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Analysis of EEOC Guidelines on ADA Compliance

The new ADA Guidelines may produce headaches for unwary employers, and should be read closely. The significant provisions of the Guidelines are as follows:

• Applicants cannot be asked if they need an accommodation to perform the job until AFTER the job offer.

• Applicants may be asked whether they need an accommodation in order to complete the application process.

• The Company ordinarily MUST provide the requested accommodation to allow the applicant to complete the application process, even if it is obvious from the circumstances that it is extremely unlikely that the applicant will be able to perform the essential duties of the job (e.g., a wheelchair-bound applicant who insists on applying for a position involving substantial climbing or a blind person who seeks a job as a truck driver still must be allowed to go through the application process, even though it may seem completely futile to permit this). Although the Company may provide information about the essential job functions (in the hope that the applicant will self-exclude), the EEOC takes the position that it is unlawful to refuse to allow the applicant to make an application and go through required applicant testing (at least, up to the point where the applicant flunks out). As a result, companies seeking employees able to perform certain essential physical tasks may wish to consider including physical performance testing early in the application process.

• Once hired, the employee must able to perform the job (with or without reasonable accommodation). If unable to meet the essential job functions of this initial position from inception of employment, then the employee may be terminated without looking at other transfer options.

• Notably, the EEOC takes the position that the Company MUST modify performance standards to accommodate the disability of an employee. For example, if a sales rep is unable to meet his sales quota because of disability-related absences, then the EEOC takes the position that his sales quota must be reduced as an accommodation. In our view, this position is likely to be overturned on appeal, as the Courts are likely to view the reaching of a certain volume of sales (or production of a certain number of units) to be essential functions of the job.

• If an employee has met the job requirements for a period of time and then has performance problems related to the disability (for instance, due to worsening of the condition), the Company must assess the need for new accommodations (which may include transfer to another job). The EEOC states that the employee must be considered for transfer to any position anywhere within the company which the employee could perform (although, presumably, this would not be required if the employee elected to limit himself to certain geographic locations).

• The EEOC also takes the position that a Company may be required under the ADA to provide extra leave (beyond that allowed by FMLA or internal policies) in order to accommodate the disability of an employee. In particular, the EEOC states that the Company may not adopt an automatic policy of terminations after leave expires - and must make an individualized determination as to the hardship which would be caused by extending the leave. However, the EEOC also states that a company may fill a position while an employee is absent due to ADA-leave if business conditions so require and then may terminate the employee if no position is open to which the employee could be transferred (and then continued on leave). Most circuits to date have held that the ADA does not require indefinite leaves and, at most, requires very short-term leaves for medical treatment which is likely to allow the employee to return (e.g., a brief absence for chemotherapy might be a reasonable accommodation, even for a company not covered by FMLA). It is questionable whether the Courts will go along with the blanket position of the EEOC that no leave cutoffs or time limits may be established (which, in essence, would result in a government mandate for indefinite longterm leaves, contrary to the policy decisions in FMLA).

• The employee does not need to mention the existence of any disability, or ask for any accommodation, in order to be considered covered by the ADA. All that is necessary is that the employee give sufficient information to put the Company on notice that he may have a covered disability and/or may need an accommodation. Thus, in the view of the EEOC, the simple act of bringing in a release for light duty work will place the Company on notice of the need to determine if the employee has an ADA-covered disability and to determine whether his restrictions can be accommodated without undue hardship.

• The employee does not need to propose any specific accommodation. All that the employee must do is to identify the existence of an impairment and give a general description of the problems which the impairment is causing.

• The employee does not need to provide a medical release to the Company which allows a general review of all medical records, and may limit the release to records which apply to the particular condition at issue.

• The employee does not have the right to dictate which type of accommodation is chosen by the Company, as long as the accommodation selected is "reasonable" (i.e., allows the employee to do the work). By the same token, the Company may not force an employee to take an accommodation - but, if the employee refuses a reasonable accommodation and is then unable to do the job, the Company is entitled to terminate him. **Be careful**

• A company must respond within a reasonable time to a request for an accommodation, or it will be considered to have refused to provide any accommodation. What is reasonable will depend on the circumstances (including whether records must be gathered, outside consultants used, second medical opinions obtained, and the like).

• Objections by coworkers don't matter, as long as it is reasonably possible to get the job done. As a result, even if a coworker is very unhappy because he must shoulder additional job duties to accommodate a disabled employee, the Company cannot take the morale of this coworker into account in claiming undue hardship (which seems pretty unrealistic in many cases, as the coworker will often quit (especially in tight job markets); nobody then will be around to do the extra work, so no accommodation will be possible at that point; the disabled employee will be fired anyway; and the company will lose both employees).

• A Company can terminate an employee who makes threats of violence, or engages in violent behavior, even where this behavior is a result of a disability. The EEOC also takes the position that a Company may terminate an employee for rule violations arising from a disability which occur before the disability was known to the employer (if the same conduct would lead to discipline of other employees). Frankly, on this issue, we think that the EEOC may be more conservative than the courts will be (for instance, if an employee stops coming to work regularly due to severe depression, and the Company learns of the severe depression before any termination takes place, it seems likely that the Courts will require the Company to excuse these rule violations - indeed, FMLA would appear to require retroactive grants of leave time once it is determined that the absences were due to a serious health condition).

• A Company has no duty to monitor medications of an employee, or to administer such medications. As a result, employees who don't perform (or violate internal rules) due to failure to take their medications may be disciplined in the same manner as any employee engaging in such workplace problems.

• Contrary to several court cases, the EEOC takes the position that companies are not required to move an employee to a different supervisor, even where the employee claims that conflicts with the supervisor aggravates existing mental disabilities. By the same token, the EEOC does believe that the Company does have to work with the supervisor to avoid retaliation and to provide needed job restructuring (including transfer of non-essential job functions to other employees). Likewise, if it is reasonable to provide instructions in a certain manner to avoid conflicts, this also may be required.

Companies also may wish to take a look at the recent U.S. Supreme Court decisions on what constitutes a covered disability under the ADA. In essence, these three cases held that a medical condition (such as minor vision problems or correctable high blood pressure) which causes no significant overall impairment of function is not the type of condition which Congress intended to be covered by the ADA. Of course, this does not mean that many vision problems or many conditions which are treatable with medication (such as diabetes) automatically are excluded from ADA coverage. Rather, it means that an assessment must be made on a case-by-case basis to determine whether the impairment is sufficiently severe so that "substantially limits a major life activity."

The cases are:

Albertsons, Inc. v. Kirkingburg

Sutton, et al. v. United Airlines, Inc.

Murphy v. United Parcel Service, Inc.

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