Richard Lentini of Ryan Swanson & Cleveland PLLC's presentation on Disability Accomodation

1. Disability Accommodation:
A Practical Approach
Richard P. Lentini

2. What is a Disability?
Federal Americans with Disabilities Act
 An individual with a disability is one who:
 Has a physical or mental impairment that
substantially limits one or more major life
activities (caring for self, walking, seeing,
hearing, speaking, working, etc.)
 Has a record of such an impairment; or
 Is regarded as having such an impairment
©2012 by Ryan, Swanson & Cleveland, PLLC 2

3. What is a Disability?
Federal Americans with Disabilities Act
 Exclusions: Homosexuality, bisexuality,
gender identity disorders, sexual
behavior disorders, compulsive
gamblers, kleptomaniacs, pyromaniacs,
those currently engaged in the use of
illegal drugs
©2012 by Ryan, Swanson & Cleveland, PLLC 3

4. What is a Disability?
Federal Americans with Disabilities Act
 Those who are participating or have
participate in a supervised drug
rehabilitation program or have otherwise
been successfully rehabilitated are
protected
©2012 by Ryan, Swanson & Cleveland, PLLC 4

5. What is a Disability?
Washington Law Against Discrimination
 Disability is the presence of a sensory,
mental or physical condition which is:
 Medically cognizable
 Exists as a record or history; or
 Is perceived to exist, whether or not it exists in
fact
©2012 by Ryan, Swanson & Cleveland, PLLC 5

6. When Does an Employer Have to
Accommodate?
 When the employer is aware of a disability
(abnormal condition)
 The employee needs accommodation to
perform the essential functions of the job
 The employer is obligated to take the
initiative to address the issue of
accommodation
 Employee need not make a formal or
written request for accommodation
©2012 by Ryan, Swanson & Cleveland, PLLC 6

7. When Does an Employer Have to
Accommodate?
 Before hiring – May not refuse to hire
because of a disability which requires
accommodation
Tip: Are you having any problems
performing your job that we should
know about?
©2012 by Ryan, Swanson & Cleveland, PLLC 7

8. How Does an Employer Decide
How to Accommodate?
 Interactive Exchange: Inquire to determine
the nature and extent of the disability and
its impact on job duties:
 Involves employer, employee, and physician
 Open exchange of information relating to disability, job
duties and functions, and accommodations
 Employer may require a reasonable documentation
and/or a medical examination, if insufficient information
is provided
 Employer may not seek information not pertinent to the
condition or accommodation
©2012 by Ryan, Swanson & Cleveland, PLLC 8

9. What is the Scope of the Duty?
 Take reasonable steps to
accommodate the employee’s
limitations to enable them to perform
the essential functions of the job
 Good faith efforts to provide
reasonable accommodation is at least
a defense to punitive and certain
compensatory damages
©2012 by Ryan, Swanson & Cleveland, PLLC 9

10. What is Reasonable Accommodation?
Any accommodation that does not impose an
“undue hardship” on the conduct of the
employer’s business. An accommodation
imposes undue hardship if it presents a
significant difficulty or expense.
©2012 by Ryan, Swanson & Cleveland, PLLC 10

11. What is Reasonable Accommodation?
 Considerations include:
 The nature and cost
 Employer’s financial resources
 Number of persons employed
 Impact upon operations
 Size of employer’s business
 Number, type and location of facilities
 Type of operation, including the composition,
structure and functions of workforce
 Geographic, administrative and fiscal
considerations
©2012 by Ryan, Swanson & Cleveland, PLLC 11

12. What is Reasonable Accommodation?
 Duty is limited to accommodations
necessary to enable the employee to
perform the essential functions of the job
 An employer may choose among
reasonable accommodation options, as
long as it is effective
©2012 by Ryan, Swanson & Cleveland, PLLC 12

13. What is Reasonable Accommodation?
 An employee who refuses an offer of
effective reasonable accommodation is no
longer a qualified person with a disability
and thus not entitled to further
accommodation
©2012 by Ryan, Swanson & Cleveland, PLLC 13

14. How does an Employer
Accommodate?
Modifications that enable the employee to
perform their regular job
 Examples:
 Modify facility
 Restructure job
 Modify schedule or other conditions
 Modification or acquisition of equipment or devices
 Adjustment or modification of application, examinations,
training materials, or policies
 Provision of readers or interpreters
©2012 by Ryan, Swanson & Cleveland, PLLC 14

15. How does an Employer
Accommodate?
Reassignment to other jobs
 Take initiative in finding another job
 Notify employee of openings
 Assist with application
 Capabilities testing
 Training
©2012 by Ryan, Swanson & Cleveland, PLLC 15

16. How does an Employer
Accommodate?
Modifications to allow employee to enjoy
equal benefits and privileges of employment
After discharge
 Inform employee of openings for which
they are qualified
©2012 by Ryan, Swanson & Cleveland, PLLC 16

17. What is NOT a Reasonable
Accommodation?
 Need not eliminate essential functions
 Need not lower performance standards
 Need not offer the precise accommodation
requested
 Need not displace another worker
 Need not create a new job
 Need not prefer employee with disability over a
more qualified applicant
 Need not provide accommodation that is not
medically necessary (employee’s perception)
©2012 by Ryan, Swanson & Cleveland, PLLC 17

18. Thank you!
Richard P. Lentini
Ryan, Swanson & Cleveland
lentini@ryanlaw.com
(206) 654-2231