Transcript October ELD Client Seminar ADA Speech

ADA AND TERROR
ADA and Terror Case Study
 Prior to September 11th, Sam’s essential job
functions included frequently meeting with clients in
cities across America, sometimes visiting two or three
cities per week. Given the distances involved, flying
has always been the only practical way to accomplish
this. Sam seeks psychological treatment following
the attacks and provides his employer with a medical
note stating he is suffering from posttraumatic stress
disorder.
ADA and Terror Case Study
 Sam, with his psychologist’s support, requests the
following accommodations:
 (i) “temporary” elimination of travel requiring flying
 (ii) the use of software that allows internet-based
video meetings through which he believes he can
effectively communicate with his clients
ADA and Terror Case Study
 Is Sam a qualified individual with a disability (“QIWD”)
?

or in other words
 Is Sam an individual with a physical or mental
impairment who, with or without reasonable
accommodation, can perform the essential functions
of the employment position he holds?
ADA and Terror Case Study
 Is Sam a qualified individual with a disability?
Evaluate #1: Whether Sam has a protected
impairment
Evaluate #2: If so, whether flying is an
essential function of his job
Evaluate #3: If so, whether a reasonable
accommodation exists that
would allow Sam to perform
the essential functions of his
job
ADA and Terror Case Study


Question #1:
Does Sam Have A Protected Disability?
Post Traumatic Stress Disorder Defined
 Exposure to a traumatic event in which the
following is experienced or witnessed:

Actual or threatened death or serious injury; or

A threat to the physical integrity of oneself or
others; and

Feeling intense fear, helplessness or horror.
Post Traumatic Stress Disorder Defined

The traumatic event is persistently reexperienced (e.g., recollections, dreams);

The stimuli associated with the trauma are
avoided;

Persistent symptoms are experienced, such as
difficulty sleeping, angry outbursts, difficulty
concentrating, or hypervigilance.
ADA and Terror Case Study

Question #2:
Is Flying an Essential Function of Sam’s

Job?
Flying As Essential Function?
 Air Travel Was An Essential Function Of The Job
For An Auditor Of Universities In 10 States
Because Effective Auditing Required Access To
Records And Employees For Interviews At
Audited Sites.
 Wells v. Shalala (10th Cir. 2000)
Flying As Essential Function?
 Flying Is An Essential Function For A Vice
President Of Sales Required To Frequently Fly To
Visit Customers.
 Connolly v. Bidermann Industries (SDNY 1999)
Flying As Essential Function?
 Consider the following:
 Written Job Description
 Current Work Experience of Other Incumbents
 Consequences of Not Flying
ADA and Terror Case Study

Question #3:


Does A Reasonable Accommodation
Exist That Will Enable Sam To Perform The
Essential Functions of His Job?
Does Reasonable Accommodation Exist?

Q. Will Internet-Based Video Meetings Enable
Sam To Perform His Essential Functions?
A.
Depends on purpose of client meetings, prior
history, etc.
ADA and Terror - Reasonable Accommodation?

A.
Q. Can the Company Require Sam to Travel By
Train, Rather Than Fly, In Lieu of the
Accommodation He Requested?
Probably, if travel by train will enable Sam to
perform the essential functions of his job meeting with his client on a timely basis.
Work at Home Case Study
 Assume Sam is not required to fly for his job, but is
afraid to return to work at his job on the 45th floor
of the Empire State Building. In fact, he refuses to
work above the second floor of any building and
instead requests to work from his home. If Sam
has a protected disability, must his employer
accommodate this request?
Work At Home
 EEOC: Employer Must Allow As Reasonable
Accommodation Unless It Would Not Be Effective and
Would Impose Undue Hardship. Considerations Include:
Ability to Supervise Employee Adequately
Need for Personal Contact
Need for Interaction or Coordination
Employee’s Need To Work With Certain Equipment
or Tools Unavailable At Home
Work At Home
 Courts Generally Disfavor “Home Work” As A Reasonable
Accommodation
 Claims Adjuster’s Duties As Advisor to Call Center
Staff Often Require “On-the-Spot Collaborative
Efforts” Among Employees, Particularly Due to His
High Level of Technical Expertise
 Kvorjak v. Maine (1st Cir. 2001)
Work At Home
 Work at Home Is Not A Reasonable Accommodation
for Software Systems Designer Where Personal
Contact and Coordination with Staff Members, As
Well As Working Under Severe Time Restraints, Were
Required in Plaintiff’s Line of Work

Misek-Falkoff v. IBM Corp. (2d Cir. 1995)
Leave of Absence Case Study
 As time goes on, Sam finds he is sleeping less than 2 hours
every night, he is hardly eating and he can’t concentrate on
his work. While he is more productive working at home, he
still is barely contributing to his team. Sam advises his
employer that, based on his psychiatrist’s diagnosis, he is
totally disabled and cannot work, for now, even from home.
He requests an indefinite leave of absence. Sam’s doctor
certifies that Sam is disabled but cannot provide any
indication of how long Sam will need to be out on leave.
Must Sam’s employer accommodate his request for a leave
of absence or can it terminate his employment?
Leave of Absence
Leave of Absence Is Generally Reasonable
Accommodation
In Contrast, Unpredictable Leave Resulting in Erratic
Attendance Is Not Reasonable
Leave of Absence
Request for indefinite leave is:
 EEOC — Reasonable Absent Undue Hardship
 Courts — Generally Unreasonable Especially
Where Employee Has Previously Been Provided
Substantial Leave
Leave of Absence
 Open-ended Leave Request By Plaintiff Due To Panic
Attacks And Fear of Stress Was Not A Reasonable
Accommodation
 “An Employer Is Not Required To Wait Indefinitely For
. . . [the Disabled Employee’s] Recovery.”

Smith v. Blue Cross Blue Shield, Inc.
(10th Cir. 1996)