In the United States, an estimated 34 million people have been diagnosed with cancer, epilepsy or diabetes, and more than 2 million have an intellectual disability. Unsurprisingly, most employers receive accommodation requests related to these medical conditions.
On May 15, the Equal Employment Opportunity Commission released guidance in the form of revised "Questions and Answers" specifically addressing these medical conditions in the context of disability discrimination in the workplace. Although the guidance does not make new law, it clarifies the EEOC's position on what types of reasonable accommodations may be required for individuals with these disabilities and how employers should handle safety concerns related to the disabilities.
Further, the guidance addresses the EEOC's position regarding obtaining, using and disclosing employee medical information. Employers should pay particular attention to the guidance, because it is referenced by EEOC staff when investigating charges of disability discrimination.
Reasonable Accommodations and the Interactive Process
Under the Americans with Disabilities Act, an employer with 15 or more employees has an obligation to provide a covered job applicant or employee with a reasonable accommodation, unless doing so would pose an undue hardship (for example, significant difficulty or expense) or constitute a direct threat. It is incumbent upon an employer to engage in the interactive process with an employee to identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations and enable a qualified individual with a disability to perform the essential functions of the position. An employer's obligation to provide an accommodation is generally prompted by a request from the employee or applicant who triggers the interactive process. Although no "magic language" is required, in order to state an adequate accommodation request, an employee must be clear in indicating that the need for an accommodation is because of the employee's disability. Finally, employers are not obligated to provide the specific or preferred accommodation requested by the employee; rather, employers are required to provide a reasonable accommodation.
Accommodating Individuals With Cancer
The EEOC guidance provides several examples of the types of accommodations that an employee with cancer may need, including leave for doctor appointments and recuperation from treatment. Of particular note, the EEOC takes the position that an employer may not automatically deny a request for leave from an employee with cancer solely because the employee cannot specify an exact date of return. The EEOC explains that granting leave to an employee who is unable to provide a fixed date of return may be a reasonable accommodation, because the treatment and severity of side effects are often unpredictable and do not permit exact timetables. The EEOC cautions employees, however, that the employer has the right to require that an employee provide periodic updates on the employee's condition and possible date of return in order for the employer to evaluate whether continued leave constitutes an undue hardship.
Accommodating Individuals With Epilepsy
Epilepsy is a chronic neurological condition characterized by recurrent seizures. The EEOC provides several examples of the types of accommodations that an employee may need, such as a consistent start time or schedule change (for example, from the night shift to the day shift). Interestingly, the EEOC provides specific guidance with respect to applicants and employees who do not have a driver's license because of epilepsy. The EEOC explains that an employer need not eliminate driving as a job duty if driving is an essential function of the position. The EEOC cautions employers to carefully consider whether driving actually is an essential job function, rather than a marginal job function or simply one way of accomplishing an essential function. To illustrate its position, the EEOC uses the example of a college orientation guide hired to distribute packets and give tours of the campus. In the hypothetical, the guide occasionally may be asked to drive prospective students to and from the airport, although not every guide is asked to perform this function. Because driving is not an essential function of the job, the college would have to reassign someone else to perform the task of driving, rather than refuse to hire an applicant who does not have a driver's license because of epilepsy.
Accommodating Individuals With Diabetes
Diabetes is a group of diseases characterized by high blood glucose or sugar levels that result from defects in the body's ability to produce and/or use insulin. The EEOC states that reasonable accommodations for this condition may include a private area to test blood-sugar levels or to administer insulin injections. The EEOC further explains that if a federal law prohibits an employer from hiring a person who uses insulin, the employer will not be liable under the ADA. The EEOC cautions that an employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers. For example, the Department of Transportation's Federal Motor Carrier Safety Administration issues exemptions to certain individuals with diabetes who wish to drive commercial motor vehicles.
Accommodating Employees With Intellectual Disabilities
The EEOC guidance defines an intellectual disability as a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior that affect social and practical skills. The EEOC explains that employees with intellectual disabilities may need supervision modification as a reasonable accommodation. Specifically, supervisors may have to modify how they give instructions as a form of reasonable accommodation. By way of example, the EEOC explains that some employees with intellectual disabilities may benefit from additional day-to-day guidance or feedback, or from having a large task broken down into smaller parts that are easier to understand. The EEOC cautions employers that although the general rule places the burden to request an accommodation on the employee, there are circumstances in which employers may have an obligation to initiate a discussion regarding the need for a reasonable accommodation without a request to do so. Specifically, the EEOC takes the position that the latter obligation arises when the employer knows the employee has an intellectual disability, is experiencing workplace problems because of the disability, and the disability prevents the employee from requesting a reasonable accommodation.
Obtaining Medical Information
The ADA limits an employer's ability to ask questions related to disabilities and to conduct medical examinations at three stages: pre-offer, post-offer and during employment. Permissible follow-up questions at the post-offer stage differ from those at the pre-offer stage. During the pre-offer stage, an employer may not ask a job applicant about a disability; however, the employer may ask questions pertaining to the qualifications for, or performance of, the job, such as whether the applicant can travel, obtain a commercial driver's license or operate heavy machinery or equipment.
To the contrary, after receiving a conditional job offer, if an applicant discloses that he or she has a disability, an employer may ask the applicant additional questions, such as whether he or she is undergoing treatment or experiencing any side effects that could interfere with the ability to do the job or that might require a reasonable accommodation. The employer also may send the applicant for a follow-up medical examination or ask him or her to submit documentation from his or her doctor answering questions specifically designed to assess the applicant's ability to perform the job's functions safely.
Finally, an employer may ask an employee about his or her disability to the extent the information is necessary to:
• Support the employee's request for a reasonable accommodation needed because of the disability.
• Verify the employee's use of sick leave related to the disability, if the employer requires all employees to submit a doctor's note to justify the use of sick leave.
• Enable the employee to participate in a voluntary wellness program.
Questions From Other Employees
Employers are often faced with questions from other employees who misperceive co-worker accommodations as "special treatment." An employer may not tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as work at home or take periodic rest breaks) that he or she is receiving a reasonable accommodation. The EEOC takes the position that telling co-workers that an employee is receiving a reasonable accommodation is tantamount to a disclosure that the employee has a disability. In response to such an inquiry, the employer should emphasize that its policy is to refrain from discussing the work situation of any employee with co-workers.
Employer Best Practices
The EEOC's guidance is designed to be a practical resource on the ADA's prohibition against disability discrimination. As part of employer best practices regarding the interactive process, and for each accommodation request, the employer should:
• Document in writing the receipt of the request for accommodation. This allows the employer to show that it took the request seriously and responded promptly.
• Ask the individual for information about the extent of the impairment, including notes from doctors or other health care providers and, if necessary, request medical testing relevant to the accommodation at issue.
• Confer with the individual to discuss accommodation alternatives, which include listening to the individual's preference and the option to suggest alternatives.
• Document in writing the discussion about the accommodation and the final determination about how the accommodation request is resolved, including any undue-hardship analysis.
Because unique and challenging situations can arise with respect to disabilities in the workplace, employers must understand their obligations to engage in the interactive process and reasonably accommodate individuals with disabilities.
Tiffani L. McDonough is a labor and employment attorney with Obermayer Rebmann Maxwell & Hippel in Philadelphia. Her national practice includes representing companies, hospitals and educational institutions in employment litigation and counseling on human resources matters, including disability accommodation issues.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Reprinted with permission from the June 11, 2013 edition of THE LEGAL INTELLIGENCER © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, email@example.com or visit www.almreprints.com. # 201-06-13-05