Autism with Reading Deficit in an Industrial Setting

Due to her reading difficulties, the plant worker was unable to understand essential safety information in the employee manual. After examining all factors, a recommended approach is put forth:

Her supervisors provide her with a text-to-speech reading alternative.

Listening, not reading from an i-Device, is the accommodation.

MK4100 DOUGH PROCESSOR

IMPORTANT SAFETY INFORMATION

1. Read thee and all instructions carefully.

2. Do not touch hot surfaces. Use insulated gloves or other safety equipment.

3. To protect against electric shock, do not immerse any part of this dough processer in water or other liquid.

4. Always wear protective close-fitting clothing and protective eyewear when operating this processor. Keep hair from moving parts.

5. To disconnect in emergency, press the red STOP button.

6. Disconnect from power supply and allow all components to cool.

Click to Listen:

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Case Study: Vertigo on the Assembly Line

On an assembly line, an employee is generally facing forward and down, increasing risk from a vertigo condition.

Accommodation options:

• A sit/stand stool

• Task lighting or broad spectrum lighting in the work area (instead of fluorescent lighting) to reduce dizzy spells

• Solid color environment to mitigate shapes and color designs

• Periodic breaks are a benefit if possible

• If the employee has interaction with a computer, a “flicker free” flat screen monitor will further help

http://www.work-space-solutions.com/benches_ergo

_seating.htm

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Case Study: Sleeping / Narcolepsy at the Assembly Line

An assembly line worker sits at a stool and performs a repetitive task. Due to narcolepsy, he can fall asleep while on the line.

After examining all factors, a recommended approach was put forth: A device like the Doze Alert or NOD-Stopper was recommended to be used, to stop him from falling asleep. In addition, adjusting his work setting to a standing orientation helped reduce incidents of falling asleep. “The NOD-Stopper is… perfect for people who need to

be on full alert while on duty such as security guards and machine operators.”www.assistivetechnologyservices.com/dozealert.html

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Case Study: Hearing Impairment in a Factory

An employee with a hearing impairment needed to better communicate with coworkers and needed VISUAL notification of an audible alarm to ensure safety protocols were followed.

After examining all factors, a recommended approach was put forth: the employee would use a Sorenson video relay service, allowing for real-time speech-to-ASL communication with supervisors and coworkers. An Apple Watch allowed evacuation alarms to be conveyed to the employee via text.

http://www.sorenson.com

http://www.apple.com/watch

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Case Study:Autism with Numeric Dyslexia in the Call Center

• In a call center environment, an employee needs to request annual income information as part of the script. Due to his disability, he is unable to correctly write numbers without an accommodation.

• After examining all factors, a recommended approach is put forth: With his iPhone on hand, the employee is allowed to use the speech-to-text feature of his phone to seamlessly capture and enter this essential data.

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Case Study: ADHD/Social Anxiety in an Administrative Cubicle Setting

Group meetings triggered social anxiety for an administrative assistant. ADHD made minor distractions significant impediments to productivity.

Recommended accommodations:

• Employee uses a Livescribe Pen to take notes and record meetings for later review.

• Noise-cancelling headphones and cubicle walls extended to the ceiling

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Case Study: Power Chair User with Limited Dexterityat a Computer Workstation

A man with a spinal cord injury was unable to type effectively.

After examining all factors, a recommended approach was put forth: A combination of accommodations allowed him to input information effectively.

QuadJoy Mousewww.quadjoy.com

On-screen Keyboard (used with alternate mouse control)

Dragon NaturallySpeakingwww.nuance.com/dragon

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Case Study: Depression in a Supply Room

Supply orders were being placed in excess of actual needs and disorganization of the supply room had become an issue.

• Employee written up for poor performance

• Employee claimed physical limit/pain restrictions as her excuse

• Mental health/depression was actual cause

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Modification Of Work Policies

• Consider policy modification or waiver if employer policy normally includes:

No work at home

No transfer allowed if employee has a recent write-up

100% healed policy

Automatic termination upon finding of permanent disability

Inflexible leave policies

Inflexible attendance policies

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When Are You Done?

• Accommodation no longer needed

• Accommodation successful

• No reasonable accommodation exists

• Employee fails to cooperate

• Accommodation is an undue hardship

• Direct threat with or without accommodation

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Requesting Medical InformationDuring Employment Application & Interview Stage

• Strict limit

• May ask whether individual can perform the job and how they would do so, with or without a reasonable accommodation.

• Cannot request medical information/exam prior to job offer.

After A Job Offer For Employment

• Job offer may be conditioned on applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

For Persons Who Have Started Working As Employees

• An employer can generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.

The law also requires that employers keep all medical records and information confidential and in separate medical files.

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Requesting Medical Information

• Employers are entitled to know:• Healthcare provider’s qualifications• Nature and duration of restrictions but not necessarily entitled to know diagnosis• Employee’s limitations • Need for reasonable accommodation• Suggested accommodation(s)

• May request medical documentation and information

• Be clear on what you are seeking so that employee and physician know the request is narrowly tailored to the restriction or concern at issue

• Use ADA questionnaire or letter to healthcare provider

• If information is unclear, consider requiring Independent Medical Examination (IME)

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Requesting Medical Information

• If medical information provided still unclear, may require Independent Medical Examination (IME):

• Inquiries must be limited to employee’s limitations that require accommodation

• Employer pays cost of the examination

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Attorney Client Privilege/Work Product Protected?

• Communications can be protected

• Often, that is not the best use of the expert

• But remember: important to follow what the accommodations expert recommends when privilege is being waived or could be pierced

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Documentation Is Essential!

• You must thoroughly document:

– All meetings and communications with the employee

– All accommodations considered

– Search for alternate positions

– Employee’s efforts to cooperate

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• The Sierra Group Academy Trains 300+ regional job annually, with 73% placement rate, $12.50 hour & up

• Field Services On location consultation, assessment & customized training to individuals, schools and corporations, locally, regionally, & nationally

• DisabilityRecruiter© Certification Online course provides skills to corporate recruiters, HR, D&I and line manager

• RecruitDisability Job Board With over 8,000 job searches daily, people with disabilities find employers who post

• Accommodations Coach/Expert Witness on-call hourly services round out and enhance “stay at work” success for any companies HR and Compliance team

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Thank You

Presented by:Rick Grimaldi, Esq. & Lori Armstrong Halber, Esq.

Phone: (610) 230-2150 | Email: rgrimaldi@fisherphillips.com lhalber@fisherphillips.com