Lorman Seminar presentation by Chris Wangsgard on November 9, 2012 in Provo, Utah.

1. LORMAN SEMINAR – EMPLOYMENT LAW UPDATE IN UTAH
INTERACTIVE DIALOGUE
UNDER THE ADA
Chris Wangsgard
November 9, 2012
Provo, UT
parsonsbehle.com

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3. Let’s Look at Accommodation
42 USC 12112(b) “Discriminate” Includes
 The term “discriminate” includes not
making reasonable accommodations to
the known physical or mental limitations of
an otherwise qualified individual with a
disability. . .
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4. Known
Limitations
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5. Not Disabled
Enough
• Not
Qualified to
Perform
Essential
Job
Elements
Too
DisabledA
C
C
O
M
O
D
A
T
I
O
N
Qualified with Disability
• Impairments assessed without
regard to mitigating measures
(other than eyeglasses)
• Construe “disability” broadly
rather than strictly
Increasing Severity of Impairment
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6. Qualified Without
Reasonable Accommodation
Essential Job Elements
(Requirements)
Employee
Capabilities
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7. Not Qualified Without
Reasonable Accommodation
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8. Qualified With
Reasonable Accommodation
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9. Not Qualified (Even With)
Reasonable Accommodation
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10.  Who decides whether the employer has
met its reasonable accommodation duty?
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11. ADA Jury Instruction
Reasonable Accommodation: General Instruction
Under the ADA, to “accommodate” a disability is to make some change
that will let a person with a disability perform the job. An
accommodation is “reasonable” if it is effective and its costs are not
clearly disproportionate to the benefits that it will produce.
A reasonable accommodation may include a change in such things as
ordinary work rules, facilities, conditions, or schedules, but does not
include elimination or change of essential job functions, assignment of
essential job functions to other employees, or lower productivity
standards.
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12. ADA Jury Instruction
Interactive Process
Once an employer is aware of an [employee’s/applicant’s]
disability and an accommodation has been requested, the
employer must discuss with the [employee/applicant] [or, if
necessary, with his doctor] whether there is reasonable
accommodation that will permit him to [perform/apply for]
the job. Both the employer and the [employee/applicant]
must cooperate in this interactive process in good faith.
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13.  Because an employee’s limitations and
concomitant need for accommodation are
often not known to an employer until the
employee requests an accommodation, the
reasonable accommodation requirement of
the ADA usually does not apply unless
triggered by a request from the employee
Keeler v. Florida Dept. of Health
559 F. Supp 2d 1298
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14. Keeler continued:
 The employee’s request must be sufficiently
direct and specific, giving notice that she
needs a special accommodation and the
request must explain how the
accommodation requested is linked to her
disability
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15.  Where employee’s limitations and necessary
reasonable accommodations are not
open, obvious and apparent to employer, the
initial burden rests primarily on the employee
to suggest a reasonable accommodation
Husinga v. Federal-Mogul Ignition
519 F. Supp 929 (2007)
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16. Mr. Dortch:
“…my spondylitis condition worsened recently.”
Tommy Holly:
“You know, it’s going to be extremely difficult for
me to do this, with my problems I have.”
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17. Big, Big Accommodation
Takeaways
 Preparing to explain an accommodation to a jury
should happen during the decision making – not
when the decision is challenged later
 Don’t pretend the jury won’t hear from the lower
level people closest to the facts
 Assume jurors will ask themselves:
– how would my company have handled this?
– how would I feel if I were treated like this?
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18. Conditional Accommodation
 In a close case, the company will look
better to a jury if it has tried an
accommodation. If the accommodation
does not work the company will have
evidence showing:
1. It wanted to help the employee
2. Why the accommodation didn’t work
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19. Two Big Accommodation
Takeaways
1. An ADA accommodation is a change in
how we do things
2. An ADA accommodation is something we
do not do for other employees
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20. 1. An employee makes an ambiguous statement
implying something is wrong with them? OR
2. A supervisor observes that something seems wrong
about the employee?
What if:
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21. Can you see a way to respond which:
1. Meets the company’s duty to conduct
interactive dialogue
AND
2. Would not violate the ADA even if ADA
limitations were later deemed not to have
been made known
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22. “Can you do this job?”
OR
“What part of the job do you think you
may have trouble doing?”
How about something like:
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23. Requesting Reasonable
Accommodation
 Plain English – Common Sense
 Making known a limitation
 Requesting some help
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24. Employer’s Response:
 Informal process
 Clarify what individual needs
 Identify appropriate, reasonable
accommodations
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25. Employee’s Responsibilities:
 Identify functional limitations
 Describe problems performing job duties
 Provide suggestions regarding effective
accommodations
 Allow employer to submit specific questions to
appropriate, health care professional
 Cooperate in responding to reasonable
employer requests for documentation (may
include signing limited release of medical
confidentiality)
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26. Possible Reasonable
Accommodations Include
 Making existing facilities accessible
 Job restructuring
 Part-time or modified work schedules
 Acquiring or modifying equipment
 Changing tests, training materials, or policies
 Providing qualified readers or interpreters; and
 Reassignment to a vacant position
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27. Accommodations Related to Job
Performance, Job Restructuring
 Reallocating or redistributing marginal job
functions an employee is unable to
perform because of disability
 Altering when/how functions, whether
essential or marginal, are performed
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28.  Note: The employer never has to eliminate
essential functions as a reasonable
accommodation, but employer must prove
the functions it will not reallocate are
essential
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29. What Do We Not Have To Do
To Accommodate?
You don’t have to:
 Eliminate an essential function
 Lower uniform production standards
 Provide personal use items needed both on
and off job
 Create a position or bump an employee to
create a vacancy
 Provide employee with a new supervisor
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30. . . . And The Ultimate Don’t Have To
Do It – Undue Hardship
Relevant factors:
 Nature and cost of accommodation
 Impact of accommodation on operation of
facility
 Overall financial resources, size, numbers of
employees of the employer
 EEOC Enforcement Guidance:
“Generalized conclusions will not suffice to
support a claim of undue hardship.”
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31. Summary
 Accommodation is not immunity from discipline
 It’s prospective
 It starts when limitations are made known
 Accommodation requests can be subtle – and
informal
 Employer’s duty to consider and discus
accommodations covers all reasonable options
– not just the employee’s first choice
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32.  Accommodation means changing the way
things are customarily done
 Accommodation requires doing things for
disabled employees which you don’t do for
other employees
 You probably won’t enjoy the comfort of a
clear rule declaring your accommodations
decision reasonable
Summary
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33.  A jury will decide whether your decision was
reasonable
 So you’re not ready to make an accommodation
decision until you’re comfortable with the risk
involved in explaining the decision to a jury
 And that person with the most personal
knowledge of the job duties and the impairments
will be the most important witness regardless of
corporate position
Summary
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34.  Chris Wangsgard
direct: (801) 536-6782
email: cwangsgard@parsonsbehle.com
Thank You
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