1. AMERICANS WITH DISABILITIES
ACT AND ABSENCE AS AN
ACCOMMODATION
Christina Jepson, Department Chair
Parsons Behle & Latimer
cjepson@parsonsbehle.com
Lorman Education Seminar, Salt Lake City
parsonsbehle.com

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Overview
Americans with Disabilities Act (ADA)
 Overview of ADA
 Navigating leave as an accommodation
 Best practices

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Overview of ADA
ADA requires an employer to
 Provide reasonable accommodations
 To qualified individuals (employees or
applicants)
 Who have a disability
 Unless it would cause the employer an undue
hardship

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What is a Disability under
the ADA?
Disability:
A. A physical or mental impairment that
substantially limits one or more major life
activities;
B. A record of such impairment or being regarded
as having such an impairment.
C. Substantially broadened with 2007
amendments

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What Does Qualified Individual
With a Disability Mean?
A qualified individual:
“An individual with a disability who, with or without
reasonable accommodation, can perform the
essential functions of the employment position that
such individual holds or desires.”

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Essential Functions
Only qualified individual(s) can claim an
ADA accommodation
 Qualified means can perform essential functions
(with or without reasonable accommodation)
 Perform essential functions generally requires
being on the job
 We will discuss absence or leave as an
accommodation

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Accommodations
Accommodations include:
“Modifications or adjustments to the work
environment, or to the manner or
circumstances under which the position held or
desired is customarily performed, that enable a
qualified individual with a disability to perform
the essential functions of that position.”
EEOC Guidance

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Accommodations
General types of accommodations (EEOC):
 Making existing facilities accessible
 Job restructuring
 Part-time or modified work schedules
 Acquiring or modifying equipment
 Changing tests, training materials, or policies
 Providing qualified readers or interpreters
 Reassignment to a vacant position
EEOC Guidance

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Qualified Without
Reasonable Accommodation
Essential Job Elements
(Requirements)
Employee
Capabilities

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Not Qualified Without
Reasonable Accommodation
Essential Job Elements
(Requirements)
Employee
Capabilities
Impairment

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Qualified With
Reasonable Accommodation
Essential Job Elements
(Requirements)
Employee
Capabilities
Employer’s
Accommodation

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Accommodations
Holly v. Clairson Industries, 492 F.3d 1247
(11th Cir. 2007):
 The very purpose of the reasonable
accommodation provision is to require
employers to treat disabled individuals differently
in some circumstances when different treatment
allows a disabled individual to perform the
essential functions of his position by
accommodating his disability

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Accommodations
 The term “discriminate” includes not making
reasonable accommodations to the known
physical or mental limitations of an otherwise
qualified individual with a disability unless (the
employer) can demonstrate that the
accommodation would impose an undue
hardship on the operation of the business
 This means: “Known limitations” are very
important.

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Requests for Accommodation
 Employee:
– Need not give written notice
– Need not follow company procedure
– Need not report claimed limitation to HR
– Need not use legal terms
 Request for time off may be how
employee makes known some limitations

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Requests for Accommodation
 “I’m having trouble getting to work at my
scheduled starting time because of medical
treatments I’m undergoing.”
 “I need six week off to get treatment for a back
problem.”
 Employee’s spouse phones the supervisor to
inform her that employee had a medical
emergency, is in hospital, and needs time off
EEOC Guidance

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Requests for Accommodation
Employer should initial the interactive process
without being asked if the employer:
1. Knows employee has disability
2. Knows or has reason to know employee is experiencing
work problems because of disability
3. Know or has reason to know that disability prevents
employee from requesting
If individual say she does not need accommodation,
employer has fulfilled obligation
EEOC Guidance

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What if You Receive a “Request”
Engage in the “interactive process”
 Employer and individual should engage in an informal
process to clarify what individual needs and appropriate
accommodations
 Employer may ask relevant question to help it make
informed decision
 May ask what type of accommodation is needed
 Failure by employer to initiate or participate in an
informal dialogue after receiving request may result in
liability
EEOC Guidance

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What if You Receive a “Request”
Documentation
 When the disability and/or need for accommodation is not obvious,
employer may ask individual for reasonable documentation about
the disability and functional limitations
 Employer is entitled to know the individual has a disability for which
she needs an accommodation
 Only what you need – not complete medical records
 May require documentation from health care professional
 May only require employee to see professional of employer’s
choosing if documentation is insufficient
EEOC Guidance

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Absence or Leave
We are going to focus on absences and/or
leave as a reasonable accommodation
 This is a hot area of law
 The EEOC is pushing for broader
accommodations
 Employers are pushing back

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Leave
An employee may need leave for:
 Medical treatment (surgery, psychotherapy,
substance abuse treatment, rehabilitation
services, or physical or occupation therapy)
 Recuperating from illness or episodic symptoms
of disability
 Receiving training
EEOC Guidance

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Accrued Leave
One type of reasonable accommodation is
permitting the use of accrued paid leave or
unpaid leave when necessitated by a disability
 Do not have to provide paid leave beyond that
which is provided to similarly situated employees
 Employers should allow employee to exhaust
accrued paid leave first and then provide unpaid
leave
EEOC Guidance

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Accrued Leave
Example: Employee has 10 days of accrued
paid time off but needs 15 days of leave for
medical treatment. The employer should allow
the employee 10 days of paid leave and 5 days
of unpaid leave.
EEOC Guidance

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No Fault Leave Policies
EEOC says employer may not apply “no
fault” leave policy to a disabled employee
who needs additional unpaid leave
 A no fault leave policy provides that an
employee is automatically terminated after leave
for a certain period of time
 Modifying workplace policies is a form of
reasonable accommodation
EEOC Guidance

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No Fault Leave Policies
Tenth Circuit (our jurisdiction) disagrees.
Hwang v. Kansas State University, (10th Cir.
May 29, 2014)
 EEOC has sued many employers alleging
inflexible leave policies unlawful because
disabled individuals may need more leave
 In this case, Hwang was a professor who had
cancer and had been granted six months of
medical leave pursuant to employer’s leave
policy which was capped at six months

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No Fault Leave Policies
Hwang v. Kansas State University, (10th Cir. May
29, 2014)
 As her leave came to and end, he doctor advised her to seek
more time off work
 She requested more leave and was denied. The University
arranged for her to receive LTD.
 She sued and relied on the EEOC Guidance
 The Tenth Circuit disagreed with the plaintiff and said it was
not even a close question
 “Perhaps it goes without saying that an employee who isn’t
capable of working for six months isn’t an employee capable
of performing a job’s essential functions”

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No Fault Leave Policies
Hwang v. Kansas State University, (10th Cir. May
29, 2014)
 The Tenth Circuit said an inflexible policy can serve to
protect the rights of the disabled by ensuring leave
requests are singled out as can happen in a system with
fewer rules

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Return Date After Leave
Sometimes an employer is required to provide
leave with no fixed date of return. Return dates
are usually approximate and sometimes set
backs change date. However, if employer can
show that lack of fixed return date is an undue
hardship it can deny the leave. Employer can
require periodic updates regarding return date.
EEOC Guidance

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Return After Leave
An employer has to hold open a disable
employee’s job as a reasonable
accommodation
 If the employee is granted leave as a reasonable
accommodation, he is entitled to the same
position unless employer shows undue hardship
 If undue hardship, must consider a vacant,
equivalent position
EEOC Guidance

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Use of Leave
An employer cannot penalize an employee for work
missed during leave taken as a reasonable
accommodation
 It would be retaliation and
 It would make the employer liable for failure to accommodate
 Example: Salesperson takes 5 months of leave as a
reasonable accommodation. Any employee 25% below
median sales is let go. The employer terminates the disabled
employee without accounting for the leave. Violates ADA.
EEOC Guidance

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Use of Leave
Overlap with ADA – Mark will discuss
 Determine rights under each statute separately
 Under ADA, employee may be entitled to more
leave than FMLA leave
 No duty to meet FMLA 1 year requirement or
hours requirement
 Must continue health insurance benefits if it does
so for other employees in similar leave status

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Part-Time or Modified Schedule
Employer must allow a disabled employee to work
a modified or part-time schedule if necessary as a
reasonable accommodation and no undue
hardship. Examples:
 Altering arrival or departure times
 Periodic breaks
 Altering when functions are performed
 Part-time schedule
 Irregular schedule
EEOC Guidance

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Part-Time or Modified Schedule
Employer need not modify the work hours of an
employee with a disability if doing so would
prevent other employee from performing their jobs
Example: Crane operator (who operates with
three other people) wants adjusted hours. The
employer could only do this by requiring others to
change their hours or do nothing. Undue hardship.
EEOC Guidance

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Part-Time or Modified Schedule
Samper v. Providence St. Vincent Med. Ctr., 675
F.3d 1233 (9th Cir. 2012)
 A neonatal nurse had a health condition that required
unplanned absences and she requested an exception to
the attendance policy – essentially an open-ended
schedule
 The Court found that given her job attendance was an
essential function because it was difficult to provide
replacements on short notice

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Work at Home
Employer must allow work at home as a
reasonable accommodation if it is effective
and not an undue hardship
 Whether essential function can be performed at
home – Cashier? Telemarketer? Proofreader?
 Adequate supervision
 Equipment and tools
EEOC Guidance

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Work at Home
EEOC v. Ford Motor Company, No. 12-2484 (6th
Cir. Apr. 22, 2014)
 Jane suffered from severe irritable bowel syndrome and
would soil herself by simply standing up
 She asked to work as resale steel buyer from home up
to four days a week
 Ford denied the request saying the position necessitated
face-to-face interactions and that email and
teleconferencing was insufficient for team problem
solving

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Work at Home
EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr.
22, 2014)
 Ford terminated Jane for failing to meet job objective and she filed a
charge. The EEOC filed suit against Ford.
 EEOC argued that Ford could have accommodated her by
eliminating the requirement that she be physically present and allow
telecommuting
 Court stated that: “When we first developed the principle that
attendance is an essential requirement of most jobs, technology was
such that the workplace and employer’s brick-and-mortar locations
were synonymous.”
 “Instead, the law must respond to the advance of technology in the
employment context, as it has in other areas of modern life, and
recognize that the ‘workplace’ is anywhere than an employee
can perform her job duties.”

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Work at Home
EEOC v. Ford Motor Company, No. 12-2484 (6th Cir. Apr.
22, 2014)
 The Court disagreed with Ford that physical attendance was critical
to the group dynamic of the team
 Jane did need to conduct occasional site visits with steel suppliers
but could do so even if she primarily worked at home
 The Court said that Ford should have done a better job engaging in
the interactive process – it offered to either move her cubicle closer
to the bathroom or move her to position more suitable for
telecommuting. The Court said that was inadequate.
 The Court did acknowledge that predictable attendance is an
essential function for many jobs, but that telecommuting was no
longer “extraordinary” or “unusual”

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Best Practices
1. Review and Update Your Job Descriptions. Job descriptions
are key in ADA cases. You use them when you are figuring
out what are the essential functions of the job and can they
be accommodated. You use them in charges and lawsuits
when you are defending your decisions. You are in a bad
position if you say being at work is an essential job function
and it is not in your job description.
2. Implement a Policy. It is good to have an ADA policy and a
specific policy for the interactive process. Describe the
interactive process. Let employees know that if they request
an accommodation, you will work with them to try to provide
an accommodation.

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Best Practices
3. Train Your Manager and Supervisors on Your Policy.
Remember that a “request” can be very informal. It is often
made to a supervisor not HR. Your supervisors need to
recognize when they have a potential disability or request for
accommodation so they can pass it on to HR or Legal. Train
your supervisors not to ask questions about the medical
condition or disability.
4. If You Get a Request Take It Seriously. Meet with the
employee to discuss his limitations and what can be done to
accommodate. Ask the employee for ideas about what you
can do. You can also suggest solutions. Document this
meeting!

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Best Practices
5. Continue the Dialogue as Needed. The meeting is not the
end of the interactive “process.” It is an ongoing process.
Even if you implement an accommodation, you should check
in with the employee periodically. Document your efforts!
6. Get More Information if Needed. During the process you
may decide that you need information from the employee’s
health care provider. If so, make sure you ask only the
necessary questions and get a release from the employee.
7. If you have a really tricky situation, talk to legal counsel.