Court Rules That Telecommuting May Be a Reasonable Accommodation Under the ADA

The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA").  This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues.

Irritable Bowel Syndrome Makes It Hard To Be At Work--Can Telecommuting Be The Answer?

Jane Harris had worked at Ford since 2003 as a resale buyer, acting as an intermediary to ensure there was no gap in steel supply to parts manufacturers. Although the job duties included such tasks as updating spreadsheets and making site visits, the main function of the job was group problem-solving, which required communication and collaboration with the resale team and others in the supply chain. Harris’ managers determined that such interactions were best handled face-to-face.

Harris suffered from irritable bowel syndrome, which caused fecal incontinence, and began taking intermittent FMLA leave when her symptoms flared up. Her job performance suffered after she began to take leave. Harris was unable to establish consistent working hours, and frequently made mistakes because she could not access suppliers while working nights and weekends. Her co-workers and manager were forced to pick up some of the slack. Eventually, in February 2009, she formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Although Ford had a policy permitting telecommuting up to four days a week, the policy also stated that such an arrangement was not appropriate for all positions or managers. However, some of Harris’ counterparts telecommuted one day a week.

Ford denied Harris’ request, and offered alternative accommodations including a cubicle closer to the restroom and the option of looking for a different, more telecommuting-friendly job within the company. Harris filed a discrimination charge with the EEOC and shortly thereafter was given a poor performance review and placed on a Performance Enhancement Plan. After failing to meet the goals set forth in the plan, Harris was terminated.

 

Harris filed a lawsuit, alleging that Ford violated the ADA by failing to accommodate her disability. The lower court granted summary judgment in Ford’s favor, and Harris appealed. The Sixth Circuit reversed the ruling, and found that Harris’ case should proceed to trial.

 

Sixth Circuit Answers:  Yes!

 

The Court began by noting that the ADA requires employers to make reasonable accommodations for an “otherwise qualified” employee with a disability. The Court found that Harris could be “otherwise qualified” for two reasons. First, Harris would be qualified if Ford removed the requirement that she be physically present at work. Although Ford argued that her consistent presence at its work site was an “essential function” of the job (a position that has been upheld in other cases, including a Ninth Circuit case we blogged about two years ago), the Court found there was insufficient evidence on this point. In doing so, the Court noted that given technological advances, regular attendance did not necessarily mean being present at the employer’s “brick-and-mortar location.” The Court accepted Harris’ contention that most of her communications took place over conference call, even when she was physically present at Ford, and also noted the telecommuting policy that permitted Harris’ counterparts to work remotely (albeit less frequently than what Harris was requesting).

 

The Court also found that Harris would be qualified if Ford granted her the reasonable accommodation of a telecommuting arrangement. The Court rejected Ford’s argument that such an arrangement would prevent Harris from interacting with others during business hours, noting that she could still maintain a predictable, mutually agreeable schedule on a remote basis. The Court again cited technological advances, stating that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” 

 

What Employers Need To Watch Out For

 

So what does the decision mean for employers? Undoubtedly, it provides some leverage for would-be plaintiffs seeking telecommuting arrangements as a reasonable accommodation in the workplace. The EEOC’s pursuit of the lawsuit also suggests that it will continue to closely scrutinize employer denials of telecommuting requests. 

 

But the Court did not find, however, that employers were always required to acquiesce to telecommuting demands.  Instead, the decision is a good reminder that employers should tread carefully when considering accommodation requests, and above all perform the "individualized assessment" of each employee in each case that is required under the ADA's interactive process.  That process should include a fundamental (re)examination of job requirements to see whether they really are "essential," and should not dismiss accommodation requests involving telecommuting or similar alternative arrangements out of hand.  Instead, employers must consider the impact that technology might have on an employee’s ability to perform the essential functions of his or her position remotely.  If, after engaging in that detailed review, you think a particular employee accommodation request is unreasonable, the reasons for denying the request should be well-articulated and meaningful alternatives should be offered. 

Employers should also conduct a periodic check of their telecommuting policies. This means not only ensuring that boundaries for use and approval are clearly articulated in the policy itself, but also ensuring that all employees are actually working within the confines of the policy. Courts in these types of cases will undoubtedly want to know whether other employees are allowed to telecommute, and whether anyone has (whether formally or informally) been allowed to deviate or go beyond what is explicitly stated in the policy. Employers are more likely to lose these cases if they deny an employee’s request to telecommute while simultaneously allowing others to do it (perhaps in excess of what the written policy provides).

FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”) 

This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise.  (Shameless self-promotional plug:  these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar.  For details on other Stoel Rives seminars and breakfast briefings, click here.)

Situation No. 1.  Intermittent leave -  taken by employee in separate intervals for particular qualifying long-term or recurrent health issue

How to handle?

  • Always require the certification of the health care provider (“CHCP”) for FMLA/OFLA intermittent leave; where the need for leave is not obvious, also require medical info for ADA accommodation leave
  • The CHCP can be an employer’s most effective tool for ensuring proper compliance with OFLA and FMLA. The employer needs to carefully scrutinize the CHCP and monitor it for:
    • Timely return (employee has 15 days to return)
    • Completeness/need for follow-up or clarification (employer must notify employee in writing of deficiency, and employee has seven days to cure after notice of deficiency)
    • The need to obtain 2nd or 3rd opinion if the employer disagrees with the HCP's determination
    • Duration/expiration and the right to obtain an updated certification (employer has right to require new certification upon expiration of the existing CHCP or upon change of circumstances)
  • The employer should ensure the employee’s absence pattern is consistent with CHCP or ADA medical certification
  • Consider temporary transfer of employee to a position that is more suited to the employee’s intermittent leaves (requires the employee’s agreement under Oregon law)

Situation No. 2.  Retroactive leave designation – occurs when past absence(s) should have been designated as protected OFLA/FMLA leave, but was not

  •  Why designate retroactively?
    • Benefit to employer: reduces available leave bank and prevents “hoarding”
    • Benefit to employee: absences are protected
  •  How to accomplish?
    • Going forward, make sure managers are trained to recognize potential OFLA/FMLA-covered absences/tardies
    • Retroactive designation allowed upon agreement by employee (29 CFR §825.301(d))
    • Give employee notice of eligibility, rights, responsibilities; obtain CHCP
    • After employee returns CHCP, go through dates of employee’s absences and determine which are serious health conditions (“SHCs”) (see SHCs described in 29 CFR §§825.113, 114 and 115) based on what employee reported to you as reason for absence compared to CHCP info

Situation No. 3.  Job preservation obligations – employee is off work for extended time and employer wants to fill position

 

How to handle?

  •  Under OFLA – employee’s job protected through duration of OFLA leave; upon return, employee must be restored to same position if it exists or to available equivalent position if it does not
  • Under FMLA – employee’s job protected through duration of leave; employee must be restored to same or equivalent position (with exception for “key employee” only if leave not also covered by OFLA; not likely to apply in vast majority of situations in Oregon)
  • Under ADA – must hold employee’s job, unless doing so presents “undue hardship”; even with undue hardship, must still consider employee for equivalent position, then lesser position
    • In Ninth Circuit, even “indefinite leave” may still be reasonable accommodation, despite EEOC’s position to contrary and new employer-friendly Ninth Circuit case law
  • Therefore, if OFLA/FMLA leave is exhausted and employee is still not ready to return to work, before replacing employee the employer should conduct a basic ADA analysis to determine whether ADA applies, and whether extended leave is a reasonable accommodation or whether it presents employer with undue hardship

Situation No. 4. Employee’s medical condition is “debatable” – occurs when employer questions whether a condition is either a SHC or a disability under ADA

How to handle?

  • For FMLA/OFLA, must do SHC analysis (see SHC described in 29 CFR §§825.113, 114 and 115); if no SHC is present, then no FMLA/OFLA leave is required 
  • If employee’s health care provider appears to “rubber stamp” employee’s purported condition, require second opinion (at employer’s expense)

Situation No. 5. Employee has worked only short time – employee is not eligible for OFLA/FMLA because too new, but has reported medical condition and requests leave

 

 How to handle?

  • Simple (and critical) – do basic ADA analysis to determine whether employee is entitled to leave as an accommodation under the ADA

Situation No. 6.  Untimely notice by employee – employee does not notify of need for leave within statutory time periods

 

 How to handle?

  • If OFLA only applies, and employee did not give 30 days’ or as much advance notice as possible of foreseeable leave, or notice within three days of returning to work of unforeseeable leave, employer can reduce employee’s leave by the number of days (up to three weeks) employee failed to provide timely notice (OAR 839-009-0250(4)(a))
  • If FMLA only applies, employer may delay or deny leave due to improper notice (29 CFR §825.304)
  • If both OFLA and FMLA apply, employer may discipline employee under uniformly applied policies, but cannot delay or deny the leave
  • There is no statutory time period involved for requesting leave as an ADA accommodation, although an employer may deny leave to employee who has not provided requested adequate medical supporting documentation when the need for leave is not obvious

Although the six situations outlined above require a “beyond the basics” individual approach and analysis, in each of them the employer should: 1) Always maintain open and timely communication with the employee; and 2) Follow a process that considers both the requirements of the family and medical leave laws and the ADA, when applicable.

Allergy to Perfume Not a Disability, Says Ohio Federal Court

 Employers got some relief from a situation that is becoming more and more common: an employee that claims a scent allergy and wants a work accommodation. In Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio Oct. 17, 2012), plaintiff claimed she was allergic to a particular scent that substantially limited her breathing and requested, as an accommodation, that her employer institute a policy requesting that all employees refrain from wearing scented products of any kind. The U.S. Court for the Southern District of Ohio threw the case out, concluding that (1) plaintiff was not disabled, as that term was used under the pre-2009 amendments to the Americans with Disabilities Act; and (2) even if the broader post-2009 definition of “disability” were used, plaintiff’s requested accommodation was not reasonable. 

Plaintiff worked for the Champaign County Department of Jobs and Family Services as a social service worker. Her job required her to conduct onsite inspections of childcare facilities, interact with the public and clients both onsite and offsite, and perform in-house client interviews, among other things. She claimed a disability because one particular scent she encountered occasionally in the workplace—Japanese Cherry Blossom—triggered asthma attacks, which substantially limited the major life activity of breathing. (She claimed reactions to other scents, too, but those reactions only included headaches and nausea, which the court found had no impact on plaintiff’s breathing or on any other major life activity.)

Allergy to Specific Perfume Not a Disability

The court, applying the pre-amendment definition of “disability,” concluded that plaintiff’s reaction to Japanese Cherry Blossom did not substantially limit her breathing because, among other things, she encountered it so rarely, and plaintiff admitted she was still able to perform the essential functions of her job even when exposed. The court acknowledged that, after January 1, 2009, the relevant inquiry is whether the asthma substantially limits plaintiff’s breathing when she is having an attack, rather than examining whether her breathing is substantially limited generally. But the court did not reach the issue of whether the amended standard would entitle plaintiff to relief because it concluded her requested accommodation was unreasonable.

Fragrance-Free Workplace Request an Unreasonable Accommodation

The court noted that, in the Sixth Circuit (encompassing Ohio, Michigan, Kentucky, and Tennessee), an accommodation requiring a fragrance-free workplace is objectively unreasonable. The court emphasized that it would be unreasonable to require employees to “alter all of their personal habits to ensure that all products of daily living, i.e., deodorant, lotions, hair products, etc., used in their private homes before coming into the workplace, are fragrant-free.” Moreover, plaintiff’s request that all fragrances be banned was not reasonable because she only alleged having breathing difficulty in response to one fragrance. Notably, her employer had offered her a wide array of accommodations—including allowing plaintiff to use an inhaler and take breaks, and circulating an email to all employees requesting that they refrain from wearing Japanese Cherry Blossom—all of which plaintiff inexplicably rejected.

What Does This Mean for You? 

Employers should be cautious in relying on this decision. Because of the timing of the plaintiff’s claims, the court applied the pre-amendment definition of “disability.” An employee after January 1, 2009, who can demonstrate a substantial breathing impairment when encountering a particular scent can probably establish that he or she is disabled under the ADA Amendments Act. But that does not mean that employers are going to have to declare their businesses fragrance-free. The Sixth Circuit, at least, has declared such accommodations facially unreasonable; there does not yet appear to be any law in the Ninth Circuit on this issue. 

So what should you do? When an employee complains about scents in the workplace, it is incumbent on the employer to gather as much information as possible. What scents trigger an episode? (This will help determine whether the employee has broad allergies/sensitivities that may require a broader response or has narrower allergies/sensitivities like the plaintiff in Core.) What happens when the employee encounters those scents? (If the reaction is headache and nausea, this may not qualify as a disability or may require very minor accommodations; if the reaction is anaphylactic shock, you can bet on probably having to find some accommodation(!).) If necessary, request that the employee provide medical verification of the allergy/sensitivity and its severity. Importantly, like the employer did in Core, talk to the employee about what might ameliorate the problem. The plaintiff in Core made the mistake of rejecting every accommodation offered—accommodations the court later concluded were all reasonable. Will a fan suffice? Can the employee be moved to a different work station? Will the job requirements permit the employee to work remotely part of the time? Are additional breaks to get fresh air adequate? The bottom line: Ask questions and get as much detail as possible.

As always, each case will depend on the particular circumstances. Note that the employer here was prepared to request (though not require) employees to not wear the particular scent to which plaintiff alleged an allergy. The court specifically declared that offer reasonable—though it did not say that kind of accommodation would have been required. Different facts—for example, an employee with broader scent allergies than the one particular scent at issue here—could well lead to a court concluding broader scent prohibitions are reasonable and necessary. All we can do is hold our breath and wait.

 

Washington Appeals Court Holds No Religious Accommodation Required Under WLAD

In Short v. Battle Ground School District, Division II of the Washington Court of Appeals held last week that Washington’s Law Against Discrimination, which makes it unlawful for employers to discharge employees because of creed, does not require employers to accommodate employees’ religious beliefs.

Julie Short, a devout Christian, was employed as an assistant to the superintendent of the Battle Ground School District. Ms. Short alleged that the superintendent demanded that she to lie to a colleague about the existence of a meeting, even after she informed the superintendent that lying was contrary to her religious beliefs. After quitting her job, Ms. Short filed a lawsuit. One of the claims she brought was for failure to accommodate her religious beliefs. The trial court dismissed Ms. Short’s claim on summary judgment.

The Court of Appeals affirmed. It acknowledged that such a claim exists under federal law, as Title VII expressly imposes an affirmative duty on employers to accommodate their employees’ religious beliefs and practices. Washington’s Law Against Discrimination, however, pre-dates Title VII and does not contain similar language. The Court of Appeals declined to read a duty to accommodate religious beliefs into the statute without any indication from the legislature or the Washington Human Rights Commission that such a duty was intended.

While the Short case is a victory for employers, the question of whether Washington’s Law Against Discrimination requires employers to accommodate their employees’ religious beliefs will not be resolved definitively unless and until the Washington Supreme Court takes up the issue. It declined to do so in Hiatt v. Walker Chevrolet Co., a case decided almost 20 years ago, and has not readdressed the issue since. In Hiatt, the Court recognized that Washington’s Law Against Discrimination did not expressly provide for a failure-to-accommodate claim but noted that it might implicitly require such accommodation. The Court declined to address the issue without more briefing, stating that it was an “important and complex question” that could have “constitutional implications.”

It is also well-settled that Title VII requires employers with 15 or more employees to reasonably accommodate their employees’ religious beliefs and practices, unless to do so would create an undue hardship upon the employer.

 

9th Circuit: Attendance Is Essential Job Function For NICU Nurse Under ADA

This week the federal Ninth Circuit Court of Appeals provided some help to employers seeking to balance the need to accommodate disabled employees with the need to enforce regular attendance policies.  In Samper v. Providence St Vincent Medical Ctr, the Ninth Circuit held that the Americans with Disabilities Act (“ADA”) did not require an Oregon hospital to exempt a neo-natal intensive care unit (“NICU”) nurse, whose fibromyalgia caused frequent absences, from its attendance policy.  The case helps illustrate both when employers should be flexible in accommodating disabilities that could affect attendance, and also when they may be entitled to require stricter adherence to attendance policies.

The Facts Of Samper
The defendant in Samper, St. Vincent Hospital in Portland, Oregon, had little trouble demonstrating that strict adherence to its attendance policy was essential for NICU nurses, who care for a very vulnerable patients, need to be in the NICU to do their jobs, and must be able to respond quickly in emergency situations.  The NICU nurse job description specifically identified attendance as an essential job requirement.  Further, NICU nurses have specialized training making it more difficult to find replacements during absences.  And despite the need for good attendance, the hospital policy nevertheless “generous[ly]” allowed nurses up to five unexcused absences per year. 

The plaintiff, Ms. Samper, worked as a part-time NICU nurse since about 2000.  From early on, she was disciplined or received multiple poor performance reviews in part because of unexcused absences in excess of the policy's 5-day per year limit.  In 2005, she began suffering from fibromyalgia, which caused more absences.  St. Vincent initially was able to accommodate her disability; first, it allowed her to call in on bad days and move her shift to another day.  Later, it adjusted her schedule so she would not work on consecutive days.  The hospital also provided Samper numerous extended leaves of absence, including for personal reasons unrelated to her disability.  Ultimately, however, in 2008 St. Vincent terminated Ms. Samper’s employment for, among other reasons, her continued unexcused absences in excess of the policy.  Ms. Samper sued, claiming in part that the hospital failed to reasonably accommodate her disability by not exempting her altogether from the 5-day limit under the attendance policy.

The Ninth Circuit found that her Ms. Samper’s request to be exempted from the attendance policy was not a reasonable accommodation as a matter of law.  In reaching its conclusion, the Court first noted that the hospital’s written job description stated in several places that attendance and punctuality were essential functions.  The Court also surveyed a number of other cases where courts found attendance to be an essential function, such as where employees must work in a team with other employees, where they regularly must interact with customers or clients (such as teachers and airline ticket agents), or are required to be on-site to work with special equipment (such as in a manufacturing environment).  Ultimately, the Court found that attendance for NICU nurses was even more essential than in any of those other situations, considering the importance of their “specialized, life-saving work” and the difficulty of finding replacements due to the specialized training NICU nurses receive.

When Is Attendance An Essential Function Under the ADA?
The reasoning in Samper probably provides a mixed bag for other employers trying to balance attendance and accommodation needs.  On the one hand, the case provides a ringing endorsement for the general principle that attendance can be an essential function of most jobs, absent evidence it is not, in fact, necessary.  Indeed, the Court stated as a general “rule” and matter of “common sense” that:  “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”  (emphasis added)

On the other hand, the detailed discussion of the facts and overall subtext of the case suggest that the court’s holding may not be as broad as employers might hope.  For example, the fact that NICU nurses provide care to vulnerable infants fighting for their lives probably helped tip things in the hospital’s favor; few other jobs will be able to demonstrate such urgency.  In addition, for positions that don’t require as much specialized training as NICU nurses, attendance may be less essential if the employer can more easily find qualified replacements on short notice when a disabled employee is absent.

Perhaps most importantly, the hospital demonstrated flexibility in applying its attendance policy and had a demonstrated track record in accommodating Ms. Samper in the past.  It did not enforce its attendance policy too strictly; instead, it allowed up to five unexcused absences per year.  In addition, the hospital made “Herculean” attempts to accommodate Ms. Samper over a nearly eight-year period, including allowing absences in excess of the policy, providing numerous leaves of absence, and adjusting her schedule several times.  The Court only found that her final request—to be exempted from the attendance policies altogether—was unreasonable.  While those efforts are technically distinct from whether attendance is an essential function of a job, the Court obviously believed the hospital had already bent over backwards repeatedly to try to accommodate Ms. Samper.  Had the hospital terminated her employment for a first time attendance violation or without the accommodation history, the case could have come out differently.  In that sense, Samper could serve as a reminder that employers often cannot do enough to engage in the interactive process and attempt accommodation where reasonable.


 

The EEOC Reiterates the Importance of the Interactive Process

A recent decision from the federal Equal Employment Opportunity Commission (EEOC) reminds employers of their affirmative duty to engage in an interactive process once an employee raises a medical condition and requests some change to their work environment to accommodate it. The Americans with Disabilities Act (ADA), and the Rehabilitation Act at issue in Harden v. Social Security Administration, protect an employee from discrimination based on a disability, where the employee can otherwise perform his or her job with a reasonable accommodation. Tips for the interactive process are provided below, and next week we will go through a “hypothetical.”

In Harden, a claims assistant who was frequently late notified the SSA about her depression and general anxiety which were causing her problems sleeping and functioning early in the morning. She requested approval to arrive between 9:00 and 9:30 a.m., rather than between 7:00 and 9:00 a.m. like other employees, or else to use leave rather than leave without pay or discipline. The claims assistant supplied the SSA some medical documentation, but the SSA found that the documentation did not show that her medical condition kept her from getting to work before 9:00 a.m. The SSA denied the employee’s request for a modified schedule, and disciplined her when she was again tardy.

Based on information about the employee’s medical condition that came out during the EEOC complaint process, the EEOC found that the SSA engaged in discrimination. The claims assistant had a disability that could have been reasonably accommodated with a modified schedule. The EEOC disagreed with the SSA’s argument that medical documentation provided during the complaint process was irrelevant to the SSA’s decision to deny the modified schedule and discipline the employee.

What does Harden teach us? Disability discrimination laws place affirmative duties on employers to engage in a meaningful process after an employee raises a medical condition. Do not cut short the interactive process because the facts will come out eventually. This 4-step process provides a helpful framework for an ADA request.

 

1.        Get the facts: What is the medical condition? Get documentation from the employee’s doctor if necessary (with an appropriate release), including any limitations and potential accommodations. Allow the employee or doctor to provide additional information if you are not satisfied. What is this employee’s job? Identify the essential functions of her position. Is the employee performing the job, except for reasons related to her disability?

 

2.         Decide whether the employee is eligible for an accommodation: Based on the facts, is the employee qualified for the job? Can he or she perform the essential functions of the job, with or without an accommodation? Determine whether the individual has a physical or mental impairment that substantially limits a major life activity. Is the employee regarded as having such impairment?

 

3.         Have an interactive dialogue with the employee about an accommodation: Ask the employee what he or she wants. Quite frequently, this simple communication can result in a practical, cost-effective solution that works for everyone involved. Can the employee do the essential functions of the job with the employee’s proposed accommodation? Identify other accommodations that may work, and consider the effectiveness of each proposed accommodation. Discuss the cost and burden of each effective accommodation and assess whether it would be an “undue hardship.”

 

4.        Put the accommodation into action: Document the dialogue with employee. Choose and implement an accommodation. Document the expectations on all sides. Inform others of the accommodation, only to the limited extent they must know (such as a supervisor). Ensure confidentiality at all times, and maintain a separate confidential file for the employee’s medical documentation. Reassess the effectiveness of the accommodation after a time.

EEOC's Final Regulations on the ADAAA: News You Will Certainly Use

At long last the EEOC has issued its final regulations for the Americans With Disabilities Amendments Act.  In so doing, the EEOC has taken Congress’ words contained in the Act and declared (repeatedly) that the definition of “disability” is to be read very broadly and that employers should instead focus on whether discrimination has occurred or an accommodation is needed. As we've noted in our prior ADAAA coverage, we think that many more disability lawsuits will be filed and far fewer of them will be dismissed on summary judgment. As the EEOC sees it, “many more ADA claims will focus on the merits of the case.” 

What Hasn’t Changed

Most of the terms used in the original ADA haven’t changed. The Final Regulations do not alter the definitions of “qualified,” “reasonable accommodation,” “direct threat,” and “undue hardship.” And there are still three ways to come within the scope of the statute: “Actual” disability; “record of” disability; and “perceived as” disabled. The “perceived as” category has some substantial changes, as discussed below. 

What Has Changed

1.         Mitigating measures can no longer be taken into account when determining whether a person is disabled. (Except, individuals with with regular vision correction such as eyeglasses or contact lenses are still considered in their mitigated state for purposes of determining whether they have a disability.)  This means that if the employee’s condition is entirely treated (heart disease is kept under control by medication, for example), the employee’s “disability” is evaluated without consideration of the treatment. Of course, if a person’s condition is controlled entirely by medicine or an assistive device or some other measure, it may mean that no accommodation is needed.

2.         A “regarded as” claimant need no longer prove that he or she is perceived as a “disabled” person (i.e., a person with a physical or mental impairment that substantially limits a major life activity). Instead, a “regarded as” claimant need only show that the employer discriminated against him or her based on a belief that the employee (or applicant) had an impairment. However, if the employer can show that that the employee’s (or applicant’s) condition is actually just “transitory [i.e., lasting six months or less] and minor,” then the employee can’t be “regarded as” disabled. The six month time limit does not apply to evaluation of an actual disability or a record of a disability. And, in fact, the “rules of construction” contained in the Final Regulations specify that a disability may last less than six months. 

3.         The list of examples of “major life activities” is expanded and now includes “major bodily functions.” The rules make it clear that this is not a demanding standard. The major life activity need not be central to daily living, and it doesn’t have to severely or significantly limit the person’s ability. The final rule provides non-exhaustive lists of what constitutes a major life activity. Such activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and performing major bodily functions. Bodily functions include the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

4.         Given the new lists, some conditions will almost always be deemed to substantially limit a major life activity. The ones mentioned in the Final Regulations are: Deafness, blindness, intellectual disability (formerly known as mental retardation), partial or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Of these, perhaps the most troubling are autism and PTSD since both are ill-defined in the medical literature and exist on very broad spectrums of impairment. 

5.         The changed definition of “disability” applies to Title II of the ADA (State and local governments) and Title III (private places of public accommodation).

6.         The phrase “qualified individual with a disability” has disappeared and instead the Final Regulations refer to “individual with a disability” and “qualified individual” separately. Again, these changes are intended to focus the inquiry on whether discrimination has occurred, and away from whether the individual meets the definition of “disability.”

More Lawsuits to Follow

In our experience, the vast majority of employers do try to fully comply with the ADA. Unfortunately, the ADAAA and these new Final Regulations assume just the opposite; by removing practically any burden on the employee to show that he or she is disabled, Congress and the EEOC have clearly shifted the burden to employers.

 

For more ADAAA information, check out:

 

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Wow, it's Festivus already, which means that in just a few short days it will be a brand new year!  We have a Festivus present for Oregon employers to help you get ready:  Ten things you need to know for 2010!  (click on each blue hotlink for more information)

  1. All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
  2. The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
  3. As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate
  4. Leave for Military Spouses:  Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty. 
  5. In 2010, you might have a greater duty to accommodate employees' religious dress and practices
  6. Domestic Violence Leave and Accommodations:  Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must  make reasonable accommodations for such employees.
  7. In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
  8. Oregon's minimum wage will remain $8.40/hour.
  9. Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act
  10. Oregon has new rest and meal break regulations.

And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength.  Happy festivus, and see you in 2010!

Oregon Court Of Appeals Holds Non-Disabled Employees Are Protected When Requesting Accommodations

On Thursday, in Herbert v. Altimeter, the Oregon Court of Appeals held that an employee does not need to actually be disabled in order to be protected from retaliation for requesting an accommodation under Oregon’s disability anti-discrimination law.  The case serves as a useful reminder that anti-retaliation protections, like those in the Oregon disability law, can be very broadly applied and protect many types of employee requests or complaints. Employers should be careful when disciplining or terminating any employee who has recently made some kind of arguably protected request or complaint.

Sherrie Herbert was terminated from her truck-driving job with Altimeter shortly after she became ill, allegedly from exhaust fumes in the cab of her truck, and she reported those problems to her boss. She sued under various retaliation theories, including that she was terminated in retaliation for her having requested an accommodation for a disability (i.e., requesting to be reassigned to a different truck). The trial court granted a directed verdict for Altimeter at the close of Herbert’s case at trial and dismissed all claims.

The Court of Appeals reversed.  Altimeter argued that it couldn’t have retaliated against plaintiff for requesting an accommodation as a matter of law, because she was not disabled and therefore not protected under the Oregon disability law's anti-retaliation provisions.  The court rejected that argument, noting that while the law requires Oregon employers to provide a reasonable accommodation to a “person with a disability,” the anti-retaliation provision, ORS 659A.109, protects any “worker” who requests an accommodation.  So, the court reasoned, by its plain terms the statute protects a broader class of employees (all of them) who make protected requests for accommodations, even though those employees may not be entitled to an actual accommodation. 

The opinion also contained an illustrative reminder about the importance of well-drafted written responses filed with the Equal Employment Opportunity Commission (“EEOC”), the Oregon Bureau of Labor and Industries (“BOLI”), and similar agencies. Those written position statements are admissible later; if they’re not carefully drafted they could come back to bite the complainant. In Herbert, Altimeter’s BOLI position statement included several damaging admissions, the worst of which essentially stated that she was terminated because she insisted she be reassigned to another truck, i.e., requested an accommodation.  Despite a general lack of other evidence of retaliation presented by Herbert at trial, the Court held that Altimeter's admission in the BOLI statement alone was enough to allow that claim to go to a jury. 

Oops!  While there are no easy, hard-and-fast rules about how to draft effective BOLI or EEOC position statements, generally you want to say as little as possible while still making your case, and above all, you don't want to provide the only evidence a plaintiff will need to take his or her case all the way to a jury!!  Those kinds of careless statements early on can make litigating employment discrimination lawsuits very expensive for employers, because they become much harder to get dismissed before trial.


New Website for Disability Information

The Department of Labor's Office of Disability Employment Policy today launched a new website that may be of use to employers seeking information on how to accommodate a disabled worker.  At www.disability.gov an employer can research the applicable law and regulations, get ideas for appropriate reasonable accommodations, and locate additional resources.  For example, clicking here will take you to information about accommodating deaf and hearing impaired workers.   And here is useful information about tax incentives for complying with the ADA.  The new site offers a myriad of social networking capabilities including a Twitter feed, RSS feeds and a blog.   The site also includes a handy multi-state guide which employers could find very useful as they work to comply with all applicable federal and state disability laws.  

Failure to Accommodate Disabled Employee May Result in Constructive Discharge

According to a recent Americans with Disabilities Act case from the U.S. Sixth Circuit Court of Appeals, a failure to accommodate an employee's disability may result in a constructive discharge and expose the employer to the same kind of liability it would face had it terminated an employee because of a disability.

In Talley v. Family Dollar Stores of Ohio Inc., Talley, a former store cashier with severe arthritis, could not stand more than 15 minutes without extreme pain.  She requested a stool to sit on while working, but the employer refused the request because employees complained of "favoritism" and wanted stools of their own.  After the employer refused her request for an accommodation, Talley quit her job and sued for disability discrimination under the ADA, claiming that her employer's refusal to accommodate her forced her to quit.

The Sixth Circuit agreed that Talley proved a claim for constructive discharge--in other words, the employer made her working conditions so intolerable that a reasonable person would feel compelled to resign.  If Talley proves her case to a jury, her former employer can be liable for several years' of backpay damages, as well as attorney's fees and possibly even punitive damages.  

This case underscores employers' obligation to provide reasonable accommodations for disabled employees.  While most anti-discrimination laws do not allow "favoritism," the ADA is different:  an employer does have an obligation to provide disabled employees with accommodations (such as giving a disabled cashier a stool) that non-disabled employees do not receive.  Perceived favoritism is simply not a defense.  For technical assistance in complying with the ADA, check out the U.S. Department of Justice's ADA Page

Oregon Court of Appeals: Keep Accommodating Medical Marijuana (For Now....)

In Emerald v. Bureau of Labor, The Oregon Court of Appeals affirmed a Bureau of Labor and Industries determination that an employer must reasonably accommodate an employee's off-duty medical marijuana use.  However, the case was affirmed on a technicality - again leaving Oregon employers wondering if they really have to accommodate an employee's medical marijuana use. 

The Court of Appeals upheld the BOLI determination on the basis that the employer failed to raise its defenses before BOLI and could not do so for the first time on appeal.  Most notably, the employer did not raise at BOLI what was probably its best argument:  that it was not obligated to accommodate medical marijuana use because such use is unlawful under federal law. 

What does this mean for Oregon employers?  It means we still don't have a clear answer and probably won't any time soon.  The Stoel Rives World of Employment boldly predicts the Oregon Supreme Court will address this issue in the next two or three years, and when it does, it will hold that employers do not have to accommodate medical marijuana.  Until then, this will remain a thorny issue and a hotbed of litigation.  If you have a marijuana accommodation issue come up in your workplace, we strongly advise seeking counsel from an employment lawyer