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New case highlights ADA accommodation guidelines

By: DOLAN MEDIA NEWSWIRES//May 19, 2014//

New case highlights ADA accommodation guidelines

By: DOLAN MEDIA NEWSWIRES//May 19, 2014//

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By Traci Gentilozzi
Dolan Media Newswires

Gone are the days of scrutinizing, or even second-guessing, whether an employee actually has a disability under the Americans with Disabilities Act.

Instead, today’s ADA claims are all about accommodating the employee, so she can do her job.

A new case from the 6th U.S. Circuit Court of Appeals will test the limits of accommodation.

In the case, an employee with irritable bowel syndrome wanted to telecommute and argued that working at home was a reasonable accommodation. A federal judge in Detroit tossed her lawsuit, but the 6th Circuit brought it back to life, ruling that a jury should determine reasonableness and raising the question of whether being physically present on a worksite is an essential function of the job.

Cases like this one leave employers worried and concerned about how to negotiate the legal thicket.

“I frequently tell employers to just assume the person is disabled,” said Detroit employment and labor law attorney Terry Bonnette of Nemeth Law PC.

Cameron Evans, an employment and labor law attorney at Honigman Miller Schwartz and Cohn LLP in Detroit, agreed.

“Employers should err on the side of caution and just do the reasonable accommodation,” he said.

Evans explained that employers used to focus on whether the employee was disabled and, if so, whether the disability substantially limited a major life activity.

But now, Bonnette said, the analysis has moved past that point, and focuses on whether the individual can perform the essential job functions.

“And if the person can perform the job with a reasonable accommodation, the employer has to determine what that accommodation is and provide it,” Bonnette said.

Why the change? Because ADA amendments, new Equal Employment Opportunity Commission guidelines and recent case law have put an emphasis on “individual assessment.”

“The question is whether the employer provided an individualized assessment to see if the work-related rules and regulations treat the employee fairly,” Bonnette said.

Another reason, Bonnette said, is that federal lawmakers have indicated they do not want the courts deciding medical issues, including whether a person has a disability.

“So the definition of disability has been expanded, and the EEOC continues to issue guidelines,” Bonnette said.

ADA brought ‘back to life’

When the ADA was enacted in the early 1990s, there was a decade or so of litigation that helped clarify what disabilities were covered, Evans explained.

“We ended up with two big decisions from the U.S. Supreme Court, and it seemed the issues were settled,” he said. “We saw a drop in claims because it was pretty clear what the requirements were, and employers got used to it.”

handicap-ADAThen in 2008-09, the ADA was significantly amended, Evans noted.

“But there wasn’t a major uptick in lawsuits because of the economic troubles at the time,” he said. “Employers were just trying to keep the lights on.”

But now, ADA litigation has “come back to life,” Evans said.

“There are more requests for accommodation now because there’s a far broader group of people who can be covered,” he said.

Bonnette acknowledged there has been an increase lately in the number of EEOC complaints.

“And there’s a slight increase in the number of lawsuits being filed,” Bonnette said. “But the major overall effect has been how these cases are now litigated and what the issues really are.”

Broader category

In the last year, the EEOC has expanded the definition of disability to include epilepsy, diabetes, cancer and intellectual conditions, like attention deficit disorder.

“It’s a much broader group of people now who come under the ADA,” Evans said.

Bonnette emphasized the EEOC guidelines do not mean that epilepsy, diabetes, cancer and intellectual disorders are “new” disabilities.

Rather, the difference is that “we now automatically assume these conditions are always going to be disabilities,” Bonnette said.

“The question is then whether the accommodation being requested is required by that condition,” he said. “And the next question is whether the accommodation is reasonable.”

Meanwhile, like with any accommodation, the effect on the employer’s ability to operate must be considered, Bonnette said, noting it must not be an undue hardship.

Evans agreed, saying employers must find a way to work through the issues in a way that is consistent within the environment and culture of the company.

But no matter what, one overriding principle remains — employers must conduct individual assessments, Bonnette said.

“So if an employee presents with a condition, don’t get into a discussion about how bad it is and how badly it affects the employee,” he said. “Instead, immediately start asking, ‘What accommodation is required and is that accommodation reasonable?’”

The telecommuting accommodation

One of the most requested accommodations these days is working at home, Evans and Bonnette pointed out.

Because technology makes it easier to telecommute and the ADA lynchpin is now individual assessment, employers must perform a “more thoughtful” analysis of workers and their job responsibilities, Bonnette said.

“You can no longer just assume that attendance on site is an essential function of an individual’s job,” he said.

Evans agreed.

“You have a fair number of people who want to telecommute,” he said. “If telecommuting was rarely considered before, now it is something that employers have to consider.”

Evans said employers need to understand how their telecommuting policies might be a factor in an ADA claim.

“Telecommuting will require a specific focus and a deliberate process about whether it will be a reasonable accommodation,” he said. “It adds another item to the menu that must be looked at.”

Employers also need to assess whether they need a written telecommuting policy for a particular job and what the impact of the policy will be, Evans said.

“The initial analysis for employers is, what does that person do and how do they do it?” he said. “Given that we are a technology-based society, you now have much broader group of jobs where it may not be necessary to be physically present at work.”

In addition, Bonnette said employers must thoroughly analyze job descriptions before litigation and not afterward — i.e., these are the essential functions, this is where the job must be performed and these are the physical requirements.

“And, again, it needs to be a thoughtful, individualized analysis,” he noted.

Does ruling create a ‘slippery slope’?

The April 2014 work-at-home case from the 6th Circuit will have many people watching.

In Equal Employment Opportunity Comm’n v. Ford Motor Co., the employee worked for Ford as a resale steel buyer. She had irritable bowel syndrome and claimed that working at home was a reasonable accommodation. Ford denied her request and she filed a complaint with the EEOC.

Although a Detroit federal judge dismissed the case, the 6th Circuit reversed, saying a jury should decide whether telecommuting is a reasonable accommodation for the employee.

Given technological advancements, “we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements,” the court said.

The 6th Circuit made two important points, Evans said.

“First, it called into question whether being physically present is even an essential job function anymore,” he said.

Second, the court said a jury should decide whether telecommuting is a reasonable accommodation, Evans noted.

According to Evans, the ruling emphasizes that employers must determine ahead of time whether physical presence is an essential job function.

“If it is not an essential function for the employee to be at work, then that job requirement is eliminated,” he said.

“We always had a good understanding of what ‘reasonable accommodation’ was, but this Ford case is going to spark a lot of requests for accommodation and is going to get a lot of attention in the next few years,” Evans said.

But Bonnette sees the ruling a bit differently.

“I don’t think it’s really about whether the employee is going to be at work or not, but about where that employee is going to actually perform the work,” he said.

“If the employee is to the point where she cannot leave her home because she has irritable bowel syndrome and she needs to immediately get to the bathroom, then I think the 6th Circuit got it wrong because the question then becomes whether that employee can work from the bathroom,” he said, noting the case will likely be appealed again.

The 6th Circuit is creating a “slippery slope,” Bonnette said.

“There is a long history and precedent of courts not wanting to second-guess employer’s legitimate business decisions,” he said. “But with this ruling, it seems that may be changing.”

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