Tag Archives: EEOC

ADA Reasonable Accommodation And Workers Comp Questions Answered

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Americans With Disabilities Act graphicWe had very successful webinar recently on the New ADA Return to Work Interpretations.  There were many questions from the audience.  Find below the responses to the questions related to Reasonable Accommodation given by Aaron Konopasky, Senior Attorney Advisor, Equal Employment Opportunity Commission, and Jennifer Christen, MD, President, Webility Corporation.

Is a reasonable accommodation having someone else do part of the worker’s job?  For example, all of the lifting? 

If lifting is an essential function of the job (central to what the person was hired to do), then, generally, no.  Reasonable accommodations enable the person to do the essential functions of the job, not eliminate them.

A few clarifications, though:

It’s possible that someone in a certain position is sometimes expected to lift something, but it’s not really what they were hired to do.  We call that a “marginal” function.  For example, an accountant might occasionally have to lift a heavy box of records above shoulder height to put it on a high shelf in a storage room.  Because she’s an accountant, her job really isn’t lifting.

In a case like that, having someone else help with the lifting could be a reasonable accommodation, especially if it’s for the short term.   But sometimes it’s possible to accomplish the same job tasks without needing anyone else’s help — and that might be even better.  For example, if the person could use a hand truck/trolley to move the records, and they could be stored on a lower shelf, the employer may need to make that reasonable accommodation.

If the job involves rotations or assignments that sometimes require lifting and sometimes do not, assignment to a non-lifting rotation/assignment may be a reasonable accommodation that the employer might have to provide, unless doing so would impose undue hardship.

Can you address how Collective Bargaining Agreements (CBAs) affect the interactive process for accommodation?

 

This is a complicated topic, and I can’t cover it all here.  But two basic points are: (1) the ADA prohibits employers from entering into CBAs that discriminate on the basis of disability, and (2) employers are required to comply with the ADA regardless of whether a CBA exists.

 

In the reasonable accommodation context, many times it will be possible to provide a reasonable accommodation without violating the terms of a CBA.  If an accommodation is required that would violate the terms of a CBA, the employer and union may need to negotiate a variance.  If a CBA is raising complicated ADA issues for you, you may wish to consult a private attorney.

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Court: Telecommuting Could Be Reasonable Accommodation Under the ADA

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Telecommuting womanTelecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA. A recent Sixth Circuit Court of Appeals case,EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6th Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.

Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford. Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.

Harris suffered from IBS, an illness that caused her fecal incontinence. Some days she could not drive to work or stand up from her desk without potentially soiling herself. She took intermittent leave when severe symptoms occurred. In 2005 her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis. The company did not view the trial period as a success. She continued to work occasionally from home doing remote work, including on evenings and weekends. However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days she stayed home because of her illness as absences. The company stressed that core business hours were important because that was the time when employees do team problem solving.

[READ FULL STORY HERE]