LEGAL ISSUES ASSOCIATED WITH THE HIRING AND FIRING

EMPLOYEES WITH DISABILITIES

Presented by:Ellen M. Leibovitch,

Board Certified Labor & Employment Law AttorneyShapiro, Blasi, Wasserman & Gora, PA

Boca Raton, Florida

A little about me & my firm…

• In practice since 1987

• Specialize in labor & employment law

• Represent employers mostly

• Firm is headquartered in Boca Raton

• Other areas of practice – commercial litigation, estates & trusts, bankruptcy, family law, real estate and corporate law

Americans with Disabilities Act

In regards to employment,

Title I of the ADA prohibits discrimination against people with

disabilities in employment and requires employers to provide

reasonable accommodations for employees with disabilities

To whom does the law apply and who does the law protect?

• Applies to employers who have 15 or more employees (full and part-time employees are included)

• Protects all qualified individuals with a disability or persons with a relationship to or who associate with an individual with a disability

DEFINITIONS

UNDERSTANDING THE TERMS USED IN THE ADA IS

REQUIRED TO KNOW HOW TO COMPLY WITH THE LAW…

SO WE WILL BE REVIEWING THOSE TERMS TODAY

Who is considered an “individual with a disability”?

This is defined in the ADA as a person

(1) who has a physical or mental impairment that substantially limits one or more major life activities - “actual disability” OR(2) who has a history or record of such impairment - “record of” a disability OR (3) who is perceived or regarded by others as having such an impairment - “regarded as” a having a disability

“Record of” having a disability

Refers to an individual who:

– does not currently have a substantially limiting impairment but who had one in the past OR

– was once misclassified as having a substantially limiting impairment (i.e., someone erroneously deemed to have had a disability but who did not)

“Regarded as” having a disability

An individual who has an actual or perceived physical or mental

impairment, whether or not that impairment substantially limits or

is perceived to substantially limit a major life activity

“Physical or Mental Impairment”

• Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine systems OR

• Any mental or psychological disorder, such as a mental disability, organic brain syndrome, emotional or mental illness and specific learning disabilities

Short-term impairments

• Include episodic impairments that substantially limit a major life activity when active

• A short-term impairment lasting or expected to last fewer than six months can be a disability if it is “substantially limiting”– Pregnancy - not an impairment, not a disability– A pregnancy-related impairment (such as gestational

diabetes) may be a disability if it substantially limits a major life activity

“Major life activities”The regulations provide a non-exhaustive list of major life activities:

• caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working

• the operation of a major bodily function, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions (also includes the operation of an individual organ within a body system)

“Substantially limits”

The newly-revised final regulations (which we will get to shortly) adopt “rules of construction” to be used when determining whether an individual is substantially limited in performing a major life activity:– Construe the term broadly – the rules favor expansive

coverage– Make individual assessments – the impairment need

only substantially limit the ability of an individual (not the general population) to perform a major life activity

Specific impairments “virtually always” recognized:

• deafness, blindness • intellectual disability • partially or completely missing limbs, mobility

impairments requiring use of a wheelchair • autism • cancer • diabetes• HIV infection• cerebral palsy, multiple sclerosis, muscular dystrophy,

epilepsy• major depressive disorder, bipolar disorder, post-

traumatic stress disorder, obsessive-compulsive disorder and schizophrenia

New ADAAA Regulations

• Americans with Disabilities Act Amendments Act was recently amended - effective May 24, 2011

• Not employer-friendly! • The new regulations make it easier for

individuals with disabilities to be protected• Court decisions over the past 20 years

made ADA claims difficult, if not impossible, to prove

What did the new regs do?

• Made it easier for a person to prove the existence of a covered disability and, therefore, to be protected by the ADA

• Weakened prior court decisions which allowed employers to avoid liability

• Lessened the significance of “mitigating measures” in assessing the existence of a disability

Mitigating Measures

• Measures designed to eliminate or reduce the symptoms or impact of an impairment

• Include medication, medical equipment and devices, prosthetic limbs, hearing aids, mobility devices

• If a mitigating measure eliminates or reduces the symptoms or impact of an impairment, that fact cannot be used in determining if a person is an individual with a disability (only exceptions are eyeglasses & contact lenses)

What else did the new rules do?

• Made “regarded as disabled” claims easier to prove – only need to allege a perceived disability and an adverse action because of that perception to state a claim

• Expanded the types of “major life activities” that can be impacted – if there is a disability, then virtually any activity will suffice

So what CAN you do andwhat CAN’T you do?

• CAN consider the negative effects of a mitigating measure in determining if a disability exists (e.g., side effects from medication)

• CAN’T require an employee to use a mitigating measure to avoid negative effects of a disability

And what can you now expect?

• The cynic (“glass half empty” types) might say – “More lawsuits!”

• The optimists (“glass half full”) might say – “Less discrimination!”

• Only time will tell…

The ADA protects “qualified” individuals with a disability…

An individual must have the skills, experience, education and other job-related requirements needed for the

job AND be able to perform the essential functions of the job

with or without reasonable accommodation

What is a “reasonable accommodation?”

A modification to a job, the work environment or the way things are usually done to enable a qualified

individual with a disability to perform the essential functions of that job.

What’s reasonable?

• Case by case assessment

• What’s OK for one business may not work for another

• The proposed accommodation will not be reasonable if it poses an “undue hardship” on the employer

What’s an undue hardship?

• May be financial, but not necessarily

• Still, in most cases, accommodations are rejected because of financial reasons

• Remember that the accommodation requested by the employee may not be the accommodation required (and vice versa)

• Interactive process – more to follow…

ADA definitions are critical!

So once you know to whom the ADA applies, who is protected and

understand, and what the terms QUALIFIED, DISABILITY, MAJOR LIFE ACTIVITY, SUBSTANTIALLY LIMITS

and REASONABLE ACCOMMODATION mean, we can talk about hiring…

HIRING GUIDELINES Step 1: Recruitment

• The ADA does not require private employers covered by the act to hire persons with disabilities - it is NOT an affirmative action statute!

• However, expanding outreach to target qualified candidates with disabilities is consistent with the ADA’s goal and, for employers, can result in a significant expansion of the labor pool

• Also, hiring the disabled promotes diversity – the work force reflects the face of the community!

Recruitment - continued

Recruitment activities must include disabled candidates and not screen out applicants with disabilities:

– On line applications - this may require simple modifications to web page design to make the online system accessible to all users

– Location - recruit at a location that’s accessible to someone in a wheelchair

– Applications – make available in Braille or large print

– Job postings - provide a telephone and a TDD (telephone device for the deaf) number; and make sure that information is available by other sources to persons who cannot see/read

BUT!

THESE SUGGESTIONS AS TO REASONABLE ACCOMMODATION FOR

DISABLED APPLICANTS ALL PRESUPPOSE NO UNDUE HARDSHIP;

SO IF YOU FAIL TO PROVIDE AN ACCOMMODATION, YOU SHOULD BE

PREPARED TO EXPLAIN WHY THE ACCOMMODATION WOULD CAUSE AN

UNDUE HARDSHIP!

And of course…

Make certain to indicate in all postings that you are an equal

opportunity employer and do not discriminate on the basis of age,

sex, race, disability, etc.!

How to recruit the disabled?

• EMPLOYER ASSISTANCE RESOURCE NETWORK - which is a service of the DOL’s Office of Disability Employment Policy

• EARN is a FREE service that connects public and private sector employers with local resources to find skilled job candidates

• For more information, go to www.dol.gov

Recruitment – final thoughts…

• Make sure to advertise the essential functions of the job to screen out unqualified candidates, whether disabled or not

• If walking, lifting, standing, etc. are essential to the job, state that in your advertisement

• BUT listing these requirements does not mean that a disabled person cannot do the job, it just means that an accommodation may be required for a disabled applicant

HIRING GUIDELINES Step 2: Interviews

• MOST IMPORTANT: you cannot ask disability-related or other medical questions before an offer of employment is made

• The purpose of the interview is to find out whether candidate possesses the knowledge, skills and qualifications for a particular position

• RULE OF THUMB - ask about the person’s ABILITIES, not about their DISABILITIES

Interviews – possible accommodations

• Sign language interpreter - for deaf applicants

• Reader - for blind applicants

• Tests - inform applicant of any tests required so that they can ask for an accommodation if needed

HIRING GUIDELINES Step 3: Job Offer

• Once a conditional job offer is made – which will occur after all non-medical information has been obtained and analyzed – the employer may ask disability-related questions if related to the job

• Medical examinations may be required as long as medical examinations are required for all entering employees in the same job category

Can a job offer be withdrawn?

• Yes, if the reason for the rejection is job-related and consistent with business necessity

• No, if the reason is related to the person’s disability (or the person’s association with a disabled person)

• Yes, if the individual poses a “direct threat” to the safety of himself or others (and the risk cannot be reasonably accommodated)

Job Accommodation Network

• This is another FREE service available to help employers devise possible accommodations for applicants or employees with disabilities - again go to www.dol.gov

• The applicant’s or employee’s suggested accommodation is not necessarily the one that is required - may be too costly - the accommodation need only be reasonable to allow the employee to perform the essential functions of the job

• Engage in an interactive process to devise an accommodation

POST-HIRING:Evaluations, advancement, etc.

• Make sure career advancement opportunities, including training, to disabled employees

• Do not discriminate against persons who have medical and disability-related leave issues which may take them out of the work place

Disability-related absences

• FMLA - only applies after one year and 1,250 hours of work AND to employers with over 50 employees/75 mile radius

• Short term disability - may not have a policy; may not be available to newly hired employees

• The ADA - may require intermittent absences and require giving disabled employees more time off than allowed under your policies

• Return to work - watch for retaliation

• Excessive absenteeism - may lead to termination… which brings us to our final topic

FIRING GUIDELINES

Whether firing a disabled or a non-disabled employee, you

should follow the SAME STEPS!

FIRING GUIDELINESStep 1: Documentation

• Document the reasons for a termination

• Maintain records of counseling and warnings

• Employee should sign off on any written disciplinary actions

FIRING GUIDELINESStep 2: Consistency

• Apply all rules even-handedly; this works both ways– can’t favor disabled workers– can’t abuse disabled workers

• During first 90 days, classify all employees as probationary (helps with unemployment as well)

FIRING GUIDELINESStep 3: Confidence

• Just as you should not be afraid to hire a disabled employee, do not be afraid to fire that employee

• Never feel beholden to a non-performing employee due to an employee’s disability

• You have a business to run and you need to be able to do so with qualified personnel

BUT…

• Recognize that the termination decision may be challenged as discriminatory and that you cannot stop anyone from filing a lawsuit

• Still, you can create a solid defense with proper documentation (see Step 1!)

Lay-offs

For all terminations based on reasons other than performance, make certain that the termination

decisions apply evenly to all classes of employees - -

not only the disabled ones

A few parting thoughts…

• The ADA was designed to give disabled employees a level playing field

• There is a positive business case to be made for employers who hire disabled persons– untapped and talented labor pool – tax incentives– diverse work force– positive example for the business community

Questions?

THANK YOU FOR YOUR TIME!