Tag Archives: disability

Favorite Firing: Terminated for Lying About Leave


police-officer-clipart-black-and-white-nTXoX7MTBYears ago, I used to discuss employment cases I worked on with my kids at the dinner table. I didn’t use names, but I did describe the circumstances. “Don’t ever lie to your employer. You can get fired for lying,” I told them.

A recent court case from Ohio proves I’m still right. In Mattessich v. Weatherfield Township (Ohio Ct. App. Feb. 8, 2016), a police officer who had taken leave for depression was later terminated for lying about his medical leave. This is yet another “favorite firing” case involving law enforcement personnel.

The Facts: After Richard Mattessich, a police officer with the Weathersfield Township Police Department in Ohio, applied for a promotion to sergeant, he alleged that another applicant had been late to work. A video proved that Officer Mattessich’s allegations were false. The Chief of Police considered terminating Officer Mattessich at that time, but gave him a second chance. The Chief did require Officer Mattessich to undergo a psychiatric evaluation. A health care provider concluded that Mattessich needed sick leave, and he was off work for nine months.

Officer Mattessich passed a fitness-for-duty exam and returned to work. Nevertheless, others on the police force thought he lacked confidence and even seemed “dazed” and “out of it.” Officer Mattessich said he was fine and denied having any mental health counseling while on leave.

A few weeks later, his superiors learned that Officer Mattessich had in fact been treated for depression with counseling and medication. He admitted he had lied earlier about not receiving any treatment. Shortly thereafter, his employment was terminated for lying. The Chief of Police indicated that he could not trust a dishonest employee, because honesty and integrity were essential parts of the job for police officers.

Mattessich filed a disability discrimination lawsuit alleging that he had been discharged because of his mental health condition. The trial court granted summary judgment to the employer and dismissed the case, ruling that dishonesty—not disability—was the motivation behind the termination.

On February 8, 2016, the Ohio Court of Appeals upheld the termination. Although Mattessich’s “depression” was mentioned during the termination discussions, it was only mentioned because it was related to the plaintiff’s deception. There was no evidence that his mental health status was the cause of his terminaiton. Just because the employer knew about some mental health condition did not mean that any subsequent adverse decision was the result of discrimination.

The Court of Appeals found that the police department had provided a legitimate, nondiscriminatory reason for Officer Mattessich’s termination. It therefore became the plaintiff’s responsibility to prove that the reason was pretextual. The Court stated:

To establish pretext for a claim under the Civil Rights Act, “a plaintiff must demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”

Officer Mattessich failed to provide evidence to support pretext under any of these three categories.

One of the three judges on the Court of Appeals did dissent. She argued that the employer regarded Officer Mattessich as disabled and that there were questions of fact about the officer’s dishonesty that should have survived summary judgment.

The Moral: What I told my children is still good practice at work—do not lie to your employer.

This case involved law enforcement, where honesty is critical for the success of the police department’s work with the public and in courts. But honesty is critical in every employment relationship. Every employee owes his or her employer a duty of loyalty, which encompasses veracity. Every employer should have a policy prohibiting employees from lying to their supervisors.

And every employer should investigate allegations that an employee has lied—not only when the lies involve things as critical to the employment relationship as fitness for duty and leaves of absence.

Of course, communicating employment policies and consistency in applying those policies are critical. In this case, the Court of Appeals found that the Weathersfield Township Police Department had disciplined other officers caught committing acts of deception. So consistent application of the policy was important.

As noted above, there was a dissent in this case. These situations can go either way for the employer. The more the employer can distance the termination from the finding that the employee is disabled, and the more similar situations involving employees not in the same protected class as the discharged employee, the better the case is likely to go for the employer.

Involving Human Resources professionals and employment attorneys in these situations prior to discharging the employee is always a best practice.

But in this case, the biggest issue is that it took five years to get an appellate ruling that the employee could legitimately be discharged for dishonesty.

When have you had to deal with dishonesty in the workplace?

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Favorite Firing: Working While Intoxicated


417px-Interlocking_USC_Logo.svgA few months ago the University of Southern California fired its head football coach for showing up to work drunk. Then in December 2015, the coach sued USC, which shouldn’t surprise anyone with employment law experience.

Most cases in which alcoholism impacts the workplace are not so public, but this one offers lessons for both employees and employers.

The Facts: The facts of this case are disputed, because it is still in litigation. Here’s the version I’ve gleaned from the media:

Head Coach Steve Sarkisian allegedly attended a number of events while under the influence of alcohol and/or medications in the months before he was fired. In August 2015 he showed up to a USC event apparently under the influence, which provoked media headlines, and he later apologized. At a game in late September 2015 his staff suspected that he was under the influence.

And in October 2015, Coach Sarkisian “appeared not normal” at an event, according to one news source. A player said after that occasion that the coach “showed up lit to meetings again today.” His manager, Pat Haden, Athletic Director for USC, said it was “clear to me that he was not healthy,” as quoted on ESPN.com. Coach Sarkisian was instructed to leave, and he was asked to take an indefinite leave of absence.

A few days later, Mr. Haden announced that he had fired Coach Sarkisian. Coach Sarkisian entered a rehabilitation program.

Then in December 2015, the coach sued USC for breach of contract and disability discrimination. That lawsuit is in its very early stages.

The Moral: It appears that this situation has been a long time in the making, as are most situations involving substance abuse of any kind that impact the workplace. And how much of the behavioral problems are due to alcoholism and how much they should be excused will be issues in the lawsuit, as such issues typically are in cases involving substance abuse.

Alcoholism is a disability protected under the Americans with Disabilities Act, but having a disability does not protect an employee from the consequences of his or her behavior.

An employer may still maintain a policy prohibiting using drugs or alcohol during working hours and/or being under the influence of drugs or alcohol while at work. Employees can be fired for violating those policies, or for any other breaches of company behavioral policies (such as rudeness to customers or other employees), even if the employee is an alcoholic or addict and his or her bad conduct occurred while under the influence. Employees with addictions can also be held to the same performance standards as other employees.

As the EEOC states:

“The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.”

Also,

“employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees. This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.”

The moral here is that employers need to have firm policies defining acceptable and unacceptable conduct. And they need to enforce those policies consistently. It won’t do for employers to permit non-addict curmudgeonly managers to yell at their subordinates, yet fire alcoholics who engage in the same behavior.

It is a good practice for employers to refer employees they suspect of having substance abuse problems to an employee assistance program, but having such programs is not required. And an employer can still enforce discipline, even if the employee seeks assistance, which appears to be what happened in the USC case.

Only time and litigation will disclose what happened in the USC case. Only the lawsuit or a settlement will now resolve the matter.

But this unfortunate situation is an opportunity for employers to review their policies and practices around substance abuse. And to train managers in how to handle future problems consistently with other performance and behavioral issues.

When have you had to deal with substance abuse problems in the workplace?

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Keeping Your Wellness Programs Well: EEOC Notice of Proposed Rulemaking


EEOC sealWellness programs are a popular component of many employee benefit plans. Employers use these programs to encourage healthy behaviors among their employees, thereby reducing long-term medical costs. In addition, these programs often provide financial incentives to employees to engage their interest and sometimes include contests and classes that promote camaraderie and improve the workplace culture.

Over the last fifteen years, I have worked with several employers in a variety of workplaces to design and implement wellness programs. The employers are usually concerned about how to balance the costs and benefits of the programs and how to measure whether the program has a positive impact on employee health. It is also important to focus on changing behaviors that employees can control, while not penalizing them for health issues they cannot control.

On April 20, 2015, the EEOC released a Notice of Proposed Rulemaking addressing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs.

Previously, federal regulations defined acceptable wellness programs under HIPAA. After passage of the Affordable Care Act in 2010, several government agencies approved wellness programs that offered financial incentives to employees, so long as the incentives did not exceed 30% of the cost of coverage to employees. Incentives of up to 50% of coverage were permitted for programs related to preventing or reducing the use of tobacco products.

However, the EEOC was not one of the agencies involved in the earlier regulatory effort. The EEOC took the position that wellness programs designed under the earlier regulations may not comply with Title VII of the Civil Rights Act of 1964 or the ADA. The EEOC challenged several wellness programs in court, most notably in a lawsuit filed against Honeywell International, Inc. Honeywell’s program imposed a penalty on workers who refused to undergo biometric testing. Such penalties are a common component in wellness program design.

The EEOC’s enforcement efforts against Honeywell and other companies has made many employers hesitant to develop new wellness programs, despite the desire of employers to promote healthy behaviors among their employees and to manage their rising health care costs.

With its recent Notice of Proposed Regulations, the EEOC is finally providing guidance on how to design wellness programs it believes are acceptable under the ADA.

First, the EEOC says, wellness programs must be voluntary.

Wellness programs must be voluntary.

  • Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.
  • Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.
  • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

Next, the programs can only offer limited incentives for employee participation or for achieving health outcomes.

Employers may offer limited incentives for employees to participate in wellness programs or to achieve certain health outcomes.

  • The amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage.
  • For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

This 30% “incentive” basically accepts the existing HIPAA regulatory definition of “reward”, although there are some differences. Most notably, the EEOC proposed regulations cap smoking cessation rewards at 30%, instead of the HIPAA 50%, although if all the employer requires is that the employee answer a question about tobacco use, then a 50% incentive is permitted.

The Notice also limits incentives to 30% for programs that ask an employee to respond to a disability-related inquiry or undergo a medical examination. This is contrary to the HIPAA safe harbor exempting bona fide benefit plans from the ADA prohibition on medical examinations.

The Notice also specifically states that compliance with the proposed rules will not mean that an employer has complied with Title VII of the Civil Rights Act, nor with the Age Discrimination in Employment Act.  Thus, the EEOC’s proposed rules are narrowly limited to compliance with the ADA.

Moreover, the rules state that employers must provide reasonable accommodations to disabled employees who seek to participate in wellness programs, such as sign language interpreters at classes for hearing-impaired participants.

Thus, the EEOC’s proposed regulations are of limited help to employers seeking to design wellness programs. It is of some benefit to know that 30% incentives are acceptable, but the regulations do not go far enough.

For more information, see

EEOC Issues Proposed Rule on Employee Wellness Programs and ADA Compliance, by Terri Gillespie, HRLegalist.com, April 21, 2015 

Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap, by Nancy Campbell, SWLaw.com, April 21, 2015

EEOC Publishes Proposed Rule on How the ADA Applies to Employer Wellness Programs, McGuireWoods.com, April 23, 2015

EEOC Finally Releases Notice of Proposed Rulemaking for Wellness Programs, EmployeeBenefitsUpdate.com, Monday, April 27, 2015

The EEOC’s New Wellness Program Regulations: Notable or Needless, by Michael Mishlove, GSHLLP.com, April 30, 2015

New Guidance On Wellness Programs, by Mathew Parker, LaborLawyers.com, May 2, 2105

What should employers do as a result of the new EEOC Notice of Proposed Rulemaking?

  1. Read the proposed regulations and evaluate your wellness programs for compliance
  2. Consult your attorney and/or benefit plan advisors about possible changes to your wellness plans.
  3. Send your comments on the proposed regulations to the EEOC by June 19, 2015, if you so choose.

What has been your experience with employee wellness programs? What has worked best at your company?

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Favorite Firing: When Employees Behave Badly . . . And Mental Illness Is Suspected


Photo by David Castillo Dominici. Published on 08 September 2014 Stock Photo - Image ID: 100286443. Freedigitalphotos.net

Photo by David Castillo Dominici. Published on 08 September 2014
Stock Photo – Image ID: 100286443. Freedigitalphotos.net

On a handful of occasions during my career, I had to deal with employees who were mentally ill. Several employees were depressed, and these situations could generally be worked through over time. But one individual had agoraphobia and wouldn’t leave his house, though his job required him to call on customers. Two others had schizophrenia, and their communications were difficult to understand and their workplace behaviors were bizarre. These were the more difficult situations. This month, I’m writing my “Favorite Firing” on one particular case of schizophrenia.

The Facts: “Sabrina” (not her real name) worked in an office environment, in a room where about ten employees worked. She had worked for the company for around twenty years. For most of her employment, her performance was adequate, though her behavior toward coworkers tended to be a little quirky. She didn’t have any friends among her colleagues, but they all got their jobs done.

As a Human Resources director, I became aware of Sabrina’s situation when her managers began complaining that she was accusing coworkers and managers of following her around. The managers denied that anyone was doing anything inappropriate toward Sabrina. Despite several conversations, Sabrina continued to accuse people of following her.

Then she began following others. To the rest room. To other departments. Her coworkers got freaked out. Sabrina was told not to follow anyone. She said she had to, because they were spying on her.

Sabrina was placed on a leave of absence and told to see her physician about her behavior. This was a risky move on the employer’s part, but workplace counseling was not getting through to Sabrina. While she was on leave, Sabrina sent us a lengthy, rambling diatribe of all the evil things that had been done to her by managers and coworkers. It was five pages of incomplete and run-on sentences, most of which made no sense. The company attempted to decipher her claims and investigate, but Sabrina’s allegations could not be substantiated.

Sabrina’s physician reported that she should be able to do her job, so she was returned to the workplace after a few weeks. The environment in the department did not improve, with both Sabrina and her coworkers reporting misdeeds. Everyone denied everything. The situation continued for several months.

Things came to a head when one of Sabrina’s managers complained that when she turned to confront Sabrina about following her down the hall, Sabrina stuck out her forefingers like guns and said “Gotcha.” It’s hard to tell what Sabrina meant by this, but the manager took Sabrina’s action as a threat of violence and was seriously shaken.

Sabrina was put on another leave, and was told she could not return without more information from her doctor about why she was behaving so oddly and assurances that her behavior would change. We hoped this additional leave would get her to seek medical help and perhaps begin medication that might improve her behavior. Again, a risky move on the part of the employer, but morale and productivity in the department were suffering and we could not continue as we had for so long.

We received no information back from Sabrina or her doctor, despite issuing deadlines in writing to Sabrina. After Sabrina’s FMLA leave rights expired, she was terminated, because we had no reason to think the situation would ever improve.

The Moral: We were fortunate that this case did not result in litigation. While the managers and I strongly suspected that Sabrina had schizophrenia, we had no verification. It would not have really mattered whether we ever got a diagnosis or not; our suspicions were probably enough to result in a finding under the Americans with Disabilities Act that Sabrina was protected because she was “regarded” as having a mental disability. We had to assume the ADA would apply to protect her.

Under the ADA, employers must engage in an interactive process with the employee to determine whether the employee can perform the essential functions of the job with or without reasonable accommodation. Sabrina had performed her essential job functions for many years. In her last couple of years of employment, her performance suffered, but we would have had to prove that she no longer met the essential job functions. We had some documentation of poor performance, but much of the problem was behavioral, rather than low productivity.

Moreover, we would have had to prove that we attempted reasonable accommodation to get her to do her essential job functions. Her job primarily involved processing paper. She might have been able to do that. But communications with coworkers in her own and other departments were also critical, and her workplace relationships were broken by her odd behavior. We had not suggested any accommodations to Sabrina, because we had no diagnosis and no understanding of what might help her. On the other hand, she had not suggested any accommodations to us either—she denied she had any problems, and blamed everything on her managers and coworkers.

The medical leaves we put her on were the only way we felt we could get Sabrina to take the situation seriously. Ultimately, even the leaves did not get her to provide us with any information about accommodations. What if her doctor had told us that Sabrina could work from home, or could work in an isolated environment? Could we have accommodated these proposals? We might have at least had to try.

No one wanted to fire Sabrina, but the company also did not want to put up with the disruptive behavior in her department. We decided it was the best course of action. But I’ve always wondered what happened to Sabrina.

When have you confronted mental illness in the workplace? How did you handle it?

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Favorite Firing: Discharged for Saying She’d Shoot Them All


gun-161223_1280I recently read an opinion in a case, Ames v. Ohio Department of Rehabilitation and Correction,  2014-Ohio-4774, that reaffirmed my belief that employers should control their workplaces. But even though the result was good, it took quite some time for the legal system to resolve the case.

This situation involves social media, which moves far faster than our legal system. Plaintiff’s first problematic Facebook post occurred in the fall of 2009, and the Ohio Court of Appeals didn’t rule until late October 2014.

The Facts: Plaintiff Diedree Ames was a Senior Parole Officer with the Ohio Department of Rehabilitation and Correction. She carried a gun as part of her job duties and supervised other parole officers. Ms. Ames had a history of interpersonal conflicts and erratic behavior. She had previously taken a leave of absence for mental health reasons.

In the fall of 2009, Ms. Ames posted during a chat session on Facebook: “I’ll gimp into work tomorrow. I guess I could just shoot them all…lol!” She continued in this vein, repeating these remarks again during the chat.

Her managers believed her statements violated the Department’s code of conduct, so she was placed on an administrative leave and ordered to undergo an independent medical evaluation (IME). She returned to work after the IME, though she did incur some discipline.

Later, plaintiff texted a coworker named Jill Brady on an employer-owned computer: “U and ur new gf r in a sh** [redaction mine] heap of trouble . . . u should know u will be tracked.”

Ms. Brady sought a protective order against plaintiff Ames, who was ordered to undergo another IME. Ms. Ames’s managers did not feel the second IME adequately addressed Ms. Ames’s propensity for violence, so they ordered a third IME. The third IME found no actual violence in plaintiff’s past, so no reason to believe Ms. Ames was dangerous.

While still on a medical leave, Ms. Ames wrote Ms. Brady again on a message board, “ . . . Feelin the heat yet? It’s coming. I promise. You f***ed [redaction mine] with the wrong person Brady, your ass is mine!”

After this third threatening post on social media, Ms. Ames was fired for violating the Department’s policy against threatening or intimidating another employee.

She then sued, alleging she had been discriminated against on the basis of a perceived disability. She claimed that because she was sent for three IMEs, the Department must have perceived her as having a mental disability.

Both parties filed motions for summary judgment. The trial court ruled in favor of the employer, but Ms. Ames appealed. On appeal, the Ohio Court of Appeals upheld the trial court, and the termination was determined to be lawful—on October 28, 2014, more than five years after Ms. Ames first sent the threatening Facebook post.

The Moral: It is still acceptable for employers to seek to maintain a peaceable workplace, free from violence by their employees. However, enforcing workplace rules against violence can be a difficult process.

In this case, the Court found that the three IMEs were not evidence that the Department perceived Ms. Ames as disabled. “The three IMEs were sought because ODRC believed that appellant had exhibited behavior that made her potentially dangerous or lethal in the workplace.”

The Court found that Ms. Ames was fired for specific conduct that took place after the third IME and could only be construed as a threat against her Ms. Brady. Moreover,

“Her termination came with a backdrop of a prior incident of posting an inappropriate message on social media, a history of ill will, charges and counter charges against Brady, and finally posting a vulgar, threatening statement toward a co-worker under her supervision.”

The question for other employers now is whether it will always take three IMEs and a lengthy history of inappropriate and threatening conduct before they can fire a wayward employee.

I would hope not.

Employers should continue to take all allegations of threats against their employees seriously. It only takes one employee attempting to make good on one threat to bring deadly violence into the workplace.

Like the Ohio Department of Rehabilitation and Corrections, all employers must insist that employees take responsibility for their words and actions, no matter how many lawsuits and appeals result. The safety of other employees may be at stake.

When have you had to deal with a workplace threat? What happened?

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Favorite Firing: Measuring Seconds and Cents


MC900089576Sometimes seconds count, and sometimes cents count. But should they always? Here is a case where an employee was fired for a mistake involving cents, after her time was accounted for by seconds.

The Facts:  In 2010, Kristi Rifkin, an employee at a T-Mobile call center in Tennessee, had a high-risk pregnancy. One of her doctor’s recommendations was that she drink lots of water.

The call center industry is heavily monitored and measured, and it appears that the T-Mobile call center where Ms. Rifkin worked was no exception. T-Mobile required her to clock out when she needed to use the restroom more than on her normally scheduled breaks. She had to account for every second of her work day.

Ultimately, Ms. Rifkin needed a leave under the Family & Medical Leave Act for the last several weeks of her pregnancy.

Shortly after she returned to work after the birth of her child, Ms. Rifkin was fired for a small error on a customer’s account resulting in an extra charge to that customer and a 12 cent higher commission for Ms. Rifkin. We do not know whether others at T-Mobile were fired for similar errors. Ms. Rifkin did not sue T-Mobile, so we are not likely to get any additional information on this case.

I don’t know why this situation from 2010 has received recent news attention, but it has made the rounds of the media and legal commentators. See here and here for examples. I suspect the media attention to this matter started when Ms. Rifkin posted on the MomsRising.org blog on April 25, 2013.

The Moral: If you are an employee, follow the instructions your employer gives you. In this case, Ms. Rifkin says she complied with everything she was asked to do. She got a doctor’s note to justify her frequent restroom breaks, even though she didn’t think it should be necessary. She took FMLA leave and appears to have documented her leave appropriately.

If you are a manager, make sure you are not treating pregnancy any differently than any other short-term disability. That’s what the federal Pregnancy Discrimination Act requires.

Some pregnancies may not require any accommodation. Others will require accommodations like Ms. Rifkin needed. Do not require more documentation of pregnant employees than of other employees needing accommodation. Do not hold pregnant employees to higher performance standards.

Some states have more stringent requirements for accommodating pregnancies than the federal PDA. Make sure to comply with these state and local requirements, as well as with all laws related to employee breaks. (Note that most states do not require breaks of particular frequency or length, nor do they require that employees be paid for their breaks. Other states have strict rules on these matters.)

Also, employers need to be sure they have good grounds for firing any employee who has been pregnant or taken an FMLA leave, so that any retaliation lawsuit is less likely to be successful. It is best to be able to point to other employees fired for the same reason.

In this case, there is no evidence that T-Mobile did anything wrong, though it certainly sounds bad to require a pregnant woman to justify her trips to the bathroom. One more moral might be: Do unto others what you would have them do unto you.

Ms. Rifkin’s post on MomsRising.org is worth reading, just to get a sense of how employees feel when every minute of their day is monitored. This isn’t to say that an employer should not monitor its workforce, but employers should recognize the impact on morale if they do.

How closely do you think employees’ time should be monitored?

 

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Difficulties of Reasonable Accommodation under the Americans with Disabilities Act


I recently attended a webinar on the Americans with Disabilities Act (ADA), sponsored by the American Bar Association.  The primary points made during the webinar were

  1. The amendments to the ADA passed in 2008 were designed to relax the definition of “disability.” Cases brought under the ADA should now focus more on whether the employer discriminated against the employee, and less on whether the employee is disabled.
  2. Employers should be able to justify their attempts to accommodate the employee.  An employer should “stop; think; justify” any actions vis-à-vis a disabled employee.  This applies both to determining the essential functions of the job and to the discussion of reasonable accommodations to permit the employee to perform the essential functions.

One of the speakers during the webinar was Chai R. Feldblum, Esq., a commissioner with the Equal Employment Opportunity Commission (EEOC).  Commissioner Feldblum stressed that the EEOC does not want to preclude employers from getting their work done, nor reduce business productivity.  If an employer has its job descriptions in place that list the essential functions, and if the employer engages in an interactive dialogue with the disabled employee, then determining whether a reasonable accommodation is possible should be straight-forward.
My experience has been that the reasonable accommodation process is not as easy as Commissioner Feldblum makes it sound. Ideally, a reasonable accommodation can be found quickly, but often, the process is inexact and time-consuming.
Here are some of the problems encountered in finding reasonable accommodations:
First, there is the problem of keeping job descriptions up to date. In today’s workplace, jobs change quickly.  In a large company, it can be a full-time job for several employees to keep job descriptions updated.  And writing job descriptions is probably not the most efficient use of employees’ time – companies that seek to be nimble may not want to slow down to create job descriptions that will be out of date by the time they’re written.  Requiring that job description be written is one of the reasons lawyers and HR professionals get a bad name among managers, even when they point to the ADA as the reason for the requirement.
Second, while it is easy for an employer to say that a job function is “essential,” there are always other ways to get the work done. Since one possible reasonable accommodation is to “restructure” a job, an employer is always subject to being second-guessed on whether a particular job function is “essential” and need not be eliminated, or whether it is non-essential and the employer will have to find another way to get the function done, or do without the function.
Third, while the employer can set both qualitative and quantitative standards for acceptable performance, these standards are also subject to debate during the reasonable accommodation process.  If a leave of absence or a reduced schedule is a reasonable accommodation, then a production standard may need to be reduced along with the employee’s schedule.  How then will the employer get enough production out to satisfy its customers?
Fourth, the necessary accommodations of a disabled employee sometimes evolve over time, or require a good deal of experimenting to see what works and what doesn’t.  The attempts at accommodation may even be unsuccessful in the end, resulting in frustration for the disabled individual, as well as for his or her managers and co-workers. Sometimes the employee isn’t ready to stop working, even after many accommodations have been unable to get the employee back to a productive state.
These problems don’t even get to the issues that arise when the employee’s request for an accommodation is less than clear, when the employee doesn’t know what accommodation they think might work, or when other employees become upset at having their jobs changed because the employer is accommodating someone else.  For more information about the ADA, see the EEOC’s website on disability discrimination.
The purpose behind the ADA is laudable.  The practice is often messy.  Even employers operating in good faith can find themselves in expensive litigation.  Who is to say what is “reasonable”? Even years of attempted accommodations may not be enough to satisfy the EEOC or a judge or jury.
What have your experiences with the ADA been? 

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