by Gail Cohen, Esq. - Assistant General Counsel Employment and Litigation
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
May 08, 2017
Q: What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?
A: They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.
Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum. We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course. Here are a few snippets of information Pierce shared with attendees:
Attendance – is it an essential function of a job? The EEOC says no, in most cases. In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function. (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.) Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function. See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015) (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation? Is this a reasonable accommodation that an employer must consider? The EEOC say yes, in most cases. But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation? Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA. Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial. As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.
Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard. A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard. Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes. Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.
Keith, the lifeguard, has been deaf since birth. He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program. The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination. The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer. In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position. The 6th Circuit agreed. The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.” No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities. Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position. The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons. According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.” Keith v. County of Oakland (6th Cir. 2013).
Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA. Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.” The basic intent of the law is to keep employees working, not to provide leaves of absence. In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose: to prevent disability discrimination and help disabled individuals obtain and keep jobs. Well, we’ve come a long way, haven’t we? For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.
The topics addressed by Pierce at our client meeting present significant ADA challenges for employers. Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations. You can leave a message below or contact [email protected].
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].