Smart Disability-Related Employment Policies. Presenter: James Passamano. >> JAMES: Hi, this is Jim Passamano and I'm here to present the smart employment policy presentation which is part of a continuing series of the disability law research project, a project of ILRU at TIRR in Houston, Texas. Before I begin, let me give my thanks to Rachel Kosoy who is the deputy director of the disability law research project for organizing this and the many other programs that they've been putting on in this series. The way we'll do this program today is Rachel Kosoy is online and she will be -- and I will be presenting this much in the form of a conversation. I'll be presenting a lot of information about smart employment policies that relate to the rights of disabled employees and the obligations of employers to those employees, and as we move along, Rachel will raise some questions that not only she's interested to have answered, but also we're sure that each of you listening will want to have answered as well. Pair. >> RACHEL: Okay, Jim and also just before we begin, let's go ahead and remind people to please do send in your questions if you have questions now, go ahead and send them in and as questions arise, go ahead and send them in. And you can do that by clicking on your RealOne Player. There should be a button at the bottom that says submit question. You can click that or you can address something to webcast@ilru. And if you guys have any technical difficulties, please give us a called to. That's also an option at (713)520-0232. And hit 0 for the operator. And as Jim said that today's webcast is part of a series that's specifically focused on Title I or the employment provisions of the ADA as well as much larger series that's ongoing here at ILRU. So for the Title I one specifically, just wanted to let you all know that if you missed part 1, which was about pre-employment and the ADA, disability questions and medical exams, then you can access that through our archives, and we hope that you will join us for part 3, which will take place next month, the last Wednesday in July, and that one is about challenging accommodation issues. And we will have people from the job accommodation network online to answer questions. So as Jim said, today's webcast will be discussing important issues to keep in mind when you're creating employment policies that relate to disability, and of course today we're also going to be talking about practices and procedures as well as actual policies, and there are a number of questions that have already come in that I will go ahead and ask as appropriate. Also there are some issues that we're well aware of because we get a lot of questions in over our hotline, our ADA hotline. So we'll be throwing those in as well. So, let me briefly introduce Jim to you. Officially, he's James Passamano. I refer to him as Jim. He is a partner in the Houston law firm of Sufian and Passamano. There they practice health care law, social security law, employee benefits law and international law. Before establishing the firm, Jim was a senior trial attorney with the United States E. E. O. C. He also served as a judicial clerk for the United States District Court for the southern district of Texas in Houston. Jim is also an adjunct professor at South Texas College of Law where he teaches the Americans with Disabilities Act and European union law. He has also served as an adjunct professor at both the University of Houston Law Center as well as Rice University. And in addition to all that, he has written several books and articles on legal topics and most recently the book he published is called representing ADA plaintiffs. And I invite you to visit our website and read a little bit more about Jim's background and you can tell that he's very well qualified to help us all out on the topic of the day. So let me turn it back to you at this point, Jim. >> JAMES: Thanks. And I apologize for starting off. I heard the dead air and got nervous and jumped in. As the title suggests, smart employment policies, the presentation is -- seems to be directed primarily at employers, human resources managers, supervisors, and viewing things from the side of the employer, but employment policies as all of us who are employees know are also important to allow the employees to know what to expect from their employers in terms of good employment practices; but it's also good for employees to look at the employment manual and employment policies to see how the employee's expectation matches up to the employer's obligations and what the employer tends to perform. There are two things that I suppose we can start off with just to get us grounded. First of all, for those of you who are human resource managers or who are employers, one of the things to consider about employee manuals is that you should look at them with an idea that is there any statement in there -- is there any promise made that you don't intend to keep or that you're not really able to keep? An employment manual should not be a vehicle to express the employer's aspirations for what they intend to do, but to state what they practically can and will do when dealing with their employees. So it's always a good time -- any time is a good time to review employee manuals and look to see is there any statement in there that I don't intend or not able to perform and secondly, am I willing to perform everything that is promised in the employee manual. That's kind of a rule of thumb. Make sure that it is a -- employees will rely on them and make sure that the employee manual has only those things that you can reasonably perform. The second thing is that when we talk about employee policies, I think there is a tendency to think about it in terms of employee manuals. That thick number of pages that is written and hard to penetrate even if you tried to read it in the three ring binder that you're given and never read as an employee. That's the employee manual. And two things: First of all, employee policies are going to be broader than the employee manual. Even if an employee -- employer does not have an employee manual, every employer has policies. Every employer has practices that they observe, the way they usually do things, and so whether you realize it or not as an employer, you have employee policies, and you have practices. The fact that they are not written down doesn't make them any less established as an employer. Although employee manuals are not mandated by any law, certainly every employer has policies and practices. So what we're dealing with today is that we are in that flexible ground that is really within the discretion of the employer, how do they choose to conduct their business? And there is a great, brought avenue of discretion that the employer has. Now, it is bounded by the law and from time to time today we'll talk about where that rigid boundary is that's established by law, but we'll be talking about those things that are flexible and governed largely by the employer's discretion within those rigid bounds of the law. Now, there are a few things that effective employee policies require just as a general proposition. First of all, it's good for the employer to have affirm understanding of what those legal boundaries are, those firm legal boundaries are so that they know where the boundaries are and they exercise their discretion within those boundaries. It's also important for employees who are dealing with employee manuals and operating under an employer's policies, for employees to understand generally what their rights and duties are and their responsibilities as an employee. So that's the first thing, the knowledge of the employer, the knowledge of the employee of their rights and obligations. The second thing is understanding what's required to comply with those laws. What do you need to do -- how do you know when you are crossing the boundary from the area of discretion, legitimate discretion and crossing the boundary that is conduct that is illegitimate or illegal. So knowledge of the rights and obligations, understanding how to comply and of course the last thing, the last general rule of an effective employee manual is that it is effectively communicated. Really, the only reason to have an employee manual is to communicate between the employer and the employee. If you are an employee or an employer listening to this and you have a written set of employee practices or employee policies in a manual somewhere and that manual is very rarely looked to as a source of guidance, you have something that is not particularly effective. Because a good employee manual is something that is regularly used and effectively communicates what the employer expects from the employees and can be used both by management and by the employees to determine what rules apply in particular circumstances. >> RACHEL: Jim, do you have some suggestions, actually, about how to make these documents living documents? >> JAMES: Yes, and as we go along, what we'll dod to is -- because there is a lot of things to cover. I don't pretend to be able to discuss today everything that makes an effective employee manual, but what we will do is look at four basic things, and these are the areas where, in my experience, where there has been disputes that have arisen between an employer and employee regarding disability status where the dispute may not have arisen if the employer had had an effective employee manual to guide both the employer and the employee through the situation. In many of these situations, the dispute arises -- and we'll see some examples as we move along today, where the dispute arises because there is not sufficient understanding by the employee as to what his rights are in the situation, and there is not a sufficient understanding of the particular manager as to the employer's obligations are to the employee. And these four areas are -- these are the areas that are not the only problematic areas, but these are the ones that immediately come to mind when we think about ineffective employee policies. First is recruiting and hiring; second is where the employer is handling medical information about an employee; and the third is where the employer is responding to a disabled employee's request for a reasonable accommodation; and finally -- not finally, in the grand sense, but finally for today addressing leave of absences of the disabled employee and termination of that employee during a leave of absence or at the end of a leave of absence. Well, let's start off with recruiting. And let's start off with the simple fact for every job opening that you as an employer have, you can expect that there will be disabled applicants. Now, whether you realize that an applicant is disabled or not is not really the test. You will have applicants who you do not realize who are disabled, but they are nonetheless disabled within the definition under the ADA. So if we start from that basic assumption, every employer for every job opening will have -- or at least should expect to have disabled applicants. That is the point where the basic assumption where an effective policy should begin in dealing with disabled employees who are applying for jobs. On a very basic level, if you assume that there is going to be disabled applicants, you need to be prepared for three basic things: Employees -- or excuse me -- applicants that are going to have impairments in sight, in hearing, and mobility impairments. Now, we're not going to be able to predict with accuracy the whole range of the types and different variations of disability that might present themselves in the course of interviewing a large group of people, but we know with certainty that you can expect or should at least be prepared to handle applicants that have a vision, a hearing or mobility impairment. And that means some basic things: You ought to have a policy that your practices ought to assume you're going to have disabled applicants and that means you're going to be either taking paper applications or interviewing disabled applicants. If you know that at the outset, the employee practices and the employee policies dealing with taking applications and conducting interviews must assume at the outset that you're going to be dealing with those impairments. So you have to have your interviews in accessible facilities. If you're presenting information, for example, in the form of a written application or some interviews there might be a short videotape about the employer or something along those lines, if you are presenting audible information, it has to be available in alternative form that can be read. If you're presenting written information, it has to be available in an alternative format. And that's kind of a basic assumption, but many employers go forward with interviewing candidates on the assumption that there will not be any disabled person or that they will deal with a request for accommodation at the time that it is made. The better practice is just assume you're going to have disabled applicants and be prepared for it. >> RACHEL: When you say that, Jim, are you suggesting that they have an interpreter on hand or they have an application prepared in Braille or large print? What exactly are you saying when you're saying they should be prepared? >> JAMES: Well, obviously, you don't need to hire and have ready an interpreter, but what you can have is ready access. Find the number of an interpreter. Contact that interpreter in advance. Look, we don't need to reserve you or have you present, but we are conducting interviews and we may need your services and can you be ready and on how short of a notice? Be prepared that when the request comes for some form of accommodation, that the request is not a major deal. That you're prepared for it and you can respond to it in a prompt and timely manner. Because understand that if a dispute should arise, these things will have significance and perhaps disproportionate significance in the course of litigation, but in the fact -- in a situation where there is a dispute over whether the person was not hired because of a disability, if they present evidence that there was no expectation that there would be disabled candidates when a disabled person presented themselves for an interview or to fill out an application, there was no means of having them fill out an application. If they were told to come back at some later time or that arrangements would be made that took on day or two or three -- because remember these human resource manager that is are conducting the interviews are dealing with interviews at that time and they may not have until the next day or the day after to call the interpreting service to see about making arrangements, and it may be by the time the human resource manager or the employer gets to the point of making arrangements, the largely decision-making process has moved forward and there is maybe a commitment to a certain candidate or some people have already been screened out. And then the person who needs the accommodation comes into the application process later than others, which in effect does not give them equal treatment in the evaluation process. So be prepared and have a way of responding to requests in a -- in a matter of -- in the ordinary course of conducting the interviews. This also raises a question about employee interviews. Now, I know that in this series you've already had instruction on pre-employment inquiries, what is lawful, what is beyond the bounds of legality, but there are some practices here that an employer can engage in as they prepare for the employee interview that will help the employer focus on those things that are relevant to the job and will direct their attention to those lawful inquiries and keep them away from the unlawful inquiries. For example, whenever there is a job opening, that the employer take time to do a genuine assessment of what will be required in that job, what types of qualifications are required in terms of education, skills and training. Understand the types of tools that will be needed to perform that job if any. What type of equipment will be used, whether it's hand tools or computers, you need to make an assessment and record in writing so that the person conducting the interview will know what is required in the job, what type of tools and equipment and vehicles will be used, the degree of physical assertion, the physical condition in which the job will be performed, the speed or pace in which the work is performed, and also how the successful job performance is going to be measured. The reason it is important for the employer to have as a matter of practice or a matter of policy of looking thoughtfully at these issues before interviewing is because it will help in two critical factors in selecting a candidate for employment. It helps them identify which resumes, which list the background, qualification, experience and training, which of those resumes or job qualifications make a person a good candidate for the job or at least a preliminary candidate for the job. When you get to the stage of interviewing someone, if the interviewer has in front of them a list of the types of things that I mentioned, tools, equipment, the physical exertion that's required, the pace and speed of the job and how successful performance is measured, the interviewer will be able to direct questions to the -- not just disabled candidates, but every candidate's ability to perform the job that needs to be filled. And when you place the interviewer's attention on those things that matter, it keeps the interviewer's attention there and is a means of preventing or avoiding the interviewer straying into areas that may be problematic, asking questions about workers' comp and sick leave used in past employment or health or disability status. So the other thing that it does is that it creates a uniform way of interviewing candidates. If you have -- and here I'm not advocating using a script, but obviously in an interview, you want to have a degree of flee flowing discussion and conversation with the candidate because you're assessing many things about interpersonal skills and the like rather than just their technical abilities to do the job. But you still want to have some uniform way of what you're asking about, you have that in writing before the interviewer and the interviewer can take their interview notes on that paper next to the relevant characteristics. This way the employer has a uniform approach to interviewing candidates, you have a way of having some degree of certainty that you haven't strayed into unlawful or improper questioning, and you have a written record of what transpired in each interview. So if in the future there should be any litigation or challenge or any E. E. O. C. investigation about hiring practices, you can produce for the investigator or produce to the court in the form of evidence what happened, and you can reconstruct how the interview process went and show how there was a thought process in the beginning that protected the rights of all applicants that included the -- with the expectation that there was going to be disabled applicants, and there was a process in place to make sure that only proper questions were asked that were job related and consistent with the requirements of the job. >> RACHEL: So Jim can I jump in and ask for a point of clarity. Are you suggesting that people have a specific form that they might have to fill out along the way? >> JAMES: No, not a form -- not a sense that there is a degree of rigidity that you would use the same form with every job opening, but I think that it is appropriate to give thought to every job opening and list what is required for that particular opening and use those job requirements and the actual tasks, environment, and tools that are going to be used for that job as the guidelines to direct the interview in a way that focuses the interviewer on the essential functions of the job and the requirements of the job. So that you don't have a tendency to vary off. And also it gives the ultimate decision-maker if the ultimate decision-maker is not the interviewer, it gives the ultimate decision-maker information that is job related, because you're linking the qualifications of the applicants to the actual job requirements and the interviewer, if they're making a recommendation to the ultimate decision-maker, they can give specific reasons for favoring one candidate over the other that are related to the job requirements and it will typically be focused on those types of legitimate job-related reasons rather than the subjective, nontangible things like, oh, I like this person better. They seem to have a better personality. All of those things are fine -- personality is important, whether they get along is important, too. I don't want to suggest they are not, but when you reduce to writing as a guide -- as a policy and practice and as a guide to the interviewer, you tend to bring the focus on the job requirements and you link the qualifications of the applicant to the actual requirements of the job. >> RACHEL: Okay, and tell me if I'm straying too far, but it seems like this might be fairly easy to do if you have centralized interviewing through an H. R. department but once you have a number of managers who might be scattered throughout a very large company or agency, it seems like this could get pretty difficult to maintain some sort of consistency. Is there anything -- can you speak to at all how to maintain some sort of uniformity here, if there is training necessary or distribution of certain forms or something to ensure that all the people who are going to interview can do this? >> JAMES: Yeah, I think that actually when you have a decentralized process, where there may be a directive from a national head quarters to regional or field offices or district offices, that they need to fill positions and they want the regional offices or something to conduct interviews and then they send them on up as they go higher. I think in those situations where you have a decentralized interviewing process, that is all the more reason to have -- to engage in this type of process. When you have more than one person or a group of persons or a large number of persons in different geographic settings conducting interviews, you want to be able to have some uniform measure for the job candidates, I mean, just on a basic human resources level, you want to make sure that you are comparing apples to apples. On a disability rights level, you want to make sure that the measure you use for the nondisabled apples is used for the disabled apples as well. That's why this process tends to treat both disabled and nondisabled applicants in the same way and measures them all on their abilities to do the job and the central way of doing that is to decide in advance and reduced to writing and communicated to the interviewers what are those job qualifications that you need to match to select the proper candidate or the best qualified candidate. And that way you exclude illegitimate or discriminatory criteria and look only to the legitimate and lawful criteria. >> RACHEL: Okay. >> JAMES: So this way of deciding in advance what the qualifications are, it drives a process that selects the best candidate for the job without regard to disability status. It improves the interviewing process. It excludes the discriminatory questions, improper questions. It creates a record of the interview process. It provides uniform treatment and it is the best way to give evidence, should it be required in the future, that there was a nondiscriminatory interviewing process. >> RACHEL: Okay. >> JAMES: Now, another point of recruiting, we always see in advertisements for job openings the tag line on the bottom of the advertisement that, whatever corporation or whatever business it is, is an equal opportunity employer. I think that employers need to assess -- and particularly smaller employers and growing businesses, especially when you're growing from below 15 employees to above 15 employees, because that's the cut off date for whether you'll be covered under most civil rights laws, most of the federal and state civil rights laws. You need to decide whether you're going to have simply equal opportunity, and of course equal opportunity is the law and you can't have less than that, but you can't have more than that. You can have equal employment opportunity and an affirmative action initiative. I think what you need to make sure is that you don't communicate to applicants that you have more than what you do have. You don't want to suggest that you have an affirmative action program when you do not. And just as a matter of policy in terms of deciding what do you do and how do you recruit employees, I think every employer, especially those that are growing beyond the 15 employees need to decide whether they are merely going to comply with the minimum standards of equal employment opportunity or are they going to go one step further and have an affirmative action program. If they choose to have an affirmative action program, they'll have to do a bit more, but ultimately they have to make a decision in the onset whether they're going to have affirmative action or not. Now, another area of recruiting liability is having inconsistency or a nonuniform approach to the collection of supplemental information. Now, typically when I say supplemental information, what I'm talking about is information that the employer may gather about the candidate outside of the usual forms of the resume, the applicant cover letter, and the personal interview. These are background checks, for example, or reference checks or in some instances, consumer credit reference checks, where they'll contact one of the consumer credit organizations. Oftentimes, we find that this -- where there is a lack of policy or a decided practice in this area, we often find that this is an area of dispute because an employee or an applicant feels that they were discriminated against will look for instances where they were treated differently in the application process from other nondisabled employees. And here is an example of something that in most cases is innocuous. In some cases it's used as a degree of higher scrutiny, but here where there is a difference in treatment, in the course of litigation, it can be -- it can have the appearance that the one candidate, the disabled candidate, was subjected to a higher degree of scrutiny than his nondisabled counterpart who are also applying. So here is a typical example: The employer doesn't have any particular policy on engaging in background checks or reference checks and so forth, but one office who's interviewing candidates does so for their final three or their final two recommendations, they'll do some type of background check and another office doesn't, and one candidate for whom the background check was done, say that's the disabled person, they are excluded from further consideration for the job because of an adverse reporting on a reference check or a background check. If the candidate who ultimately gets the job did not have that type of scrutiny, the employer is going to be open to a prime case of discrimination because there is just different treatment, and that different treatment resulted in the person with the disability being excluded from employment. So here is another point in the course of recruiting candidates where the employer needs to have a consistent policy. What types of is supplemental information will be collected, how it will be used, and what type of information collected from these supplemental sources will result in the termination of the offer or the termination of the interview proceeding. Now, there is a lot more than we can discuss about recruiting and efforts, but those are just a few areas where some of the basics of where good employment practice will dictate some thoughtful consideration before the job opening is ever posted, and that those early considerations, if done correctly, if there is adequate thought given, will help guide everyone in the process towards selecting the best candidate on a nondiscriminatory basis. >> RACHEL: Okay, I have a couple of follow-up questions to this section of the webcast. One is in reference to your comments a couple of minutes ago about affirmative action. >> JAMES: Yes. >> RACHEL: and were you suggesting that a business can decide if they want to adopt an affirmative action policy if they pleased? Is that legal? >> JAMES: Yes. Affirmative action is -- is part of the body of civil rights law. Ordinarily, what we see is that affirmative action in terms of in the statutes and the civil rights statutes, the ADA and the civil rights act of 1964, we see that affirmative action is mentioned in the statute typically as a remedy where the courts are authorized to give damages, equitable relief and order other forms of affirmative action. We tend to think of affirmative action as some type of quota or preference system and that's really not what it is. Affirmative action is a remedy. Remedies can be imposed by courts, or remedies can be implemented independently by employers. So where there is an employer that has -- looks at their employment practices and sees that there is an under representation of a particular group, in this case under representation of disabled employees, the employer can take it upon themselves to remedy that situation to have an affirmative action program where they actually seek to employ individuals with disabilities for the purpose of remedying their employment practices. Typically, it is only large employers that undertake these types of efforts, but not always. For example, the Rehabilitation Act provides that -- encourages that federal contractors may seek to have affirmative action programs so they make sure that their -- not only do they not discriminate on the basis of disability and other protected classes, but that they actually go about and affirmatively seek to have a representative workforce, or take affirmative action to remedy a situation where they have failed to hire a workforce that was -- that included disabled persons and other protected classes. >> RACHEL: Okay. Is it also legal to kind of take that to the next step, that I mean if you're talking about the federal government or federal contractors and actually even ones that are not covered by 504, you know, if we talk about private businesses as well, can they use affirmative action policies to really go beyond remedy, but perhaps -- because we're talking about disability here, if somebody has a business that primarily serves people with disabilities, then is it okay for them to give preference to people with disabilities even if they have, you know, a majority of employees who have disabilities? >> JAMES: Well, when we look at it, I think the answer has to be yes, although it's probably not the best employment practice, and the reason I say the answer has to be yes is because if we look at who has standing under the ADA and compare that to standing under the civil rights act, under the civil rights act where there is protection against race, gender, ethnicity, everyone has race regardless of what it is, white, black or Hispanic. Everyone has gender. Not everyone has a disability. So under the ADA, the only people who have standing to challenge are people who have a physical or mental impairment that substantially limits a major life activity. So unlike the civil rights act, which really covers both sides of things, both black and white people, both native born American and foreign born Americans or foreign born nationals have a right to sue under title 7. The ADA structured differently, and only those who have a disability have standing to sue. So you can see that if you gave preference to whites over blacks or blacks over whites the other group under the civil rights act would have right to sue. Under the ADA, there is no standing for a nondisabled person to claim a remedy. So I think that's why on a technical and probably overly academic sense, you would have to say that, yes, you can give preference to disabled employees because the nondisabled person who is excluded does not have standing to sue; although I have to add that that technical and academic reading does not represent a good employment practice because it gives preference on a basis that it's not focused on the person Ms. Ability to perform the job. And let me take this one step further. If someone -- because of their understanding of disability, and I think the hypothetical is presented in a business that serves the disabled community, if a person has a heightened understanding of the needs of the disabled community and therefore makes them better able to represent the employer, or provide the employer's goods and services to its customers, that is a legitimate reason to select that person over someone who lacks that ability or lacks that understanding because that focuses it on the person's ability, skills, knowledge and experience, not on the fact that they have a disability. It represents something other than the physical impairment. It represents their abilities to do the job and market and deal with, attract, maintain the customer base of the employer. I think on that basis it would be perfectly acceptable to select someone because of their skills and ability, even acknowledging that those skills and ability may derive directly from the fact they have a disability, but you're focusing on their abilities, on their skills and what they can bring to the employer. And that is where -- it's cutting it close, but I see it being focused more on their abilities rather than near disabilities. >> RACHEL: Okay, I have two more questions at this point. Do you want me to ask them now? >> JAMES: Sure, why not. >> RACHEL: This first question is kind of continuing in this same vein here. If you have a business that is basically using affirmative action, for example, they realize that they really don't have many women in management positions and so they are making an effort to promote women over men. And I think we've established that that's okay -- >> JAMES: Well, I don't think presented in that way -- affirmative action is very tricky to get right. It's very hard to get right and that's why it's caused so much problems for the courts. Affirmative action is not a method of promoting or selecting a less qualified -- and if we're using the gender example, it's not permissible to give a less qualified female and hire them over a more qualified male. I think that would not be permitted under the civil rights act of '65. What would be permitted is to go out and seek qualified applicants and where there are equally qualified men and women, all other things equal, so they are equally qualified, it is not an instance where you are promoting unqualified women over qualified men, but you have equally qualified candidates. At that point, the gender can be the determining factor, but to have a quota and say we need two women, go find us two women regardless of qualifications, I think that would be an improper application of the affirmative action remedy. Remember, the whole purpose of all these civil rights statutes, age discrimination, civil rights, disability, equal pay act and so forth, the goal is to make sure that there is no distinctions made on immutable characteristics and the decisions ought to be made on qualifications first. And in the case of affirmative action where there is a remedy, get qualified applicants and where you can choose among two qualified candidates, one in the protected class and one without, choose the one within, but affirmative action is not hiring unqualified people and placing them over qualified people. I think that would be just improper and bad business. >> RACHEL: Yeah, that's a really important point to make, and I'm glad you did because it's a very common question that we get as well. Well then kind of ending that question, it might be getting to theoretical, I'll put it out there and you can let me know if we should skip over it at this point. But if you have a business that's really trying to remedy -- increase the number of women there, and you now put disability into the mix, so it's beyond just -- you know, you have two qualified candidates and one is a man and a woman, who are equally qualified candidates, if you have one who is somebody with a disability, so in this case they were -- they're trying to increase the number of women. They have a woman who is well qualified, they have a man with a disability who is equally qualified, and they choose the woman. Does the person -- the man with the disability have a claim under the ADA? >> JAMES: Probably not under the ADA. >> RACHEL: Okay. >> JAMES: Because it was not the person -- do they have a claim k they sue? Of course, anyone with a dispute can sue. So it's not really a method of are they going to be barred from being a claimant. This is merely a comment on what the likelihood of success of that claim would be. If the employer can demonstrate that they had -- first of all, that they adopted an affirmative action program, that the affirmative action program was a lawful affirmative action program in the way it was written and presented and implemented and performed; and they can show that in the application of that affirmative action program they selected the -- a candidate based on their gender in pure sue answer of lawful affirmative action program that, is evidence that it was not the disability status of the unsuccessful candidate but it was factors other than the disability status. Factors from some quality in the success full candidate, not the fact that they lacked a disability, but it was some legitimate quality in the successful candidate that motivated the favorable decision. That's going to be a defensible position. Now, in all these cases, there may be a right to go to a jury. And when you get to that point, you're saying, well, weigh were discriminating, we were discriminating on the basis of gender, maybe that's not the best argument to make. I think that's why affirmative action programs are very hard and create many problems for employers and for judges and especially for juries. So affirmative action is a worthwhile goal as a remedy, although in practice, it is rife with problems, but yes, in that type of case for the employer to successfully defend, they need to show that they were motivated by something other than the disability status of the applicant or not lack of a disability of the successful candidate. And if they can show that, if the evidence will show that it was not based on disability, then a disability discrimination claim ought not be successful. >> RACHEL: Okay, great. The next question that's come in -- it actually might bridge us from thinking about information, say medical information that needs to be kept confidential, and then getting into requests for reasonable accommodations. And this question basically is what would you suggest for a best practice in the situation where you have one employee who has a disability who is getting an accommodation, but of course that has to be kept confidential. Other employees see, for example, this person gets to come in later or leave earlier or take longer lunch hours and, you know, it looks -- the appearance is that they don't know the person has the disability. And the appearance is that this one person gets special treatment. >> JAMES: the appearance of unequal treatment when they are in fact making them equal. >> RACHEL: and do you have any suggestions for how a manager handles that situation? >> JAMES: Let's get down to what is confidential and what is not. The medical information -- the details of the person's medical status or their disability status is the thing which is confidential. So typically there may be a breach of confidentiality, even if you were to merely say that employee has a disability and is getting an accommodation. So that would suggest that even if the manager said -- didn't mention disability but simply said that person is getting a reasonable accommodation, well, that would necessarily imply that the person has a disability because otherwise they would not be receiving an accommodation. It is a difficult situation because it is one of those situations where a manager, even if they have a -- open communication between management and employees, it is an unsavory situation because it is one of those situations where the employer has to not disclose the nature of the disability status to the others and what that means -- they have to keep it confidential. So what that means is the other employees who inquire, hey, how come Joe gets to come in late? The answer from the employer -- doesn't have to be termed in this way, it comes out to the employee is I can't tell you and that is not good for -- even in the best places -- in the best workplaces that is not going to be a satisfactory answer. But there are some solutions. The employer can go to the disabled employee and say, look, there is some discontent on the shop floor, for example, because you come in an hour late. Now, we're happy to let you come in an hour late because it's your right and you demonstrated that you're entitled to the accommodation. Can we tell them that it's a reasonable accommodation for you? We won't go into other details, but request we tell them that? And explaining when we say reasonable accommodation, they will reasonably infer that you have a disability. Now, a lot of employees are going to say, no, I want that information kept confidential, but that is one strategy, getting the consent of the employee to merely be able to tell the other employees that there is a reasonable accommodation. We can't give you the underlying reason, but we are obligated to do this. Now, even if you don't disclose that it's the form of a reasonable accommodation, that may be the answer you give to the employee who inquires. Mike, well, we really can't tell you the details, Mr. Other employee, all we can tell you is that we have an obligation to let this person come in, but I want to remind you that they are staying late or that they are still producing their production quota. You're not giving any details away about the person's medical status. It may not be a fully satisfactory answer to the inquiring employee, but certainly gives them the indication that, look, it is not for no reason. It is for an important reason that the employer doesn't have a choice in the matter, they are obligated to do it, but make sure that the employer does not use it as an opportunity to inadvertently disparage the disabled employee, because that might get the employer into problems as well. But let's talk more about handling medical information because I think that question does bridge the gap. If it's not a parent to all of those listening from that last question, there is a requirement of confidentiality that is articulated in the Americans with Disabilities Act. Now, the thing about the ADA's rule of confidentiality is that it requires that the employer keep medical information confidential, and it's in the ADA because there are -- because of the ADA and the obligations on the employer imposed by the ADA will sometimes require the employer to obtain medical information about an employee, whether they are disabled or not. And the ADA imposes the confidentiality requirements. But let's take a moment and consider something: The requirement in the ADA applies to all medical information obtained by the employer, not merely medical information obtained for those reasons that are mentioned in the ADA. For example, an employer may require an employee requesting a reasonable accommodation to provide medical information that justifies that accommodation. Obviously that would be something subject to the requirement of confidentiality. But what the an employee makes a request for leave under the family medical leave act? The employees providing medical information for purposes other than the ADA, for the family medical leave act, but that is medical information that fits the description of medical information in the ADA, and therefore, must be kept confidential by the employer, even though the purpose of providing the information had nothing to do with the ADA. So let's consider all the ways that an employer can obtain medical information about an employee unrelated to the ADA. There might be pre-employment medical exams and obviously that's something that is addressed by the ADA. Periodic examinations to determine whether the employee is still fit for service or still eligible to receive a reasonable accommodation. And that's obviously within the scope of the ADA; but there may be other things such as reports from worker compensation doctors to determine whether the reporting to the employer that the person is not able to return to work because they have residual effects from their disability. The employee may be giving information to the employer connected with, as I mentioned before, a request for family medical leave. The employee may be giving information, medical information, along with a request for a reasonable accommodation. So there is a number of sources of information that are flowing to the employer. Now, the employer has an obligation under the EEOC not to disclose and to keep that information confidential. In terms of employee policies and practices, this should raise from almost every employer listening, you have to make some decisions and have an established policy and practice dealing with medical information. And the first question is always do we need any particular piece of medical information? Is there a business necessity for it? Now, this is not, you know, the ADA allows us to inquire of medical information that is job related and consistent with a necessity. This is not a legal determination, this is just a practical determination. Do we really need to make an inquiry about this employee's medical status? Because we're going to get information, we're going to have to handle that information in a confidential way, and eventually we'll have to do something with that information in terms of using it to make decisions. We'll have to decide who has access to it, how it's going to be maintained, how long do we keep it? Do we keep it forever or throw it away at some point in time. All of those things must be decided in advance or best decided in advance when dealing with employee policies, and employers are best advised to determine in advance how that information will be collected, who will receive it, where will it be maintained, how will it be maintained? Are you going to put it on paper? Are you going to store it digitally? Who is going to have access to it and of those people who have access, when can they get it, for what purpose can they get it, can the employee to whom the information relates, can they view it? And of course when do you dispose of that information, if ever. Those are all questions that are mandated by law, obviously keeping it confidential is mandated by law. How you keep it is mandated by law as well. It must be kept separate from the employee's regular employment file, but the other things of who has access, when can they access it and for what purpose can it be used? All of those things are -- must be governed by the employer's business policies and practices. Those are the questions that have to be answered in advance. Now, I would like to give you, at this point, give you a sample policy that would fit. But no sample policy is going to fit every organization, given every organization collects different forms of information, medical information, and uses it in different ways and has different needs in terms of who should have access. But when you establish a policy, address all of these questions. How do you handle it? Who handles it? How is it used? That means for what purpose is it used. Where is it kept? Who has access to it? When do they have access to it? How long will it be kept? When will it be purged from the files? And can the employee see it? And is it possible that other employees inadvertently may have access to it? Now, that's just in terms of handling the information. Let's draw our attention back to the first step, obtaining the information. Well, any of you who have gone to the doctor recently will know that there is a new federal standard regarding patient privacy. If an employer wants to obtain any medical information from an insurance company or healthcare provider, there is a new set of federal regulations, known as HIPAA that governs patient privacy. No one can get information from a healthcare provider or insurer without the consent of the patient. So the first step in obtaining medical information is to make sure that you have the authorization of the employee or the applicant. If other thing is that HIPAA requires a very specific consent to the access of that information. So it might be HIPAA may be a reason for you who are employers to go back and make sure that you are getting the proper authorization or the proper release to have access to the information in the terms of the forms you're using to get the employee's consent. Now, we often see instances where the employer is not going to the worker's fist or the worker's healthcare provider, but the employer is actually conducting medical exams themselves where the physician is employed by the employer acting as the agent of the employer to do a pre-employment screening or something along that line. The doctor is working for the employer. Even in those cases, you have to obtain -- the doctor can examine and make opinions, but the doctor cannot release the information without the consent of the employee. So obviously if you're examining employees or do pre-employment screening, you have to get the employee to consent to the fist to disclose the results of those examinations to the employers. Now, oftentimes there will be -- as we know with the ADA offers are extended and after an offer is extended, you can -- I'm not sure if anyone listening can hear the -- >> RACHEL: It sounds like an ADA emergency. >> JAMES: I heard a joke the other day by someone who heard a plaintiff's attorney or saw a plaintiff's attorney and said, oh, you're one of those ambulance chasers, and the plaintiff's attorney says well I'm certainly not an ambulance chaser, I own my own ambulance. So that's our firm ambulance going out. Anyhow, there may be an instance where the -- after an offer is made and a medical exam is conducted, the physician may have a question about whether they detect a disability or other physical condition that may impact whether the person is suitable for the job. This is always a touchy situation for every employer because here the physician may be inclined to recommend that the employer not hire the person because of the results of the medical testing. But the employer, who may be more knowledgeable about the requirements of the ADA, needs to make -- to ask the doctor further questions about what is the impact of that medical finding on the person's ability to do the job? Here is where almost no employer that I've come in contact with has an effective policy to deal with the situation. You have a doctor that reports back to the interviewer or the decision-maker that says applicant 27 has this medical problem and I think it makes them unsuitable for the job. The decision-maker says, well, gee, he's the best candidate for the job and we were going to hire them because he was -- he really stood out. There you have a decision point where the employer may have to revoke an offer based on the results of the medical exam. The requirements of the ADA are that the employer cannot revoke the offer unless the results of the medical exam show there are job-related reasons that are consistent with the business necessity that make him unsuited for the job. That is going to be -- there is litigation in the making, when you're at that point, you've already offered employment and you're at the point of having to revoke the job offer based on the results of the medical exam. Here, the employer's policies ought to dictate what should be the process that the decision-maker goes through. It is not enough, and there is case law on this, and the one I'm thinking of particularly is E. E. O. C. versus Texas bus lines which was decided in the southern district of Texas back in 1994. Where the district court held that the employer could not delegate the decision of revoking the job offer to the physician, that even if the physician was making the decision, the physician was doing so as the agent of the employer. So the employment policies must give the -- the real decision-maker, the person who is selecting the person, the authority to talk to the doctor, what is it that you found? Why do you think it makes them unsuitable? What is it about the job that the person cannot do? It's important for policies to have this opportunity for the hiring decision-maker to consult with the physician because the physician is not going to -- probably will not have in front of him a very detailed description of what the obligations or the essential functions of the job are. And this is yet another reason why, going back to what we first started talking about, identifying the real functions of the job and why that is so important, it comes up again when you have -- when you may have to be revoking an offer. The employment decision-maker can sit down with the doctor and review with them the actual functions of the job, the things that will actually be required of the person in the job so that the physician is not making assumptions or guessing about what the nature of the job is or act on some general understanding about what the job is, but having a very detailed appreciation of what will actually be required of the person and only then would they specify that there are certain things that will be required of a person in that position, that this candidate cannot do it because of his impairment. Then you have a legitimate basis for revoking an offer. So you see the early things we talked about about identifying job functions are not only important for recruiting, but they are also important for handling and dealing with medical information that is coming through from the physician. Now -- >> RACHEL: If I can just jump in for one second. I wanted to let people know that we are getting some questions in, but I'm watching the clock and we have about a half hour left and I know that Jim has some additional material to cover. So I'm going to let him go ahead and continue speaking because I do actually -- looking at some of the questions, I do anticipate that he's naturally going to be answering a number of these questions. >> JAMES: Why don't I do this. Why don't I move more quickly through medical information. We'll go quickly to reasonable accommodation and wrap up with leave and then take the questions. >> RACHEL: Okay. >> JAMES: Well, keeping medical records -- I think that we've already touched on the point that they have to be kept separately and confidential. The confidential doesn't mean kept secret. Confidential merely means that only those who have a need to know have the information. Now, we may find that there are -- that there are things that -- there is an overlap between medical information and the types of things that are ordinarily kept in the employee's file. For example, you would expect that in any employee's employment file there is going to be a record of their attendance and the times they've taken leave and any special conditions of the terms and conditions of their work, such as special terms and conditions that are the result of a reasonable accommodation. But we also know that leaves of absences or taking sick leave, which reflects attendance, or reasonable accommodations which would reflect any special terms and conditions of employment, those things are all going to be based on some certification or verification of a medical condition, FMLA requires a medical certification. Reasonable accommodations will similarly require those things. So there is overlap between those things that are -- the medical information which needs to be kept confidential and information about the work performance of a person that ought to be in their regular file. Obviously, you have to have a policy and practice of separating the underlying medical information from the ultimate employment action and the employment action being granting of leave, recording of a leave of absence or a day without attendance and so forth. But taking the underlying medical information and treating it as confidential, putting it in that separate place, holding it with the other medical information and the regular employment file only holding the results that the action that was a result of that medical information and not the medical information itself. Now, in the interest of time, let's move to the topic of reasonable accommodations and responding to requests for reasonable accommodations. You know, let's start with the assumption that you have disabled employees, whether you know it or not. I think that's a fair assumption, given the number of disabled persons that are in the workforce and the wide variations that disability can take, I think it's fair to say that you have disabled that almost every organization is going to have a disabled employee working with them, whether they know it or not. So if you start from that assumption, it is almost a certainty that there is going to be some request for accommodation at some point during that employee's worklife. With that understanding comes the need for having -- thinking in advance about how the employer is going to respond to such requests and how those requests are going to be dealt with. Now, we have all heard about the interactive process that is required when an individual asks for an accommodation, and essentially it begins with a request. The next step is identifying the exact limitation of the person in the job and what type of accommodation might be needed. Then looking at the larger range of accommodations that are possible, and then considering employee preference and ultimately reaching a decision with the employer as to what accommodation is going to be provided. Now, in terms of employee policies and employer practices -- or excuse me employer policies and practices, we need to be much more specific than that. Because I found that oftentimes there is -- while that interactive approach is a good general outline, it doesn't answer the very specific questions that you'll need to know or that an employee will need to know when he's making a request for accommodation. And the first question is always to whom? If the provision of a reasonable accommodation begins with the request, to whom should the request be directed? It is often assumed by many employers that the employee can ask anyone. The employee may not share this assumption. The employee may think that requests must go to their immediate supervisor, because that's the next step in the chain of command, but as you might guess, employees may be reluctant to ask a supervisor for any special treatment or this case a reasonable accommodation for fear that there may be reprisal from the supervisor. So it is always a good practice to identify who in the organization shall receive requests for reasonable accommodations and make sure that that person, the identity of that person is adequately communicated to all employees because you never know who may be the one that's going to make the request for a cam oh indication. And also it is best to have the person to whom the request is made outside the chain of command to avoid any chilling effect that having a request directed to a supervisor may have and/or removes the fear of reprisal if it was to a direct supervisor. Now, I have seen cases where once the case is made, in the absence of an employee policy or practice on the point, the employer or the human resource director was under the assumption that after the request was made the employee would come forward with a proposed accommodation in that the employee would take the initiative and then that same instance the employee was under the impression that he was done by making that request and that the human resources director would take the initiative and offer some. No one was doing anything, the request was made and the request languished. Therefore, it is important to specify what happens after the employee makes the request. Who is going to take the next step? Who is going to be required to work up -- to initiate the dialogue that is part of the interactive approach and ultimately specify the person who has the decision-making authority. Oftentimes, I've seen disputes arise where the human resource person is charged with the responsibility of engaging in the interactive dialogue and working up proposals and so forth, but does not have the ultimate decision-making authority or at least perceives that she doesn't or he doesn't and they have to send the request for an employment action or an employment decision to some higher level, and that higher level person was not engaged in the interactive dialogue and doesn't have any understanding about what options are available, why this proposal was selected as opposed to others. So when you are establishing an employment practice that sets out who is going to be engaged in considering proposals and when you're going to specify the person who has the authority to decide, make sure that the decision-maker has participated in some fashion in the interactive process because it will make the decision easier for them and also you don't have to do the process twice. They can be educated in the interactive process and make a decision rather than going through that process and then having to go through it again to inform the decision-maker. Some other things: Who implements the reasonable accommodation? It's not enough for it to be requested, it's not if you have for it to be decided upon, you also have to have a policy and practice of who implements it. If human resources -- and we've discussed why there are reasons that the human resources department or director may be the person best suited to make decisions on this point because it takes it out of the chain of command, they may not be the best person to implement. The foreman or the supervisor or department head may be in the best position to implement. So we have to make a policy about who gets to implement. And of course in all the employee manuals that I've looked as and in all the employee practices I've seen, very rarely do I see any provision or any policy -- established policy and practice for followup. First of all, we want to make sure that after the reasonable accommodation is implemented, that there is some follow up at reasonable intervals to make sure that there the accommodation provided is being delivered, to make sure that the employer continues to fulfill their obligation in providing the accommodation. Secondly, you want to make sure -- especially where there is an expenditure of resources. Secondly you want to make sure it's effective. Everyone thought it would be, but it's not, or it may be effective at first, but as times goes along, its effect diminishes and the issue needs to be revisited. So having a policy of following up on the provision of a reasonable accommodation is one way -- it's not only good employment practice, but it's another way to avoid dispute that is can translate into expensive litigation. Now, once a policy is established or decided upon regarding how reasonable accommodations are going to be requested, considered and implemented and followed up on, it is absolutely necessary that those policies be communicated to the employees. I don't know how many times in the course of representing businesses that disputes arise over the provision of a reasonable accommodation and there was almost perfect guidance stated in the employee manual or in the human resources newsletter; yet no one applied that great policy to the individual circumstance and the reason was is that while a lot of thought went into the policy, the policy was not effectively communicated. Make sure it's communicated. Make sure that it's reiterated and make sure that there is a frequent reminder to employees of what the process is. All right, let's move along to employee leave. Now, there are often requests for leave because of disability; but obviously disability is not the only reason for leave. There is sick leave, vacation leave, bereavement, pregnancy, FMLA, leave for voting, leave for military duty, jury duty and others. When drafting a policy for leave, we really ought to begin with the federal standards because there is, at the minimum, in the family medical leave act a minimum federal standard for providing sick leave or I guess medical leave for individuals. Obviously the family medical leave act is useful to individuals with disabilities, but it's not limited to individuals with disabilities. At a minimum, an employer needs to decide what their policy will be regarding leave. It certainly can be no less than what is provided in the FMLA and similar state laws, but the question is how much more leave would be required or offered. So the employer usually adds because it's to be competitive in the job market, sick leave, vacation leave, and personal leave. Now, from are some other things I can mention, but in the interest of time, let me move to aver if I indication requirement. Almost all employers are going to have some policy and practice in requiring an employee who claims a disability or serious medical condition to present some evidence or some certification that they have that condition that they claim to necessitate the leave. This is important because here is one of the avenues in which the employer will obtain medical information, and I think you can see that as we have moved along in this topic, we see how these points begin to overlap. Here with leave, you have one of the avenues in which the employer is obtaining medical information and it obviously needs to be treated in a special way of being confidential. Now, there are other questions that arise with disabled individuals requesting leave. Leave -- employee leave as a reasonable accommodation is one -- or leave is one of those accommodations that is specifically mentioned in the regulations to the ADA. And there is a legal problem that comes up with this, although it is specifically mentioned, employees or disabled persons are only able to have standing to make a request for accommodations if they are qualified for the job. If the employee comes forward and says I cannot attend work because of my disability. I need to be away from work. Employers will routinely take the position if you cannot and regularly appear for work, you are not qualified for the job and therefore you don't have standing to request an accommodation. Oftentimes the family medical leave act will fill the gap. I think the better approach on whether -- when a person because of a disability is requesting leave, I think the more intelligent approach is not simply say you're not entitled to it because your need for leave is evidence that you're not qualified, where an employer offers sick leave, vacation leave or any other type of leave that can be taken on an irregular basis at unpredictable intervals, I think the employer will have a problem asserting that, well, if an employee cannot attend work regularly and predictably, lease he's not qualified. Because when an employer has a policy granting leave to nondisabled persons for occasional vacation or sick leave or personal days on an irregular and unpredictable basis, they are opening themselves up to a charge of disparity treatment or discriminatory treatment when they allow nondisabled persons to take leave on an irregular or unpredictable basis and doesn't allow a disabled person to take a period of leave without accommodation. But I will point out that there is this problem in the law where those who request leave as a reasonable accommodation often find themselves on the losing side of the argument. But I think the better approach is to say, if nondisabled employees can get irregular leave, why can't disabled employees have it because of their disability? When an employee with a disability is on leave, there is frequently the question of can the employer discharge the employee when they are on leave? And this is a situation that is -- it is best to have a policy before the situation arises. Because here is how it quickly becomes a claim for employment discrimination: If the employee was allowed to maintain their employment status when they requested leave. You didn't terminate them when they requested leave, you granted the request for leave and they are out on leave and halfway or some period after the leave began, the employee gets notice that they've been terminated. Well, what reason would the employer have to terminate them at that time other than their disability status? They weren't terminated on their last day of employment or their last day of appearing for work, they were only terminated because they were out because of their disability. You know, it is a -- the employer cannot point to any performance deficiency because the employee was not reporting to work. They were on leave. They cannot point to anything that the employee did recently during leave because the employee hasn't been there, and it's a very difficult situation for the employer to explain that they the acted on something other than the employee's disability status. So what can the employer do to protect them against that type of thing? Well, first of all, have a specific period for unpaid reasonable accommodation leave. Don't have it fixed in time permanently, but say that you are given leave and that it is renewable, but it ends at a specific amount of time, two weeks, three weeks, a month, whatever it might be. And at the end of that leave period the employee has to report back and indicate when they are expected to return to work. And if they cannot return to work at the end of that leave period, they are entitled to apply for an extension of the leave, and that the employer will consider that extension in terms of a number of factors. Typically it's those factors that are listed in the -- especially you will not grant the extension of the leave if it imposes an undue hardship on the employer. But the value of having some specific point in time, some specific amount of leave and in some specific point in time you visit the situation again and evaluate whether the person is reasonably expected to return in the near future, and whether there should be an extension? Because what you don't want to happen is that the person needs one month and one day of leave and you terminate them on the last day of the month when they could have returned two days in the future. You have a specific period in time, you revisit the situation, you inquire as to when the personal might reasonably return? And they say I'm going to return tomorrow after I visit my doctor and they release me, and I'll be back the next day. Then you can grant an extension. But having a specific amount of time where you re evaluate the situation gives the employer an opportunity at tend of that leave period or that segment of leave to determine whether the employee can be terminated or not. If the employee cannot indicate that they will return to work in a reasonably short period of time or within a reasonable time, and there are reasons that the position has to be filled, it might be permissible to discharge the employee at that time. Now, of course, make sure if you have a policy that permits discharge while on leave, that the employee always has the opportunity to reapply and be rehired for employment because that will demonstrate that it has nothing to do with any animus against them. It just is that you have to fill their position, but if there is other positions for which they are qualified, they are certainly welcome to come back. Why don't I end it there. I know we're right up against the deadline and there is more I could have said, but let's handle some of those questions, Rachel. >> RACHEL: Okay, great. I'll try to run through some quickly and just for people who are listening, we're going to probably go over a couple of minutes to answer questions and if you have to tune out, we're glad that you were with us today and we hope that you will join us again a month from now for the third in this series of webcasts about Title I. Additionally, today's webcast will be archived. So if you've missed any of it, then you can come back and visit our website. I believe by tomorrow or the next day it should be up. So you can listen to it as well as read a transcript of it. Okay, so following up actually on the points you were just making, there is a common question about may an employer request additional documentation, sort of adapting it, we're saying additional documentation at the point at which they can renew their request for additional leave? >> JAMES: Yes. It's entirely appropriate for an employer to ask for information relevant to the time the decision is being made. For example, if a person was on an extended period of leave and typically these leave periods are not very long, a month, two months -- let's say two months. If they are reconsidering the leave request and whether to extend that initial segment of leave, having information that is two months old is not necessarily useful for the employer to make their decision. Because why does an employee need leave? Typically for medical assessment or for medical treatment and the expectation is that with treatment the condition will improve and the person will then be able to resume their employment responsibilities. It is perfectly legitimate for the employer to get a current assessment as to whether they are capable of returning to work or perhaps if there is some risk to them or to others when they return. So, yes, you can -- an employer can ask the employee to supplement the information to determine whether there can be an extension of leave or for any reasonable accommodation to be continued. >> RACHEL: Okay, now, kind of as a follow-up to that, must the employer inform the employee or give them notice that this reasonable accommodation is no longer going to be reasonable or now poses an undue hardship and that, you know, termination is a possibility at this point. >> JAMES: I presume you mean -- when you say termination, are you talking of termination or employment or termination of the accommodation? >> RACHEL: I'm sorry, of employment. >> JAMES: Yeah, is there an obligation to give notice? There is no affirmative obligation stated in the ADA, but the interactive process of arriving -- that is not required but highly recommended in the regulations reason of providing a reasonable accommodation applies continuously if an accommodation is going to be ended or changed, there ought to be the same interactive process to determine is there some alternative to the accommodation that's being provided because let's look at it this way: What would happen if you had an employee that decided on an accommodation, they implemented it and turned out to be ineffective? What should happen then? The employer will say, oops, sorry, you're fired and let's get a nondisabled person in the job. What should happen is the employer continues the interactive process, revisits the situation, they know that this one particular -- this attempted mode of accommodation is not effective so it's no longer within the range of accommodation, but they consider the other alternatives and they select one if there are any others that can be performed, they select them on those and try that one. That as the model would show that if the employer -- if there were changes in the employer circumstances that made them unable to provide a particular accommodation, what ought to happen at that point is that the employer again engages -- restarts the interactive process and says, look, this accommodation that we've been providing for you we can no longer provide it. It's no longer an option, it's no longer within the range of options, but let us look at those other options that we considered in the interactive process. Identify those that we can perform, if any, and select them on those. If there was no accommodation that can be performed without an undue hardship, then the employer has at least made a good-faith effort. Why is that important to make a good-faith effort? Because if we look at section -- Title IV 2, U.S. C. section 1981a on damages, if an employer demonstrates that they've made a good-faith effort to reasonably accommodate, they are not subject to punitive damage awards. So the employer always has the incentive to engage in a good-faith effort because in the long run, it's not only good business practice, but if they are motivated only by their (Inaudible) it would be in their best interest there. Is there an affirmative obligation? No. Is there a good reason for the employer to do it? Yes. It's good business practice. It retains an employee and ultimately it may immunize them from a punitive damage award. >> RACHEL: Okay, that's good information to have. Okay, just a couple more. We got one question -- somebody wants to know can your employer make you take medical leave if you don't want to? >> JAMES: Make you take medical leave? >> RACHEL: Maybe you need to recap the issue here. >> JAMES: Well, I suppose an employer -- because we're in an employment at will state, an employer can always make you take a leave of -- a permanent leave. >> RACHEL: This question actually comes from California. >> JAMES: Yeah. Well, in California there is more protection than there is in Texas. I believe it is still employment at will in California, but can they obligate you to take leave? I think I would need more information about the question. My reaction is no, but what I don't know is, for example, is this an employee that is -- might be suitable for a transfer to a vacant position, and that vacancy doesn't become available for a period of a month or two and while they cannot perform their current job, there is not an immediate opportunity to transfer, then the employer has them maintain their employee status, basically forces them to take leave for that two-week or three-week period or two-month period or whatever it is, before they can transfer into that other position. And if the consequence for the employee is they maintain benefits, maintain seniority, continue to accumulate credits for other employee benefit programs, yeah, they are forced to do it, but what it accomplishes is a retention of employment and a transfer to a vacant position as a reasonable accommodation. My guess, however, that's not what the questioner had in mind, where there is the employer has an idea that the employee would be better off to take leave for their own benefit and the employee disagrees. You know, there it may be a question of direct threat. And that would be the better analysis. Can the employer take an action when they perceive that it is necessary to reduce or eliminate a direct threat to the employee's health and safety. The Supreme Court recently spoke to that issue and if it was under that analysis, where they are looking at a direct threat, is the continued employment of the worker a direct threat to the worker? And that that threat would be alleviated through a period of leave, you know, I think there might be -- if you presented it that way, there might be authority out there that says yeah, to protect the health and safety of the employee, E. E. O. C. regulations might permit that and the Supreme Court spoke to that issue upholding the E. E. O. C. regulations. I have to look at it more closely, but I don't really -- looking at it those ways, we come out in both instances, yes, that there may be -- that there might be circumstances which can be compelled, although by gut reaction is that the goal of the ADA is to ensure that employees with disabilities maintain their employment. If that is the purpose of the legislation, it seems counterintuitive that you would apply a rule in the ADA that drives the result of making an employee leave employment for a period of time so that's why -- yes, conceiving of certain situations where they might, but my initial reaction is it seems counter intuitive to think that employers ought to be able to compel that. >> RACHEL: I would actually invite the person who E-mailed this to us to send us an additional E-mail with more information that might help us respond to your situation specifically and we can do that offline. Okay, I have two more questions. One of them I think we can probably do pretty quickly. This one is going all the way back to the affirmative action issues. Is it possible for an agency to have an affirmative action policy and be an equal opportunity employer at the same time? >> JAMES: Oh, yes. You provide equal employment opportunity and you have an affirmative action program. I think I understand what the questioner is getting at because that equal employment opportunity suggests that there is no consideration of protected classes and yet affirmative action programs will ultimately, if it's properly applied, will give preference to an equally qualified person who is in the protected class. And those might on their face appear to be inconsistent. And generally what it's conceived as is equal opportunity means you don't make any -- you're not in the business of excluding persons because of their gender or other protected classification, and you don't give preference to the people outside of the protected class. Everyone has the equal opportunity to apply and be considered and be considered on their merits. And that -- framed in that way is consistent with an affirmative action program because ultimately you're deciding who -- who is the final candidate based on their merits and the assumption is that you will only select the person in the protected class if they are otherwise -- the candidates are otherwise equally qualified. E. E. O. means you always consider on the basis of merit and so the person will never be excluded or passed over for someone who has lower qualifications, but affirmative action is again designed to cut it off to be a remedy for past discrimination. And I think that perhaps I should not have mentioned affirmative action because you can see how it really generates a lot of discussion and it is very difficult to apply and implement an effective and lawful affirmative action program. >> RACHEL: Okay, let me ask this one last question and then we can wrap up finally. Is it lawful for a perspective employer to exclude a job coach from the interview process of an applicant who has a cognitive disability? And also -- well, it's kind of a second follow up. Actually I'm going to hold the follow-up but basically that's the question. >> JAMES: My reaction to that is that really a job coach, if they are there to achieve effective communication, it would be improper to exclude them. In the same way that it would be improper to say to someone who speaks through sign language to exclude a sign language interpreter and say, no, you've got to do this interview on your own so we can determine what your individual merits are. In that individual circumstances where you exclude the interpreter or exclude the person who facilitates effective communication, you are not measuring the candidate's qualifications, which is what you intend to measure in an interview. You want to have effective communication, learn what the candidate's qualifications and experience are and measure them to see if they match the job requirement. If you exclude the person that facilitates effective communication, what you are measuring is the extent of the person's disability, their inability to communicate because of their disability, and not their ability to do the job. So, yeah, my reaction to that would be excluding someone who is needed to effectively communicate is -- excludes a person with a cognitive disability from the process, and there is discrimination there. Now, that doesn't mean that there is liability or that there would be damages, because you sill have to look at what are the essential job functions and could the person perform the essential job functions with or without a reasonable accommodation. And if an interpreter or someone to facilitate communication was the accommodation, can that accommodation be provided consistent with the job necessities or the job requirements and the business necessities and be provided without an undue burden. And if you have one job to hire two people to do one job may be an undue burden in some circumstances or in some circumstances. But I think you should always have the opportunity to be considered and if someone has an impairment in communication, to exclude the person that facilitates effective communication strikes me as being discriminatory. >> RACHEL: Okay, great. And I do think that -- like this situation is a question we asked previously helps us understand that we really do have to look at making decisions on a case-by-case basis, but certainly having the policies and the practices that you've suggested to can really help us do that in an overall uniform and fair way and in a way that can really help employers avoid some of the liability pitfalls. Is there anything else, Jim, that you want to say as we tune out here? >> JAMES: No, other than -- as I said in the beginning, whether we have them written down in the form of a manual, every employer has policies and the time to decide those policies is before the time that they are needed so you have time to think and reflect and decide on a course of action that is not tainted by the pressures of a particular situation or that are tailored to that particular situation. Have a policy that is thoughtful, reflected, decided beforehand, and apply that policy. That policy may not apply to every circumstance that comes up, but it will at least in the unusual circumstances that was not contemplated in advance, it will at least give the guidance to the decision-maker on the spot as to what the goals and the objective and the proper course of handling the situation will be. So it gives guidance for the run of the mill situation, the things that you ordinarily expect, but it also provides essential guidance for those unusual circumstances, even if they weren't contemplated when the policy was written. >> RACHEL: All right. >> JAMES: So the bottom line is have policies, communicate them, make sure your managers understand them. Make sure your employees understand them and by all means, if you set a policy, follow it. Because that will make the things run smoothly, be predictable and will help to avoid disputes from arising, especially those disputes that can lead to litigation. >> RACHEL: Well, thank you so much, Jim, for all the information that you've shared today. I know that people have been very interested in this and I anticipate some follow-up questions as well. So people feel free to continue to E-mail us even after the conclusion of today and we're happy to continue to work with you. So, Jim, thank you very much. Again, today's webcast will be archived. I just want to do a couple of thank yous as we sign off here. I'd like to acknowledge NIDRR who funds the Disability Law Resource Project, your host for today, and some others who have made this possible on the ILRU team, we've got Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Jillian Bontke, Rob Dickehuth and Marie Bryant, our realtime captioner. So thank you everybody for joining us and we look forward to seeing you again in the future. Have a great afternoon everybody. Bye-bye.