It has been a little while since we talked about employment law here. Now, it is time to get back to it. Recently the EEOC issued four guidances on four different disabilities, diabetes, intellectual disability, cancer, and epilepsy. They also issued a fact sheet on the mental health provider’s role in a client’s request for a reasonable accommodation at work.

The guidances pretty much all follow the same format. They are all in plain language and are very easy to read. They also all have the same structure. They start out with an introduction about the condition, talk about pre-and postemployment medical exams and disability related inquiries, give examples of specific accommodations for the condition being discussed, talk about direct threat, mention retaliation and harassment, and then talk about how to file a claim with the EEOC. Particularly helpful, is the discussions about the various conditions in plain language. Also helpful, is a discussion in each of the disabilities of the kind of accommodations that an employer might make.

For example, some of the accommodations that might be in order with respect to a person with diabetes include: private area to test their blood sugar levels or to administer insulin injection; a place to rest until their blood sugar levels become normal; break to eat or drink, take medication, or test blood sugar levels; leave for treatment, recuperation, or training on managing diabetes; modified work schedule or shift change; allowing a person with diabetic neuropathy that makes it difficult to stand for long periods of time the ability to use a stool; reallocation or redistribution of marginal task to another employees; and reassignment to a vacant position when the employee is no longer able to perform the job.

Some of the reasonable accommodations that might be in order with respect to a person with an intellectual disability include: providing someone to read or interpret application materials for a person with limited ability to read or to understand complex information; demonstrating, rather than describing, to the applicant what the job requires; modifying test, training materials, and/or policy manuals; replacing a written test with an expanded interview; reallocation of marginal task to another employees; giving instructions at a slower pace; allowing additional time to finish training; breaking job task into sequential steps required to perform the task; using charts, pictures, or colors; providing a tape recorder to record directions as a reminder of steps in a task; using detailed schedule for completing tasks; providing additional training when necessary; allowing for a job coach that might assist with various things (such as: assisting the employee in learning how to do the job; providing intensive monitoring, training, assessment, and support; helping to develop a healthy working relationship between management and the employee by encouraging appropriate social interaction and maintaining open communications; and assisting the parties in determining what reasonable accommodation is needed); modified work schedule or shift change; helping understanding job evaluations or disciplinary proceedings; acquisition or modification of equipment or devices; workstation placement; and reassignment to a vacant position when the employee is no longer able to perform the current job.

Some of the reasonable accommodations that might be in order with respect to a person with cancer include: leave for doctors appointments and/or to seek or recuperate from treatment; periodic breaks or private area to rest or to take medication; modified work schedule or shift change; working from home; modification of office temperature; permission to use work telephone to make doctor’s appointment where the employer’s usual practice is to prohibit personal calls; reallocation or redistribution of marginal task to another employees; and reassignment to a vacant position when the employer is no longer able to perform her current job.

Some of the reasonable accommodations that might be in order with respect to a person with epilepsy include: right to take medication; leave to seek or recuperate from treatment or adjust to the medication; private area to rest after having a seizure; a rubber mat or carpet to cushion the fall (this particular suggestion strikes me as odd because you never know where the person with epilepsy is going to be and where he is going to have the seizure); adjustments to a work schedule; a consistent start time or schedule change (changing from the night shift to the day shift); a checklist to assist in remembering tasks; permission to bring a service animal to work; someone to drive to meetings and other work related events; permission to work at home; and reassignment to a vacant position where the employee is no longer able to perform their current job.

The list of accommodations is nice. However, my concern is that employers will take this list and put everybody in boxes. It is important to remember that the ADA requires an individual analysis and no two disabilities, even the same ones, are the same. The key is to remember a reasonable accommodation is anything that gets the person with a disability to the same starting line as those without disabilities. Getting the person to the same starting line means an interactive process. It is important in that process to have open communication and to be creative. The worst thing an employer can do is to put people in boxes and say think you are person with this condition here is what you get take it or leave it. It just doesn’t work that way.

Going a bit deeper into the guidances, one thing that jumps out is the way EEOC goes about dealing with preemployment medical exams and disability related inquiries as well as the way it goes about dealing with postemployment medical exams and disability related inquiries. The ADA prohibits preemployment medical exams and preemployment medical inquiries, 42 U.S.C. § 12112(d)(2)(A), though it does allow an employer to make preemployment inquiries into the ability of an applicant to perform job-related functions. 42 U.S.C. § 12112(d)(2)(B). With respect to medical exams after a conditional job offer by the employer, the employer pretty much has free reign in that respect (though the employer would do well to remember that Genetic Information Nondiscrimination Act is also working out there). However, if an employer were to take back the conditional job offer they can only do so if the condition they found in the medical exam was job-related, consistent with business necessity, and the person could not perform the job with reasonable accommodations. With respect to an employee, an employer cannot make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of that disability unless that an examination or inquiry is made necessary because it is job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A).

Accordingly, it makes sense for the EEOC to say that if an applicant voluntarily discloses she has a particular condition and the employer reasonably believes that person needs an accommodation due to perform the job because of that condition, the employer can ask the applicant whether they would need an accommodation and what type since in that situation, the employer is making an inquiry into the ability of an applicant to perform job-related functions. That said, going beyond inquiries to the ability of an applicant to perform the essential functions of the job will be very problematic, as the EEOC guidances point out.

One thing that is interesting about the guidances, is that the EEOC definitely has something in mind with respect to what is job-related and consistent with business necessity. In the guidances, the EEOC’s view is that an employer can ask disability related questions or require an employee to have a medical exam when the employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes the problems are related to a medical condition. Two problems with this statement are what does “reasonably believe,” mean and the formulation doesn’t exactly match some of the case law, as we have discussed previously in other blog entries.

Another point that bears noting about the guidances in general, is that they all mention reassignment to a vacant position as being a possible reasonable accommodation. As readers know, this is a hot issue, and one that has been talked about on this blog in March, August, and September of 2012. While reassignment to a vacant position is certainly a reasonable accommodation, how that works specifically, as a review of those blog entries reveal, can be quite complicated and how it will eventually shake out is uncertain.

All the guidances make the point that a request for reasonable accommodations does not have to be explicit. It is enough for a person to make a request that would tip off the employer that a reasonable accommodation request is being made.

All the guidances also share a similar analysis with respect to the question of whether an employer has to grant every request for an accommodation. The answer the EEOC gives is no if it results in significant difficulty or expense. The term fundamental alteration actually appears in title II and title III of the ADA but does not appear in title one. That term does come from Rehabilitation Act cases. Another term I have heard the EEOC use with respect to title I, is undue hardship with respect to logistical operations. Regardless of the term, you are in the same place (fundamental alteration of the employer’s business or operations).

Turning to specific concerns about the specific disabilities, one thing that immediately come to mind with respect to intellectual disabilities is the conflict between the employer setting up educational requirements versus what the essential functions of the particular job require. That particular problem was discussed in the blog entry concerning whether the EEOC has gone too far with respect to their view of employers requiring a high school diploma for jobs. Therefore, when dealing with intellectual disabilities, the employer has to make sure just what are the essential functions of the job and they also have to make sure that they can stand behind the educational requirements they are insisting on for that job. The question that remains to be answered is while the job’s essential functions may not require a certain level of education, it is possible that the employer might say that having a certain educational credential brings critical intangibles to the workplace regardless of the job’s essential functions. The best preventive approach would be to insist on the educational credential when it can be fairly said that the job’s essential functions require such an educational credential. Also, with respect to intellectual disabilities, it is not a reasonable accommodation to have someone do the job of the employee (an issue discussed in our deaf lifeguard blog entries). In the intellectual disability world, a job coach is supposed to assist the employee with respect to the particular job. However, the line between assisting and doing that job might be hard to discern at times. Finally, in the intellectual disability guidance, there is an example about how a particular individual usually counts the money, though not always, and that reassigning that particular task to someone else is a reasonable accommodation. Certainly, reassigning marginal functions of the job to someone else is a reasonable accommodation. However, there is case law out there saying that just because something doesn’t happen frequently, that does not preclude the particular function from being an essential one.See Carroll v. Holder 2011 WL 7091804, *29 (D. Or. September 30, 2011).

With respect to the cancer guidance, there is an example given of a receptionist with job performance issues due to cancer treatment. In that situation, an attorney complained to a law firm partner about the problems saying to the law firm partner that she has been reluctant to say anything because she knows that the person has been undergoing treatment for cancer. The EEOC guidance says that the partner can ask the receptionist questions about whether her cancer treatments are causing her performance problems and if so how long the treatments are expected to continue and whether she needs a reasonable accommodation. This particular example is problematic on a couple of different levels. First, to my mind, one wonders if there is an issue with the attorney divulging this information to the partner in the first place due to confidentiality, though I don’t see the issue if the supervising attorney makes that inquiry him or herself. On the other hand, the partner is certainly entitled to know about this. The best way around this is if the firm is big enough for the attorney to go to the firm’s general counsel or for the attorney to go to the firm’s human resources department and mention a general performance issue problem. Another approach may be for the attorney who is supervising this receptionist to encourage the receptionist to bring the situation up to the chain of command vis a vis the reasonable accommodation process. In short, in this kind of situation, the employer wants to handle it as delicately as possible and respect the confidentiality of the employee to the maximum extent feasible.

With respect to epilepsy and diabetes, the issue of direct threat comes up. The general rule with direct threat is that direct threat must be based on the most current medical knowledge and/or the best available objective evidence and that assessment has to be based upon an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Chevron v. Echazabal, 536 U.S. 73, 86 (2002). As another blog entry discussed, the issue of direct threat is not so simple. Direct threat may be construed differently depending on the context, especially where public safety is involved.

Finally, the EEOC guidances point out that there may be federal regulations out there that discriminate against persons with disabilities and if they are mandatory and control, those regulations will prevail. See Albertson’s v. Kirkingburg 527 U.S. 555, 578-80 (J. Thomas concurring). In that situation, the employer is not at risk of violating the ADA. As the EEOC points out, the employer wants to make sure that such compliance is mandatory and that no waivers are in order.

Turning to the EEOC fact sheet regarding the mental health provider’s role in a client’s request for reasonable accommodation at work, there are a couple of things that particularly bear highlighting. First, the fact sheet says that a reasonable accommodation may be obtained for any condition that would, if left untreated, substantially limit one or more major life activities. It then goes on to talk about what those activities may be. This is terribly confusing because as phrased it tends to suggest that if the condition is treated, the person may not be protected by the ADA or may not be entitled to reasonable accommodation . Either of which is false. Obviously, the phrasing is problematic. No doubt, the EEOC did not mean to imply any such thing. It would have been much better to say that a person has a disability if they have a physical or mental impairment that substantially limits one or more of life’s major activities and that in making that determination, mitigating measures are not to be factored in. A similar problem exists with respect to the fact sheet when the EEOC talks about what the mental health professional to say with respect to the client’s functional limitations in the absence of treatment. Again, this could have been made much clearer. The issue, of course, is whether the person has a disability regardless of whether they use mitigating measures. Also, if the condition is episodic, then the mental health professional needs to describe the limitations on a major life activity during that episode as well. Again, absolutely nothing wrong with what the EEOC says here, it is just terribly confusing and the inferences are unfortunate.

Second, the fact sheet says that a person does not have to have a high degree of functional limitation to be substantially limiting. For example, a person, according to the fact sheet, may qualify if the condition makes activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. This isn’t the law either. While it is true, that the EEOC says in the regulations that an impairment need not prevent, or significantly, or severely restrict the individual from performing a major life activity in order to be considered substantially limiting, nevertheless, the person still has to be substantially limited in the ability to perform a major life activity as compared to most people in the general population. See 29 C.F.R. § 1630.2(j)(ii).

Summarizing: the guidances contain a lot of useful information, but be sure to avoid the trap of putting people into boxes and sticking to the accommodations listed in the guidance rather than the accommodations that are brought up in the interactive process. Also, when the situations do occur, as discussed above, the situation may be deceptively complicated. Thus, always be sure to consult with knowledgeable legal counsel when necessary. Finally, the EEOC fact sheet dealing with how the mental health professional can assist in the reasonable accommodation process is helpful but is also, very unnecessarily in my opinion, extremely confusing.