Postol, who is a partner in the Washington, D.C., office of Seyfarth Shaw, LLP, offered his ADA tips at SHRM’s Employment Law and Legislative Conference, held recently in Washington, D.C.
What Defenses Are Left
Employers still have some cards to play in the ADA game. Postol suggest employers take note of the following:
1. Employer Still Determines Essential Duties
The employer still gets to determine the essential duties of the job, says Postol. Accurate written job descriptions with minimum qualification requirements can be very helpful, he adds.
For example, if the job description says that a hotel worker is to clean eight rooms a day (and if that is accurate—that is, the other workers do that) then that is the standard. It’s OK to request a light vacuum as an accommodation, but not seven rooms instead of eight, says Postol.
Make sure to compare job descriptions to the work the current workforce does—you can be sure the employee’s lawyer will do that, Postol warns.
2. Regular Attendance at Work Is Required
Document the need for face-to-face interaction with supervisor, coworkers, and customers.
Since no good deed goes unpunished, be careful in allowing telecommuting on a temporary basis. Short-term accommodation does not mean the same thing is required long term, but it is risky. Make it clear that someone can cover for a few weeks, but not forever.
3. Indefinite Leave Is Not a Reasonable Accommodation
Press the physician for a return to work date–if the doctor cannot give one, or is wrong repeatedly, you can terminate the employee.
Despite EEOC’s position, says Postol, you do not have to offer indefinite leave as an accommodation. However, you might have to offer a year. A 6-month limit may be OK. Consider this sample end of unpaid leave letter:
As you know, our company has a 6-month limit on leaves of absences, except in extraordinary situations. You have been absent from work for 6 months, and we have no expected return to work date from your doctor. Therefore, we are terminating your employment as of xxxxx. You will receive information under separate cover about your COBRA rights relating to your health insurance, which will terminate on xxxx, unless you exercise your COBRA rights. If your medical condition ever improves in the future such that you are able to return to work, please let me know, and we will consider you for employment for any open position you are qualified for.
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4. You Are Not Required to Change Essential Functions
Reasonable accommodation rules do not require the employer to change the essential functions of the job; only nonessential duties must be reassigned. In addition:
- Employers need not create jobs.
- It is also permissible for an employer to reserve light-duty jobs for those with work-related disabilities.
5. Employer Need Not Violate a Collective Bargaining Agreement
The ADA does not require employers to violate a collective bargaining agreement (e.g., seniority clause) to accommodate. But a disabled worker who meets minimum qualifications for a job may have to be hired for a vacant job over a more-qualified applicant. (Some courts have ruled this way, some have not. Check with your attorney.)
6. Safety Still Counts
There is a direct threat, that is, a significant risk to health and safety of self or others. In making this determination, the employer must rely on a medical opinion that is based on the current state of medical science, and the worker’s doctor can challenge (and will challenge) that opinion.
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Write to the physician requesting certification, following ADA language, says Postol. Ask the physician to certify that there is no substantial risk of harm OR no significant risk for substantial harm.
This tends to switch the doctor from patient mode to malpractice mode, says Postol.
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7. The Employee Must Cooperate with the Interactive Process
The employee must answer questions, give requested medical information, and attend the independent medical evaluation. Also, the employee must sign a release of medical records to go to the independent medical evaluator.
8. Employers Can Enforce Work Rules
If the employer honestly believed there was a violation of a work rule, that is a defense, even if hindsight proves the employer was mistaken, and maybe even if a disability caused the violation.
In tomorrow’s Advisor, Postol’s take on “undue hardship” (good luck with that!) and an introduction to a unique guide that will help you manage all your tricky wage and hour problems (before the feds step in to “help”).
Of course, just because you include something in the job description as an essential duty doesn’t mean a judge or jury will agree. It’s a mistake to overload a job description with so-called essential functions as a potential defense to litigation down the road.
Tony,Only the Zionist Entity is allowed tons and tons of hihlgy effective offensive weapons, including at least 200 nuclear warheads, is allowed to use them at will in self defence’, no matter how much collateral damage’ they cause (and there is no collateral damage’ because the AOF has the bestest shooters and is the most moral army in the world anyway). The ZE is, using its own parlance, allowed to strike far and wide’, other democracies’ aren’t allowed this extra-judicial luxury. Those are the rules, all in the name of the Holocaust. nyirnuti