Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, “The ADA for Justice Professionals.” Here are a few of his responses.
Audience Question: Does the employee have to tell you the reason why they’re calling in sick?
Rick Hodsdon: The ADA doesn’t change any work rules. If an employee calls in sick the ADA doesn’t prohibit you from asking why. Like I said, to be a disability typically takes some period of time. It must be more than a day, a couple of days. The Family Medical Leave Act often comes into play here as well. The Family Medical Leave Act is triggered for a serious health condition of the employee’s own health condition. A lot of organizations are sometimes being challenged. They tend to use a three-day rule, if you are going to be out three or more days, it’s possible that it’s a serious health condition. Therefore you may have obligations triggered on the Family Medical Leave Act. In that situation, it is permissible to inquire. What both the ADA and the Family Medical Leave Act are trying to promote though is those kinds of inquiries about health issues to the extent that is possible should not be made by the direct supervisor. The idea is human resources or some third party who is going to gain knowledge of the person’s health condition should be buffered from the direct supervisor coworkers. The short answer is in most circumstances yeah you can ask that question.
Audience Question: Is an employer required to have an ADA coordinator and have an ADA grievance process?
Rick Hodsdon: An employer is not required to have a dedicated position of an ADA coordinator. An employer is required to have a process in place to address the issues of ADA that may come up. Some large organizations have enough ADA issues where it can be justified if you’re a city that’s got 10 employees in the entire city, half of them in the police department and the other half public works and somewhere else it’s simply not going to be feasible. In that situation, your city administrator or your chief of police might be the person who deals with the ADA issues. You’re not legally obligated to have an ADA coordinator. You are legally obligated to meet the requirements of ADA. How you go about that is you have some discretion or flexibility.
Audience Question: Do you know offhand which title of the ADA accessible website falls under?
Rick Hodsdon: Most of what I’ve seen now and that’s the new trend in terms of litigation and lawsuits is accessible websites tend to be under title IV because for the communication. Especially a lot with the deaf and hearing impaired community. I’ve also seen it under Title II as a public service for vision impaired. Let’s say a city has got its website where you can apply for dog licenses, benefits and vacation checks by the police department. If it’s all visual based then that would be a public service and someone who is vision impaired could legitimately argue that as a city you are not meeting the requirements under the ADA. I think the new frontier for the communication impairment and I’ve seen some of the first lawsuits across the country now are of that very nature because so many governments and businesses as well are doing so much interaction through screens and what are you going to do with those people who are communication impaired either by vision, especially by vision, but to a lesser degree by hearing. There are a lot of private sector folks, the vendors out there in this world who are trying to sell products, they’re starting to realize there is a market. Besides having an ADA obligation, there is a market here. We can make up you know a voice-activated interchange that will sell more widgets to those customers. The government, not having those resources and not being driven by the profit mode, has fallen behind. Like I said, I know of at least four, five places across the country where government organizations are being sued because their web-based communications system is not friendly for ADA purposes.
Audience Question: Does the disabled person being accommodated have to approve of the accommodation being made if the employers’ legal authority says that it is sufficient?
Rick Hodsdon: The short answer is no. The obligation is for the interactive process. As I mentioned a couple of times, the employee can tell you what they would like, their ideal world. Here’s what I’d really like to have happened. If you’ll engage in the interactive process and you decided in consultation with whatever experts, maybe legal, maybe physical plant, maybe communications or who knows. If you decided, I’d like a brand new Tesla too but I’ll settle for my Chevy Impala because the reasonable kind of accommodation is the mode of transportation then that’s fine. The employee doesn’t always get top shelf if the middle shelf is going to let them do the essential function of the job, I tend to agree, that’s good enough. What I like in Sue’s question is somebody ran that past legal counsel. Always get your lawyers involved because to tell you as a lawyer I fight way harder in court for decisions you and I made together than some decision you made that I have to clean up after.
Audience Question: Does the ADA address situations regarding accommodations for an arrested person that is being transported into a detention facility?
Rick Hodsdon: There are several components there. Detention facilities, correction facilities, physical plant, especially are definitely covered. In fact, one of the very first cases that never got into the United States Supreme Court under the ADA and under Title III was the correction facility where the US Supreme Court said they are covered. Physical plant aspect, yes. The Feds have also issued for new construction, a huge set of rules, regulation, guidelines of so many percentages of cells have to be handicapped accessible and so on. Those aspects of lockups are covered. The other aspect that is ADA covered is things like accommodations and services. For example, you bring somebody to a lock up and they’re deaf or hearing impaired, under Title IV, the expectation is you are going to have a system available of some sorts by which they can engage in communications.
Audience Question: How does pregnancy for example as a correctional or detention officer factor in as an ADA issue in reasonable accommodation.
Rick Hodsdon: The pregnancy issue is multiple parts because you’ve got the pregnancy discrimination act under the Federal Law. You also have potential Family Medical Leave Act issue under Federal law and then within the ADA. Pregnancy in itself would generally not be considered as a disability. However, there may be conditions or situations associated or deriving from the pregnancy that will fall within the definition of disability. For example, if you have an employee who has got major complications because of pregnancy while the pregnancy might not be a disability, they might fall within that definition of disability because of the complications. As I mentioned, in terms of the regarded as if you decide as an agency or as an employer that you are going to treat pregnant staff as disabled, you may well have made them disabled for the third prong that being regarded as prong. Then the question becomes what reasonable accommodation is necessary. That’s not going to be determined by you necessarily or even by the employee but that’s a medically based determination. Gender and pregnancy discrimination are protected under Federal law and certainly, a very large number of states protect it as well. If you have a person who is medically cleared to continue to work as a corrections officer and they’re pregnant then that will be pretty much the way it plays out. If they are not cleared for duty because of their pregnancy. If a doctor says they can no longer perform all the essential functions of the job due to pregnancy then if you have a historical practice of if somebody breaks an arm or has a temporary medical condition that’s going to be transitory, if you have a historical practice of offering that person a light duty assignment. Let’s say you have a direct supervision jail but instead of having that person with a broken arm work in population on the floor, they’re going to work in master control. If that’s been your practice for your injured employees then if you didn’t provide the same position or assignment to your pregnant employee, not only you’re opening yourself up for an ADA claim but you’re certainly opening yourself up for a gender-based or pregnancy discrimination claim.
Audience Question: What should we do if as an employer we uncover a hidden disability? Should this be documented or do you wait for the employee to approach you on this?
Rick Hodsdon: If your employee is performing all the essential functions of the job and this is not coming up as an issue then you basically do nothing. There are a huge number of people, all those 43 million Americans, there’s a whole lot of us that has disabilities within the act and still do our job just fine. Since we’re supposed to be, under the law we’re supposed to collect only such medical-related information that is necessary for us as employers. If that is not necessary to know about my suggestion is you let it go. Where a lot of hidden disabilities come up is somebody’s had a performance, they’ve been okay, they’ve been an A student, a B student or at least a C student. Now you’re starting to notice a slip. Some attendance issues maybe some quality of work, the quantity of work and so maybe start the path down of counseling, performance improvement plan and that’s when the employee finally says, “Okay, I got to tell you here’s my situation. I’ve been treating for leukemia and that’s why my transfusions are coming in late sometimes that’s why I’m coming in late for work a couple of times.” Now when they bring it forward as an example of why their performance is suffering then it’s appropriate for you to deal with it. If you got that employee with the rumor mill has been treating for some kind of ongoing chronic medical condition but they are showing up for work, they are doing their job, the ADA contemplates you simply let it go.
Audience Question: Does the ADA protect the parent of the disabled child if the employee is the only caregiver?
The ADA prohibits discrimination against a parent of a disabled child. In that sense, it does protect. The ADA doesn’t require a reasonable accommodation for that caregiver. Let’s say that for some reason I disclosed on the hiring process that I have a child that’s got severe disabilities. If the employer didn’t hire me because of that disclosure, I have an ADA claim. Let’s say I am an existing employee and now I have a child whether that was just fine and got involved in a major car accident and now they have got major disabilities. Wheelchair, breathing, and so I come to my employer and say as a reasonable accommodation for me as a caregiver for my child I need X, Y, and Z. The employer is not obligated to grant that. They will be obligated to let time off and maybe add a leave and so on under the Family Medical Leave Act but they are not required to accommodate the disability of a dependent.
Audience Question: Can an employer change or modify essential or non-essential work duties after the employee has requested an accommodation under the current policy manual?
Rick Hodsdon: Big difference between the essential and the non-essential. If you got a person who because of a disability cannot perform duties that you have labeled non-essential that they are not an essential job function, then you can discriminate against that employee. The ADA only deals with those things that have been designated by the employer in your written job description as an essential function of the job. If you have something that is listed as an essential function of the job and an employee says I cannot do it anymore. As we discussed earlier in the presentation, you are not obligated to waive that provision. If there’s something that you never labeled to be an essential function of the job and now you decided it is, if you are proactive and do that before the issue comes up, you can change your essential job function. You can add to them. If you add to them in response to the fact that an employee now has made a claim or request for accommodation or now has revealed that they have a disability if you don’t make the move from non-essential to essential after that has been triggered, I think the EEOC is going to be all over you. If not them then a private attorney filing suit would argue that this is simply a pretext and this is a reprisal for this person exercising their rights under the ADA. More with, thoroughly review your essential functions of the job periodically. If you haven’t looked at your essential job description functions in the last year or two, if your environment, the working condition has changed, you set yourself up for trouble. Example of law enforcement when I teach the whole Brady Giglio issue, the lying is grounds for discipline. Any police dept or law enforcement agency or any government agency that has people who have to testify in court, if you don’t have in your essential duties and functions in the job being able to provide effective court testimony in a court of law, you are setting yourself up for a lot of problems. There’s a lot of agencies that still don’t have that in there but they are moving toward that. Look over your job description periodically. Run it over by your HR, Run it over by your attorneys and make sure that you really have everything penned down so you don’t have that risk of later being accused of doing a reprisal.
Click Here to Watch a Recording of “The ADA for Justice Professionals.”