How to Avoid “Regarded As” Discrimination Claims under the ADA

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Presentation has been APPROVED for SHRM Re-Certification Credits.

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Kara Craig Vigilant

We all know that discrimination based on disability is against the law and wrong.  But what about “regarded as” disability discrimination?  What does “regarded as” disabled mean?  In this session, attorney Kara Craig will explore an area of exposure that is an often overlooked area of liability for employers.

This type of claim, known as “regarded as” disability discrimination, can sneak up on you despite your best intentions. Without medical verification to establish that an employee has an impairment that meets the definition of disability, you may be (knowingly or unknowingly) operating on biases, perceptions and presumptions that can lead to a discrimination claim. Likewise, failing to identify and implement a reasonable accommodation because you’ve determined that an employee poses a direct safety threat may also lead to a “regarded as” claim.  How does an employer balance their responsibility to provide a safe workplace without inadvertently trampling on the rights of the employee?

In this session we will take a closer look at:

  • Overview of legal requirements to establish a “regarded as” discrimination claim under the ADA
  • Common disabilities (combined with our misperceptions) that may invite such claims
  • Refresher on the reasonable accommodation analysis and process
  • Cautionary tales regarding assertion that a disabled employee poses a “direct safety threat”
  • EEOC guidance and best practices

Kara Craig is a seasoned attorney and energetic presenter.  Kara has been practicing law for over 17 years.  As an employment attorney with Vigilant, Kara provides counsel to Oregon and Washington State businesses on the entire range of employment and labor law issues.  She also represents clients in administrative proceedings pending before the EEOC and state agencies such as BOLI and the WSHRC.  Kara is always eager to conduct onsite training for HR professionals, managers, supervisors, and employees.  Before joining Vigilant in December of last year, Kara served as employment and labor counsel at Archbright, based in Seattle.  Before relocating from Illinois to Washington in 2013, Kara represented the Chicago Board of Education and defended employment matters filed in state and federal court.  Kara takes pride in her ability to provide practical advice and draws from her extensive litigation experience when making risk assessments.  Hopefully you’ll find Kara’s down-to-earth nature and sense of humor somewhat refreshing, as we navigate the tricky and sometimes frustrating world of employment law!

Read the Full Transcription of “How to Avoid ‘Regarded As’ Discrimination Claims under the ADA:

JoAnn: Hello and welcome to TERRA Staffing Group’s HR HotSpot webinar. Today’s topic is how to avoid regarded as discrimination claims under the ADA. My name is JoAnn Xydis. I’m the Vice President of Administration with TERRA Staffing Group and I will be your host and moderator for today’s webinar. In a moment, I will introduce our presenter Kara Craig. But first I would like to review a few housekeeping items. The timeframe for today’s webinar is 60 minutes and due to the time frame, we will be limiting questions and discussion during the webinar. If you would like to ask a question, please go ahead and use the question box. You’ll see that in the control panel on the right-hand side and we will address these questions at the end of the webinar as we do have time.

Our presenter, Kara, has offered so graciously to follow up with anyone that does have questions as well. So you could send her an email and she’d be happy to provide you with some answers to your questions that you might have about her presentation. Regarding SHRM credits, participation in this webinar will make participants eligible for one recertification credit from SHRM. However, in order to receive that credit, you must participate and remain in the webinar for the entire 60 minutes. We are currently recording this webinar and we’ll be sharing a link to the webinar recording later on this afternoon. And please feel free to share that with anyone that you think would benefit from the information that’s presented today.

So at this time, I’m pleased to introduce our presenter Kara Craig. She’s a seasoned attorney and very energetic presenter. She has been practicing law for over 17 years as an employment attorney with Vigilant. Kara provides counsel to Oregon and Washington State businesses on the entire range of employment and labor law issues. She also represents clients in administrative proceedings pending before the EEOC and also state agencies such as BOLI and the Washington State Human Rights Commission. She’s always eager to conduct onsite training for HR professionals, managers, supervisors, and employees as well. Before joining Vigilant in December of last year, Kara served as an Employment and Labor Counsel at Archbright based in Seattle.

And before relocating from Illinois to Washington in 2013, she represented the Chicago Board of Education and defended employment matters filed in state and federal court. She takes pride in her ability to provide practical advice and draws from her extensive litigation experience when making risk assessments. So without further ado, please welcome Kara Craig.

Kara: Good morning, everyone. I love how in my bio it says I’m an energetic presenter. It’s weird to do this over the phone. So hopefully I keep you engaged. I always prefer doing these sorts of things in person. However, I love working with TERRA Staffing. And when they asked me to do this, I feel like I have a really timely topic. I’m pretty passionate about enforcement of the ADA. And I do think that a lot of employers find that they are kind of inadvertently violating the ADA or maybe not doing enough under the ADA. So I chose this topic because a regarded as claim really snuck up on me and my client about a year ago with respect to trying to accommodate an employee who had a stroke and was a driver.

And so, you know, we had that balance between safety and trying to get some sort of specifics from a doctor with respect to how safely this employee can work and whether he could be fully released to his job. So it kind of became, you know, the attorney for this employee was arguing we’re regarding him as disabled, he’s not disabled, he had a stroke, he’s healed up, he’s fully released. And then, of course, we had those residual worries about safety. So I wanted to take you guys through the ADA itself and probably telling you what you already know. But I want that framework here for us. And then we’ll talk specifically about regarded as disability and what types of impairment are kind of implicated here that may lead to a regarded as sort of claim, potential legal claims, including failure to hire, how you make medical inquiries, when you can make them, when you shouldn’t be making them, and how you go about that during the course of the interactive process when you’re working with an employee to determine if you can reasonably accommodate.

And then I’ll weave in some EEOC guidance. And then I selected three cases from across the country that kind of illustrate regarded as claims and what can happen. And you’ll realize and I’m sure this mantra is not unknown to you that throughout this presentation, it’s just it’s really about training of your HR staff and having some centralized place to deal with ADA issues. But also having supervisors understand what they should and should not be doing when an employee mentions a medical condition where it becomes known to your supervisor that an employee may have some sort of medical condition because, you know, we all have different interests in this game and the supervisor is thinking, “Great, they’re going to be off work. I’m so irritated about that, how do I find coverage?”

And then, you know, you have another person that may be deeply concerned about the safety issues. And that’s why it should all really be handed off to HR. So you as HR professionals and hopefully with counsel can work through these things before they become claims. I’ve also realized and I know it’s different in different states, but when I practiced in Illinois, you had to go through the EEOC or the Illinois Human Rights Commission, before you could step into court and bring a discrimination claim, for example, under the ADA, or even our state law. And I can speak for Washington where you can go straight to court. You don’t have to go through that original enforcement agency investigation to have jurisdiction in court.

So what’s happening in my practice, I’ve realized over the last several years is that employees who feel unfairly treated under the ADA or any other discrimination statutes, are getting counsel, and you’re receiving a demand letter as an employer and having to make the decision regarding whether you wish to defend it, and spend that kind of money or settle up. And so the big goal here is to avoid seeing those demand letters and do everything right by the employee in the first place so that they feel fairly treated. And also, you know, to avoid potential liability on the part of the company. So after those case studies, I have a couple slides of best practices for you. Also, forgive how wordy these slides are.

I also kind of was thinking that this could be a nice little cheat sheet for most of you should you print this up after the fact. And I know that Joe and Alicia are going to send out a PDF copy of this for you. So it’s a little wordy. I don’t know how to embed fancy videos or pictures. But what’s most important is that you get the message, right? So the ADA has about three prongs. And the first is prohibiting discrimination, meaning that I cannot decide to not hire somebody because of a perceived or actual disability. And no part of them having any sort of physical, mental, or sensory impairment should come into play when I’m making any employment decisions: applications, hiring, advancement. Remember that the ADA covers applicants as well as current employees, unlike the FMLA, right? You have to be employed for a certain period of time and then you’re an eligible employee entitled to the protections of the FMLA.

Not so with the ADA. They’re protecting individuals and making sure they have access to employment in the first place. Secondly, employers have an obligation to reasonably accommodate known disabilities to enable an employee or an applicant to do all of the essential functions of the job. And this requires an interactive discussion with the employee to figure out what might work and quite possibly asking a doctor for recommendations and restrictions. And it prohibits retaliation. So always remember retaliation when it comes to these employment statutes. Last time I looked retaliation comprised about 40% of the state and federal claims that are made with the EEOC and the Human Rights Commission in Washington. Practicing more in Oregon now but I don’t know those numbers.

Suffice it to say that retaliation sneaks up on you because you might have an employee on the chopping block and their performance has gone downhill and they complain of discrimination in the workplace, you do an investigation, but you still want to follow through with what you planned on doing, which is perhaps terminating the employee or instituting some sort of discipline. And now the employee has wrapped him or herself in this protected activity. If they complain of discrimination in the workplace, that’s a protected activity. And that means they cannot be retaliated against or terminated for doing so. So timing is very important in retaliation claims.

And so when an employee asks for a reasonable accommodation and you start to undertake that process, you want to make sure that you’re addressing non-disability related performance issues separately from going down this path of determining if there’s a reasonable accommodation. So always engage counsel there too so that an employee doesn’t make a retaliation claim which may be frivolous and may be based on timing alone and not necessarily your motivation or intent. But any of these types of claims can get messy, especially when you know they’ve retained counsel and I think the demands get a little more inflated once you get to that stage.

So the definition of a qualified individual with a known disability, those are the employees entitled to the protections of the ADA as well as we’ll talk about employees or applicants who are regarded as disabled but not actually disabled. But first, this QID, qualified individual with a disability. They meet the legitimate skill, experience, educational or other requirements of the position. They can perform the essential functions of the job with or without reasonable accommodation. They’re not considered unqualified just because of their inability to perform secondary tasks. And detailed job descriptions are key for this determination. So as tedious as it is and I actually don’t know firsthand your world and I have worked on job descriptions, but it can be a monster project I admit if your organization doesn’t have them already, but your organization should.

And your job description should make clear what the essential functions of the job are, why does the job exist? And then make clear what the marginal or those secondary functions are and include any physical requirements, able to lift 65 pounds a day repeatedly or stand, etc. So this is where we determine who is or is not qualified for a job when you’re recruiting, but also for purposes of applying the ADA should you ever need to. And most of you probably know that the definition of disability now is incredibly broad. When I started practicing law in the early 2000s, I remember being able to argue on summary judgment that this person doesn’t fit the definition of disability. The number one element for their protection under the ADA and to proceed with this claim is not met.

And quickly by about 2010 after we had the 2008 amendments to the ADA, I even recall a judge actually saying something like, “Let’s just skip that part and presume the person has a disability because they have a health condition.” So the definition is very broad and you’re no longer going to be in a position I think or it’s unlikely to argue that an employee is not disabled. So here’s what the definition is. And I’m parading the ADA here even though state laws vary a little bit. State laws can always give more protection to an employee and perhaps have broader definitions, but they have to meet that floor of federal law. So I thought this is a safe place to be since this webinar is not directed at one particular state.

So, physical or mental impairment that substantially limits one or more major life activities of the individual. So major life activity, if you ever want to Google that under the ADA, includes eating, drinking, working, sleeping, breathing, seeing. I mean, it’s everything. There are so many things we have to do every day that could constitute a major life activity. So if I have a mental, physical, or sensory impairment, that limits one of those things, then I may put the definition. And substantially limits was also broadened in 2008 to mean a significant restriction. So, previously substantially limits was kind of a higher threshold. So right now, if I have any sort of physical or mental or sensory condition that affects my daily living and is “active,” and we’ll talk about that later, then I’m going to fit the definition of disabled which is why, you know, courts frankly are kind of not taking a look at that first element very much.

So the second category is regarded as having a disability. And this is where an impairment is perceived to exist whether or not it exists in fact. So I can be protected under the ADA even if I don’t have a disability, but you’re perceiving that I do and you’re treating me differently than others. And I have run into this one and this prompted the title for today or the topic. And it has to do with mental disorders in the workplace or perceived mental capabilities or restrictions. And hopefully employees don’t act like sixth graders anymore. But things like saying somebody is crazy or she seems off her rocker, you know, using the word schizophrenic quite loosely, I just think this is kind of where we get into this trap of, it’s kind of bullying and it’s kind of stereotyping and perhaps making fun of a coworker where it’s not respectful and violates your policies.

But also let’s think of the implications there when you’re attributing to somebody a mental health issue that they may or may not have. And if they haven’t disclosed that or asked for an accommodation in the workplace, then making that presumption could very well violate the ADA. Or, let me back up, if you make that presumption and then act on it, that’s what would violate the ADA. And last, a record of impairment. So this is where I have a history of having cancer perhaps, or HIV/AIDS. Something has happened to me in my past even a broken leg where I was impaired and it was temporary and now it’s over. It’s in remission or I am quite simply no longer disabled.

And the case that kind of prompted this with me sits in both categories the regarded as and the record of impairment. So an employee who has fully recovered from a stroke has this record of impairment. And then whether or not we treat him as if he still is unsafe or still is suffering from some sort of impairment puts us in that regarded as category potentially. What is a reasonable accommodation? I tried to just give you the nuts and bolts here and it certainly does depend on the nature of what’s going on with an employee, the duration of what’s going and their specific need. So there’s never going to be a one-size-fits-all box for this but it’s modifying or adjusting the job or the work environment.

Note that when you adjust the job, you are never eliminating essential functions of the job. You might be eliminating those secondary duties but never the essential functions. Not violating. This could mean making exceptions to policy. I have plenty of conversations with clients where, well, that’s not our policy. Well, the ADA contemplates that you may have to make exceptions to your policy in order to accommodate. So, you know, that’s never going to be a defense. That’s not going to constitute undue hardship. So you’re really trying to think outside of the box and I will give you a website down the line here. I included a link to this Job Accommodation Network, JAN website. It’s amazing. You can get somebody on the phone. You can type in what’s going on with an employee to get ideas on types of accommodation.

So there are resources out there to assist you. You’re not expected to be a medical professional, you are expected to consult with one, the treater of the employee to get some ideas. But reasonable accommodation is very fluid. Here are some examples from the EEOC. Obviously making your facilities accessible to an individual with a disability. You might want to restructure a job, modify your work schedule, intermittent leave, or a chunk of leave, may be an accommodation under the ADA. So if you have an employee who is not eligible for FMLA or any other state sort of medical leave, or they’ve used it all up and they’ve exhausted their bank of FMLA so to speak, you have to look to the ADA. So keep in mind that leave is contemplated as an accommodation.

Providing qualified readers or interpreters. Reassigning an employee to a vacant position if they’re qualified for it. And that is if you cannot find any way to keep them in their current job and permit them to do the essential functions. So that’s kind of your last resort. But I wanted to note that as well so that that’s not forgotten. At the end of your process of trying to figure out what you can do for an employee and assessing whether or not it’s effective, if you’ve exhausted all options in terms of trying to accommodate an employee in their current position, then you need to think about, do we have a vacancy and we can move them over there?

And that’s a discussion too that I would urge you to have with an attorney because, you know, in the case I was thinking about with the person who had a full release and we ended up terminating them, he was a truck driver and we had a vacant position for a receptionist. Is he qualified to be a receptionist? No, we had to take a look at him and he was kind of gruff and although it seemed like anybody can perhaps do that job and answer the phone, we made the determination he was not in fact qualified for that vacant position. So I think you should have a third party put their eyes on that sort of determination before you go for it.

The law does not require that you eliminate any essential functions of the job. It does not require that you lower quality or quantity standards. You don’t have to provide personal use items and provide the accommodation that the individual wants. You don’t have to do that. And this is just, I wanted to emphasize that the determination of whether or not you implement an accommodation and what that accommodation is and whether it’s reasonable is up to the employer exclusively. So you have to have input from the employee. And you’ll see through the interactive process both parties need to cooperate and participate in good faith. But ultimately, if the employee is asking for the moon and you think something else would be effective, that maybe costs less, for example, and, you know, determine whether or not that’s effective.

So the principal tests effectiveness, there is a lot of trial and error. And I always tell clients that, you know, it might take us about three months to get to a place where we’ve concluded the interactive process, especially if you’re asking for information from a healthcare provider. So here’s this askjan.org if you guys want to bookmark that, or hopefully print these slides to remember that in the future. It’s just an incredible resource for designing accommodations. So here’s the analysis in a nutshell, is the individual qualified? Do they have a disability which I’m kind of telling you? That’s going to be based on whatever the doctor provides to you, some sort of verification that the employee or applicant has a health issue or impairment. Are there reasonable accommodations available?

Number three is where we take a lot of time and we get information from the employee and their health care provider to figure it out. And we may try some things that may or may not work and go back to the drawing board. Number four, don’t go here too fast because these are really high burdens. You don’t have to accommodate if you can make the case that the company will suffer undue hardship. Or even if we put an accommodation into place, this employee still poses a direct threat to himself or others. And that leads us into our regarded as conversation because you really do have to have specific evidence tied to behavior, and hopefully, some medical input from a healthcare professional about the threat to safety.

You cannot rely on assumptions and that is indeed what burned us in that case when we decided, “Well, we can’t put this truck driver behind the wheel. He may have another incident.” And we were just imagining, you know, how awful that would be on I-5, right. And it was a legitimate fear, but sadly, was not based on the medical evidence we had at the time. So when you go to the direct threat defense, you cannot be speculating and the undue hardship defense is going to be incredibly scrutinized as well. I’ve had the EEOC actually ask us if we looked at the Job Accommodation Network. I’ve had the EEOC ask us when we claimed undue hardship, whether we even looked into any state money that may help us to accommodate.

So there’s even funding available in different states, maybe to offset the cost of accommodating and we had to say we hadn’t looked into that. And so if you’re citing the cost of accommodation as a defense or undue hardship, you may be scrutinized in terms of, well, how hard did you look to find some money to offset that? And finally, this isn’t necessarily in the EEOC test, but I can’t emphasize enough. It has to be effective. So you don’t get to just kind of wash your hands of an accommodation. Send the employee out there and look at your tidy paperwork and say that you’ve done it. You have to follow up with the employee and make sure it’s working.

Otherwise, you’re just dropping the ball again and creating a violation of the ADA. Even though you did everything right on the front-end, that follow-up is important because you may have to revisit what you did. And, for example, someone with a visual impairment that gets worse and worse. First, we’re going to install different light bulbs so that it’s not very bright in your office. And then we’re going to put a screen on your computer. And if things aren’t getting better for you, you know, we’re going to look at putting shades on the windows, whatever it is that is required, sadly, as some sort of condition progresses to keep that employee at work.

So the interactive process is required. Both parties have a duty to cooperate in good faith. The employee has a duty to give you the information you need. I never recommend going directly to the employee’s health care provider but rather having them take this little hopefully user friendly ADA packet to their healthcare provider asking for the specific information that you need. Always include the job description. And the employer or the healthcare provider probably has a release but you can also have the employee fill that out too so that they’re aware that the employee has agreed and authorized them to share health information with you. And it’s trial and error. So like I said, you put something in place and communicate with the employee. And if it’s not effective, you try again.

And you’re documenting this entire process, but I just want to emphasize too that you’re not documenting it just to avoid a legal claim. You’re also really trying to engage with that employee personally. So I always recommend trying to meet in person at least for that initial meeting with what’s going on, what can we do for you, what do you think would work? And you know, we also want input from your healthcare provider. And this has to be an ongoing communication and a rather fluid process. So you want the employee to trust that you’re really invested in it and it’s very personal to them as you’ve probably discovered if you’ve ever gone through this.

So making a disability related inquiry, I wanted to touch on this because it also affects regarded as claims where if I regard someone as disabled and decide I’m going to enter into this interactive process and start making medical inquiries to accommodate, and that employee says, “I’m not disabled, where’d you get that? What are you doing? This is invasion of my privacy? And it violates the ADA to make these inquiries. You didn’t ask everybody else in my job category, you know, whether or not they can perform this function. I think you’re accusing me of having a disability that I don’t have and now I feel singled out and treated differently.”

So it’s somewhat of a trap. On one end, you have an obligation under the ADA when there’s a known disability to make an inquiry and initiate the interactive process, especially I’ll speak for Washington State law. It says you employer must initiate the interactive process if you have noticed that an employee has a disability affecting their work. But it could be a trap. What you think is notice of a disability could be very offensive to the employee who claims, “I don’t have a disability and you’re just assuming I do.” And you know, that changes everything. The whole trajectory might be off because now they feel offended and they don’t trust you. So again, with kind of talking to counsel, I’ve gotten some calls in the past where we see Joe come into work now and he just seems to be…he has a different gait. He seems to be off balance. He’s kind of leaning on the wall when he walks down the hallway as if he’s not walking well. What can we do? It seems like something’s wrong.

That’s a little different from it appears like Joe had a stroke and we need to call 911. My question was whether or not this was impacting Joe’s ability to work as an accountant. And it wasn’t. So, it wasn’t yet sufficient in my view, anyway, in my opinion to open that door and make a medical inquiry. We needed objective evidence, an observable behavior that we could tie to his ability to do his job. So forgetfulness, for example, could be something where you want to sit down with the employee and say, “What’s going on? It seems like you’ve made a lot of mistakes. And, you know, you’re forgetting from day-to-day what my instructions were with respect to how to do something.”

So once you can articulate a behavior that’s related to their ability to do their job, then you can sit down and maybe even make a soft inquiry, just what’s going on, rather than delve into, “What’s going on, Joe? You know, you don’t seem to have good balance. And I want to delve into your medical history on this and have you see a doctor.” That’s going too far in some cases. So it is a very nuanced approach when you’re making a disability-related inquiry, because on the one hand, you need to fulfill your obligations pursuant to the ADA when there’s a known disability affecting work and start that process of determining if a reasonable accommodation is necessary.

On the other hand, if you don’t have enough reason and it’s not job-related and consistent with business necessity to be asking questions that may elicit medical information, then you can’t do it and you might then get a regarded as claim. So you have to have a reasonable belief based on objective evidence that their ability to perform essential job functions will be or is impaired by a medical condition. Or that they pose a direct threat due to a medical condition.

So if you know about a particular employee’s medical condition, you’ve observed performance problems and you can reasonably attribute the problems to the medical condition, I’m still not saying you ask for medical records or, “What’s wrong with you, Joe?” I’m saying you sit down and say, “This is what we’ve observed. Your performance is declining in these respects. What’s going on? Is there anything we can do to help you?” And you just kind of ask that open-ended question to see if the employee will volunteer that maybe something is going on and I need to see the doctor. And this is how you kind of I think avoid or regarded as claim because you’re not going down this path of assuming anything about what’s going on with that employee. But rather you’re doing your job in terms of managing performance and outlining, you know, what is and is not expectations are or are not being met. And also kind of maybe some observable facts related to how the employee is behaving.

But you’re not connecting the dots. Don’t connect the dots, let the employee connect the dots, either admit or deny that they think something’s going on and then go from there. You can also be given reliable information by a third party that they have a medical condition and you can act upon that. If somebody’s wife calls in and is disturbed and wondering, you know, whether Joe’s exhibiting the same symptoms at work that he has at home, you can meet with Joe, and then just observing the symptoms again back to and observing. I’ll skip kind of those bottom parts. It was about pre-employment inquiries. Now that I work with a lot of manufacturers I’m seeing that.

In times past, let’s say 1963 before the Civil Rights Act and well before the ADA, you might have issued a questionnaire to an applicant about their entire medical history to make sure they can do a safety intensive or physically intensive job. Please don’t do that anymore. And don’t do that very broadly. You have to do it based on the actual physical requirements of the position and I would have an attorney look at anything like that that you’re doing these days because I think it’s carried into the future. And it becomes very problematic if you can’t justify why you’re making these inquiries on the front end.

So, requesting medical information during the course of the ADA process. Here’s what you can ask according to the EEOC, and again, I would request that you come up with a pretty specific questionnaire for a doctor based on the actual situation. Let the doctor know what you’ve observed. Maybe the attendance pattern is relevant. And then ask, you know, what sorts of restrictions and recommendations the doctor would have based on the job description, you know, to enable this individual to do their job fully. And so these are kind of the basic categories of what you can ask about. What’s the medical condition? What’s the diagnosis, nature, severity, and the expected duration?

So undue hardship, a brief note on that because that’s not our focus today, but it’s not as easy as some employers might think. It’s a very high burden. And this is a very kind of vague definition. But it’s true. It kind of comes down to cost or it comes down to the nature of your operations would be severely disrupted if you were to implement a particular accommodation for an employee. So always consult with an attorney before you make this assertion and think that you’re off the hook. And you should have maybe tried other accommodations before you get here. The direct threat. This is dangerous, like I said, because you have to be able to prove no assumptions, no speculation, through you’ll see on that fourth bullet objective medically supportable methods that there’s a genuine risk that substantial harm could occur in the workplace.

So you may be regarding someone as disabled when they are not in fact disabled, if you’re asserting a direct threat based on a health incident that occurred with them, like a stroke or a seizure, things like that. Like I said, this is what prompted this topic, we asserted that we can’t have this driver behind the wheel again because he had an incident very recently with his heart and we felt like it was going to happen again. We had two different doctors weigh in. One said it might happen again. The other one said it won’t happen again. Nobody has a crystal ball. But the ADA is so powerfully devoted to keeping people at work that, you know, I did feel like should we proceed with that case we probably would have lost.

We didn’t have the objective medically supported evidence. Maybe one more doctor needed to weigh in. But we needed a doctor to say he was not released. And then we could deny him that employment opportunity. And in fact, we did so anyway at an abundance of caution that the ADA frankly just didn’t permit in that instance. So the ADA is trying to make sure that we’re not relying on generalizations, ignorance, fear, patronizing attitudes, or stereotypes. So it’s quite the balance between your safety first motto in every workplace versus trying to also keep people who have disabilities or may not have disabilities employed. So here’s what the EEOC says in terms of guidance there.

These are the factors that you should be looking at and you should always have medical evidence to support it. Now, sadly, in a case that’s pretty egregious like an employee trying to commit suicide at work, we were able to establish the direct threat defense, kind of not on our watch. And until this person goes through treatment, we can’t have them come into work again trying to commit suicide in front of their coworkers by downing a bunch of pills. And I know that sounds flippant, but it really did happen. And that was a direct threat defense that we felt confident in. But other things that are much more speculative, you might not get there.

So regarded as means that a person has an impairment that either doesn’t substantially limit a major activity, a major life activity, so maybe I’m in remission from cancer and it’s no longer active. That could also be a record of impairment there but I’m fine. And you happened to know that I have that in the past, but you’re deciding to not hire me because you think I’ll get it again and may need FMLA leave, or ADA leave, or other accommodations and why would you hire somebody with a compromised immune system? So this regarded as prong is definitely intended to protect those sorts of generalizations. Number two, has an impairment that substantially limits a major life activity only as a result of the attitudes of others towards them. So you as a nondisabled person are believing that I’m more limited than what I really am.

So maybe I have a disability or what constitutes a disability under the definition of the ADA, but it doesn’t affect work at all. So don’t treat me as if it does. Don’t treat me with the kid gloves or deny me opportunities because you presume I can’t do what the next nondisabled guy can. And finally, does not have an impairment but treated by the employer as having an impairment. And this is where I worry a little bit about mental health issues in the workplace. So regarded as focuses on how you perceive the individual. And I also want to emphasize that although there’s no claim necessarily under the ADA based on maybe the harassment of my coworkers, but supervisors should also keep a good pulse on, do you have a bully in your group? And is everybody acting like Laura has schizophrenia and sort of making comments to that degree? And whether or not she knows about it.

This could be harassment under your harassment policy and it could create a hostile work environment for her. So it’s kind of that regarded as meshing along with a type of harassment as well where employees are treating their…or coworkers are treating someone differently based on a perceived disability that doesn’t exist and that could amount to a hostile work environment claim. So the question with a regarded as claim is, did discrimination take place? Not whether the person is disabled. So, nondisabled person very expressively has protection under the ADA, if they’re discriminated against and they don’t even fit the definition.

So this refers to impairments instead of disability. You’ll note and that is to kind of capture as the EEOC calls it a safety net for those employees that are not necessarily requiring an accommodation but may have some health condition or some medical condition as a record or in fact but it doesn’t affect work. And so they don’t want to be discriminated against based on those perceptions. Record of impairment just a reminder here, you know, this could coexist with regarded as claim. I want to note that a prior addict is protected under the ADA.

So if I’m an active illegal drug user and I’m not in treatment, then no, I’m not entitled to these protections. But even having a record of having been addicted to opioids, for example, should not exclude me from employment or any of the terms and conditions of employment given to everyone else. It’s over. So, prior addicts have protection here and that may arise in a record or a regarded as, and I want to mention methadone treatment. The EEOC has particular guidance on those sorts of cases. You cannot deny employment for someone or not give them the same opportunities as others because they’re undergoing methadone treatment as a prior addict. That would be disability discrimination. The EEOC has made that very clear.

Record of impairment too might also be prior medical procedures of what you’re aware. I don’t want you to be aware of them. And I don’t know how you’re aware of them. But if you are, employers cannot take action based on that knowledge. So here are some impairments that I think are implicated in these regarded as cases. Health conditions that are episodic or in remission, such as epilepsy. And I put a link on the bottom there directly to the page, where the EEOC discusses epilepsy at length and gives employers a lot of guidance on that. Cancer, heart attack, stroke, diabetes. Assumptions related to mental health issues. Again, I’ve included here. Maybe my condition isn’t active. Someone can have depression immediately after perhaps the death of a family member, and then it’s situational and they kind of heal up. And so there should not be any residual effects on their employment based on that.

So think of the employees too that take FMLA and what may be thought of them when they return from FMLA. If they don’t require an accommodation and they don’t have any further discussions with you about a disability, you presume that whatever that medical leave was for, it’s over. And it won’t have any lingering effects on their ability to work. It doesn’t include transitory and minor impairments and I question whether I should even include this because I think you all know: colds, allergies, infected fingers, stomach aches, these things the EEOC list. Those are not going to be even considered under the regarded as prong.

So the potential legal claims, failure to hire based on the physical appearance of somebody or you’re worried about workers comp claims. Never ask in an interview if somebody has previously filed a worker’s comp claim or, you know, what their history is with calling in sick. These are things where you might be regarding someone as disabled when they’re not, or taking action against them based on your assumptions and your perception and your concern that you’re going to have an worker’s comp claims on your hands. So that’s a violation of the law for other reasons under workers comp laws. But impermissible medical inquiries can maybe start this down this track of regarding someone as disabled when you never had a right to know the information in the first place. So you’re never focusing on whether a condition is or is not a disability, but just on the reasonable accommodations when you’re looking at regarded as claims.

So I’ve got 3 case studies here and 20 minutes left. So look at me, I thought I had too much material and I do. All right an obesity case, which I thought is instructive and it’s very, very new. So here the railroad denied…well, the railroad denied employment to an employee based on his BMI being too high. They tested for that. They claimed that test was justified and consistent with business necessity as the EEOC requires. And they filed a motion for summary judgment basically saying that, “We can deny this person employment based on his BMI, body mass index, because he can’t safely operate our machinery.” And the court said a little background, obesity is not a disability under the ADA but a lot of times there’s an underlying disease that is like hypothyroid condition for example. So be careful there.

But physical characteristics generally do not qualify as disabilities nor should they be considered as such. And here it did appear as if BNSF was considering obesity in and of itself to be a disability, and then denying employment based on that. So the court found that they did have a policy prohibiting employees with a BMI over 40 from holding safety sensitive positions. They felt like those people were more likely to have sleep apnea, diabetes, or heart disease. And it can manifest itself in sudden incapacitation. So it seems very cautious and rather common sense again under this direct threat defense, you know, where we just can’t put those types of employees in those types of positions. The court found that BNSF didn’t regard obesity as a disability but they were acting upon an anticipated worst case scenario. And sorry, for weird…I have spacing problems here.

So this is exactly what I think I resonate with in terms of, yes, you should be thinking of anticipated worst case scenarios and you should be thinking of safety as a paramount concern in the workplace. But here they didn’t have that objective evidence to back up that BMI, this body mass index was, you know, more than speculatively going to affect safety in the workplace. And so the lesson here is use caution when dealing with employment issues related to obesity, and watch for assumptions based on physical appearance. And they shouldn’t have really been making much of a medical inquiry in the first place if you ask me. So this is only the summary judgment level. The case, of course, is still pending, right? BNSF was just unable to get it dismissed in the first stages of litigation.

So it’ll be interesting to see how this really plays out and whether the court is going to be a fan of them testing BMI in the first place because I certainly think it’s a bad idea. Because, again, they’re only speculatively tying that to the types of disabilities or medical conditions or incapacitation that could occur but it could occur with anybody regardless of whether you’re testing their BMI. Someone can have an aneurysm and have no physical attributes alluding to that possibility whatsoever. So, you know, you really cannot be making these assumptions even out of an abundance sphere of caution when you’re hiring somebody. You basically roll the dice with them like you do with anybody else who walks in the door.

So a direct threat defense was looked at here, in this case, Butler vs. Louisiana Department of Public Safety and Corrections. Here a state trooper alleged he was regarded as disabled by his employer. They thought he had OCD and germaphobia. And I wanted to include this because it’s kind of discussed a lot of their discovery disputes in this case. But what I like is that I think this could come up quite easily where you do have an employee who, you know, maybe has slight autism and you’re no doctor and it’s none of your business. Or, you know, we all like to be armchair doctors and diagnose each other. And I do think that some sixth grade bullying antics come into play where you do think that somebody is a little off and maybe somebody is just quirky or different and you cannot be alluding to them having a disability in any of your discussions with that employee or anybody else.

So here they did more than that. They put him on involuntary leave. Subjected him to what he claimed was an excessive fitness for duty exam, and denied him over time because they did think he was unsafe on the job. And it always depends on what objective evidence you have to prove that. So I’m not saying that there aren’t circumstances that will exist that will justify you taking somebody off the job in the interest of safety and asking for a fitness for duty. I just want you to talk to a lawyer before you do it to make sure that you’re not stepping into a regarded as claim. And here, they didn’t have enough objective evidence about him to get there.

So they asserted the direct threat defense. When they got to court they started asking for all of his medical records because now they want to prove it. And that was denied because you can’t prove after the fact that he’s disabled to the extent you believe he was. That was just kind of a dirty move. So the department argued that the employer cannot be both regarded as disabled and actually disabled. And he can, the court says, he can. He may have an actual impairment, it might constitute a disability. But whether it’s any of your business or it affects work is another question. So here the court made clear whether he’s actually disabled is not relevant, you don’t get these medical records. And the biggest reason you don’t get these medical records is that…I think, it’s on the next one, after the fact information is not going to justify your motivation at the time of the decision to remove him from the job and put him on leave and place him under scrutiny for the fitness for duty.

So, safety concerns may constitute a legitimate nondiscriminatory reason for your actions. But here, you can’t really back up the safety concerns with objective evidence about what he did on the job that caused you to make your medical inquiry and deny him certain opportunities. So they just didn’t have enough for the direct threat defense. And you’re not going to get it at court by now proving that he really is a germaphobe and he really does have OCD. So that couldn’t be used to legitimize your concerns. So the lesson before taking any action on perceived or an actual medical condition, engage with the interactive process. Imagine if they just sat down with him and said, “This is what we’re observing. We’re a little concerned,” or, “This is how it’s affecting your performance.”

And give him an opening to, you know, either say what’s going on or say nothing is going on. And then, you know, make your own determination down the line by continuing to perhaps observe his behavior until it gets to a point when it’s sufficient to make that medical inquiry. And like I said, you’re not connecting the dots for an employee and you’re no healthcare provider or a medical professional. You’re going to be addressing performance, first and foremost, without any assumptions built in.

So, surgeries and absenteeism and I cannot say this woman’s name even though I have a friend of the same descent who tried to help me last night, so we’re going to call her Miss G. This is where Miss G sued her hospital that she worked for alleging regarded as discrimination. They terminated her for excessive absenteeism under their attendance policy. She had undergone 8 surgeries during the last 10 years of her employment. You can imagine these were covered under FMLA. So I kind of chose this for that reason, making assumptions based on somebody’s use of FMLA. And then here are the statements made by her supervisor which are cringe worthy to me and not to be to you. And, you know, she had a timing problem. A lot of these statements were made long before her termination.

But to say you’ve had a lot of surgeries for one person or gastric bypass is risky, or, “If you didn’t have so many surgeries, you wouldn’t have so much time off. You should take better care of yourself.” It’s not for you, the employer or your agent supervisor whose actions bind you as an employer to be commenting on anybody’s medical condition, or health, or how they should take care of themselves. And I do think supervisors may even have the best intentions in saying things like this. But this is where training comes into play big time. This case would have never been here if these statements weren’t made. So, you know, the court did conclude these are remote and isolated statements. And I don’t think a court maybe out here in the Pacific Northwest would find the same as this court in the Sixth Circuit. So, to me, this is very dangerous evidence to have and I think that in the end they won out because their attendance policy was pretty airtight.

And I just went through this the other day with a client. You know, make sure that you’re not disciplining employees based on any attendance issues that may be protected related to paid sick leave under a state law or disability related accommodation leave or FMLA. That’s not fair game for discipline, right, that’s protected. So I think here, they probably had some ample evidence, I think, ultimately that her attendance went well beyond just those protected issues. And so it was fair game to terminate her for excessive absenteeism. In the Sixth Circuit, you don’t have states like Washington and Oregon with the paid sick leave law where you’re constantly accruing leave in that bucket.

So here’s what the court ended up saying of the statement. They were about attendance. They centered on her excessive absenteeism, not a perceived disability. And being absent from work is not a disability. So it was a sound ruling here and I understand where the court was coming from. But I think this could have gone another way just given what I think, are statements that happened a little too frequently, even though their saving grace was that one was six years ago. So it’s not as if this happened day in and day out.

So here are your best practices and it looks like we’ll have some time for a question or two. Obviously, I want someone within HR or whoever wears the HR hat to own ADA issues, own the process, have a process, decide what the process is going to be and then make sure that when supervisors have knowledge of any employee that has any sort of medical condition or issue going on, or observations of performance where it’s just falling off a cliff, and that’s not who they were before, you know, you’re managing that together. And when it comes to obtaining medical information, though, or having any of these discussions about what’s going on, HR should really be guiding…really should be having the conversations about any medical information. Managing performance is up to your supervisors. But the second somebody says, “Well, maybe I’m not doing so well these days because I’m having migraines,” or, “I can’t focus.” Then that’s when HR should be involved. Hopefully you have policies that state that employees should come to HR directly if they require an accommodation.

You should be regularly analyzing and updating job descriptions. I hope you have them in the first place because that’s pretty much your guideline for what the employer can and cannot do. What are the essential functions of the job and requirements? We all need to be on the same page about that from the moment that employee starts employment. And I just dropped off here. Review your recruiting materials, applications, and postings to ensure the candidates know that you are interested in accommodating. So there’s that catch-all language that can say, “If you need an accommodation to provide you access to our application process, please let us know,” and that tips an applicant off immediately to know that there are alternative ways of even accessing employment with us. And you can always I think, just find that one blurb to add to those materials.

Train supervisors. They need to be able to identify what is notice of a need for accommodation. Employees may not use magic words. They may not say, “I am requesting an ADA accommodation.” They may instead say that they’re suffering from some sort of impairment that’s bothering them at work or precludes them from focusing or, “I can’t get in in the morning, because I’m still trying to get used to my medicine for my bipolar disorder.” Employees love to over-share. And I do think that supervisors, you know, need to disengage from them as much as possible when it comes to that over-sharing. But certainly if they do know that an employee has a medical condition going on, it may trigger FMLA, it may trigger other state leaves, and it may trigger the ADA process.

So HR needs to know about it and you need to take over. Supervisors should never engage with the employee and medical issues, much like that case and all of those comments about surgeries that should have never happened. I didn’t really need to use the word aggressive but timely, let’s say, diligent, I don’t know, aggressive. Performance management, if something is going wrong with an employee, don’t just ignore it for a year. Sit down with the employee and address their performance issues and then that often gives the employee an opportunity to provide notice of a disability, which then triggers your obligation to accommodate.

So if supervisors are seeing something going on in terms of performance, they should be consistently applying their standards. And, you know, again, this can capture an employee who may need an accommodation and hasn’t yet asked for it but needs to be maybe called on the carpet for some performance issues that are happening. And that’s always fair game. Consistent enforcement of an attendance policy. Right now, I’m trying to work on a termination for somebody who has missed work a lot under the attendance policy and his coworker has missed work a lot under the attendance policy for disability related issues but nobody has ever gone through the interactive process or documented that this other guy gets a free ride, you know, and a free pass to miss work all the time because of his multitude of disabilities.

So we need to document that and try and correct that now because we’re not on good footing to terminate the guy who’s missing work a lot and doesn’t have a disability. It doesn’t look fair. So consistently enforcing your attendance policy and if somebody needs an accommodation in the form of parties to get methadone treatment, for example, or days where they’re going to have back pain flare up or things like that, then we need to set some parameters around that and decide what the accommodation looks like. And then it doesn’t look like a free-for-all to all the other employees who may be missing work for non-disability reasons that are not approved. And it’s just made for a really messy case right now in terms of us because nothing about the enforcement of the attendance policy has been consistent.

And your supervisor should watch out for workplace harassment and gossip and sixth grade style bullying, or somebody is calling somebody else a germaphobe, like the state trooper and that gets out of hand. And now he feels like they have indeed diagnosed him and are treating him differently than others because harassment really can be intertwined with regarded as discrimination. My hot potato rule is that you’re training your supervisors to hand this stuff off to you immediately. Any time somebody says anything about a medical condition about themselves or anybody else, just report it to HR and then you can decide with the assistance of counsel what to do about it, and whether we make a medical inquiry or engage in the interactive process, or ignore it altogether until such time as the employee actually exhibits performance issues or you have behavioral observations that we can rely on.

In which case, you’re going to promptly engage in an interactive process. You’re going to give accommodations a test run, go back to the drawing board if you have to, consider transfer to a vacant position and engage in this interactive process and take ownership over it. So that needs to be centralized. That can’t be something that the supervisor or supervisors are doing on an ad hoc basis. I think that’s where you definitely get into trouble, as you’ll see from the cases we just looked at.

So I’ve robbed you of all time to ask questions. I apologize. Listen, though, please email me and I will answer your questions in detail. I want us to end at the 60-minute mark as instructed. So you’ll have this PDF with my contact information. And I’m happy to answer your questions. I could talk about this topic for three more hours as you’re probably gathering. So here’s your credit information. And, Jo, should I leave that up here now?

JoAnn: Yes, yes, thank you, Kara. Go ahead and leave that up there. We did have a few questions from people.

Kara: I’m sorry.

JoAnn: No, no, no, it’s fine. Your information is fantastic. So we can make sure that you get those questions. And then as Kara, again, so graciously offered her contact information is in the slide deck that you will be receiving this afternoon. So please feel free to email her if you had some additional questions that popped up.

Okay, so we’ve got the SHRM Recertification Credit slide there. There have been a few questions on whether or not we have HRCI credit and we do not for this one, so just that SHRM Recertification Credit. We do have our registration open for next month’s presentation on Friday, May 11th. We’re going to have our presentation by Justin Foster from Root + River. He has been a presenter for us a few times before and has done a fantastic job. So the title is, “How You Lead Becomes the Brand.”

So thank you again for everyone’s time today and Kara for your presentation. The information will be emailed off later today and I hope that you all make it a great day. Thank you. Bye-bye.

Kara: Thank you. Bye-bye.