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October 2005
City of Chicago is sued for Violations of the ADA CHICAGO, 10/3/05 - A local nonprofit, the Council for Disability Rights (CDR), has filed a federal complaint on Monday against the City of Chicago for its continuing failure to provide and maintain curb-cuts that comply with the Americans with Disabilities Act (ADA) of 1990. "The City's non-compliance creates inconvenient and often dangerous barriers to the general public as they travel through the City as pedestrians," said CDR's Executive Director Jo Holzer. "These sidewalk barriers often cause pedestrians in wheelchairs to use the street, further endangering their own physical well-being as well as creating hazards for drivers." The complaint seeks relief from the City that will guarantee consistent and permanent compliance with the ADA in the future. One suggested method is a strong policy of oversight of contractors — oversight by inspectors to provide on-site analysis and appropriate resolutions for each location, thereby guaranteeing a smooth path of travel at every Chicago intersection, as required by the ADA. The six complainants are all people who have traversed Chicago's streets on a regular basis and who have mobility limitations — some use wheelchairs, some white canes, some walking canes or crutches. Complainants are Ms Venzelma Cotton, Ms Margy Holzer, Mr Bruce Moore, Mr Larry Quillinan, Ms Dorie Stewart all of Chicago, and Kent Smith of Elmhurst. For more information on the lawsuit or the ADA, contact CDR at 312/444.9484 or Attorney Ted Woerthwein, 312/654.0001. These named plaintiffs are a small number of those affected by the grievances presented in this case — people with mobility limitations who use the public ways of Chicago, whether residents or not. Residents of Chicago who have mobility limitations (or may have in the future) number in the tens of thousands; according to the 2000 US Census, there were 600,000 people with disabilities living in Chicago. Non-residents include visitors as well as daily commuters, many thousands of whom have or will have mobility limitations. The number of curbs at a given intersection may range from eight to ten or more, depending on the number of intersecting streets, pedestrian islands, etc. And, alleys at mid-block present two more sites on each side of the street that require curb cuts or ramps. The need to correct the pattern of failure presented in this case is compounded by the number of individuals affected; the need is complicated by the number of possible sites with improper installations. Finally, it is a compelling need — to avoid injury to individuals in the general public and to improve the daily quality of life for the individuals with disabilities and everyone else traversing the public way in Chicago. And it is a compelling need to avoid or prevent further individual lawsuits against the City of Chicago. The impact of these conditions on the daily life of a person with a mobility limitation is unimaginable and brings a real sense of urgency to the discussion. In order to travel to and from work, a person must know the condition of each and every curb that s/he must safely traverse. And, those conditions change with the season — in the winter, piles of snow or ice often make the curb cut impassable; in the summer, construction work or sidewalk seating or displays often requires the person to find another, safer path to work. In order to meet someone for lunch, not only must s/he know whether the restaurant is accessible, but also whether the path of travel from point A (the office) to point B (the restaurant) is also accessible. In order for him/her to use public buildings or other public venues, the path of travel to (as well as into and throughout) the facility must be accessible. And, if a person with mobility limitations is going to a new location, a safe, accessible path of travel is unknowable. There is no one, no agency with the answer — only another person with a mobility limitation who has been recently to that location can know the conditions. Job-hunting becomes a real adventure into new territory, requiring a cell phone so that s/he can inform a potentially new employer when blocked by an inaccessible public way or when reaching an inaccessible site. An accessible path of travel becomes an integral part of the daily planning for a person with a mobility limitation in order for him/her to reach any given destination in a safe and timely manner. A flexible approach to daily events also becomes part of his/ her mind set. Even then, there may be occasional breakthroughs of anger that result in rude outbursts or, perhaps, lawsuits. The Council for Disability Rights wants to craft a solution with the City so that people with disabilities in the future can move through our world class city in the conduct of their daily lives with total confidence that all public venues are accessible to them, including the public way. October is National Disability Employment Awareness Month The Office of Disability Employment Policy (ODEP) within the US Department of Labor has issued a poster commemorating the 60th Anniversary of October as the month to recognize the contributions Americans with disabilities are making in the workplace. The poster depicts the 2005 theme for National Disability Employment Awareness Month, "Workers with Disabilities: Ready for Tomorrow's Jobs Today". 
Get a copy of the poster
Even well-meaning policies may violate ADA By Paul McCue Many human resources and benefits managers realize the importance of strictly following the terms of their employee benefit plans and personnel policies. But they are sometimes surprised to learn their benefit plans and policies are being challenged for violating employment discrimination laws such as the Americans with Disabilities Act (ADA). ADA suits can arise in two areas that unsuspecting managers frequently overlook: leave-of-absence policies that call for the termination of employees after a specified amount of leave and benefit plans with coverage limitations for different types of disabilities. A potential ADA land mine exists when employees are automatically terminated at the end of the maximum duration for a leave of absence in the employer's policy. The ADA requires employers to provide employees with unpaid leaves of absence in many situations as a reasonable accommodation for their disabilities. But there are no hard and fast rules to determine how long those leaves of absence must be before the employer can terminate the employees without violating the ADA. Instead, the employer typically must show that extending the leave would cause an "undue hardship." Proving undue hardship is a case-by-case undertaking that can vary depending on the employee and the particular employer. For example, an employer that has frequent turnover and regularly uses temporary employees might have more difficulty proving undue hardship than a small employer with a few specially trained workers. An employer's chances of success in ADA litigation are greatly enhanced if it has conducted an individualized assessment of the employee's condition, the functions of the job, the cost of temporarily replacing the employee, the length of additional time off requested and the latest medical prognosis for the employee. One of the bright spots for employers in this murky area is that courts have been fairly consistent in finding indefinite or open-ended leaves of absence create an undue hardship. On the other hand, employers haven't always fared well in the courts after discharging employees simply because they had reached the limit for time off under a personnel policy and were requesting several additional months of unpaid leave. As one court observed, some employees "by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for a leave to a particular date indefinite." This ADA issue might also arise if an employer requires an employee to be terminated before he's eligible to collect long-term disability benefits, typically after a maximum leave period on short-term disability has been exhausted. However, in attempting to comply with the ADA, employers should be certain that its lack of rigidity in termination decisions doesn't lead to inconsistency in other areas of benefits administration. For example, if a company allowed an employee to remain on its rolls for longer than normal because of an ADA concern, it should be certain that, when the employee eventually is terminated, the required notice about the need to convert group life insurance coverage to an individual policy doesn't fall through the cracks. (An uninsured death benefit claim can be expensive for an employer held responsible for it.) Well-intended flexibility in reaching some decisions shouldn't equate to a lack of coordinated efforts among different areas of HR and benefits administration. Differing Benefits In addition to prohibiting discrimination in the workplace, the ADA applies to an employer's fringe benefit plans, even though a third party administers the plan. The statute makes it illegal for an employer to discriminate through its contractual relationship with any other organization providing fringe benefits to an employee. At the same time, the ADA offers a "safe harbor" defense for bona fide benefit plans that underwrite or classify risks, provided the risk analysis is not merely a "subterfuge" to evade the anti-discrimination goals of the law. The safe-harbor provision is intended to allow insurers to underwrite policies based on sound actuarial data or experience with the costs of insuring different benefits, but not based on speculation about certain conditions. These aspects of the ADA came to the forefront for one employer in a court case decided in April. A federal district court in Massachusetts refused to dismiss a case brought against Tufts University by a professor who claimed a two-year limitation on mental health benefits in a long-term disability plan — provided the employee wasn't hospitalized — violated the ADA. There were no such limitations for physical illness. Although other courts have found such claims don't violate the ADA, this and other cases have allowed some individuals to proceed to discovery to determine if the defendants, in fact, can justify the different treatment of medical conditions under the safe-harbor provision. In the Tufts University case, the court characterized the mental health distinction as "suspect" under the ADA. Or, as one judge wrote with some skepticism about the issue in a 2004 decision: "There appears to be a widespread practice of limiting disability benefits for mental illness, possibly based on assumptions that mental illness is 'less real' than physical disability, or that recovery therefore is more a matter of will than in the case of physical disability." While the employer and insurer might ultimately prevail in this and similar cases, at a minimum they will incur discovery costs and most likely expert witness fees by virtue of not being able to have the case dismissed early on as a matter of law. A number of courts around the country haven't yet weighed in on the physical- mental benefit distinction, although many that have addressed the issue sided with the long-term disability insurers and employers. An employer confined to a single geographic location might be able to find guidance and take comfort in a court decision there. But until there is a Supreme Court decision or more settled law, the present legal landscape can be daunting for companies with employees nationwide or even regional businesses operating in several states. [Paul McCue is a member of Sherman & Howard, LLC, in Denver, where he counsels and defends employers in all aspects of employment law. ] Source: The Denver Business Journal, 9/18/05 Disability act covers those [whom] employers see and treat as impaired By J. Daniel Marr If an employer regards a worker as disabled, even though the worker's impairment does not rise to the level of a disability under disability employment discrimination law, the employer may still have an obligation to accommodate for that worker's impairment. This issue was discussed in the Federal Eleventh Circuit Court of Appeals' decision of Cris D'Angelo v. Conagra Foods Inc. decided on Aug. 30. In that case, D'Angelo, who suffers from vertigo, sued her former employee, Conagra Foods Inc. She argued that she was fired as a product transporter on the basis of a disability in violation of the American with Disabilities Act. She alleged she was regarded by Conagra as being disabled and was fired without the employer providing a reasonable accommodation. The trial court summarily ruled for Conagra and therefore did not allow D'Angelo to have her trial by jury. The Court of Appeals reversed that decision, stating that while it agreed with the trial court that D'Angelo's vertigo was not a disability under the ADA, there was an issue of fact as to whether or not D'Angelo's employer regarded her as being disabled and if so, whether or not it failed to reasonably accommodate D'Angelo's vertigo impairment. In particular, D'Angelo was employed by a seafood processing plant and, after several job positions, became a product transporter. As a transporter, D'Angelo stacked; pulled pallets with a jack; packed; and worked in an area above the plant floor called the "triangle," making sure that fish traveling down the chute did not clog the machine. She also weighed product and "one or twice" worked on the box-former machine and the saw. On Sept. 20, 2001, D'Angelo gave the plant manager a note from her doctor. It stated that her vertigo condition affects her when her eyes have to look at moving objects such as belts, and that therefore she should avoid this situation since it could cause her to fall and sustain injury. After receiving the doctor's note, the plant manager met with the human resource vice president and determined that there was no available position that would not require D'Angelo to work with moving equipment such as conveyor belts and therefore fired her. The Court of Appeals found that the vertigo condition was not a disability under the act since, while it affected her work, she was not prohibited from working from a broad class of jobs. In fact, there was current evidence that accommodations could be made in her work so that she would not be working around equipment such as conveyor belts. Even though Conagra contended that her impairment did not rise to the level of a disability under the act, D'Angelo was entitled to a reasonable accommodation if her vertigo condition caused Conagra to regard her as disabled. While this case is not legal precedent for New Hampshire employers, New Hampshire employers should understand that the First Circuit Court of Federal Court of Appeals does create legal precedent for a New Hampshire employer. The court also addressed the issue in 1996, in the case of Katz v. City Metal Co., but only indirectly, assuming without expressly holding that the act requires reasonable accommodations for employees regarded as disabled. Therefore, it would be prudent for New Hampshire employers to speak with their lawyer when considering a request for an accommodation from a worker who has a mental or physical impairment. The lawyer can help the employer determine whether the impairment can be a disability as defined in the act. A lawyer can also help an employer determine whether an employee could argue that the company treated the worker's impairment as a disability and so be obligated to reasonably accommodate the worker. [J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf.] Source: Nashua Telegraph (Nashua, NH), 9/23/05 Lambs Farm Sued for Excluding Man with HIV-Positive Status CHICAGO, 9/27/05 — Equip for Equality Inc. (EFE) today filed suit in federal court against The Lambs Farm Inc. of Libertyville, IL, on behalf of a 54-year old man with a developmental disability whom Lambs Farm refuses to serve because he is HIV positive. Lambs Farm is a non-profit organization located on a 72-acre campus in Libertyville that provides housing, vocational and recreational services to adults with developmental disabilities. The suit alleges that Lambs Farm's refusal to admit Doe to its services is a violation of the Americans with Disabilities Act, the federal Rehabilitation Act, and the federal Fair Housing Act. "John Doe" received services from Lambs Farm from the time he was a young man, and was close to the founders, Bob Terese and Corinne Owen. After moving out of state in 2003 to be with his terminally ill mother, Doe returned to Illinois in 2004 with the intention of returning to Lambs Farm. So confident was his mother that Doe would be received warmly by Lambs Farm that she set up a trust for him which provided that upon his death the assets of the trust would go to Lambs Farm. Lambs Farm initially welcomed Doe back and proceeded to process his application for services, including housing. Lambs Farm staff even took him to see the apartment that would be his when the processing of his application was completed. However, when Lambs Farm reviewed the medical packet sent by the agency assisting Doe, its management became aware that Doe was HIV- positive. Doe's application was immediately rejected. Lambs Farm's Executive Director, Dianne Yaconetti, expressed concern that others would find out about Doe's HIV status and would be fearful. The Chairman of the Board of Directors, Robert Neiman, confirmed that Lambs Farm would provide neither housing nor vocational services to Doe because of his "communicable disease." Doe, who regularly takes medication for his HIV without assistance, has no symptoms. "All I wanted to do was go back to Lambs Farm," says Doe, who does not understand how he could be rejected by "the Lambs" when he has done nothing wrong and poses no threat to anyone. "Lambs Farm's categorical refusal to serve Doe based on his HIV status is a clear violation of the federal laws prohibiting discrimination based on disability," says Karen Ward, Senior Counsel at Equip for Equality and one of the attorneys representing Doe. "Lambs Farm's actions are based upon the very stereotypes and unfounded fears that these laws were designed to address." "For a well-known community agency that claims to be devoted to the empowerment of people with disabilities, this attitude is particularly shocking and disheartening, " says Zena Naiditch, President and CEO of Equip for Equality. "Twenty- five years after the emergence of AIDS in this country, and fifteen years after the passage of the ADA, we certainly did not expect to see such ill-informed decision- making. We are hopeful that the federal court will quickly bring an end to this injustice." The suit seeks an order compelling Lambs Farm to admit John Doe to its vocational and residential programs, as well as compensatory and punitive damages and attorneys fees. Equip for Equality, Inc. is a private, not-for-profit organization whose mission is to advance the rights of people with physical or mental disabilities, including development disabilities and mental illnesses, in Illinois through self-advocacy assistance, education, legal services and public policy initiatives. It is designated by the Governor as the state's protection and advocacy system with broad statutory powers to safeguard the rights of people with disabilities pursuant to federal law. For information: 
Karen I. Ward, or
Barry Taylor
John Doe v. The Lambs Farm, Inc., U.S. District Court, Northern District of Illinois
Case No. 05-C-5564
Source: Equip For Equality, 9/30/05. Classroom Coping: Schools addressing special needs of some evacuees by adding more specialized staff By Eva-Marie Ayala Star-Telegram Staff Writer Lathon Marshall, 11, has always had a hard time adjusting to school because of his learning disability. But after his family lost everything from Hurricane Katrina, his mother, Latanya Biagas, 34, worried about his transition into a new school district. When Biagas enrolled Lathon in the Mansfield school district's Cross Timbers Intermediate School, she told officials that he has attention deficit hyperactivity disorder. School officials placed him in a resource language arts class and immediately planned evaluations to assess his needs. Biagas said she's grateful that the transition was easier than she thought. "It helps a lot. ... Lathon is one those difficult kids where school is concerned," Biagas said. "That's why we have to be on top of his ADHD." As children displaced from last month's hurricane settle into new classrooms, North Texas school officials are doing their best to help those with special education needs. Some districts such as Fort Worth and Hurst-Euless-Bedford are hiring additional staff. Education experts don't know how many evacuees will need special education services but are estimating about 10 percent to 15 percent of the students will need help. Nationwide, about 12 percent of students have a learning disability. The federal Individuals with Disabilities Education Act requires a school district to provide free special education services to a child comparable to those at his previous school if he transfers during the school year. But that child must have had an individual education plan, and many student records from hurricane-affected areas are still unavailable. Districts that fail to provide such services could face disciplinary and legal actions. Vicki Gilliam, an educational specialist with the Education Service Center Region XI in Fort Worth, said if districts can't obtain valid data, campus officials will meet with staff and parents to authorize temporary services until data are received from the old district or until the present current one collects new data. Then a second meeting will be held to finalize the student's new education plan, she said. James Wendorf, executive director of the National Center for Learning Disabilities, said families should give schools as much detail as possible about previous services. Something that may seem small could be important in signaling exactly what it was, he said. Wendorf said hurricane-affected families are dealing with so much that districts must be persistent in getting student records from Louisiana or Mississippi, which agencies are releasing as they can. "We're pleased that the state is proceeding in a cautious way" in providing services, Wendorf said of Texas. "Now, directors need to see that the data is being collected as soon as possible and then being shared at the building level and that children continue to get the support they're entitled to with no gaps." Claude Cunningham, assistant superintendent of curriculum and instruction in Mansfield, said some students are living with relatives while parents address their situation, and those relatives may not know exactly what the children need. He said officials are placing children in classes as soon as they can with what they believe is comparable service, but they want the children to settle in before doing extensive evaluations. "These kids have had plenty to deal with. Let's get them in class, get situated and acclimated and then we can see what additional needs are," he said. Gilliam said state funding to account for those students is expected to increase over time and other funding assistance is still being determined. The H-E-B school district, which has about 250 hurricane-displaced students, hired two additional diagnosticians temporarily to help identify students with needs, spokeswoman Judy Ramos said. Fort Worth officials are requesting additional special education staff, in part because of Katrina, and are in the process of finding out how many of its new 917 students need such services, said Cyndi Walker, director of special education. But every day, that number is growing. Walker's staff has been going into shelters to talk with families and talking with incoming parents to see which students may have special education needs, she said. "We're trying hard to make sure none of these children fall through the cracks," she said. "We are looking for them. It's just so overwhelming what they've had to deal with so far." Biagas is still looking for housing, a job and missing relatives. Knowing school officials are taking care of her son takes away one worry, she said. "I'm comfortable with them here," she said. "The people at the district have been nothing but nice to us. That's why I want to stay here and make it our home." Source: Jason Speaks, Disability Rights Bureau, Office of IL Attorney General 500 S. Second Street, Springfield, Illinois 62706 (217) 785-5790 (Voice) / (217) 785-2771 (TTY) / (217) 782-1096 (Fax) Personality Tests in Workplace can Violate ADA A federal appellate court in Illinois recently ruled that an employer violated federal disability law by using a personality test when considering applicants for promotion. In Karraker v. Rent-A-Center, Inc., the court held that the Minnesota Multiphasic Personality Inventory ("MMPI") test constituted a prohibited medical examination under the Americans With Disabilities Act of 1990. In order to advance into management with Rent-A-Center ("RAC"), employees had to take a battery of nine tests designed to measure math and language skills as well as interests and personality traits. Part of the battery included 502 questions from the MMPI. RAC maintained that it used the MMPI solely to measure personality traits, but the court noted the MMPI goes further, considering where a subject falls on the scales of depression,hypochondriasis, hysteria, paranoia, and mania. [Questions included whether the applicant sees animals or people that others do not and whether he has a habit of counting things that are not important, like bulbs on electric signs.] Elevated scores on some scales of the MMPI can be used in diagnoses of certain psychiatric disorders. A Rent-A-Center employee could be denied a promotion due to his or her MMPI score. Plaintiffs failed the battery of tests, were denied promotions, and sued RAC for violating the ADA through its use of the MMPI. The ADA limits the ability of employers to use "medical examinations and inquiries" as a condition of employment. Employers may not use pre-employment medical tests; medical tests that lack job-relatedness or business necessity; or tests that screen out people with disabilities (or have such an effect). RAC opted not to argue about whether the tests were pre-employment when used for promotions. RAC also refrained from arguing that the tests were job-related or a business necessity. Instead, RAC defended itself solely on the basis that the MMPI is not a medical examination and thus is outsidethe coverage of the ADA. The EEOC defines "medical examination" as a "procedure or test that seeks information about an individual's physical or mental impairments or health." The EEOC identifies seven factors to consider when determining whether a particular test is a "medical examination":
In light of these guidelines, RAC argued that it only used the MMPI to measure personality traits. The court responded that this was of no consequence: "The problem ... is that the practical effect of the use of the MMPI is similar no matter how the test is used or scored - that is, whether or not RAC used the test to weed out applicants with certain disorders, its use of the MMPI likely had the effect of excluding employees with disorders from promotions." This conclusion establishes the use of the MMPI in the employment context constituted a "medical examination," and, in this case, a violation of the ADA. Source: Employment Briefings, September 05 (Mondaq News Alerts, World) HR Techniques for ADA Compliance: Designing and Implementing the Interactive Process By Craig Pratt, with assistance from Ryan Olson Introduction Implementing the Americans with Disabilities Act of 1990 (ADA) often tests human resources (HR) professionals' ability to translate legal requirements into manageable procedures. Nowhere in the ADA is this more true than in the regulations and court decisions that call for an "informal interactive process." This phrase refers to communications between an employer's representative (e.g., managers, HR professionals) and an employee about the employee's need/request for a reasonable accommodation. Pursuant to the ADA and some similar state statutes, regulatory agencies such as the Equal Employment Opportunity Commission (EEOC) and courts of law around the United States frequently require employers to conduct a "good faith" interactive process when an employee requests a reasonable accommodation. As with many of the practical measures necessary for compliance with both the spirit and the letter of the ADA, the legal authorities don't make it easy for HR professionals to know how to comply with their requirements. This white paper seeks to answer two important questions: 1) How should an HR professional approach the design and implementation of an "interactive process" and 2) how can an HR professional ensure consistent treatment of employees and applicants while conducting an informal process? Guidance from Legal Authorities In an excellent 2001 article for the Journal of the Missouri Bar, titled "The ADA's Interactive Process," attorney Craig Sullivan identified the legal authority for the interactive process in EEOC regulations and court cases. Sullivan's analysis of court decisions reveals that the employer and the employee share responsibility for initiating the interactive process. For example, an employer cannot be held liable for accommodating a disability that it knows nothing about but, similarly, an employee does not have to make an expressed request for a "reasonable accommodation" to trigger the commencement of the interactive process. Court rulings that assess the adequacy of interactive processes also rely heavily upon the phrase "act in good faith" and use it as a centerpiece to judge the compliance efforts by both the employee and the employer. Sullivan cites a circuit court's ruling that states an employer fails to demonstrate good faith if evidence does not show the application of an interactive process when: 1. The employer is aware of the employee's disability; and 2. The employer receives notification of the employee's desire to be accommodated. In another example, Sullivan cites the decision of an appeals court in favor of an employer because the employee refused to cooperate with his employer's request for important medical information that may have justified the employee's request for a particular accommodation. Suggested procedures discussed below facilitate compliance with legal requirements by providing concepts and techniques attendant to designing and implementing an interactive process wherein both the employer and the employee are given the means to fulfill their respective obligations to act in good faith. Important Concepts HR practitioners need to keep the following important concepts in mind as they apply their know-how to develop and implement procedures that will satisfy the legal requirement for an interactive process within their particular work setting. Purposes Served by the Interactive Process Regulatory guidance and published court decisions describe a variety of purposes that are served by the interactive process. HR practitioners respond to the legal requirements when they develop a procedure necessary to compile information attendant to one or more of the following:
HR practitioners are accustomed to a wide variety of situations requiring analysis to determine if and/or how the ADA applies. Likewise, the interactive processes adopted by employers will reflect wide variations. Sometimes, the interactive process will be simple and brief-perhaps a single exchange. For example, the employee requests a simple accommodation that can be easily provided. The employer facilitates the measures to grant the request-and the interactive process is complete. Other times, there will be more complexity and/or the process will have a longer duration with numerous back-and-forth exchanges. In all cases, HR practitioners should check the suggestions given below to see if they apply; at a minimum, there should be documentation of the request and the step(s) taken to facilitate its accommodation. Rationale for HR's Involvement As seen below, designing and implementing an interactive process may involve combining information gained from sources within HR's different functional areas, including, for example:
Many HR practitioners find that ADA compliance efforts involve the need to work with employees who are distressed and anxious. Thus, conducting an interactive process successfully relies upon diverse interpersonal communications skills. To conduct an interactive process consistent with the spirit of the ADA, few skills are more important than accurate and sensitive interpersonal communication techniques deployed in stressful circumstances. This white paper assumes that the HR department, acting on its own or in tandem with a line manager or supervisor, is best suited to implement the interactive process in an organization. HR may work with its legal department or outside counsel to design the organization's interactive process. Preparation As with many HR tasks that a practitioner does not practice frequently, brushing up on specialized knowledge is an important preparatory step for designing an interactive process. Experienced HR practitioners often report a lack of confidence in their ability to apply the vaguely defined terms from the ADA to the practical day-to-day reality of the workplaces they serve. Some employee situations giving rise to requests for reasonable accommodation have a mix of performance problems and strained work relationships that have created friction and distrust within work units. These preexisting conditions can hamper communication efforts necessary to implement an accommodation. Practitioners can access the EEOC Web site and SHRM information sources to enhance their knowledge and understanding. HR practitioners may want to update their understanding of court decisions or other legal requirements periodically by conferring with legal counsel. This white paper will not substitute for legal advice or counsel. The Job Accommodation Network also can provide HR professionals with helpful background information. JAN's free guidance is arranged by disease/health condition and contains suggested accommodations that have been developed in employment settings. The figure above depicts a typical four-phase ADA reasonable accommodation decision tree and illustrates where the interactive process fits.
Assuming decisions are made to continue in phases one and two of the decision-making cycle, HR initiates the interactive process by contacting the employee or applicant. From an HR perspective, the essence of the interactive process is the collection and exchange of information necessary to facilitate a two-sided negotiation. HR can facilitate a positive atmosphere by approaching the interactive process discussions with a friendly and helpful attitude. In structuring their approach, HR practitioners who design and carry out interactive processes will want to consider applying one or more of the techniques outlined below. Determining Who May Participate Employees, their representatives (if any), HR specialist(s), managers or supervisors are all likely participants in the interactive process meetings. If English is not the first language of the employee, a translator may also be a participant. Employees who have the disability are odds-on favorites as best sources of information, especially when questions need to be answered about their disability-related limitations. They are also likely to know the impact of those limitations on job performance. Employees know their job responsibilities and, likely, the responsibilities of other positions in their immediate work areas. Unfortunately, some employees are suffering from disease processes, like clinical depression, that may impair their ability to sufficiently carry on the kind of structured two-way discussions that are necessary for a full exchange of information between the employee and the organization. Accordingly, employees may request, and the organization may be served by agreeing with the request, for a representative to accompany the employee during meetings within the interactive process. When a representative (e.g., business agent, shop steward, co-worker, etc.) joins the employee, it may be helpful for the HR representative to ask if the employee's representative is familiar with the ADA. If he or she is not, the representative could be directed to the EEOC web site. The representative should also be told about the privacy expectations of the organization with respect to employee's confidential information, including, but not limited to, medical information. Employee requests for legal counsel should be directed to the organization's legal department and/or outside counsel. Requesting Medical Information An HR professional's normal sensitivity to the privacy considerations of employee personal information, including medical data, is an important starting point for the interactive process. No one from HR, nor any manager or supervisor, should initiate an inquiry about aspects of an employee's medical diagnosis, his or her symptoms, medications that he or she may be taking and the like. Employees may bring these items into discussions, and if they do, HR professionals should exercise appropriate caution in discussing them. First and foremost, HR's inquiry should be directed to the specific accommodation the employee is requesting: what exactly does the employee need to allow him or her to continue performing the essential functions of his or her position? Many requests for accommodation will be so simple that additional medical information and/or negotiation are unnecessary. In these situations, HR should document the content of the meeting(s) held, memorialize the agreement that occurred and conclude the process. When an employee's request for an accommodation does not appear to be supported by the HR representative's analysis of what the employee requires due to a disability, the employee should be asked to justify his or her request by providing medical information that supports the request. HR may choose to delegate the receipt and analysis of the employee's supporting medical documentation to a health department or physician who is contracted for the purpose of evaluating the data. The employee will be asked to sign a release that permits the physician to analyze the information and report the results of the analysis to HR. If the employee will not sign the release, the employee is refusing cooperation that may be necessary for a "good faith" effort, and HR should consult legal counsel if this occurs. An experienced medical evaluator will limit the feedback he or she provides to HR by focusing all of his or her communication on the requested accommodation(s) and the medical justification thereto. Throughout the interactive process, it is especially important for HR and supervisors or managers to avoid making unwarranted assumptions about the impact of an employee's disability. Assumptions, especially those that derive from stereotypes, reinforce the fears of disabled people that they will not be given a fair chance to demonstrate their capabilities. When they have little or no experience working with disabled employees, employer representatives are often vulnerable to making assumptions about the impact of a disability on an employee's ability to perform his or her job. The interactive process is designed to give both the employer's representatives and the employee the opportunity to do "reality checks" on their assumptions about each other. Developing an Agenda Items to be discussed in interactive process meetings will, of course, vary widely depending upon the circumstances presented by the employee. At a minimum, the employee and/or the representative will be asked to fully explain the proposed accommodation or, if no accommodation has been proposed, the need for an accommodation. The HR representative should expect that occasionally he or she will have to help the employee provide sufficiently detailed information to justify his or her statements. A job description can be a helpful starting point for this inquiry. HR should also consult the supervisor and/or manager in the employee's work unit to determine the impact of agreeing to the employee's request on workflow, productivity standards and co-worker interactions. From the perspective of fairness, appropriate scrutiny should be employed by HR in light of the potential impact of employee requests to be excused from duties because such requests are likely to be found objectionable by his or her co-workers. Information about the modified work processes and their impact on co-workers can be channeled back into the discussions with the employee. The content of interactive process discussions can include such items as:
Ensuring Privacy An employer should not discuss this process with anyone who doesn't have a right to know. Privacy considerations, including restricting the distribution of information about an employee's disability and his or her accommodation requests, are important in all interactive processes. HR should extend the same protection toward the information developed in the interactive process as it would in other private and confidential employee matters. Supervisors or managers can be included in the distribution of information about a disabled employee's need for an accommodation because they need to know how work schedules, performance expectations and other potential modifications will be handled as part of a reasonable accommodation. Under no circumstances should co-workers be informed about the details of an employee's disability unless the employee personally chooses to impart such information to his or her co-workers. Documentation Experienced HR practitioners recognize the value of memorializing discussions and creating a documentary record of agreements made with employees. Making records of the interactive process will incorporate these principles. When documenting the interactive process, keep these tips in mind:
The following two case studies will hopefully illuminate some of the above discussion. Case Study One Joe is a full-time supervisory employee at a small retail store who has reported the onset of diabetes to his manager. Due to extreme pain in his lower legs when he stands at the register, he requests a part-time schedule that allows him to have Mondays and Fridays off. The retail store, however, has a policy that all supervisory employees are full-time and salaried. Furthermore, Joe's manager has heard from co- workers that Joe is an avid jet skier and often comes to work with a jet ski attached to his SUV. The manager therefore assumes that Joe is asking for time off to accommodate his hobby more so than his health condition. The interactive process questions for an HR practitioner to consider are: 1. What is the exact duty or duties that Joe believes he cannot accomplish due to his disability? Are these duties essential functions of his position? 2. Are there accommodations, short of moving Joe to a part-time schedule, that would allow him to perform his essential functions? For example, could Joe be given an opportunity to sit at the register? 3. Is there any medical evidence to correlate the pain in Joe's legs to his diabetes diagnosis? Discussion of the interactive process considerations relative to Joe's request for a three-day-per-week schedule:
Sara is an employee of a company that takes biological samples from field sites to a lab for analysis. Part of her job involves driving to parklands and rural areas to collect samples, cataloging their date/time/location and taking them to the lab. Sara gets injured in a non-work-related automobile accident and is off work for several weeks. Upon returning to work, she tells her boss that she has work limitations from her doctor for an indefinite period of time. The limitations prohibit her from driving long distances and walking more than 100 feet without a rest break of 20 minutes. Sara requests an accommodation to her job involving the use of a student intern to drive to the distant sites and to collect samples on her behalf; she will ride in the truck and continue to perform the tasks of cataloging and transporting. She further requests that when interns are not available, she be completely excused from field collection duties and, instead, given unspecified administrative duties in the office. The interactive process questions for Sara's HR generalist to consider are: 1. What is Sara's understanding of the length of time that she will require the accommodation that she is asking for? 2. What office duties does Sara feel are not being performed by current staff? Discussion of the interactive process considerations relative to Sara's request for an intern to help with her collection tasks: First, Sara's relatively wide-ranging request will need to be justified by the specific limitations attendant to her medical condition. HR will likely need Sara's physician to provide justification for all aspects of the accommodations she is requesting. What actions does Sara indicate she can no longer perform? Is it the bending over? Carrying samples? Walking to/from the truck? The reason to ask such questions is to determine whether there is an alternative and safe means by which Sara could collect the samples. HR will need to research and be prepared to report the details of intern availability, especially since the use of interns is vital to Sara's accommodation requests. Another issue to be pursued in discussions with Sara is the likelihood that the employer may not have sufficient work for Sara to do exclusively in the office, given that other employees are already performing the office tasks. The employer would not be expected to create work for Sara to accommodate her request. Regarding this case, the interactive process is all the dialogue that takes place that reveals that Sara's request may be overbroad and that the employer may experience an undue hardship in trying to accommodate her requests. Conclusion HR professionals can use the techniques described above to design and implement an interactive process that will achieve both "spirit and letter" compliance with the ADA. Using an HR professionals' interpersonal skills and their knowledge of the requirements of the ADA, employees and their employers can learn each other's perspectives and negotiate many reasonable accommodations and preserve good employee relations. Source: Society of Human Resource Managers HR Magazine, August 2005 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
