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Mental Models

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LADDER OF INFERENCE*

DATAMEANING BELIEFS ACTIONSASSUMPTIONS EXPERIENCE*Adapted from The Fifth Discipline Field Book Peter Senge CONCLUSIONS

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Americans with Disabilities Act ~ Title I ~

Makes it unlawfulfor employers to discriminate inemployment against qualifiedindividuals with disabilities

The ADAGeorge HW Bush signs ADA on July 26, 1990Congressional intent to prevent discrimination against 43 (now 60) million disabled individualsEnforcement given to EEOCCivil Rights Act of 1991 extends remedies2008 ADA Amendments Act effective 1/1/09Easier to prove disabilityFocus on essential functions & accommodation

Who is Protected by ADA?Qualified Individuals ANDEmployees associated with a disabled person ANDAll employeesPre-employment medical examinations/inquiriesMedical examinations/inquiries during employmentConfidentiality of medical informationADAAA uncorrected vision requirements

Qualified Disabled IndividualQualified to perform the workDisabledAble to perform the essential functions of the job without reasonable accommodationAble to perform the essential functions of the job with reasonable accommodation

Who Is Disabled?Physical or mental impairment that substantially limits one or more major life activities, orHaving a record of such impairment, orRegarded as having such impairmentADAAA broadens substantially limits and major life activity

What are Major Life Activities?Caring for oneself, performing manual tasks, walking, hearing, concentrating, learning, standing, lifting, bending, thinking, breathing, digesting, working, etc.Example, someone with cerebral palsy may be substantially limited in ability to perform manual tasks.Someone with ADHD may be substantially limited in concentrating.Look at each case individually. The same impairment can affect two people differently.

Regarded as having a disabilityA person regarded as having a disability will be considered disabled if s/he is discriminated against because of an actual or perceived impairment Whether the impairment limits or is perceived to limit a major life activity is not consideredDoes not apply to transitory or minor impairment (actual or expected duration of 6 months or less)Not entitled to reasonable accommodation

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Essential Functions Interactive ProcessJob Description imperativeEssential distinguished from marginal functionsIntellectual and physical requirementsHours and place of workIf employee not performing say HOW MAY I HELP YOU?If employee needs accommodation, begin Interactive ProcessNo magic words necessary

How do we know if a job function/task is essential?Is it a primary job responsibility?Limited number of employees among whom the task could be distributedHighly specialized job functionConsequences of not performing the functionAmount of time spent on the functionEven, the employers judgmentBut a disabled employee may not have to do marginal functions if unable to due to disability

R has the right to determine essential functions , performance standards as long as they are consistently applied and not used to discriminate against disabled employees.11

Reasonable AccommodationsThe Employer is required to provide disabled employees with reasonable accommodations that are necessary to permit the employee to perform the essential functions of the particular job in questionReasonable accommodations can include paid or unpaid leaveMost accommodations are inexpensive

No magic words!!!Dont have to say: I hereby request R.A.Initiated by the applicant or employee in most cases, but can be guardianCould be verbal or writtenDont have to cite the ADA or any other statuteCan be I need. or Could I please have

Interactive ProcessWhen the employer knows of a condition or can see that the employees condition interferes with performing some job functions, the employer must engage in the interactive process.Employee can commence this process by asking for help, with or without using the word accommodation.

Quandary Employers trying to avoid asking impermissible questions about disabilities or afraid of being sued for treating someone as if disabled may be reluctant to ask questions at all.Employees reluctant to be labeled as disabled or to draw attention to themselves may not speak up.

SolutionThe interactive process can be workable:Ask the employee what is the problem (not the diagnosis), what it is they cannot do AND what they think would help.HOW MAY I HELP YOU?

The ProcessShould be interactive. The employee might have suggestions as to what would workShould be quick act immediately upon the R.A. requestFocus should be on removing barriers (physical or otherwise) to doing the jobThe R.A. must be effective, but not necessarily the preferred one.Use http.askjan.org

Reasonable Accommodation includesChanges to a job application processChanges to the work environment, or to the way a job is usually done Changes to enable an employee with a disability to enjoy equal benefits and privileges of employment (e.g. access to training).

Reasonable Accommodation ExamplesRestructuring the job: shifting responsibility to other employees for minor job tasks that an employee is unable to perform because of a disability (Ask is it an essential function of the job?)altering when and/or how a job task is performedMore frequent breaks, change start time or end time, eating snacksWorking from home (www.eeoc.gov/facts/telework.html)

More Reasonable AccommodationsJob modificationGo to http.askjan.org for ideasLeave from work Supplemental benefits/STD/annual/sick Worker compFMLAReassignment to other positionTemporary light dutyCannot discriminate in favor of injured workerNo need to create a job

Temporary or Light JobsIf the Employer designates certain positions as temporary light duty jobs for persons with injuries or health problems, it may not limit these jobs to persons with work-relatedinjuries.Some temporary conditions, however, will not rise to the level of a disability requiring accommodation.

If Not a DisabilityThe Employer may assist employees with temporary problems, either with time off, with temporary restricted duty or even temporary reassignments.This is not an ADA requirement, but merely what is the best practice, particularly given the cost of hiring and training someone new.

Reassignment The employee may be entitled to reassignment to another vacant position for which the employee is eligible.

Employee must be qualified for the new job.

The Employer is not required to create a new job.

Must the Employer keep looking for vacancy?

The last resort for reasonable accommodation.

Limits to Accommodation Accommodation need only be reasonableAccommodation needs to be effectiveAccommodation cannot create undue hardshipThe nature and cost of the accommodation neededThe Employers overall financial resources; size of the organization, type and location of facilitiesThe Employers type of operationIt might be difficult to prove.Direct ThreatWhere the persons condition, combined with the specifics of the job, creates a direct threat of severe harm to others or to the prospective or current employee with a disability and harm cannot be eliminated by reasonable accommodation

Undue hardshipMust be individualized assessment for the employerLook at the nature and cost of accommodationOverall financial resources of employerType of operation of the employerStructure and function of the workforce, geographical separateness, etc.Impact of the accommodation on the facility operationsBurden of proof is on the employer using that defense

Direct ThreatAn employer may also refuse to hire someone or refuse a particular accommodation where the persons condition, combined with the specifics of the job, create a direct threat of severe harm to others or to the prospective or current employee with a disability. Chevron v. Echazabal, U.S. Supreme Ct., June 10, 2002The statute defines direct threat as a significant risk of harm that cannot be eliminated by a reasonable accommodation.

NOT reasonable accommodations:Placing a disabled applicant into a job for which she didnt applyPlacing a disabled employee into a job that would create a direct threat to health and safety of that employee or others.Eliminating essential job functionsLowering production standardsBumping another employee from her jobProviding personal use items (i.e. hearing aids, wheelchair)Creating a jobPromoting an employee in a reassignment accommodationredlining (unless this practice is done for others)

leave and undue hardshipLeave does not pose an undue hardship simply because the employee can give only an approximate return date, or a range of possible return dates, or because the employee must revise a previously projected return date. Leave without any indication of the employees ability to return will pose an undue hardship.

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Undue HardshipFactors that may make leave an undue hardship include:Inability to ensure a sufficient number of employees to accomplish the work requiredDifficulty of finding qualified temporary workersA need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdensSignificant additional costs for overtime or temporary workers

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Any Alternative Reasonable Accommodations to leave?If leave would pose an undue hardship, the employer must look at alternatives.If leave does not pose an undue hardship, the employer can offer alternative if:It lets the person perform essential job functionsIf it is within the persons medical restrictionsAn employer may not force an individual to accept leave instead of a different reasonable accommodation that would allow him to stay on the job.

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During Leave Terms of EmploymentThe employer does not need to provide paid leave as a reasonable accommodation beyond what the employee has accrued.Health insurance must be continued if the employer would do so for other individuals on leave.Employer may not penalize individuals on leave.

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During Leave Ongoing Interactive ProcessEmployer may ask for reasonable updates on employees ability to return to work if the employee originally provided an approximate return date or a range of return dates (e.g., within 4 to 6 months).Employer must consider requests to revise the return date (later or earlier)May deny if undue hardshipMay request additional supporting documentation

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Return to work from leaveEmployers must consider request to return with a reasonable accommodation.Employers should avoid so-called 100% healed rules or rules requiring return with no restrictions.Accommodations that may reduce or eliminate need for leave could include modified work schedules, part-time work, and telework

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ADA and GINA:ADA prohibits medical inquiries unless job related and consistent with business necessity.How does this come up?Fitness for Duty ORPost offer pre-employment medical exams.Employer needs to ensure that third party medical provider does not give family medical history to employer.May be a GINA violation.

ADA and GINA:GINA regulations have has language to send to medical providers to give employers a safe haven:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. Genetic information, as defined by GINA, includes an individuals family medical history, the results of an individuals or family members genetic tests, the fact that an individual or an individuals family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individuals family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

ADA and Title VII:ADA requires Reasonable Accommodation.Pregnant women may need Reasonable Accommodations and may have an ADA covered disability.EXAMPLES:Pelvic inflammation may substantially limit walkingPregnancy-related carpal tunnel syndrome may substantially limit liftingDisorders of uterus or cervix may substantially limit reproductive functionPregnancy-related sciatica may substantially limit musculoskeletal functionGestational diabetes may substantially limit endocrine functionPreeclampsia may substantially limit cardiovascular or circulatory functions

Drug and Alcohol Testing Alcohol test a medical exam under ADA Arizona Drug Testing of Employees Act ARS 23-493, et seq. What about medical marijuana?Safety sensitive positionsNo impairment on jobNo use/possession on job

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Mental Disabilities

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Accommodating Mental DisabilitiesWhat is a "mental impairment" under the ADA?

Mental impairment" includes "[a]ny mental or psychological disorder, such as . . . emotional or mental illness.

Examples of "emotional or mental illness[es]" include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.

The current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders is relevant for identifying these disorders.

EEOC Enforcement Guidance on Americans with Disabilities Act and Psychiatric Disabilities, http://www.eeoc.gov/policy/docs/psych.html

Accommodation Coming in LateEmployee was chronically tardy. He was schizophrenic and meds made him groggy in the morning. Can Company accommodate him? Court said: Maybe. Punctuality is not an essential function of every job and an accommodation such as working through lunch or staying late may be possible. Fact specific inquiry required. Remanded. McMillan v. City of New York, 711 F.3d 120 (2nd Cir. 2013).

Accommodation Own Work HoursEmployee had depression and requested she work her own hours as long as she met agency deadlines. Is this a reasonable accommodation?Court: Maybe. A separate analysis is required to determine whether it is reasonable or if it is an undue hardship. Technical advances make it less essential for employees to be physically present during prescribed hours. Court recognized that physical presence or work at a specific time is not an essential function of the job as a matter of law. Solomon v. Vilsak, 763 F.3d 1 (D.C. 2014) (Rehabilitation Act).

Not AccommodatingEmployee banged his fist on the table. Someone is going to pay for this he exclaimed while complaining about harassment. Did company have an objective basis for concern about potential threat to his co-workers safety? Was the fit for duty exam lawful?Court said: Yes. Consulting psychologist expressed concerns. Requiring him to undergo fitness for duty psychological exam as a condition of employment was job related and consistent with business necessity. Owusa-Ansah v. Coca-Cola Co., 715 F.3d 1306 (11th Cir. 2013) (ADA 12112(d)(4)(A)).

Not a DisabilityPolice sergeant has attention deficit and hyperactivity disorders- ADHD- and interpersonal difficulties. Frequently critical, overly aggressive, aloof, abrasive, too outspoken, disgruntled, intimidating, not a team player, BUT is friendly, helpful, hardworking, works well with co-workers. Jury: He is disabled and wrongfully discharged.Court: Reversed. ADHD is not ADA disability here because it did not substantially limit his ability to work or interact with others. It affected his ability to get along with others, not interact. Weaving v. City of Hillsboro, 763 F.3d 1106 (9th Cir. 2014) (cantankerous person who has trouble getting along with coworkers is not disabled under the ADA).

Service Animals

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Service Animals ADA Title I does not require employers to automatically allow employees to bring their service animals to work. Allowing a service animal into the workplace is a form of reasonable accommodation.

Employers must consider allowing an employee with a disability to use a service animal at work unless doing so would result in an undue hardship.

ADA allows employers to choose among effective accommodations, although providing a substitute accommodation for a service animal could bring up other tricky issues. http://askjan.org/media/servanim.html

Airline: 'Emotional support' pig kicked off flight for being disruptive CNN.com December 1, 2014Story highlights"It looked heavy. It was not a tiny, cute little pig," passenger saysPassengers say a pig ran up and down aisle and left a foul messPig was allowed on flight as "emotional support animal," airline spokeswoman saysDOT says animals that provide emotional support qualify as service animals

McDonald's not lovin' it when woman shows up with her therapy kangaroo Jimmy

http://www.utsandiego.com/news/2015/feb/04/therapy-kangaroo-wisconsin-mcdonalds/#lb-photo1578964

City Bans Kangaroos As Service Animals After McDonald's Incident

The Huffington Post Posted: 06/17/2015 9:02 am EDTBEAVER DAM, Wis. (AP) Officials have changed a southeastern Wisconsin city's rules on service animals after a woman took a baby kangaroo into a McDonald's restaurant. The Beaver Dam Daily Citizen reports the city's Common Council voted 14-0 Monday night to define a service animal as a dog or miniature horse, but not a kangaroo. Police can cite people who try to use other animals.Beaver Dam police say the woman wrapped the baby kangaroo in a blanket and tucked it in an infant car seat, then took it inside a McDonald's in February. The woman has said It is a therapy animal to help her cope with emotional distress.

EEOC ADA PRIORITIES:Claims challenging Qualifications Standards, including claims regarding a qualification standard and the essential functions of a job, the business necessity defense to the use the qualification standards, and the direct threat defense for safety-related qualification standards;

EEOC ADA PRIORITIES:Claims raising Reasonable Accommodation issues related to: maximum leave policies, 100% healed return-to-work, and no-fault leave and attendance policies.

EEOC ADA PRIORITIES:Claims raising certain Reasonable Accommodation issues related to reassignment (particularly when employers seek to make an employee compete for reassignment)and requests for telework.

EEOC ADA PRIORITIES:Reasonable Accommodation requests for pregnant women who are covered by Title VII and the ADA.