Reasonable Accommodation or Regrettable Obligation Dont Let Your

Getting Started: The Interactive Process � When an employee requests reasonable accommodations, the employer must initiate an informal, interactive process with the employee. � Purpose of the process is to identify: ◦ The precise limitations resulting from the disability; and ◦ Potential reasonable accommodations that could overcome those limitations. � 29 C. F. R. § 1630. 2(o)(3)

What must an employer do to fulfill its interactive process obligations? � Both parties must: ◦ Participate in the process. ◦ Participate in good faith.

What must an employer do to fulfill its interactive process obligations? � For the employer, “good faith” means at least: ◦ Meeting (or corresponding) with the employee; ◦ Discussing any reasonable accommodations; and ◦ Suggesting other possible positions for the plaintiff. ◦ See Jakubowski v. Christ Hosp. , Inc. , 627 F. 3 d 195, 202 -03 (6 th Cir. 2010).

What must an employer do to fulfill its interactive process obligations? � But “good faith” does not require: ◦ Making a formal presentation to the employee. ◦ Moving with maximum speed to complete the process. ◦ Preempting potential concerns. ◦ Continuing in a futile interactive process where no reasonable accommodation is possible. See Silva v. City of Hidalgo, 575 Fed. Appx. 419, 424 (5 th Cir. 2014); Valdez v. Mc. Gill, 462 Fed. Appx. 814, 819 (10 th Cir. 2012); Loulseged v. Akzo Nobel Inc. , 178 F. 3 d 731, 732 (5 th Cir. 1999).

What must an employer do to fulfill its interactive process obligations? � Either party can be legally responsible for a breakdown in the interactive process. � The question is, has the employer done its part?

The Interactive Process Your turn: Has the employer done its part?

The Interactive Process Employee was an accountant for a medical center, and was terminated because the medical center determined he could no longer perform his essential functions. The medical center told the employee he should look on the internet for other positions with the medical center and apply for the ones in which he was interested, “but that he would be treated like any other applicant and may or may not get another job. ”

The Interactive Process Court: Employee was not responsible for the breakdown in the interactive process. Liner v. Hosp. Serv. Dist. No 1, 230 Fed. Appx. 361, 364 (5 th Cir. 2007).

The Interactive Process Employee alleged that car manufacturer failed to participate in the “interactive process” in good faith because it did not provide specific information regarding the different positions and job processes at the plant. Employee conducted the interactive process through proxies, rather than in person. Two company representatives visited the production line in an attempt to identify appropriate jobs for the employee, but concluded that his limited dexterity and inability to work on uneven surfaces precluded him from being able to perform them.

The Interactive Process Court: “These efforts undercut [the employee’s] claim that Honda participated in bad faith. ” Kleiber v. Honda of Am. Mfg. , 485 F. 3 d 862, 871 -72 (6 th Cir. 2007).

The Interactive Process Employee who suffered from Asperger’s Disorder was employed by hospital as a family practice medical resident. A hospital representative met with the employee to discuss his proposed accommodations, told him that the hospital lacked sufficient resources to comply, offered to help him find a pathology residency, and “never hindered the process along the way. ” Employee was terminated from his position and claimed the hospital failed to reasonably accommodate his disability. He also claimed the hospital did not act in good faith during the “interactive process. ”

The Interactive Process Court: The hospital did act in good faith during the interactive process. Jakubowski v. Christ Hosp. , Inc. , 627 F. 3 d 195, 203 (6 th Cir. 2010).

When is a requested accommodation unreasonable? An employer is not required to provide an accommodation that would create an “undue hardship. ”

When is a requested accommodation unreasonable? “Undue hardship” means incurring significant difficulty or expense in light of factors including: ◦ The nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding; ◦ The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;

When is a requested accommodation unreasonable? (Undue hardship factors, cont’d) ◦ The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees, and the number, type and location of its facilities; ◦ The type of operation or operations of the employer, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer; and

When is a requested accommodation unreasonable? (Undue hardship factors, cont’d) ◦ The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business. ◦ (In short, the financial, operational, and administrative impact of the proposed accommodation. ) ◦ 29 C. F. R. § 1630. 2(p)

The Interactive Process Your turn: Reasonable or unreasonable?

When is a requested accommodation unreasonable? TVA employee suffering from mental difficulties wanted to be placed in a virtually stress-free environment and immunized from any criticism in order to accommodate his disability.

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ See Pesterfield v. Tennessee Valley Authority, 941 F. 2 d 437, 442 (6 th Cir. 1991).

When is a requested accommodation unreasonable? Police officer wanted to work as a dispatcher while still being paid a police officer’s salary (almost twice that of a dispatcher).

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ See Conklin v. City of Englewood, 1996 WL 560370 (6 th Cir. Oct. 1, 1996).

When is a requested accommodation unreasonable? Employee wanted employer to provide an undetermined or indefinite leave of absence.

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ See Walsh v. UPS, 201 F. 3 d 718, 727 (6 th Cir. 2000); Conners v. Spectrasite Communs. , Inc. , 465 F. Supp. 2 d 834, 838 (S. D. Ohio 2006).

When is a requested accommodation unreasonable? Employee wanted employer to provide a “fragrance free environment. ”

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ See Montenez-Denman v. Slater, 2000 WL 263279 (6 th Cir. 2000).

When is a requested accommodation unreasonable? Creating a new position to accommodate a disabled employee, reassigning the employee if the employee is not qualified or if another employee’s rights would be displaced, and/or to resurrecting old positions.

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ See Kempter v. Mich. Bell Tel. Co. , 534 Fed. Appx. 487, 492 (6 th Cir. 2013).

When is a requested accommodation unreasonable? Removing an essential job function or shifting essential job functions to other employees.

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ EEOC v. Ford Motor Co. , 782 F. 3 d 753, 761 (6 th Cir. 2015); Turner v. City of Paris, 2012 WL 6706164, *3 (E. D. Ky. 2012).

When is a requested accommodation unreasonable? Giving an employee the unfettered right to leave work and come and go as she pleased.

When is a requested accommodation unreasonable? ◦ Court: Unreasonable. ◦ Banks v. Bosch Rexroth Corp. , 2015 WL 2109807 (6 th Cir. 2015).

When is a requested accommodation unreasonable? But remember: Each employee’s situation must be addressed on a case-by-case basis. Best practice is to engage the interactive process and apply the factors for measuring “undue hardship” rather than simply assume the requested accommodation is unreasonable.

How does an employer effectively handle employee requests for extended medical leave? Guidance from EEOC on managing extended leave covered by the FMLA and/or the ADA: ◦ http: //www. eeoc. gov/policy/docs/fmlaada. html ◦ http: //www. eeoc. gov/policy/docs/accommodation. html

How does an employer effectively handle employee requests for extended medical leave? EEOC guidance provides framework for a line of questions to address as an employee nears the end of scheduled leave without resolution on the employee’s return to work: 1. The employer can inform the employee, in writing, that he/she has exhausted his/her leave period/benefits, and therefore the employer needs him/her to return to work by a date certain and resume essential job duties.

How does an employer effectively handle employee requests for extended medical leave? 2. If the employee indicates he/she cannot return, the employer should send a followup inquiry to the employee requesting that they respond by a date certain with helpful information from his/her health care provider, including: a. Does the employee still have a condition that prevents him/her from performing his/her essential job duties? (If available, provide copy of employee’s job description that highlights the essential job functions. )

How does an employer effectively handle employee requests for extended medical leave? b. When will he/she be able (e. g. , released) to resume his/her essential job duties? c. Are there any accommodations that would enable the employee to resume his/her essential job duties sooner and, if so, (1) what accommodation(s) would be needed, and (2) for what period of time would such accommodation(s) need to be made?

How does an employer effectively handle employee requests for extended medical leave? 3. Evaluate the employee’s answers and supporting information to determine whether the additional leave requested, or accommodations identified, will create an “undue hardship. ” 4. If the requested leave or other accommodations won’t create an undue hardship, the employee may continue in leave status or return to work under the requested accommodations.

How does an employer effectively handle employee requests for extended medical leave? 5. If, however, either the further leave or the requested accommodations would create an undue hardship, then the employer should next determine if any of these alternatives are possible: a. Can the employer suggest a different set of temporary changes to the employee’s current job duties/requirements that their medical provider would agree to? b. Is there an opening in another position for which the employee is qualified and which job duties they can perform, notwithstanding his/her current limitations, until such time as he/she is able to return to their regular position/duties?

How does an employer effectively handle employee requests for extended medical leave? 6. If those options do not work - that is, if the employee will not be able to resume the essential duties and requirements of their current job or a temporary, alternative assignment/position - the employer should determine whethere is an opening for another position for which the employee is qualified and able to perform (with or without reasonable accommodations) to which he/she could be reassigned on a permanent basis, without causing an undue hardship for the employer, and the duties of which the employee could assume once he/she no longer needs to be on leave.

How does an employer effectively handle employee requests for extended medical leave? Also keep in mind… 1. When looking at alternative jobs, the employer should start with an equivalent position or one as close as possible to the employee’s current position and work its way down from there. An employer is not required to “promote” an employee in order to accommodate him/her.

How does an employer effectively handle employee requests for extended medical leave? Also keep in mind… 2. The search for reassignment options should not be limited to the employee’s current department. 3. A position should be considered “open” if it is open currently or will be within a short and reasonable amount of time.

Discussion & Questions