Category Archives: Accommodations and Accessibility
Impairments and Health Professionals: What’s an Employer to do?
Health professionals, including physicians, dentists, nurses, paramedics, pharmacists, psychologists and social workers, are far from immune from chemical dependency, mental illness, and other conditions that impair their ability to do their jobs. When an impairment leads to poor performance or misconduct, health care employers, like other employers, must analyze whether discipline, a reasonable accommodation, or another approach is warranted. But they do so in a highly regulated environment, where patient health and safety are paramount.
Where the health professional is licensed, the employer and other involved professionals may have duty to report the facts to a professional licensing board or, as discussed below, to a diversion program. Employers of physicians and registered nurses, for example, are to report certain: (a) actions taken by the institution to revoke, suspend, or limit the professional’s privilege to practice; (b) disciplinary actions; or (c) resignations by professionals before investigations are concluded. See Minn. Stat. §§ 147.111 and 148.263. Each of the licensing statutes for the many licensed health professions is different, but many contain some form of mandatory reporting. Some require reporting from the employer and others require reporting only from licensed professionals. Many contain protections from liability for those making a report.
A reporting to a licensing board may not be the only required report. Depending on the circumstances, an employer may have other reporting obligations — for example to the Department of Health, to a welfare agency or common entry point for issues involving minors or vulnerable adults, to the DEA, or to the Board of Pharmacy among others.
As to licensing board reports, typically, once a report is made, the board will investigate and, depending upon the outcome of the investigation, may enter into a corrective action agreement with the professional, or proceed to revoke, suspend or condition the license of the professional, or take other disciplinary action. The public nature of disciplinary actions has led to concerns that some situations might go unreported, and leave impaired professionals in practice, and without monitoring, practice restrictions, or treatment, thus posing ongoing risks to public safety.
Minnesota has developed a program to address at least some of these issues. The Health Professional’s Service Program (HPSP) typically provides referrals for evaluation and treatment and develops an agreement with the professional that may include health and work place monitoring, practice restrictions, random drug screening, support group participation, and requirements regarding documentation of compliance. Generally, health professionals are eligible to participate in HPSP if they are licensed by a participating board and are “unable to practice with reasonable skill and safety by reason of illness, use of chemicals, or as a result of a mental, psychological or physiological condition.” They are unable to participate, however, if they have been noncompliant in the past, are already under a disciplinary action, were accused of sexual misconduct, are believed to create a serious risk of harm if they continue to practice, or if they have diverted controlled substances other than for their own self administration. The HPSP statute currently provides that a report to HPSP fulfills the requirement that a report be made to the licensing board under that professional’s practice act. See Minn. Stat. § 214.29. Employers should note, however, that bills were introduced in the Minnesota House and Senate in the current session (see H.F. No. 1604 and S.F. No. 1181) that would require employers to report knowledge of diversion of narcotics or controlled substances to the appropriate licensing board and provide that reporting to HPSP alone would not be sufficient.
Takeaway: It is important for employers to review each circumstance carefully and fully understand their reporting and other obligations in dealing with a health professional whose impairment has or may lead to problems in the workplace. Employers should take action to protect public health and safety while also fulfilling their obligations as an employer to the affected professional.
Can a Job Function Be “Essential” under the ADA if it is Rarely Performed?
Yes – a recent 8th Circuit Court of Appeals case makes clear that job functions may be considered “essential” under the Americans with Disabilities Act (ADA) even if they are rarely performed by the employee in question. Under the ADA, an employer may be required to provide a reasonable accommodation to a disabled employee, but employers are generally are not required to reallocate the “essential functions” of the employee’s job to other workers.
In Knutson v. Schwan’s Home Service, Inc., the 8th Circuit held that it was an essential function of a manager’s job to be certified by the Department of Transportation (DOT) to drive delivery trucks. See Case No. 12-2240 (8th Cir., Apr. 3, 2013). DOT certification was listed as a requirement in the manager’s job description, and there was no dispute that the employee had driven delivery trucks in the past. The employer in Knutson terminated the plaintiff after he sustained an eye injury and no longer met the DOT’s eligibility requirements for driving the delivery trucks. In arguing that his termination violated the ADA, the plaintiff argued that he could perform his manager job successfully without driving a truck. The plaintiff testified that he drove a delivery truck less than 50 times between November of 2007 and his termination in January of 2009.
In holding that DOT certification was an essential job function, the 8th Circuit held in Knutson that the employee’s specific personal experience was not relevant in determining essential job functions. Instead, the job description, the employer’s judgment, and the experience and expectations of all employees in the same position are what generally establish the essential functions of the job. In support of this position, the court cited a previous case in which the court held that a job function may be essential even if the employee never performed it so long as he “may be required” to perform it as part of his job. See Dropinski v. Douglas County, Nebraska, 298 F.3d 704, 708–09 (8th Cir. 2002). Accordingly, the 8th Circuit held in Knutson that the trial court correctly granted summary judgment and dismissed the plaintiffs’ ADA claim.
Takeaway: Determining what job functions are “essential” and what job functions are “marginal” before an accommodation is requested is one way that employers can be prepared to address a request for accommodation. The Knutson case shows that job functions may qualify as “essential” under the ADA even if they are not frequently performed.
Mental Disabilities – Managing Employee Conduct and Maintaining Workplace Safety
Recent studies have shown approximately 4.2 million to 13.4 million working employees have mental disabilities. What is an employer to do when employees with mental disabilities exhibit disruptive conduct or threaten violence in the workplace if their conduct may be associated with their disabilities?
Employers must balance disabled employees’ legal protections with safety concerns. These employees have legal protections and may be entitled to reasonable accommodations under the Americans with Disabilities Act (“ADA”) as well as the Minnesota Human Rights Act (“MHRA”).
On the other hand, the ADA permits employers to enforce standards of conduct and performance that are job-related and consistent with business necessity (e.g., disciplining an employee who makes threats of violence or steals company property). Similarly, the ADA allows employers to enforce uniform disciplinary rules against employees provided that they are enforced in the same manner for non-disabled employees. These guidelines apply even where the employee’s misconduct is caused by his or her disability. See, e.g., Weesner v. U.S. Bancorp, 2011 WL 4471765 (D. Minn. 2011); Lenzen v. Workers Comp. Reinsurance Ass’n, 843 F. Supp. 2d 981 (D. Minn. 2011), aff’d, No. 12-1211 (8th Cir., Feb. 13, 2011).
The ADA also authorizes an employer to exclude an individual from a position if he or she poses a “direct threat,” which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r). The determination of whether an employee poses a direct threat must be made on a case-by-case basis and not based on generalization or stereotypes. See Brunko v. Mercy Hosp., 260 F.3d 939 (8th Cir. 2011) (“The provision addressing perceived disabilities ‘is intended to combat the effects of “archaic attitudes,” erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities.’”).
Minnesota law also holds that employers have a defense to disability claims under the MHRA if an employee poses a serious threat to the health or safety of the disabled person or others. Minn. Stat. §363A.25.
Takeaways: Employers may require both disabled and non-disabled employees to comply with standards of conduct and performance that are job-related and consistent with business necessity. Employers may also exclude individuals who pose a direct threat. An employer must make an individualized assessment when determining if an employee poses a direct threat. The employer should seek medical judgments and rely on the most current medical knowledge and factual evidence regarding the employee’s potential to be a direct threat. Employers should also seek legal advice if they are unsure whether an employee poses a direct threat in the workplace.
Are Employers Required to Reallocate Essential Job Functions Under the ADA?
While employers may be required to offer reasonable accommodations to employees with disabilities under the Americans with Disabilities Act (ADA), employers generally are not required to reallocate the essential functions of the employee’s job to other workers.
What type of reasonable accommodation may be appropriate for an employee usually must be determined through the interactive process under the ADA. But the general rule is that, while offering reasonable accommodations to the employee may involve reallocating the “marginal functions” of an employee’s job to other workers, employers are not required to reallocate the “essential functions” of the employee’s job. Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 575 (8th Cir. 2000).
“Essential functions” are defined as “the fundamental job duties of the employment position the individual with a disability holds or desires.” The EEOC’s regulations under the ADA provide that a job function may be considered “essential” for any of several reasons, including but not limited to the following:
- The function may be essential because the reason the position exists is to perform that function;
- The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; or
- The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
Evidence that courts may consider when determining whether a job function is “essential” may include the following:
- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; or
- The current work experience of incumbents in similar jobs.
Takeaways: Determining what functions of an employee’s job are “essential” and what functions of the employee’s job are “marginal” is an important part of determining how far an employer must go with respect to accommodating an employee under the ADA. The interactive process is typically easier to administer when employers decide what job functions are “essential” before an accommodation is requested.
How to Handle Employees with the Flu
Seasonal flu has once again appeared in the homes, schools, and workplaces of Minnesota. The Star Tribune reports that Twin Cities hospitals are at or near capacity with flu patients and hospitals are cautioning healthy family and friends to stay away.
Such widespread illness can lead to other rather dramatic reactions. For example, employers wishing to avoid contagious spread of the flu and related workplace absences might decide to terminate the employment of an employee exposed to or diagnosed with the flu. Can an employer do so consistent with applicable law?
In a recent case, the Minnesota Federal District Court held that an employer did not violate the Americans with Disabilities Act (ADA) or the Minnesota Human Rights Act (MHRA) when discharging an employee thought to have been exposed to the flu. See Valdez v. Minnesota Quarries, Inc., No. 12-CV-0801 (D. Minn. Dec. 10, 2012). The employee had traveled to Mexico at the height of the swine flu (H1N1) pandemic. He was discharged following his return to Minnesota allegedly because of his possible exposure to the flu. The employee sued claiming that he had been improperly regarded as disabled. The court, however, determined that the flu (even the swine flu) is transitory and minor and therefore cannot be the basis of a regarded as disabled claim.
What if an employee actually has the flu? Would a discharge on that basis violate the ADA or MHRA? The 2011 amended ADA regulations state that the transitory and minor exception does not apply to allegations of actual disability. See 29 C.F.R. § 1630.2(j)(1)(ix) (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”) Accordingly, while often not the case, it is possible that an employee diagnosed with the flu may be considered disabled under applicable law if they are substantially limited in a major life activity. Further, an employee with the flu may be entitled to protected leave under the Family and Medical Leave Act (FMLA) if they are incapacitated for more than three consecutive days and have received treatment from a healthcare provider.
Takeaway: Employers should be careful to properly address the employment status of any employee having the flu, including a determination as to whether the employee is protected under applicable disability discrimination or leave of absence laws. While it may be prudent to have an employee with the flu stay home until they have recovered, employers should consult with legal counsel before making any discharge decision.
Dillard’s Agrees to $2 Million Settlement for Class Action Disability Lawsuit
The Equal Employment Opportunity Commission (EEOC) recently announced a $2 million settlement in its class action disability discrimination lawsuit against nationwide retailer Dillard’s. The lawsuit was venued in the U.S. District Court for the Southern District of California and challenged two practices that the EEOC alleged violated the Americans with Disabilities Act (ADA).
Medical Documentation Policy: The EEOC alleged that Dillard’s maintained a policy that required all employees to disclose the exact nature of their medical conditions in order to be approved for sick leave. Under the policy, a simple verification from an employee’s doctor that an absence was due to a medical reason was insufficient. Many employees felt uncomfortable disclosing the precise nature of their conditions in order to justify an absence. The EEOC argued that the policy was inconsistent with the requirement under the ADA that employers can only make inquiries into the disabilities of their employees when doing so is job-related and necessary for the conduct of business.
Maximum Leave Policy: The EEOC also alleged that Dillard’s enforced a maximum-leave policy, which limited the amount of health-related leave an employee could take. In practice, Dillard’s did not regularly engage in the interactive process with employees to determine if more leave was allowed under the ADA as an accommodation for the employee’s disability. The EEOC argued that this practice was inconsistent with the ADA’s reasonable accommodation requirements.
Under the terms of the settlement, Dillard’s agreed to pay $2 million to identified victims of the policy and to create a fund to compensate additional, unidentified victims. Dillard’s also agreed to: (i) hire a consultant with ADA experience to revise the company’s policies; (ii) post documentation related to the settlement; (iii) implement training for supervisors and staff on the ADA, with an emphasis on medical inquiries and maximum leave policies; and (iv) develop a centralized tracking system for employee complaints involving disability discrimination.
Takeaways: Policies and practices that do not comply with the ADA expose employers to unnecessary risk. The Dillard’s case presents a good opportunity for employers to review their medical documentation and maximum leave policies and practices to correct any potential problems before liability arises.
What Constitutes an Undue Hardship under the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) generally requires employers to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability – unless the employer can demonstrate that the accommodation would impose an undue hardship. 42 U.S.C. § 12112.
“Undue hardship” is defined as “significant difficulty or expense incurred by a covered entity” with respect to the provision of an accommodation. In order to determine whether a proposed accommodation imposes an undue hardship on an employer, the following factors must be considered:
- The nature and net cost of the accommodation, taking into consideration the availability of tax credits and deductions, or outside funding;
- The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
- The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities;
- The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
- The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.
Takeaways: What constitutes an undue hardship for a particular employer or employee may not constitute an undue hardship for another employer or employee. The best practice is for employers to consider each request for accommodation on an individualized, case-by-case basis.
What Kinds of Reasonable Accommodations May Be Required Under the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) generally requires employers to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability – unless the employer can demonstrate that the accommodation would impose an undue hardship. 42 U.S.C. § 12112.
Depending on the circumstances, a “reasonable accommodation” under the ADA may include any of the following:
- Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires;
- Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
- Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
What type of reasonable accommodation may be appropriate for an employee depends significantly on the nature of the employee’s disability, the requirements of his or her job, and the resources available to the employer. In order to determine what reasonable accommodation may be required, if any, the employer may need to engage in the interactive process with an employee.
Depending of the facts of the case, examples of reasonable accommodations that may be required include: (i) job restructuring; (ii) part-time or modified work schedules; (iii) reassignment to a vacant position; (iv) acquisition or modifications of equipment or devices; (v) appropriate adjustment or modifications of examinations, training materials, or policies; or (vi) the provision of qualified readers or interpreters. 29 C.F.R. § 1630.2(o)(2)(ii).
Takeaway: Familiarity with the types of reasonable accommodations that may be required under the ADA will better prepare an employer to respond to requests for accommodations from employees.
U.S. Attorney’s Office Announces Review of Restaurants Under the Americans with Disabilities Act
On November 7, 2012, the U.S. Attorney’s Office for the District of Minnesota issued a press release announcing that it would review approximately 12 restaurants to determine whether they are in compliance with the requirements of the Americans with Disabilities Act (ADA) for places of public accommodation. The review will focus on restaurants that are either on or adjacent to Nicollet Mall in downtown Minneapolis, but other restaurants in Minnesota may be added to the review as well.
To conduct the review, the U.S. Attorney’s Office will send surveys to each of the selected restaurants, which must be completed within 30 days. The restaurants will also likely undergo on-site inspections by representatives from the U.S. Attorney’s Office. If violations of the ADA are discovered, the press release states that the U.S. Attorney’s Office intends to work with the restaurants to secure voluntary compliance.
The Star Tribune reports that some of the questions that the restaurants will be required to answer for the survey include the following:
- Is there a telephone device for the deaf available at the host station so a restaurant can take reservations from people who are deaf or have a speech impairment?
- Is the route through the main entrance and into the restaurant accessible to persons with disabilities?
- If the restaurant has a bar or counter, is any portion of it lowered so as to be accessible to someone in a wheelchair?
- Does the restaurant have written policies on how it will handle people with hearing disabilities or use a wheelchair? Does it have a written policy specific to persons with disabilities who use service animals?
Takeaways: Under the ADA, employers need to ensure not only that their workplaces are accessible to disabled employees, but also that any public accommodations they offer (e.g., restaurants, retail stores, educational institutions, etc…) are also accessible to disabled individuals. Some helpful resources regarding the ADA’s requirements for accessibility include: (i) the ADA Guide for Small Businesses; (ii) the 2010 ADA Standards for Accessible Design; and (iii) Guidance on the 2010 ADA Standards for Accessible Design.
How Many Van Accessible Parking Spaces Are Required under the Americans With Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) requires places of public accommodation to provide a certain number of accessible parking spaces based on the total number of parking spaces in a parking facility. There are two primary types of accessible parking spaces: (i) car accessible parking spaces; and (ii) van accessible parking spaces.
What is the difference between “car accessible parking spaces” and “van accessible parking spaces”? The primary difference between accessible car parking spaces and accessible van parking spaces is width. Accessible car parking spaces must be at least 96 inches wide and adjacent to an access aisle that is at least 60 inches wide. Accessible van parking spaces must be: (i) at least 132 inches wide and adjacent to an access aisle that is at least 60 inches wide; or (ii) at least 96 inches wide and adjacent to an access aisle that is at least 96 inches wide. Two accessible parking spaces may share a common access aisle.
How many van accessible parking spaces are required by the ADA? The U.S. Department of Justice’s 2010 ADA Standards of Accessible Design states that for every six (or fraction of six) accessible parking spaces required by the ADA, at least one of those parking spaces must be a van accessible parking space. Under this rule, if only one accessible parking space is required, it must be a van accessible parking space.
Takeaway: Places of public accommodation with parking facilities should ensure not only that they have the required number of accessible parking spaces under the ADA, but also that they have the required number of van accessible parking spaces.
Can Employers Require Employees to Provide Medical Information Regarding Disabilities?
A recent case from the Minnesota Court of Appeals noted a significant difference between the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA).
Under the ADA, an employer “may require” a medical examination or inquiry of an employee so long as it is “job-related and consistent with business necessity.” 29 C.F.R. § 1630.14(c). Under the MHRA, an employer may request that an employee provide medical documentation concerning the employee’s continuing ability to perform the job or potential need for accommodation “with the consent of the employee.” Minn. Stat. § 363A.20, Subd. 8(a)(2).
In Crummy v. Enterprise Minnesota, the Minnesota Court of Appeals held that an employer discriminated against an employee when it demanded that he provide medical documentation for his dyslexia and fired him for not providing the documentation. 2012 WL 360391 (Minn. Ct. App. 2012). The employer argued that the employee was insubordinate when he did not provide the requested medical documentation, but the court rejected this argument. The facts of the case are relatively unique because the court found that the employee never requested an accommodation from the employer, but the employer requested medical documentation from the employee anyway.
Takeaway: The Crummy case highlights the potential significance of minor language differences between the ADA and MHRA. When responding to requests for accommodation from employees, employers in Minnesota need to ensure that their practices are in compliance with both statutes.
The Interactive Process Under the Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) generally requires an employer to provide a reasonable accommodation to a disabled employee or applicant if the accommodation is necessary to enable the employee or applicant to perform the essential functions of the job and will not result in undue hardship to the employer. In some circumstances, an employer may be required to engage in an “interactive process” with the employee or applicant to determine whether accommodation is necessary or what type of accommodation is necessary.
What is the Interactive Process? The “interactive process” is an informal dialogue between the employer and the employee or applicant in potential need of an accommodation. The interactive process has two primary objectives:
- To identify the precise limitations resulting from the disability of the employee or applicant; and
- To identify potential reasonable accommodations that could overcome those limitations.
See 29 C.F.R. § 1630.2(o)(3). While employees are generally responsible for requesting an accommodation, employers should typically initiate the interactive process when the potential need for accommodation is obvious.
Takeaway: In some cases, engaging in the interactive process with an employee can be an important part of an employer’s compliance with the ADA. Knowing when to implement the interactive process and what objectives should be accomplished by the interactive process can help employers reduce the potential for liability.
Ankoor Bagchi
Ann Huntrods
Britt Gilbertson
Danielle Fitzsimmons
David Schooler
Ellen Brinkman
Michael Miller
Michael Wilhelm
Mike Moberg
Neal Buethe
Sally Scoggin
Steve Brunn
