Category Archives: ADA Accommodations

ADA Implications: I Don’t Want to Wear a Mask….

Contributed by Michael Wong, May 8, 2020

Blue medical face masks isolated on white background

During the COVID-19 pandemic we have seen multiple shifts in views by the public and employees.  Initially, the issue was what to do if an employee requested a face mask. 

However, businesses are now facing different questions:

  1. Can you require employees to wear a face mask? 
  2. Can you require customers or members of the public to wear a face mask when coming into your business?

What most do not realize is that both of these questions raise potential ADA issues.

EMPLOYEESThe short answer is, YES.  A business can require its employees to wear a face mask or covering and other personal protective equipment (PPE) as a workplace rule. In order to do so, the business would want to be able to show a legitimate business reason as to why the rule is in place. Under the current circumstances, requiring the use of a mask and PPE to address safety concerns related to the COVID-19 pandemic would likely be considered a legitimate business reason. In fact, some employers are being ordered to make it a requirement pursuant to local or state mandates.

However, what if an employee reports that he or she has a medical condition that makes it so he or she cannot wear a face mask or covering? This would then trigger the business’ obligation to engage in the ADA interactive process.

In going through the interactive process, the business may send the employee home pending completion of the interactive process. As part of the interactive process, the employer may request additional information and medical documentation from the employee regarding his or her medical condition and restriction of being unable to wear a face mask or covering.  

After receiving the additional information and medical documentation from the employee, the business would have to evaluate whether the employee requires a reasonable accommodation, and if so, what reasonable accommodation works best for the business. For example, if the employee provides a legitimate medical reason for not being able to wear a face mask or covering, reasonable accommodations could include the following:

  • Providing the employee an unpaid leave of absence until face masks or covering are no longer required at work;
  • Allowing the employee to work remotely; or
  • Providing an alternative face mask or covering that is allowed by the employee’s medical condition.

In cases that have addressed a business’ requirement that an employee wear PPE and an employee’s objection based on a disability, courts have ruled it is not an ADA violation for an employer to require an employee to wear PPE to address a safety hazard as part of an essential function of the job/position, where the business is addressing a safety concern.

It should be noted that any unpaid leave of absence based upon the employee’s inability to wear the face mask would likely not be covered by the FFCRA and so the employee likely would not be eligible for Paid Sick Leave or Emergency Paid FMLA leave. However, that is something that should be reviewed carefully, as they may qualify under certain circumstances.

CUSTOMERS/PUBLIC – Many states have issued executive orders requiring the public and businesses to require the use of face masks. However, almost all have an exception for individuals under certain ages and when a medical condition impacts the individual’s ability to wear a mask. For example, Illinois’ executive order states that “an individual who is over age two and able to medically tolerate a face-covering (a mask or cloth face-covering)” must wear a face covering when in public indoor spaces, such as stores.

So what can a business do if a customer says that he or she cannot wear a face mask and, possibly go so far as to allege that requiring one is a violation of the ADA for the business to refuse to allow him/her in? Unfortunately, there is no simple answer.

First and foremost, it is important to remember that this implicates the ADA. Unlike with employees, businesses are very limited in what questions and/or documentation they can ask the customer to provide regarding a disability under the ADA. For example, when dealing with a customer who brings a dog into a business, under the ADA a business is limited to asking two questions:

  • Is the dog a service animal required because of a disability?; and
  • What work or task has the dog been trained to perform?

Businesses are not allowed to inquire as to the nature of the person’s disability, request documentation of the dog being a service animal, or require that the dog demonstrate its task.

With regard to masks, generally the ADA prohibits places of public accommodation having restrictions that would limit access to an individual with a disability. However, the ADA does allow restrictions when an individual would pose a direct threat to the health or safety of others.

As of March 2020, the EEOC has declared that the COVID-19 pandemic meets the direct threat standard, based on guidance from the CDC and public health authorities regarding the risk of community spread and institution of restrictions. IMPORTANT – This standard may change and so businesses must stay up-to-date.

Since the COVID-19 pandemic is currently considered a direct threat by the EEOC, a business would likely be on solid ground to require customers to wear face masks or covering when entering into their premises. That said, a business would not have the absolute right to refuse to provide a customer service based upon the customer’s refusal to wear a mask.  When faced with a customer who is refusing to wear a face mask or covering, businesses should likely limit any questions to the following:

  • Are you unable to wear a mask because of a disability?

If the answer is “Yes,” then instead of additional questions regarding the disability or demanding documentation, the business should consider moving to engaging the customer in an interactive process to determine possible alternative methods of service that would allow the business to keep its employees and other customers safe, while still providing service/goods to the customer.

In order to address these issues, we recommend providing information, action plans and training to managers, supervisors and employees on how to address these situations and avoid heated confrontations and/or potential litigation. Of course, involving legal counsel in reviewing or putting together your training, documents and action plans will further help limit potential legal problems and costly litigation down the road.

Register Today! Reasonable Accommodations: Employer Obligations under the ADA and Beyond — Complimentary Webinar

Join Suzanne Newcomb at noon ET on June 19 for an in-depth look at workplace accommodations, specifically legal obligations, best practices, and emerging trends.

Workplace accommodations take many forms. Most often, accommodations are thought of as modifications which allow individuals with disabilities to perform essential functions of positions for which they are otherwise qualified.

While certainly the most common, workplace accommodations are not limited to an employer’s obligations under the ADA. Accommodations can also allow employees to practice their religious beliefs, allow pregnant employees to continue working until they give birth, allow new mothers to return to work and breastfeed their newborns, and assist transgender employees to navigate workplace obstacles.

During this webinar attendees will learn:

  1. How to determine whether an individual is entitled to ADA protection
  2. How to distinguish between “reasonable” accommodations and those that impose “undue hardship”
  3. How to properly document the ADA-mandated “interactive process”

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.

Helpful Guidance in Determining a Position’s Essential Functions under the ADA

Contributed by Allison P. Sues, October 19, 2018

16306823 - 3d illustration of scales of justice and gavel on orange background

Illustration of scales of justice and gavel on orange background

A recent decision from the U.S. District Court for the Northern District of Illinois sheds light on how to determine what job tasks are properly considered essential functions of a position under the Americans with Disabilities Act (ADA). A plaintiff alleging that her employer denied her a reasonable accommodation for her disability must prove that she is a qualified individual, which requires showing that she can perform all the essential functions of the job with or without an accommodation. In the recent decision, the court dismissed a police officer’s failure to accommodate claim because the police officer could not perform certain functions deemed essential to her position. Specifically, she could not ambulate independently or handle a firearm. The police officer claimed these duties were not essential because she was on limited duty indefinitely and spent most of her days working at a desk.

The court delved into federal regulations and case law to determine whether a particular job duty should be deemed essential. Written job descriptions and other indications of an employer’s judgment about a position’s essential functions provide convincing – but not controlling – evidence. Courts will also consider other evidence regarding whether a task is essential, including the amount of time the employee typically spends on the function, the consequence of not requiring the employee to perform the function, terms of any collective bargaining agreement, and the work experience of prior employees or other current employees in that same position. Courts may also make additional inquiries, more likely determining that a function is essential if any of the following are true: (i) the position exists to perform the function, (ii) there are a limited number of employees among whom the function can be distributed; (iii) the function is highly specialized and/or the employee was employed specifically for her expertise or ability to perform that function.

The court also provided helpful analysis in determining essential functions where an employee is responsible for multiple tasks on a rotating basis. A court will likely find that each of the multiple duties are essential functions, even where the employee completes some of the duties only rarely, if the employer can justify why it requires each employee in that position to be able to complete all duties. An employer may satisfy this burden by showing, for example, that the workforce is too small to justify hiring specialists for each separate task or that there are unexpected surges in demand for a particular task.

The court found that even here where the plaintiff did not generally handle a firearm in her limited duty position, the police force could require all officers to be able to handle a firearm regardless of their day-to-day duties because being able to arrest someone is a central purpose of the police force.

Employers should analyze each position in the workforce to understand the position’s essential duties before an issue arises. Being able to differentiate between essential functions and marginal functions will assist an employer in determining its obligations when an employee requests a reasonable accommodation. While an employer may be required to excuse an employee from completing marginal functions, the ADA does not require it to excuse an employee from performing essential functions.  However, it may need to provide accommodations to enable the employee to perform those essential functions.

 

Help! Our New Hire Showed Up with a Service Dog!

Contributed by Suzanne Newcomb, October 8, 2018

guide dog silhouettes

Silhouette of two guide dogs with owners

Reasonable accommodation issues often require an employer to balance the needs of the employee requesting accommodation with the needs of other employees who are impacted by the decision. These issues can be magnified when an employee relies on a service dog. Most employers are unfamiliar with the issue, and courts and enforcement agencies provide little guidance on service dogs in the employment context. As a result, when the issue arises, many employers scramble to answer the most basic questions: Are we required to allow a service dog in the workplace? What if another employee complains or is allergic?

First and foremost a request to bring a service dog to work is a request for a reasonable accommodation and should be analyzed in a manner consistent with other accommodation requests. That means:

Step 1: Engage interactively to determine whether the individual has a disability and can perform the essential functions of the job with or without reasonable accommodation. Check state and local laws. This article addresses federal law, but state and local laws may impose additional requirements.

Step 2: Will the service dog’s presence allow the employee to perform the essential functions of the position? In at least one reported case, the court concluded the employer was not required to allow the service dog because the employee failed to prove that the assistance the service dog provided was related to his job duties. Remember, however, service dogs provide assistance in a variety of ways. It is widely known that dogs can be trained to assist people with visual impairments but service dogs can also be trained to assist people with seizure disorders, PTSD, and a wide range of physical and mental impairments. There is no legally recognized service dog certification. In fact, dogs are often training to meet a particular person’s unique needs.

Step 3: Will the business be burdened by the service dog? If so, are there less onerous ways to accommodate the employee? The ADA requires an employer to provide reasonable accommodation unless it can prove that doing so imposes an “undue burden.” However, the employee is not entitled to dictate the nature of the accommodation. The employer can chose from alternative accommodation options so long as the accommodation provided is effective.

“Undue burden” is difficult to prove. While the determination is necessarily fact sensitive, it is unlikely a co-worker’s allergy will be sufficient. If the issue arises, the employer should look to ways to mitigate the impact on the co-worker. Is it feasible to have the dog use a particular entrance and remain in a specific area that the allergic co-worker can then avoid? What other changes can be made to meet the needs of both employees?

Employers should insist that the dog is well behaved and properly controlled at all times while in the workplace. If problems arise they should be addressed promptly and be well documented.

 

EEOC Consent Decree a Reminder That Attendance Policies Must Have an ADA Escape Valve

Contributed by Suzanne Newcomb, August 13, 2018

72219825 - book with title the americans with disabilities act (ada).In July the EEOC announced the terms of a consent decree settling claims of systemic disability discrimination against a global metal products manufacturer. Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.

Where did the employer go wrong? According to the announcement, the employer violated the ADA in two ways: by awarding attendance points regardless of the reason for the absence and by terminating employees who were not able to return to work after 180 days of leave.

So called “no fault” attendance policies are common and have many advantages. They are transparent and easy to administer, they remove discretion from frontline supervisors (and with it potential favoritism and bias), they treat employees as adults by allowing them to manage their own time, and they remove much of the burden of policing the reason for each absence. But problems arise when employers – no longer called upon to scrutinize the reason for each absence – miss ADA and FMLA triggers. Remember, employees are not required to say “disability,” “ADA,” or “reasonable accommodation” to trigger the ADA-mandated “interactive process.” There are no “magic words.” The same is true of the FMLA. Anything that alerts or should have alerted the employer that an employee has a disability and may need reasonable accommodation (or that absences may qualify for FMLA protection) triggers statutory obligations. And to further complicate matters, anything a supervisory employee knows can be imputed to the employer.

Even policies designed to help employees, like the policy for providing up to 180 days of medical leave which far exceeds the 12 weeks the FMLA affords, must be applied with the ADA in mind. A blanket policy that any employee who is not able to return after 180 will be terminated does not allow for the individualized assessment mandated by the ADA. Bottom line, all policies, attendance policies as well as work rules, performance metrics, etc. must be analyzed with the ADA in mind. Always include an ADA escape valve.

Best Practices:

  1. Regularly review your ADA and FMLA policies to make sure they are clear, concise and easily understood;
  2. Clearly direct employees to contact HR if they believe they need leave or reasonable accommodation for a disability;
  3. Clarify that your attendance and leave policies (and others as appropriate) are applied within the framework of the ADA and FMLA and again invite employees who believe they may need leave or an accommodation to discuss the issue with HR;
  4. Include FMLA and ADA issues in regular supervisor training and require supervisors to elevate potential issues to HR; and
  5. Finally, there is no escaping the fact that ADA and FMLA issues are difficult. Partnering with trusted, experienced employment counsel as you navigate these complicated issues can often allow you to avoid the expense and hassle of defending legal claims later.