Ten Steps to Comply with the ADA’s Interactive Process

Contributed by Allison P. Sues, March 20, 2019

book with title the Americans with Disabilities Act (ADA)

Many employers would appreciate a clear road map when traveling the often winding roads of reasonable accommodations under the Americans with Disabilities Act (ADA).  However, there are no rigid routes for the interactive process.  After an employee requests an accommodation, the employer must engage in a good faith and flexible dialogue that addresses the employee’s specific medical limitation, request, job position, and work environment, among other factors.  That said, employers can find guidance in at least ten hard and fast rules on the reasonable accommodation process:

  1. An employer’s statutory duty to provide reasonable accommodations may begin before the employment relationship even forms. If an applicant requests reasonable accommodations to enable participation in the hiring or interview process, an employer must provide an accommodation unless doing so poses an undue hardship.
  2. Generally, an employer’s duty to engage in the interactive process is triggered whenever it learns that an employee needs an accommodation. Courts give employees wide latitude in how they make this known. The employee need not make the request in writing, identify a specific accommodation, or use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”
  3. To start the interactive process, the employer should gather information from the employee, including the specific nature of the limitation, the specific difficulty or issue that the employee is experiencing at work, and what sort of accommodation the employee is seeking.
  4. An employer may require that the employee provide documentation from the medical provider most familiar with the employee’s disability in order to confirm the employee’s specific limitations and need for accommodation.
  5. Once the employer receives this medical documentation, it should ensure that any subsequent requests for updated records are reasonable and do not create an undue burden on the employee. For example, rather than requesting updates on a weekly basis, an employer may seek updated medical information at a time that coincides with an employee’s next scheduled appointment if the doctor’s assessment may change at that time.
  6. Employers should keep all information collected from employees about their disabilities and need for accommodations confidential. All medical documents should be maintained in a standalone file separate from the employee’s personnel file.
  7. The employer should also be collecting information on its end as it reviews the information submitted by the employee. For example, the employer should be reviewing the essential functions of the employee’s position and the employee’s ability to perform those functions, and determining which reasonable accommodations, if any, would enable the employee to perform his or her job. An employer need not provide an immediate response to an employee’s request for accommodation, but it must address the request promptly and keep the employee informed of any updates in the process to ensure there is open communication. Document all communication throughout the interactive process.
  8. The goal of the interactive process should be to allow the employee to perform his or her existing job through a reasonable accommodation. However, even if this outcome is unfeasible, the interactive process is not over. Employers should then consider if they can accommodate the employee through reassignment to a different vacant position for which the employee is qualified or through a temporary leave of absence.
  9. An employee is entitled to a reasonable and effective accommodation – not necessarily the accommodation of his or her choice.
  10. If an employer is able to reasonably accommodate an employee, it is advisable to keep the interactive process open even after the accommodation is implemented. The employer should reach out to the employee to ensure that the accommodation was provided as discussed and that it is indeed effective in enabling the employee to perform his or her job.

Is Obesity A Disability Under the ADA?

Contributed by Suzanne Newcomb, March 15, 2019

Page with ADA (Americans with Disabilities Act) on the table with stethoscope

As with so many ADA questions, “it depends.” However, a pair of cases pending before the 7th Circuit Federal Court of Appeals (covering Illinois, Indiana, and Wisconsin) could provide further guidance.

The 7th circuit has not definitively ruled on whether obesity alone is a “disability.” Federal appellate courts for the 2nd, 6th, and 8th circuits (covering NY, CT, and VT; KY, MI, OH, and TN; and AR, IA, MN, MO, ND, NE, and SD respectively) have all concluded obesity is not a disability unless it is linked to some other disabling condition. In the first of two pending appeals, the trial court reached the same conclusion, ruling that “severe obesity” alone is not a disability under the ADA. (Note, Michigan state law prohibits discrimination based on body weight and a handful of municipalities have passed similar measures.)

But, employers should proceed with caution. Obese employees have defeated motions for summary judgment by arguing their employers regarded them as disabled, and any adverse action taken on the basis of that perception violated the ADA. This is precisely what happened in the second case pending before the 7th circuit.

The plaintiff, who weighed 331 pounds and had a BMI of 47.5, was excluded from his position based on a policy forbidding anyone with a BMI over 40 from working in a safety sensitive role – a policy the employer argued was necessary because those with a BMI over 40 have a substantially higher risk of developing medical conditions which can cause sudden incapacitation or impairment.

The court denied summary judgment concluding it was unlawful to act on the belief that potential future disabilities pose a present safety risk. 

Best practices:

  • Remember the ADA’s statutory definition of “disability” includes those who have an impairment that substantially limits major life activities and those who are “regarded as having such an impairment.”
  • Ensure that all job qualifications – including those designed to ensure safety – are necessary and narrowly tailored to the requirements of the particular job at issue. 
  • Focus on the duties of the position. Can the applicant or employee perform the essential functions of the job safely? If not, could he with a reasonable accommodation? If the accommodation at issue is not particularly onerous, it may make sense to provide it despite uncertainty about whether the individual truly has a disability. An individual who cannot perform the essential functions of a position with or without reasonable accommodation is not a “qualified individual” and cannot sustain an action under the ADA. 
  • When in doubt, treat the individual, at least preliminarily, as if he has a disability. Don’t assume there are no medical conditions beyond excess body weight. Engage in an interactive process to determine whether the individual has a disability, and don’t take a final adverse action until the individual has had an opportunity to provide relevant facts, including evidence of a disability.

What You Don’t Know Can Hurt You: Employee Background Checks at Skilled Nursing Facilities

Contributed by guest author Adam Doerr, with Suzannah Wilson Overholt, March 13, 2019

Skilled Nursing Facilities (SNFs) are responsible for shielding residents “from abuse, neglect, misappropriation of resident property, and exploitation.” 42 C.F.R. § 483.12. This regulation implicates the employment process, since SNFs are prohibited from employing “or otherwise engag[ing]” individuals who have been “found guilty by a court of law,” had a “finding entered into the State nurse aide registry,” or had “a disciplinary action in effect against his or her professional license” as a result of “abuse, neglect, exploitation, mistreatment of residents or misappropriation of their property.” 42 C.F.R. § 483.12(a)(3)(i)-(iii). One of the most important ways that SNFs can protect residents is by properly screening and monitoring their employees.

cv review flat illustration. hand with magnifier over curriculum vitae

There are no federal requirements for how a SNF should screen its employees. However, there is a variety of agency guidance that describes what a thorough screening process should look like. According to the State Operations Manual, Appendix PP, a facility should conduct a thorough “investigation of the histories of . . . prospective staff.” Any individual hired or otherwise engaged by the facility should be screened, including “the medical director, consultants, contractors, volunteers” and students in training programs. The screening must also be thorough, including checking the State nurse aide registry and licensing authorities, contacting previous employers, attempting to identify prior criminal prosecutions, and checking the HHS Office of Inspector General’s List of Excluded Individuals/Entities (“Exclusion List”). The Exclusion List is a searchable electronic database of individuals and entities who are excluded from participation in any federal health care program, including Medicare and Medicaid, for the commission of certain crimes and violations laid out in 42 U.S.C. § 1320a-7. A SNF may not receive payment from a federal healthcare program for any items or services furnished, ordered, or prescribed by an excluded individual or entity. If a SNF does receive payment for services provided by an excluded individual or entity, the SNF could be subject to civil monetary penalties. Because the consequences of hiring an excluded individual are so severe, CMS has issued letters to each state Medicaid director reminding them to have employers check the Exclusion List monthly. Certain states, such as Indiana, have made such monthly checks mandatory.

Finally, the Office of Inspector General has also issued guidance urging healthcare providers to check the System for Award Management (“SAM”) database maintained by the General Services Administration. The SAM database includes a list of suppliers, vendors, and individuals who are excluded from receiving contracts or other financial assistance from the federal government. Thus, checking this list should be part of any screening process for prospective employees.

Conducting thorough screenings of all prospective employees is important in a SNF’s ongoing efforts to protect residents from abuse or mistreatment. Following state and federal guidance and regulations is the best way to ensure that screenings are appropriate.

DOL Announces Long-Awaited Proposed OT Rule

Contributed by Carlos Arévalo and Sara Zorich, March 11, 2019

Overtime – blue binder in the office

As a follow up to our March 4th blog, three days later the DOL announced a proposed OT rule increasing the minimum salary required for an employee to qualify for exemption from federal overtime pay requirements. The proposed increase in salary level is from $455 per week ($23,660 annually) to $679 per week ($35,308 annually). In addition, the proposed rule includes the following changes: 

  • The proposal increases the total annual compensation requirement for “highly compensated employees” from the currently-enforced level of $100,000 to $147,414 per year (note, this overtime exemption is not applicable in Illinois as it was not adopted by the Illinois Minimum Wage Law);
  • A commitment to periodic review to update the salary threshold, but not an automatic adjustment as was the case with the 2016 proposed rule. Updates would continue to require notice-and-comment rulemaking;
  • A special salary level for Puerto Rico, the Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands, a separate special salary level for American Samoa and an updated special weekly “base rate” for the motion picture producing industry; and
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level, which was also part of the 2016 proposed rule. (Note, the proposed rule would allow a one-time yearly catch up payment if the employee does not earn the anticipated bonuses. The proposed rule states that as long as an employer pays 90% of the standard level ($611.10) and if at the end of the 52-week period the salary paid plus the nondiscretionary bonuses and incentive payments (including commissions) paid does not equal the standard salary level for 52 weeks ($35,308), the employer would have one pay period to make up for the shortfall (up to 10 percent of the standard salary level, $3,530.80).) 

There were no changes to overtime protections for police officers, firefighters, paramedics or nurses. There were also no changes impacting laborers including non-management production-line or non-management employees in maintenance, construction and related occupations.   

Most notably, the proposed rule stayed away from any changes to the job duties test.  We anticipate legal challenges to the proposed rule may be lodged by both the business community and employee rights groups as this rulemaking is a significant change from the current law and a deviation from the 2016 proposed rule.  Employers will have 60 days to submit comments to the DOL. Once the comments are considered, the DOL will issue and publish a final rule. In light of the proposed rule, we encourage employers to begin examining how it might impact them. This includes review of applicable state law as employers are required to comply with whichever law is most favorable to employees. We will be available to address any concerns or questions you may have.  And as always, we will keep an eye on any other developments and will keep you updated. 

Do You Have to Let Your Employees Work from Home?

Contributed by Rebecca Dobbs Bush, March 8, 2019

freelance, work at home. flat design vector illustration.

“Do I have to let my employees work from home?”  With technological advances and with market demand for flexible work arrangements constantly increasing, the question comes up all of the time. 

Generally speaking, the answer is no. Some positions just don’t translate to working remotely. For example, an auto mechanic or a doctor certainly cannot perform their job from their kitchen table. On the other hand, other positions, such as many white-collar office positions, can be well suited for remote work arrangements.  

The key in allowing remote work is to communicate expectations clearly. If you’re going to allow remote work, how often is it allowed? Once a week? And will you need to have a specific day of the week when everyone has to be present at the office and available for meetings, etc.? Are employees expected to have a dedicated office space when working from home? Will you set minimum requirements, such as a year of employment, before an employee can ask to work from home? Will you be able to continue to protect confidential company data and information? And of course, you need to be able to continue to monitor your employees and the quality of the work they perform. If an employee can’t meet expectations in the office, you certainly shouldn’t expect him or her to be able to do so while working remotely. It is also important to communicate the expectation that remote work arrangements are not synonymous with vacation days nor are they intended to be a substitute for childcare arrangements. To address all of these questions in a consistent manner, an employer may find it necessary to create a formal written policy. 

Finally, remember that even if you take a strict approach and clearly communicate parameters to your employees, the Americans with Disabilities Act may require you to make exceptions. In years past, it was fairly reasonable for an employer to argue that physical attendance was an essential function of the job. However, as courts evolve with technology and a changing workforce, it is becoming a much weaker argument to claim that 100% physical attendance is an essential function of a position. Today, an employer may be hard-pressed to explain why it could not allow remote work on at least a temporary or part-time basis. In fact, the request to work from home as a reasonable accommodation under the ADA has become so commonplace that the EEOC has developed a FAQ devoted to the specific request.

If you find yourself dealing with remote work requests on a fairly regular basis, it may be time to consider a policy to clearly and consistently communicate parameters. With industry experts predicting a tight labor market in 2019, and with a recent indeed.com survey showing that nearly half of employees say remote work policies are an important factor in choosing a job (and that 40% of employees are willing to take a pay cut in exchange for the option), a policy may not only help you set and manage parameters for handling such requests, but may also provide you with a competitive edge in recruiting top talent. 

Register Now! Best Management of Your Workforce in the Midst of the Opioid Epidemic: Drug Testing, FMLA Abuse and ADA Obligations

Your employees are more likely to die from an opioid overdose than a car crash. It’s a recently published statistic, and a startling one to come to terms with. According to the National Safety Council, your chances of dying in a car crash are 1 in 103, while your chances of dying from an opioid overdose are 1 in 96. These numbers only account for opioid use and do not include the use of other drugs.

It is simply unrealistic to believe your workforce is exempt from the current crisis. While a certain level of empathy may be appropriate, employers that are too lenient and forgiving learn quickly (and often painfully) that no good deed goes unpunished.

Join Rebecca Dobbs Bush and Deborah Krukowski on Wednesday, April 17 at 12:00 PM CT for the latest installment of our Labor & Employment Quarterly Series. They will discuss the ways opioids can impact employers, as well as proactive ways employers can approach the opioid crisis in the workforce. Specific topics covered include:

  • How to tailor your policies to address the epidemic
  • How to spot and manage suspected drug use in the workplace
  • How to manage the recruiting process for best efforts in maintaining a drug free workplace

Who should attend? HR professionals, managers, and business owners

We hope you can join via webinar!

Will We See New Federal Overtime Rules in March?

Contributed by Carlos Arévalo, March 4, 2019

Last Fall, the Department of Labor (DOL) announced that it intended to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 regarding the salary levels applicable to the executive, administrative and professional exemptions that exclude certain employees from the coverage of the Fair Labor Standards Act’s minimum wage and overtime provisions. The DOL has been reviewing the regulations at 29 CFR 541, which implement the exemptions, and is expected to seek public comment on the salary level before issuing a final rule.

Of course, we all recall the most recent final rule on the subject. The Obama administration’s final rule, announced on May 23, 2016, would have increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). This rule was challenged in the latter part of 2016 in the Eastern District of Texas. U.S. District Judge Amos Mazzant blocked the rule’s December 1, 2016, implementation when he issued a preliminary injunction in favor of the plaintiffs (21 states and over 50 business organizations). In his ruling, Judge Mazzant noted that the DOL exceeded “its delegated authority and ignore[d] Congress’ intent by raising the minimum salary level such that it supplants the duties test.” He also added that the Supreme Court routinely strikes down “agency interpretations that clearly exceed a permissible interpretation based on the plain language of the statute, particularly if they have a great economic or political significance.” The appeal of Judge Mazzant’s ruling was dismissed in September 2017.

Based on current Secretary of Labor Alexander Acosta’s comments that the jump to $47,476 was excessive, it has been expected that the DOL’s NPRM would propose an updated salary level test of somewhere between $30,000 and $35,000. 

At this time, there is nothing employers need to do. And while it could be months, perhaps even longer, before a new final rule is issued, we expect that the current salary level will be increased. At this rate, though, the salary levels may once again become an issue in the next presidential election. Whatever happens, stay tuned – we will keep an eye on any action by the DOL and will keep you updated!