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Human Resource E-Bulletin - March 2000

This month's e-bulletin topic is:
Training and Educational Opportunities for Human Resource Personnel

Learn about the ADA from the comfort of your office. The DLRP, along with other DBTAC's, is sponsoring the following teleconferences targeted to educating employers and human resource professionals on specific ADA employment topics. These informative teleconferences are one hour long and presented by individuals recognized nationally for their expertise on these issues. If you decide to "attend," all you have to do is make a phone call.  You will also be able to view the speakers remarks during the call via the Internet as these programs are also "real-time captioned."

April 18: Worker's Compensation and the ADA
Chris Bell, Attorney, Jackson, Lewis & Associates

Are injured employees or employees with temporary disabilities covered under the ADA?  Are they entitled to reasonable accommodations?  Do they have to be reassigned? Can employers ask about previous worker's compensation history?  Explore the dynamic interplay between worker's compensation issues and the ADA.

 Homework:
 EEOC Enforcement Guidance: Workers' Compensation and the ADA (http://www.eeoc.gov/docs/workcomp.txt)

 The ADA & Injured Workers prepared by Cornell University
 (http://janweb.icdi.wvu.edu/kinder/pages/injured_worker.html)

August 15: Union Environments and the ADA

Andrea Haenlin Mott, ADA Training Coordinator for the Program on Employment and Disability, School of Industrial and Labor Relations, Extension Division, at Cornell University

This informational session will discuss the hot topics of the ADA in unionized environments including seniority, reasonable accommodation, collective bargaining agreements, confidentiality, and joint labor-management cooperation. Andrea Haenlin Mott will also address the unique interplay between unions and disability management strategies.

 Homework:
  The ADA & Collective Bargaining Issues prepared by Cornell University
  (http://janweb.icdi.wvu.edu/kinder/pages/collective_bargaining.html
 

To register for either or both of these teleconference, please call 1-800-949-4232.

Reasonable Accommodation

"Reasonable accommodation" is defined in the EEOC's regulations as:

  • modifications to the job application process, to the work environment, or to the manner or circumstances under which the position held or sought is customarily performed,
  • modifications that allow an employee with a disability to enjoy the same benefits and privileges as those enjoyed by other employees, as long as the modification does not impose an undue hardship on the employer.

Some General Rules

Reasonable accommodations must provide equal access to the opportunity but do not have to ensure equal results or provide exactly the same benefits or privileges. When assessing an accommodation ask:

Does the accommodation provide an employee with a disability an opportunity to achieve the same level of performance or to enjoy benefits or privileges equal to those of a similarly situated nondisabled employee?

The employer has the discretion to choose which accommodation will be provided and may choose the less expensive accommodation or the accommodation that is easier to provide, as long as the accommodation provided is effective.

Limitations on the Obligation to Provide Accommodation

An employer is not required to make a reasonable accommodation if doing so would impose an undue hardship on the operation of the business.

If a particular accommodation would impose an undue hardship, the employer must consider whether there are alternative accommodations that would not impose such hardship.

An undue hardship is an action that requires "significant difficulty or expense."  This means any action that is:

  •   Unduly costly-consider only net costs
  •   Extensive
  •   Substantial
  •   Disruptive
  •   Would fundamentally alter the nature or operation of the business


All of these factors are important in regard to whether an accommodation is reasonable, and no one factor is determinative.

Hypothetical Scenario: Providing Training as an Accommodation

The Texas Governor's Committee on People with Disabilities provided the following scenarios.  Visit www.governor.state.tx.us/disabilities/ to find out about the resources and training available through the Committee.

Janice is a person with dyslexia working as a data entry specialist with a state agency.  Janice has been with the agency for over 20 years.  The agency purchased new computers and changed its data entry system from a DOS system to a Windows 95 system.  Janice received two hours of training on the new system.

A month later, Janice's supervisor noticed that she was not working as efficiently as the other employees.  Janice requested that she be allowed to work on the old system as a reasonable accommodation for her disability.  The agency refused this accommodation, and instead provided four hours of additional one-on-one training as an accommodation.  Several months later, Janice's supervisor noticed that she was still having difficulty using the new system.  Janice could process only about 60 data entry requests a day, while other employees were processing over 200 requests in a day. She also had to keep asking co-workers basic questions about how the new system worked.  In order to learn the new system Janice requested that a vocational rehabilitation specialist be brought to provide intensive training, specially tailored to address her form of learning disability, on the new system. This training could be provided at no cost to the agency.

The agency refused this proposed accommodation, reasoning that Janice had already been given enough training.  Instead, the agency reassigned Janice to another, lower-paying job in the agency as a file clerk.  Janice sued the agency, claiming that they failed to accommodate her disability.

(This scenario was drawn from Vollmert v. Wisconsin Department of Transportation, (1 999 WL 1063445, 7th Cir. 1999).

QUESTIONS:

1.Was Janice's request for additional intensive training a reasonable accommodation?

The court found that the training originally provided by the employer was not an effective accommodation because that training was not specifically tailored to address the functional limitations of the plaintiff's disability.  Additional training that effectively accommodated the plaintiff's dyslexia would have been a reasonable accommodation, especially as it came at no cost to the employer.

2.Was the agency's transfer of Janice reasonable?

The court ruled that reassignment should be used as a reasonable accommodation only if the employee cannot perform the essential functions of their job with reasonable accommodation.  The agency should have honored the plaintiff's request for additional training as an accommodation.

The EEOC addressed the accommodation of reassignment in its regulations and technical guidance.
Reassignment should only be considered when an employee becomes unable to perform their current position because of a disability.
Reassignment to a vacant position or one that may become vacant within a reasonable amount of time is a reasonable accommodation as long as the disabled employee is qualified for that position.
Reassignment should not be used to segregate employees with disabilities or to force them into undesirable positions.
Reassignment should be made to an equivalent position, in terms of pay and status, if an equivalent position will become available within a reasonable amount of time.
If there is no equivalent position that will become vacant within a reasonable amount of time, the employer may then offer to reassign the employee to a lower graded position at a lower salary as a reasonable accommodation (employer's are not required to promote individual's with disabilities as an accommodation.)

3.Was Janice a "qualified person with a disability"?

Janice had worked for the agency for over twenty years.  Although her job performance had become substandard after the new computers were installed, evidence indicated that she would have been able to meet performance standards once she received appropriate training.

Hypothetical Scenario: Reasonable Accommodation, Extended Leave & Documentation Issues

Greg is a pilot for Universal Piloting Service.  In 1993, he began to experience a number of different problems. His memory was poor, his hand-eye coordination had declined and he could not think as clearly as before.  As a result, he could no longer fly planes, and Universal placed him on paid leave in January, 1994.

Greg's doctor, Dr. Riviera, diagnosed him with chronic fatigue syndrome in June of 1994.  Greg had a company physical in August 1994 to determine if he could return to work.  The company doctor affirmed the diagnosis and stated that he would not clear Greg to return to work without the approval of Dr. Riviera.

In December 1994, Universal asked Greg for more information about his medical condition.  Greg did not respond to repeated requests.  In January 1995, Universal requested information directly from Dr. Riviera.  Dr. Riviera wrote a short note that said that Greg still had a disability.  Dr. Riviera said that he could not provide any further information because he had not seen Greg for two months.

In March 1995, Universal informed Greg that they would terminate his paid leave unless he provided additional medical information.  Universal also provided Greg a list of other jobs that they had available, that did not involve flying, and indicated that they would transfer Greg to one of these other jobs if he could perform the essential job requirements of each. Dr. Riviera replied, stating that Greg's medical condition was stable, but that Greg did not feel that he could return to work as a pilot.  Dr. Riviera did not offer any suggestions regarding what jobs Greg could do or what accommodations would be helpful.

In May, 1995, Universal scheduled Greg for an appointment with its doctor.  Greg cancelled this appointment, claiming that he had jury duty.  Universal then issued an ultimatum to Greg to provide medical information or face termination.  Greg requested an accommodation of ninety days additional time for diagnosis and treatment of his chronic fatigue syndrome.  However, he did not provide any additional medical data.  Universal refused the accommodation request and fired Greg in June.

In September, 1995, Greg requested long-term disability benefits.  He provided medical documentation - from an unlicensed homeopathic practitioner - that indicated that he would not be able to return to work for at least three years.  Universal denied this request.  Greg sued, claiming that Universal failed to accommodate his disability.

This scenario was drawn from the case of Walsh v. United Parcel Service, 6th Cir. 2000.

QUESTIONS:

1. Should Universal have granted Greg's accommodation and given him additional time to develop his medical documentation because of his disability?

 No. The court found that a request for additional leave under these circumstances would not be a reasonable accommodation.  The court said that "when an employer has provided a substantial leave, an additional leave period of significant duration, with no clear prospects for recovery, is an objectively unreasonable accommodation." The court also found that there was not a link between the plaintiff's disability and his failure to provide medical accommodation.

2. Was Universal justified in firing Greg for failure to provide medical documentation?

 Yes.  The court found that the defendant did not discriminate against the plaintiff and that the stated reason for firing the plaintiff was not a pretext for discrimination.  The lower court in this case also found that an employer has a right to request reasonable medical information and that the plaintiff should have provided the information within the time period allowed.

Reasonable Accommodation Process

The scenario above highlights the importance of understanding the rights and responsibilities of employers and employees in the reasonable accommodation process.  Last month we reviewed an EEOC Policy letter that outlined the responsibilities of an employee with a disability to provide documentation to an employer regarding their accommodation request.  It can be used to understand the responsibility Greg had to participate and come forward with sufficient medical documentation that established the existence of a substantially limiting impairment, linked the disability to the accommodation and identified specific functional limitations.

In regard to the accommodation process, it is clear that the EEOC expects reasonable accommodation discussions to be interactive.  Both parties should engage in the discussion in good faith:

Employers should use a "problem solving approach" and:

  • Analyze the particular job involved and determine its purpose and essential functions;
  • Consult with the individual with a disability to determine the job-related limitations caused by the individual's disability;
  • Ascertain how the identified limitations can be overcome with a reasonable accommodation;
  • Identify potential accommodations and assess the effectiveness each would have in assisting the individual in performing the essential functions of the position; and;
  • Consider the preference of the employee to be accommodated and select the one that is most appropriate for the workplace and the employee.


Good faith participation in the process by both parties is key to the success of the process.  In cases that have looked at the responsibilities of employers and employees courts have stressed that accommodations should be accomplished via an interactive process between employer and employee.

In Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996), 7 NDLR  311 the court held that the employer had not violated the ADA because the process had broken down because of the employee's failure to provide sufficient information regarding her disability and the accommodations she needed.

In McAlpin v. National Semiconductor Corporation, 921 F. Supp. 1518 (N.D. Tex. 1996) the court noted the responsibility of both parties and held that the plaintiff did not fulfill her responsibility, due to her failure to request a specific accommodation and her refusal to sign a medical  release.
 


Welcome to the Human Resource E-bulletin for employers, human resource professionals and others interested in learning more about how to successfully implement the employment provisions of the Americans with Disabilities Act in the workplace. On a monthly basis, you will receive information on resources, updates on litigation, EEOC guidance and policy letters that will enhance your understanding of the employment provisions of the ADA. DLRP staff and the Outreach Manager of the Houston District office of the Equal Employment Opportunity Commission facilitate the HR E-bulletin.

The mission of the DLRP (Southwest ADA Center) on the ADA is to promote proactive compliance with the ADA in Texas, Arkansas, Louisiana, New Mexico and Oklahoma. Based at ILRU (Independent Living Research Utilization), a program of TIRR in Houston, Texas, the DLRP is funded by NIDRR, an agency of the Department of Education, under grant #H133D60012, to provide information, materials, and technical assistance on the ADA. NIDRR is not an enforcement agency. Project staff are also available at 800-949-4232 from 9:00a.m.–5:00p.m. Central Time to answer your ADA questions. All questions are answered confidentially.

The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.

To unsubscribe to the HR E-bulletin, or to subscribe to the general or legal E-bulletin, to ask a question or give a comment, please send an E-mail to swdbtac@ilru.org.  All questions are answered confidentially.

You are welcome to reproduce all or part of the text on this web page electronically or in print, crediting as your source the Southwest ADA Center at ILRU. We would greatly appreciate receiving a copy of your use of our material. Please send to:

Tajauna Dunning, Communications Director
Southwest ADA Center
2323 S. Shepherd #1000
Houston, Texas 77019
713-520-0232 (v/tty)
713-520-5785 (fax)
tdunning@ilru.org

 

 

 

 

 

 

 

 

 

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