One size does not fit all avoiding common adaaa mistakes
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One Size Does Not Fit All: Avoiding Common ADAAA Mistakes. FERMA Conference July 2014. Speaker. Sandy Johnson Disability and Productivity Consultant since 2010 Develops, promotes and implements Workplace Possibilities ℠ program Joined The Standard in 1997 as a Vocational Case Manager.

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One Size Does Not Fit All: Avoiding Common ADAAA Mistakes

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One size does not fit all avoiding common adaaa mistakes

One Size Does Not Fit All: Avoiding Common ADAAA Mistakes

FERMA Conference July 2014


Speaker

Speaker

Sandy Johnson

Disability and Productivity Consultant since 2010

Develops, promotes and implements Workplace Possibilities℠ program

Joined The Standard in 1997 as a Vocational Case Manager.

Prior to The Standard, assisted injured workers in returning to work, designed ergonomic training programs for supervisors and employees, and worked with clients in substance abuse program

Certified Rehabilitation Counselor since 1984.

Master’s degree in Guidance and Counseling from the University of Idaho


Obnoxious legal disclaimer

Obnoxious Legal Disclaimer

The information contained in the following slides are for general information purposes, and should not be relied upon or treated as legal advice or substitute as advice for any particular circumstance. The examples presented may have been modified to fit the format and time allotted for this presentation.

The accommodations selected and discussed are not the “right” accommodations but those that fit the particular facts and circumstances of the situations presented. Opinions expressed throughout this presentation are the opinions of Sandy and do not reflect the opinions of The Standard, which accepts no liability for any consequences or actions taken on the basis of the information provided.


Agenda

Agenda

  • Overview “One Size Does Not Fit All”

    • Most Common ADAAA Mistakes

  • Case Study Examples

    • EEOC Settlements

    • Case Law Examples

  • Exercise—You Decide


Overview

Overview

  • The top ADAAA mistakes made by employers include:

    • Enforcing restrictive policies

    • Believing accommodations are expensive

    • Staying inside the box

    • Devaluing an aging workforce

    • Not using 3rd party consultants


Case study examples

Case Study Examples


Mistake enforcing restrictive policies

Mistake: Enforcing Restrictive Policies


Solution modified duty

Solution: Modified Duty


What could have happened

What Could Have Happened…

  • “Interstate Distributor Company to Pay Nearly $5 Million to Settle EEOC Disability Suit”

  • Nationwide trucking firm had 2 restrictive policies:

    1) Maximum leave policy

    2) “No restrictions” policy

  • EEOC said this settlement shows a need for employers to have policies permitting paid or unpaid leave as a reasonable accommodation.


Mistake believing accommodations are expensive

Mistake: Believing Accommodations are Expensive


Solution graduated rtw with assistive devices

Solution: Graduated RTW With Assistive Devices


What could have happened1

What Could Have Happened…

  • Proving “undue hardship” under ADAAA in court:

    • Fact-specific

    • Little case law on point since the amendments to ADA (which means it is unclear what the courts will say)

    • Employer has the burden of proving “undue hardship”

    • Regulations say employer must also consider outside sources of funding, including available tax credits/deductions


Mistake devaluing an aging workforce

Mistake: Devaluing An Aging Workforce


Solution amplification voice activated software

Solution: Amplification & Voice-Activated Software


What could have happened2

What Could Have Happened…

  • “DuPriest and Sons to Pay $24,000 to Silk-Screener Fired Because of Disability”

  • Family-owned silk screening company fired employee of 38 years after he notified the company that he needed dialysis.

  • EEOC said: “The ADA isn’t just about hiring qualified persons who may have some limited health conditions, it is also about retaining and accommodating employees who may develop impairments while working….”


Mistake staying inside the box

Mistake: Staying Inside the Box


Solution modified work schedule

Solution: Modified Work Schedule


What could have happened3

What Could Have Happened…

  • EEOC v. Resources for Human Development, Inc.

  • Severely obese employees can qualify as disabled (or regarded as disabled) under the ADA

  • Circuits differ on this issue (some haven’t addressed it):

    -5th Circuit – obesity is probably a disability

    -1st Circuit – obesity can be a disability

    -2nd & 6th Circuits – a physiological condition related to obesity can be a disability


What else

What Else?

  • EEOC Guidance about Modifying Workplace Policies:

    • Specific example used by EEOC relate to policy prohibiting employees from eating or drinking at their desks.

    • Restrictive policies about eating and drinking need to be modified for a disabled employee.

  • Don’t be a target for the EEOC!


Mistake not using third party consultants

Mistake: Not Using Third Party Consultants


Solution support guidance

Solution: Support & Guidance


What could have happened4

What Could Have Happened…

  • Criado v. IBM Corp. – leave as a reasonable accommodation for depression, anxiety, and attention deficit disorder

  • EEOC even suggests using outside resources to identify and provide reasonable accommodations.

  • Mental health impairments are prevalent.


Additional outside resources

Additional Outside Resources

  • EEOC Primer for Small Businesses: www.eeoc.gov/facts/adahandbook.html

  • Job Accommodation Network:

    https://askjan.org

  • International Association of Rehabilitation Professionals: http://www.rehabpro.org


Exercise

Exercise


What would you do

What Would You Do?


Choose 1 of the 4 options

Choose 1 of the 4 Options:


Choices a b

Choices A & B:


Choices c d

Choices C & D:


Summary

Summary

  • One Size Does Not Fit All

    • Each situation is different.

    • Avoid the mistake of thinking one size fits all when assessing reasonable accommodations.

  • Take some action and apply these best practices:

    • Allow flexible policies

    • Price out accommodation options

    • Be creative / think outside the box

    • Value your aging workforce

    • Utilize 3rd party consultants & resources


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