MICHAL SHINNAR: All right, well, thank you so much, everyone, for attending. I do miss being at the tenBroek Conference in person, but it's still really exciting to have this fantastic programming over Zoom and to still get to converse with so many outstanding people that I only get to interact with over the listserv. For starters, my name is Michal Shinnar, I am a plaintiff-side employment lawyer who has a heavy practice focused on employment cases involving disability. I practice at Gilbert Employment Law based in Silver Spring, Maryland, and I also serve as the co-chair of the Disability Law group for the National Employment Lawyers Association. And today is going to focus on Title I of the ADA, Title I being the one that covers employment. First of all, we'll start with some statutory definitions. So, under the ADA, it is illegal to discriminate against a qualified individual with a disability, a qualified individual with a disability is defined as an individual who with or without reasonable accommodations can perform the essential functions of the job. And in the statute, 42 USC-1211 Section 8, the statute says for purposes of the subchapter, if the employer has a written description before advertising or interviewing applicants for the job, this will be considered evidence of essential functions for the job. And this is, in employment litigation, and I'll add the other caveat, or part of this is that those reasonable accommodations must be provided unless they pose an undue hardship or undue burden on the employer. And this essential functions provision, that a qualified individual with a disability has to perform the essential — be able to perform the essential functions of the job — is a major — a constantly moving area of ADA jurisprudence, and is often considered to be this sort of, like, new gatekeeping area of access to the ADA's protections, even under the amendments. Prior to the amendments in 2009, a big hurdle for employees was always to prove that they were in fact an individual with a disability. The amendments have virtually taken that off the table for most people, because of the broad definition of disability. But what we increasingly see in the courts is a much narrower definition of — well, a much broader definition for the employer about what job functions are considered essential. So today's program is going to be delving into the recent court case law about that, both the ones that I would say are, I think, less than ideal cases that also for purposes of analyzing where the law is at, and ways to address some of the negative case law that we have seen coming out.
Going back to — we're going to look at the regulation. So 29 CFR section 1630.2n3 lists some of the factors that can be considered essential, in analyzing whether something is an essential function. So the CFR lists: The employer's judgment as to which functions are essential, a written job description, amount of time spent on performing the job, the consequences of not requiring the individual to perform that particular function, terms of a collective bargaining agreement, work experience of past incumbents in the job, and current experience of incumbents in similar jobs.
Now, essential functions, like whether something is or is not an essential function, the good news is that courts have been clear that this can be a dispute of fact for the jury. Some, even out of the 6th Circuit, which is fairly conservative about essential functions matters, has still made it clear again and again that these types of disputes are disputes of facts for a jury. So if you have a dispute about whether something is essential or not, this should not be something in theory disposed on in summary judgment, but one to present for the jury. Though we do increasingly see cases being kicked out on summary judgment, and we'll talk about how some of that happens.
The other important thing is that the plaintiff bears the burden of proving that they can perform the essential functions. Not the defendant in proving that such functions are essential. It's the plaintiff that has the burden.
And so one practical consequence of this is that, you know, the ADA does require, or, you know, expects an interactive process for determining whether someone can receive a reasonable accommodation. However, an employer — it's not a per se violation of the ADA to refuse to engage in an interactive process. So when combined, these two factors that the plaintiff is burdened with proof and the fact that there aren't severe consequences for the employer of not engaging in the interactive process, can leave employees at a disadvantage to be able to work with an employer and say, here's my plan to be able to perform at this job. Even though you're saying this is essential, here's how I would be performing the job. Or two, to understand the workplace in terms of is this really essential, how have other people been performing it. And three, to say this is why this is truly not essential for this job.
One thing that I think a number of disability advocates have said is, it would be great if there really were the consequences for not engaging in the interactive process, because that would just give the plaintiff, or any employee, or applicant, even if they're not a plaintiff yet in court, so much more ability to advocate for themselves, get information, have the employer forced to sit down to work with them on things like, can you perform an essential function of the job? Are these really essential? What reasonable accommodations might be on the table?
I want to take a look, an overview at some of the approaches that different circuits have taken. The 5th Circuit, for example, really has a focus on the employer's opinion and written job description. For example, in Credeur v Louisiana, through the Office of the Attorney General, which is a 2017 5th Circuit case, it says that we have to give the greatest weight to the employer's judgment. It says it is the only evidence the statute requires us to consider absent a written job description. And while the court has stated things like it should be blind deference to the employer's judgment, it really is these written job descriptions, and the employer's position on it, which are the ultimate determining factor for the 5th Circuit.
The 10th Circuit, similarly, in Domenico Transportation, which is a 2016-case, is really clear. We will not second guess the employer's judgment when their description about what is an essential function is job related, uniformly enforced, and related to a business necessity. And it articulates that it's really going to be the plaintiff's burden to articulate that the job function is truly not essential. The 2nd Circuit takes a more plaintiff friendly approach. For example, in Stevens v Rite Aid, the court gives considerable deference but says no one factor is dispositive, and you must look at the employer's description of the job and how it's actually performed, and...
The 4th Circuit, where I am happy to practice, has had one of the most pro employee decisions in the circuit courts in recent years about analyzing essential functions, which really does look beyond the employer's description to see whether, in fact, such job functions are truly essential. The famous case is Jacobs v the North Carolina Administrative Offices of the Courts, and that was a case where Ms. Jacobs was a secretary or a clerk, like a processing clerk, not like an assistant to a judge writing decisions. And the clerks would — were expected to rotate through different divisions. Sometimes they worked at the front desk processing people's complaints, sometimes they worked in the back office filing things. And she had an anxiety disorder that made it very difficult for her to work with the public and constantly have strangers coming up to talk to them. So she said, please, out of all the rotations, don't make me work the front desk, that's really tough for me. And the court said, no, it's an essential job function, you have to work in all these different areas. And on appeal, the 4th Circuit said Ms. Jacobs is right, you know, it's fewer than, you know, 15 — fewer than 15% of the clerks in this whole office work at this front desk. Some of the clerks never perform this task. And, quote, no evidence that mastery of the front desk was essential or that Jacobs no longer working behind the front counter would negatively impact the office.
So, you know, as opposed to some of the similar types of arguments made in other circuits, the 4th Circuit said, you know, just because you put it in the job description doesn't mean it's actually going to be essential. And really one of the best standards recently articulated by the circuit courts.
So, let's talk about some of the factors that are going to go into the analysis beyond just what is in the employer's job description.
So, one issue is going to be time spent on the task. So, obviously something that is a vast majority of your time is likely to be an essential function, but what about when it is a smaller percentage of the time? So, again, out of the 4th Circuit, the Wulff v Sentara Health Care in 2013, the court said, you know, we're going to be looking at how much time you actually spend in the job, and in this case, the employee had testified in deposition that this was a lot of time spent in the job, and the 4th Circuit said, if the employee themselves is going to say this is a big amount of time spent on the job — this was a lifting case — that's going to be relevant to the analysis. However, things can be a small amount of time, but still essential. So, you know, for example, in the Basseth v Cook County case in the 7th Circuit, this was a pharmacy technician who sometimes was asked to deliver medications within this hospital, and they could not push the heavy cart. And so she said, listen, this is just 45 minutes a day that I would be delivering these — pushing these carts. And the 7th Circuit says, you know, it's not just that it's 45 minutes out of your 8-hour work day. It's how important it is to the job. And it said, you know, it doesn't have to encompass the majority of employee's time or even a significant amount of time to be essential.
Similarly, there have been cases like that involving people who occasionally have to do lifting. There was a recent 2020 7th Circuit decision on that, an employee spent about 10% of her time stocking shelves and then developed a disability where she could no longer stock the shelves, and the 7th Circuit said that's still an important thing that you do every day.
And I want to take a step back to talk about an important distinction about essential functions. So, essential functions mean what NEEDS to get done in the job, but not what — HOW one gets that thing done. So, you know, for example, an essential function of the job might be, say, for a lawyer, would be reading cases. But reading cases could be done through vision, through an e-reader, through braille printouts. So, you know, sight cannot be an essential function for a lawyer. But the mechanisms through which one reads, as long as you're able to, say, read the case law, you can perform those essential functions.
Similarly, things like talking should not be an essential function of a job, but communicating might be, and communicating done through writing, through an ASL interpreter, through a number of means. And that is how you perform the essential function of communicating.
I'll say, there was a recent 4th Circuit case about driving as an essential function of the job, and the court said clearly that traveling could be an essential function — this person was some kind of traveling sales representative who traveled all over Virginia, and then she developed a disability where she could no longer drive, and her spouse was willing to drive her. And they were saying, well, you can't drive, and it says here on the job description driving is an essential function of the job, and the 4th Circuit agreed with the employee and said traveling is the essential function. She has to go to all these different sites to do her sales work, but how she gets there is not going to be part of the essential functions analysis.
I do kind of have an FLSA question about how the employer gets away with not paying this husband for driving her all the time, or whatnot, because the court did not address that, but the costs of whatever accommodation that might be will go into the undue burdens analysis.
But I will also say, there was a recent 6th Circuit case that said, well, driving can be an essential function, which I think, you know, we'll talk about this, it's a recent trend, where there have been courts more and more saying what is the — you know, the way the employer defines the task is okay.
So sort of a practice point to think about from the 7th Circuit case about the pharmacist and the heavy cart, the court noted that it was only on appeal that the pharmacist raised the point that they could get some kind of mobility device to deliver this — to push the cart or deliver the medications. And because it was only raised in appeal, there was not sufficient evidence in the record to determine whether they could do the essential function due to the heaviness of the cart and what weight an average wheelchair can bear. And so I think that's an important practice pointer to keep in mind, that if you're looking at — if you're representing someone and looking at these disputes about essential functions, one element is to say, this is not essential, this is 45 minutes of their time, they're a pharmacist technician, they're trained in all these matters of medication and pharmacology, somebody else can deliver. And I think that's a good argument, and that has prevailed in some cases. But the other way to approach this, and if you're really going to insist that this person has to be the one to deliver the medications, and maybe there's a reason not listed in the record, like a pharmacist technician had to be there to administer certain medications, look at how else they could do that. Because I imagine that there are some kind of mobility devices that are capable of pushing carts of whatever size this pharmacist technician had used in the hospital, or the hospital could have gotten smaller carts. You can imagine all kinds of arguments for, here's the modifications we can ask for for this pharmacist technician to be able to deliver medications in the hospital that wasn't addressed at all until the appeal level, which the court said, like, we just don't have the record, and it's on appeal, and we're sorry, too late.
So I always try and think about both of those sides when dealing with any kind of essential function argument. And I will also add that often, you know, people know their industries best. I represented someone who was in a position where my first look at her job, she had developed a mobility related disability and couldn't do certain climbing functions, that were, you know, that she had previously been able to do. And I was like, well, let's talk about how you're going to do it. She was like, well, everybody in our industry uses drones. We all get them from work. I can do all this inspection stuff with the drone! Which is not something I knew was so prevalent in her industry, but I think lots of industries are getting these kinds of technological advances, and there certainly would have been for her the argument that this isn't even essential, because you do it so rarely, but separately, she had some really great examples of how she could do this job, just differently. This was about inspecting properties, and she could inspect parts of the properties with the drone, so that would be fine.
Another area the CFR asks us to look at is the experience of both other employees in that job, and that employee. And one really helpful case is out of the 6th Circuit, Vaughn v Park West Medical Center in 2017, where the 6th Circuit said, listen, the experience of the employees performing the job is more dispositive of the essential functions of the job than the impressions of the manager, which may be relevant, but isn't going to be the end all be all. Because the employee has the relevant, the actual lived experience of this job. In that case, the court said, you know, this can't be decided on summary judgment when you have this kind of dispute between employees in the workplace, and management. Which is a really helpful thing to think about when you're looking at this sort of broad deference given to the employer, but the court acknowledging, well, sometimes someone in a management position doesn't actually know what happens on a daily basis or how the employees are getting it done or how often things are used.
One other thing to keep in mind is the CFR says that the job description is highly relevant, but there's also been case law that things could be essential functions even when not listed in the job description, which is consistent with what the CFR says, that it's a nonexhaustive list. For example, in Bush v Compass Group, which is a 6th Circuit case in 2017, the job description said that lifting 10 pounds was an essential function, but it turned out — and this was a chef's position in a kitchen — it turned out the chefs in this restaurant regularly had to lift 50-pound bags of flour, produce, and such, and potatoes and sugar, so that was something practical that these chefs were all doing. So even though it wasn't in the job description, this employee who started the job there, the 6th Circuit said, you know, this is an essential function, lifting these heavy bags, and this is not something you're saying you can do. Again, with a lot of these lifting cases, looking at the question of whether there's any kind of assistive devices is incredibly valuable and important. There are a number of things that can be used to help people lift. And it's worth exploring with your client whether they can think of any such technology in the workplace that would allow them to do the lifting.
So, you know, part of what comes up in these — like disputable areas of what is essential, what is not, is, you know, the opposite, and under the ADA, an essential function, the opposite is a marginal job function. And the rule is that marginal job functions can be reassigned to somebody else, but essential job functions cannot. So the goal of saying this is not an essential function is saying it's a marginal job function, this could be easily handled by somebody else. But the issue that's always run up against in the "this is a marginal job function, it can be reassigned" is the whole body of case law about reduced workloads or asking for any kind of reduction in what you have to accomplish. For purposes of getting a reasonable accommodation.
So, you know, for example, in the 4th Circuit case Crabill v Charlotte-Mecklenburg Board of Education, it says the ADA does not require an employer to reallocate job functions or permanently assign light duty, especially where it would shift duties to — this was a school counselor — other school counselors in the department, thereby increasing their workload. This was a counselor who could only see a certain number of students in a therapeutic context a week for medical reasons, and the board said, you know, we have a certain number of students who need to be seen, if you see 10% fewer, they have to be reassigned to other counselors, and that increases other people's workloads. And there have been cases on this point. Throughout the circuits.
Similarly, there was, you know, this can come up in terms of hours worked, for example, in Faidley v UPS, an 8th Circuit case in 2018, the employee asked for a reasonable accommodation of not working more than 8 hours a day as a UPS truck driver, and the employee said either, you know, I could just work, end my day after 8 hours and deliver the packages tomorrow, or somebody else could take over my shift. And the 8th Circuit found that for a UPS driver, workloads, you know, often don't end after 8 hours a day, it can be unpredictable, there can be weather, there can be the promise of how quickly a package will deliver, so asking for that kind of reduction is not going to be a reasonable accommodation.
But the other thing to point out is that in not all jobs is somebody working harder or less hard if a workload is reassigned. You know, sometimes people are asking to not do task A, and instead do more of task B. And this may not be something that their co-workers mind. And those kinds of fact-gathering about how easily something could be redistributed, is what you're asking to redistribute harder or more burdensome in some way, or just different,. What's also going to be relevant is if someone can take on more of something else. So if you take on more of task B, because you're not doing task A, you're not falling into the forcing others to work harder and you're working less hard. So if you have a situation where that's a request being made, really work with your client to figure out, here's how you're going to work equally hard, you're just not going to do task A, which you can't do because of your disability.
One big thing that comes up as a topic is the question of aids, like personal aides, assistants, under the ADA. And so the general rule that is currently found is that an employer is not required to hire somebody additional to help a person with a disability perform their essential functions. There have been cases with teachers' aides, and other aides, to help out. And that's, you know, for example, we've had cases in the 6th Circuit on that point, we've had cases in the 8th Circuit on that point. But there was a great case out of the DC Circuit, which was Hill v Association for Renewal in Education, which the DC Circuit said that the teacher had requested a — assistance with class supervision, so that he wouldn't have to stand for long periods of time, which he would ordinarily have to do in his classroom alone. And the DC Circuit says, listen, he's not asking for a reduction in his teaching duties. And so this is something that we're going to send back to the jury to determine if it's reasonable to have someone with this — I assume mobility impairment that he can't stand for long periods of time, to have a sort of teacher's aide in the classroom to help with classroom control. And so that's a really valuable case to look at, especially given the overall trend in these cases.
The other thing I want to add is that what I find kind of, you know, concerning about the cases about aides is that it is so common in the professional world to have aides of some kind. You know, people have all kinds of levels of jobs and people whose job it is to assist other people, I mean, an obvious example for lawyers is we have paralegals and receptionists and so on. And so having aides might be very normal in the industry, or very feasible. And there might already be, quote-unquote, aides available in the workplace to help with exactly such matters. I can tell you about a case that, for a lawyer who had autism, and one thing that he really struggled with was, like, organizing papers. Like, he was, it was just not something that he felt he was capable of doing, it made him very frustrated and flustered. And he was once asked to organize all these papers for a specific case. And, you know, it wasn't that he was reviewing them or providing his lawyerly insights into them. It was just something that one of the attorneys said, like, can you do it? And when he said, like, listen, you know, I can do a lot of stuff for this firm, but I'm probably not your person to organize tons of papers! And like he tried, and he just ended up feeling really frustrated, it was not a function he could do in a reasonable amount of time, and his response was, well, isn't that what we have paralegals for? Isn't that their job here? Like, I'm happy to have them ask me questions about it and also I could bill more to this actual client and project. And it was this whole big to-do in the firm, that, you know, this was the first time he had disclosed his diagnosis, and also there was a lot of resistance, but ultimately, he got the accommodation. But in sort of a narrow sense, you could say, well, you're a lawyer, you're supposed to manage the case and all these things that go with it, but as a practical matter, we all know that, like, this work environment has people designed to assist, and there's no reason, or denying someone office resources because of their disability is itself a form of discrimination. Even if it's not a specific reasonable accommodation, you can't deny people access to all the terms and conditions of employment that are available to other employees. So, always something to think about when you're looking at a case involving aides.
I also want to add that there are certain, like, ASL interpreters are never considered aides. Someone who needs ASL interpretation on the job, that's not considered in the category of aide, even though they're assisting with part of your essential function of communication. ASL interpreters, as a form of reasonable accommodations, is very well established under the ADA, and is not a form of an aide.
One other big, you know, issue in essential functions is the topic of flexible schedules or any kind of modification to the work schedule and attendance.
So, overall, the way the courts frame it is that leave can be a reasonable accommodation under the ADA, and attendance can be an essential function under the ADA, or is an essential function, and leave can be an accommodation that allows you to do your essential functions of the job when you return. So you were doing your job, which involves A, B, and C. You need to take leave for whatever medical need, and that when you come back, you will then be doing your job again.
Now, the — you know, this is when there are all these cases about extensive leave and too much leave and in definite leave, and the court's analysis about those is, you're taking too much leave means that you can't do the essential functions of your job, which is attending, in some capacity. Often with, I think, you know, very strong strictures about, like, how long someone can reasonably be out and still hold their job.
But what about anything about flexible schedules, partial work schedules that's not full-on leave from work?
So, unfortunately, the courts have continued to find that full-time work can be an essential function of a job. And often looking at the specifics. So, for example, in Green v Bankmark USA, a 6th Circuit case, the court says the employee's own experience working long hours as an operations manager belies that he claimed he could perform the essential functions of a physician four hours a day, 5 days a week. And the employee himself testified that he would be unqualified for the position even with an 8-hour a day, 5 days a week restriction.
Similarly, there was a DC Circuit case in 2019, Reagan Diaz v Whittaker, where the DC Circuit found the employee's request to phase back into full-time work after having a serious injury which resulted in a disability was not going to be reasonable because the employee could not perform the essential functions of working full-time. So this employee had, like, exhausted her FMLA leave, and the doctor said don't go right back in full because of your severe medical condition, so you start working one or two days a week and you can ease back into full-time. One of the unfortunate things is, in the briefings in the case, in the record, there were multiple managers who said of course she could do that, she would be such an asset to have back, but the main discriminatory official would have none of it. Fortunately, the DC Circuit didn't include that in the decision to have that detailed analysis creating that, like, further bad law about it would be improper even under those circumstances — so, an unfortunate loss for Ms. Diaz, but the DC Circuit's case law was not as broadly bad as it could have been.
On the other hand, there are cases saying things like tardiness or flexible work schedules doesn't mean an employee can't perform the essential functions. For example, in Burnett v Ocean Props, which is a District of Maine case in 2018, found, quote, the employee didn't have an attendance problem so much as a tardiness problem. The court doesn't view these as presenting the same obstacle to job performance. And that also, in the record, the employee had good reviews and was getting good results in all these other metrics the employee was measured by, even though they were having a tardiness issue due to their medical condition.
The other thing is flexible work schedules. And so, for example, in Solomon v Vilsack, a DC Circuit case, the court said an ability to work a predict able schedule is not as a matter of law an essential function. And also that, you know, a physical presence at or by a specific time is not as a matter of law an essential function of all employment. And emphasized that this is going to be a factual analysis to determine whether in this particular work site, a rigid onsite schedule is going to actually be an essential function of the job.
And, you know, this is, you know, there are jobs where, like, specific shifts are far more of importance, but this Solomon v Vilsack case is an example of someone can absolutely perform their essential functions even with flexibility. The other sort of — part of the way that this is really important is that employees who need some kind of flexibility — either if it's because they have a medication that sometimes leaves them with side effects at certain times of the day, or they have regular doctor's appointments — ideally, they could get an accommodation under the ADA for those kinds of things. If not, they have a backstop option of FMLA leave, but FMLA leave is more limited in terms of what employers cover, and also expires at a point. So an employee who, say, needs to be late to work several times a week for whatever medical related reason, or needs to leave early, or have an extended lunch break, can stay in their job much longer under an ADA accommodation than if they're limited to the FLSA's cumulative 12 weeks of leave. And often I see employers try and push these things as, oh, you don't need an accommodation, you need — here's our FMLA paperwork, so you fill that out, and we'll deduct one hour of leave for all of your doctor's appointments on Mondays and Wednesdays, or two hours, and you'll be set. But, you know, often employees realize, okay, that's unpaid time as opposed to, you know, I could be paid and just work different hours. But sometimes people don't, and they realize further down the road that they're running low on their FMLA leave or they need it for other reasons, and this is really something that would never have happened if they had gotten this as a reasonable accommodation in the first place. So addressing flexible schedules and alternative working schedules as an ADA accommodation need is really valuable to allow people to remain in the workplace. And not all HR — some are a little malicious about it, but some are just poorly trained, and they have a leave form that's separate from their ADA accommodation form, and that's how it gets processed by payroll, etc. And that's not how it should be done.
I'll also add that the DC Circuit has another — I'd say less favorable case on point, and in that case, the employee had asked for a regular start time of 11:00 a.m., and then plus to make up the additional hours on the weekend, and the court found that wasn't reasonable in that workplace because they were unable to perform the essential function for the job, being present in the office to participate and interact with onsite meetings during billable hours and a regular basis. This is where I think the factual exploration of what this office is like and so on is really important. Sort of standing in for, what we have at some points, you can never have any kind of leave, should not fly as an ADA position.
But there are offices where, you know, certain kinds of meetings regularly happen or happen at some kind of regular interval. But I'll also say that we're going to get to this — well, I'll say — this whole issue of this general need to be in the office has been a hot topic for years in terms of telework, like the question of, could employees perform the essential functions of their job teleworking, and not just in the question of could they do whatever their job function is. Like maybe they're a computer programmer, and writing code, or they work at a call center, but they're doing that from their home as opposed to from the call center location. You know, that was treated not just as a question of, say, can this person make X number of sale calls a day, it was also looked at under the analysis of, but what about training, but what about collaboration with co-workers, what about all these things? And employees would be pointing out, well, there are conference call lines and there are video call lines. We could do this in some way. And employers often being very resistant to the idea that this is how their employee was going to be collaborating with them. And then COVID hit, and employers who for years were insisting that none of this work could be performed by telework on a regular basis, and also that all of the team's operations and meetings and collaborative projects or whatever else under the sun would instantly fall apart if someone was teleworking... changed! Now people WERE teleworking, and if companies were falling apart, it wasn't due to the teleworking, it was due to other financial issues caused by COVID.
So it will be really interesting to see whether COVID changes the jurisprudence on teleworking. So to talk about teleworking, right — not that long before COVID, in 2018, there was a 6th Circuit decision in Mosby Beecham v Memphis Gas, Light, and Water Division, which was that the employee could perform the essential functions with teleworking full-time for 10 weeks. This was an employee who I believe was due to a pregnancy related disability, so there was an end date on when these accommodations would be needed. And it said the job was not tied to her office desk, she was, I believe, an attorney, she could do this work from home. She had already demonstrated her ability to work remotely without an issue. Also, the court added, it was for a limited time rather than an indefinite period. Which was a contrast to the 6th Circuit's prior decision in Williams v AT&T, which was for an indefinite request to telework.
You know, a bad telework case came out of the 6th Circuit in 2015, which was EEOC v Ford Motor, where the court said essential functions included, quote, team work, meetings with suppliers, and onsite availability to participate in face to face interactions. And so with — without an analysis of whether these things could be done teleworking, or remotely.
And so it's often, like what the courts are looking at what the employers are arguing is not so much the question of the specific job duties of, you know, can you do, like, can you write your briefs, if you're a lawyer, can you do your telemarketing calls if you're a telemarketer. It's these other things about our collaborative nature of the office. And, you know, there was a famous case decision, sometime in the '90s, that said, you know, like — which was, you know, it was a decision that is preinternet, pre-you know, all this technology that w we rely on, like pre-remote log-ins to your computer. And they said, obviously we can't teleworks, that's crazy, but the court even says that maybe technology will improve later on. And this case gets cited often to say that people couldn't. And I would say as more and more, core job duties can be performed by telework, it's these reliance on things like collaboration. So what does this look like after COVID? We've seen all the technology that can facilitate remote work and collaboration that employees can point to. One colleague of mine pointed out that when we do have more return to work, there probably will still be a lot of masking, and it's a fair question about whether people are able to communicate and interact more when they're in the same room and masked, and so for sighted people, not being able to see each other's facial expressions and so on. Or, two, being on Zoom unmasked, where if you're a sighted person you can see everyone's facial expressions and interact in what we would consider a more natural way. So why is the masked in-person collaboration considered the more true interaction?
One interesting thing a colleague shared that she heard at a conference for the human resource defense bar, a lot of employers or attorneys have been advising employers to write in their sort of COVID protocols something like the following: You cannot perform all of the essential functions of your job while teleworking. However, we're allowing it for you to telework on a temporary basis due to the current COVID-19 global pandemic, because you're concerned that employees will come back and say, hey, remember that whole time period from March of 2020 until who knows when, when I teleworked for you and got these great results and this really helped me with my disability. Can I continue to do that? And they want to have their argument ready for, here's why you can't, you won't be able to perform the essential functions of your job. I think it will be interesting to see where things land. But I certainly do think that the pandemic has really shown all the multiple ways in which people can work remotely, and also a lot of the assistive technology available for people to be able to collaborate in all different ways.
Going back a little bit to the flexible schedule, another just really valuable decision to look at is the Hostettler v College of Wooster 2nd Circuit case in 2018, where the 2nd Circuit said reduced hours were reasonable where the employee completed all her work in the reduced time and completed it on time, satisfying the essential functions of the job. A lot of conservative decisions, but this is great, because it focuses on the essential functions not at — as being there from 9 to 5, but can you produce the 100 widgets that we need of you, and this person could because they worked faster than others and needed time off for medical reasons. And the 6th Circuit said you're performing the essential functions. We're not going to say that you have to have full attendance on top of that.
One issue with reasonable accommodations is that the ADA does allow employers to ask for medical notes to verify the disability and need for accommodation. And one perennial problem is that there's a sort of level of both, I'd say, not understanding in the medical world, like doctors and lawyers don't speak the same language, and doctors have their own, like, language that they'll use for medical notes. Doctors are often incredibly busy and employers are often incredibly demanding of doctors' time, requiring them to fill out a lot of paperwork that's not really necessary but the employers request. Doctors can do a lot to get their employee an accommodation when they're able to advocate for them. But the most common problem is when doctors put something in the medical note like, Miss Smith needs indefinite leave to, you know, care for her, insert medical condition here, and employers are not required to accommodate indefinite leave. And a doctor who knows how ADA lawyers think about these things will say something more like, Ms. Smith needs 30 days of leave for her medical condition, and I will reevaluate at the end of 30 days. So that there's some period and there's going to be a reevaluation, and maybe the doctor will require more leave. But they don't always. And this can get employees into trouble. I'll also say that not all my employees speak English — not all my clients speak English, and I've seen people come to me with a doctor's note that they asked — for example, I had someone who had very serious pregnancy related disabilities, and she didn't speak English, and she showed me the doctor's note. And the doctor's note, instead of saying she needed to leave for something post part um, but she needed it for baby bonding time. And it was like, what about the prescriptions and all the other stuff he signed off on for you, why would he write baby bonding time? But she didn't speak English and she didn't know, and that was a problem too.
So doctor's notes can be helpful, but they can also be very dispositive parts of the analysis. For example, in the 6th Circuit, there was a case, Horne v Night Facilities. There have just been a lot of 6th Circuit cases coming out recently, and I don't practice there, they just keep coming up and I don't know why. This is one where an employer said that an employee couldn't do essential functions, and the employee felt they could, but they already had submitted a doctor's note. And the employer's job is not to assume that their restrictions are as rigid as expressed in the doctor's note. The employer has no obligation to second guess the doctor or assume that the employee should be able to do something different than what's in the doctor's note. Similarly, when the employer — one reason that things like permanent versus temporary support, is there's been a number of ADA cases finding something that might be a reasonable accommodation in the short term may not be a reasonable accommodation permanently. So there are cases where a physician writes, you know, like a permanent restriction, even if it's just something for like 6 months, and the employer says, well, we can't accommodate that permanently, and that's what your doctor's note says.
Another case where a — where the employees believed they could do something different from the doctor's note is an 8th Circuit case against Steak and Shake, where the doctor wrote that the employee couldn't stand for long periods of time and the employee felt they fully could stand for extended periods of time.
So, the other — another important category is — so another example of a doctor's note is, so, Wulff v Sentara Health Care, 4th Circuit, 2015, the doctor checked a note saying the patient cannot lift 0-20 pounds, and there were other boxes that said, like, 0-40 pounds, and the employee couldn't lift above 10 pounds, but could lift 0 to 10 pounds. And they came back, and the employer said, we need you to lift something up to 10 pounds. And, you know, the 4th Circuit said, listen, we're going to follow your doctor's note, which said you couldn't do this essential function of listing 0-10 pounds. Your doctor could have elaborated, but didn't, so too bad, so sad kind of finding there.
Another type of essential function is various health and safety codes, and that can be an actual regulation issued by federal or state or local government. It could also be the employer's own safety protocols that may not be listed in the essential functions but can be essential. So, for example, this case just came out of the 4th Circuit, but it's relying on long standing principles like Holmes v General Dynamics, 4th Circuit in 2020, this employee could not wear these certain steel-toed shoes that were required for safety purposes. And it was undisputed that she can't wear this kind of shoe. And that, even the employee didn't dispute that this is a valid safety regulation for this kind of work. And so the court, the employer argued, listen, I've done this for so long, and I've never had any kind of foot injury. The court said that doesn't the matter. It can be a valid safety requirement. And that her request to, like, just not wear any kind of protective shoe, like wear a standard shoe, would be an accommodation. So even though the job listing, etc., did not list ability to wear steel-toed shoes or certain kind of protective footwear, this was considered to be an essential function that this employee could not do.
The other thing I want to point out is that courts have been clear that accommodations are not just for the essential functions of the position. People are entitled to accommodations for any part of your employment. This includes both marginal functions of your position, this also includes other terms and benefits of employment. So, for example, you couldn't have a nonaccessible, like, office party, even though, say, office birthday parties are not an essential function of the job, you can't, say, have it in a nonaccessible room or exclude people by failing to provide reasonable accommodations for such events.
One cautionary tale I want to talk about, coming out of, again, the 6th Circuit, is the case of Arndt v Ford Motor Company, and this is a case about a service dog, so this involved an employee with PTSD who needed his service dog. What his doctor said is that he relied on his service dog to, quote, maintain his high level of functioning by sensing tension and calming him before the tension becomes problematic. This sounds like a great reason for an employee to have a service dog. And what the employer kept writing back in this quote-unquote interactive process is, it was like stuck on the notion that the plaintiff had failed to identify what function of the job he had difficulty performing due to his PTSD. So, you know, there are all these different functions of the job, and this wasn't a specific thing, like he needed the service dog to, you know, help him, say, do X or Y or Z. It's another thing of when he's having a PTSD symptom coming on, this dog assists him and also prevents him from having any — from having the PTSD symptoms escalate. This just went back and forth. And the employee, I think, this is partially a sophistication issue, and to me, also really bad faith on the employer, is that he was not able to identify the specific job function he needed the service dog for. It was just the overall, I have PTSD, this dog helps me, quote, maintain my high level of functioning by sensing tension and calming me before the tension becomes problematic. And the employer ultimately fired him, saying you can't bring a dog unless it's a reasonable accommodation, and you haven't identified which essential function of the job you need a reasonable accommodation for. And the 6th Circuit found that the employee, the employee had broken down the interactive process by failing to identify what job functions he needed a reasonable accommodation for! So, um, a lot we can say about this, but I want to say that the following that I find really problematic in the 6th Circuit analysis. So, one is that it should be really clear that, you know, without that — you know, your overall functioning in the workplace and your ability to, say, get through the work day without having a PTSD attack or anxiety attack, or you can think of other conditions, too, like an asthma attack, is something you can get a reasonable accommodation for without identifying, say, what part of your job involves specifically breathing or not experiencing PTSD or anxiety. And, two, you know, you're entitled to accommodations for things that are not essential functions of the job. This employee provided, you know, medical documentation about their medical condition, linking it to the need for accommodation. And the, you know, the third thing is, I find it, you know, really disturbing, like I find that — ah — a disturbing part of the interactive process as currently interpreted by the courts is the allowance for things to become so technical that they often need either a doctor or a lawyer or both. And here, you know, this employee who has PTSD, I forget his exact job, but he's not, you know, like the chief chemical engineer of Ford Motors. He's a lower-level factory work er, I believe he might have gotten his PTSD while serving in combat. You know, he's trying his best to explain what he needs as an accommodation, and despite the numerous cases talking about specifically the extra efforts that employers have to make to do the interactive process with individuals with PTSD, the, you know, the court says that it's his fault that he didn't identify the job functions. And that, I think, is problematic, because I see so many employees who are caught in these loops of, like, we need additional records from your doctor, when what was provided was something that a reasonable HR person could know what's going on, and if they chose to do the right thing, they could do the right thing, instead of sending the employees back and forth to doctors, having to talk about essential functions and so on. And can almost likely have to quit, you know, like, rather than get their accommodation.
And so this, I think, is a deep problem that kind of overlays these essential functions issues, is that while, you know, the basic principle of, you know, you can do what this job requires even if you need accommodations, you can have this job is what the ADA stands for. But the way essential functions have been interpreted, while there is lots of great case law, the obstacles mounting for employees just continue to pile up. It's the, you know, the way we interpret interactive process, and the lack of obligations there, the fact that the employee is going to be the one to prove if something is not essential. The fact that we see courts continuously interpreting these cases as, you know, things that are the way you do something rather than how you do it. And this sort of, you know, rigidity of, you know, you couldn't do the essential functions, when they're small parts, and we're not going to sort of go above and beyond to say maybe this isn't really essential.
We're getting some questions in the chat, so I want to turn to those for a second.
So, we have from Dave Salman, has a question about an office birthday party accessibility. What about the accessibility of a team building event such as a rope course or escape room? What if an employee can't do one of the activities?
So, I'll start with the following: So, it's 29 CFR1630.201-3, which says that the ADA is, you know, requires employers not just to provide accommodations for essential functions, but also to provide equal benefits and privileges of employment enjoyed by those without disabilities. There has been cases on this point, actually, one ancillary area that comes up is when employees have asked for accommodation to avoid pain and the employer says, well, you have to work with your pain! We don't have to accommodate that. And courts have rejected that.
You know, the answer is that I think that the employee has the good argument that, like, team building activities should be team-building, and they shouldn't be denied access to a team-building activity that would be something that employees without disabilities can enjoy. I think it's certainly best practices for employers to take all these accommodation factors into account. I've unfortunately seen examples of pushing employees into just, you know, telling the employee that it doesn't matter if they won't be there. And I think that's really problematic. I represented someone who used a mobility device, and there was this one section of the building where there was this like amphitheater type conference room, and it was not accessible because it was upstairs, and good lord knows why they couldn't just put an elevator or ramp to get up to the room. And the employer told the employee repeatedly, it's fine because she can just call in because other people always call in from other branches, there are people calling in from New York and California, and she can call in from the second floor. And she's like, no, I want to be there, I want to network with my colleagues, it's how you get on good projects. And they were still insisting before litigation started — there were other accessibility issues there, but they were still insisting, well, we're accommodating you because you can call in. And so I think these things happen. I haven't seen a specific case addressing it as an ADA failure for like a one-time training event. I've also seen a lot of human resources guidance reminding people you have ADA obligations, you should be thinking about that in team-building events. But I'd be curious if anyone has seen any decisions out there specifically addressing the one-time thing. We have a question from John Waldo about if employers post-COVID demand that workers be present onsite, can the employer, or even other employees, require that everyone be vaccinated? If the employer requires everyone to wear masks, can those of us who lip read demand that the employer provide clear masks?
So toward the second question, I think that the clear masks would be something that the employer can demand as an accessibility issue. The issues with alternatives to masks arise when there's some level of compromise in the, you know, barrier level of the masks, so, like, face shields are considered to be less of a barrier, and so there are some extra risks of transmission. But a clear mask is not a transmission barrier, and so that certainly would be something that can be required.
The issue of vaccination is a complicated one. Employers are required to provide some kind of exceptions for, like, we believe for disabilities and certain religious exemptions. But that actually, being unvaccinated can raise certain kinds of other, like, direct threat issues with transmissions, so those individuals might be required to have other levels of masks or barriers involved, and in certain kinds of facilities, it might be a risk. I can imagine places like assisted living facilities, nursing homes, where the transmission risks caused by not being vaccinated cause complications. I think this is an area we're all going to be keeping our eye on, and I know Brian East from NILA is publishing or has published a paper on the topic, so we'll see. We have a request from Rebecca to verbally ask a question. I'm not sure if I can do that or if the host has to do that.
REBECCA: Can you hear me?
MICHAL SHINNAR: Yes, go for it.
REBECCA: Great. First, do you have written materials that could be available, because you cited a lot of cases that could be helpful. Can we get a hold of that?
MICHAL SHINNAR: Sure, I didn't submit by the deadline, but I can circulate something to the organizers of the conference who can send it out afterwards.
REBECCA: Okay, great. Also, a question, and this is maybe a broad topic, but I was wondering if you could speak as to, like, the use of experts for, you know, expert witnesses on the employee side that might be able to help speak to or analyze and then render opinions on reasonable accommodation and look at the job functions and the essential job functions and render an opinion. Do you utilize such experts, and best practices for that type of thing?
MICHAL SHINNAR: Sure, so, there are, I would say, the following issue comes up with ADA experts. First of all, there can be experts on the sort of medical side, like, the people opining about this person's medical condition, how it impacts their, you know, why this qualifies as a disability under the ADA, how it impacts them, what their restrictions would be. Sometimes someone's restrictions are in dispute, so doctors say — the employer says, you may have condition X, but you should be able to do these essential functions, and medical experts or doctors are saying, well, actually, they can't, or they could perform it this way.
One sort of interesting thing with experts is, like, the good thing about the ADA is that the inquiry is supposed to be very individualized. And so it's about YOU and YOUR disability and YOUR need for accommodation in your specific workplace. So, you know, an expert that — so, like, vocational experts can be helpful there, as long as they're tailored enough, because an expert comes in and says, overall, you know, computer programmers can do X, or nurses can do X, is useful, but isn't necessarily speaking to the specifics of that workplace and that person's job. So you want to make sure you're dealing with an expert who's actually going to be looking at the nature of that job. And so on. And sometimes that's not something that you need an expert for. Honestly, I find myself more likely to use, like, economics damages in an ADA case than a vocational job expert, unless the other side is raising that. You know, often, I'm working with my client's providing physician as opposed to some other kind of outside physician as an expert. But I think it depends on the nature of the dispute, and I also think there can be, like, sort of like technology experts brought in. So, for example, the case of can you use drones to do this job? Had litigation gone further, I think some kind of expert would have been called in to the question of, can you do this job with drones, and how? Like that 7th Circuit case about the individual who couldn't push the cart, had they raised the question of, well, let's get a mobility device for this pharmacy tech to push the cart, I think an expert would — had it not been obvious that, of course, if you look on the website, this wheelchair model can be attached to a cart of that size, that weighs X number of pounds, that might have been something where you're calling in some kind of, you know, expert involving the feasibility of doing these things. Things.
REBECCA: Okay, yeah, thank you, that is helpful. But also for a case that involves, like, a bright-line qualification standard for a job that's applied to all applicants that may be discriminatory...
MICHAL SHINNAR: Yeah, that absolutely can be. I think it's always the question of, does an expert need to opine on that? And to me, sometimes it's about whether the other side needs an expert to opine on that, then I'll use an expert too. But the ADA framework is about being individualized to this workplace and this employee and how other employees do it, so you want to focus on that and not just the generalities of a class of jobs. Also, sometimes job descriptions, like — the next thing I was going to talk about was the issue of job descriptions and essential functions. So one thing that I've been increasingly seeing, and we had a discussion in the listserv somewhat recently, is job descriptions that list lots of essential functions that are not essential functions, that are much broader than, you know, that are both like — they are not listing the what needs to get done, but instead listing the how it should be done. That are listing things that are really marginal functions of the job. And so, you know, the example that we were discussing was a law firm in DC put out an advertisement for their pro bono counsel, so, you know, something like doing public interest work at a law firm is something a number of us are familiar with, or at least know people who do. And so this law firm says, quote, while performing the duties of this job, the employee is regularly required to sit, walk, talk, and hear. The employee is frequently required to use hands to handle and feel objects, tools, and controls. The employee is occasionally required to stand, reach with hands, arms, crime, balance, stoop, kneel, crouch, and crawl. Required to occasionally lift and/or move up to 10 pounds. Specific vision abilities required by this job includes close vision, peripheral vision, ability to adjust focus to read and type documents on computer screens.
So the reason employers put these lists is because they would like the deference to their list of essential functions. They would like to overly include what might be done in this job so that if — because the ADA says, we give deference to an employer's job description. But, you know, and I will say that, for example, I am physically capable of crawling, but I would not want a job as a lawyer that required me to be, like, regularly crawling all day, separate from any reasonable accommodation issues. So the things put in here are not in service of giving a detailed description of the job. I think it's fair to give people a good look at what these jobs will look like, but let's break this down in ADA terms. Things like being able to sit, walk, talk, and hear, that's not a job function, that's a description of how somebody would do something. Somebody could sit at a computer to do this kind of work, or they could stand with a standing desk, or, you know, any number of other ways of doing it. They might need to go to meetings in different locations in the building, but they could do that via a mobility device or walking. They also might be able to, you know, conference call or Zoom call into meetings in other locations as opposed to walk to them. Again, they might need to be able to communicate, but they don't need to be able to talk or hear to do that. They can communicate in all kinds of ways, they can communicate with ASL interpreter, they can communicate with written word. The fine motor skills listed, an employee could use their computer via mouse, but they could get other kinds of adoptive technology if they are not able to do fine motor skills with a mouse.
There might be occasional, like, lifting of binders that someone might do in this job, but again, not essential. Again, the vision abilities. You know, being able to read documents might be something that needs to be accomplished, but the way you can accomplish it through typing, or voice recognition software, or reading through your eyes or e-reader or Braille. So I think what this list does is, for a sophisticated applicant to a job at a big law firm in DC, this may not weed out as many people as you might think, though I assume it will still discourage some. But I see these kinds of things in job applications for minimum within wage jobs, retail jobs, jobs that require no level of education, this really does dissuade people from applying. Even the number of people I have met who are highly educated individuals with disabilities who are not lawyers said I didn't apply to that job because I have to do X and I can't do X with my disability, not knowing that that's not necessarily how the ADA would view these things. So I think that's a problem, because there isn't really a downside to the employer, an obvious legal downside to the employer overly listing these restrictions. I know there's a general cause of action for being dissuaded from applying. I know Rachel, on the call, got a decision in the district of Illinois recently, but there was more stuff going on than just discouraging an individual from applying. And the, you know, it's another barrier to employment for individuals with disabilities, and I think it's a problematic one that we should be addressing, and I don't have an obvious solution to that in terms of, like, legal advocacy under the ADA. I know we're looking at, in where I am, in ending our local discrimination laws — in amending our local discrimination laws to include some of these things, but I think that both the way employers handle essential functions and the way courts have been handling it is always an issue to keep our eye on. And that, you know, I have a good deal of confidence that if an attorney who couldn't, you know, walk or see or hear, etc., crawl, applied to this job and was rejected for that position, they'd have a good case under the ADA. But also, I don't think that, you know, for everyone who thinks that they couldn't have applied because of that is a problem, and it's a way that we are excluding people with disabilities from the workforce. There's just a minute or two left. Does anyone have any further questions?
All right, well, I don't see anything further... I'm going to put my email in the chat in case anyone wants to contact me. I'll be sending the materials out. It's [email protected]. It was great to be here with you today, and look forward to hopefully meeting you guys in person or in some other ways being in touch! So, thank you so much for coming and have a wonderful day.