Americans With Disabilities Act Workshop

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Detailed Overview/Outline

8:00 Registration & Continental Breakfast

8:30 Update of EEOC Charges, ADATrends and the Most Common Questions from Human Resource Managers

8:45 Latest “Checklists” for Analyzing/Documenting ADA Issues

Discussion of updated checklists for supervisors, human resource personnel and attorneys to use in analyzing ADA questions in the workplace, incorporating questions considered crucial by EEOC and courts.

9:00 Who is an “Individual with a Disability”

Discussion of how federal courts have interpreted “disability” after the U.S. Supreme Court’s United Airlines and Toyota cases, difficult impairment issues such as learning disorders, migraines, depression, stress disorders, and other mental impairments, epilepsy, diabetes, back conditions, and carpal tunnel, the latest “major life activities,” how courts determine whether an impairment “substantially” limits a major life activity, including questions human resource professionals should be analyzing, how individuals show they have a “record of” a disability and why this is a rapidly growing issue, and how to train supervisors to avoid “regarding” individuals as having disabilities, including instances when an employee is encouraged to apply for long-term disability, or is referred to a doctor or employee assistance program.

10:30 Refreshment Break

10:45 Who is a “Qualified” Individual

Discussion of how courts determine whether an individual is qualified for a job, including how to analyze whether qualification standards (such as licensing requirements, work experience, or attendance standards) can be defended, analysis of “essential” functions, including whether punctuality, attendance, full-time or overtime work, the ability to handle workplace stress, lifting, shifts, and rotating tasks are essential, the danger of “inflated” performance evaluations by supervisors, the importance of doctors’ notes in determining whether an individual is qualified, and the various ways plaintiffs have explained arguably inconsistent statements since the Supreme Court’s landmark ADA case.

11:30 When Does an Individual Pose a “Direct Threat”

Discussion of how courts analyze whether an individual poses a “direct threat” in the workplace, including the U.S. Supreme Court’s Chevron case on whether “threat to the individual him/herself” is enough, cases involving non-apparent conditions such as HIV, epilepsy and mental disabilities, safety-sensitive positions, such as law enforcement and medical jobs, and whether employers can “balance” risk against harm when the harm is to the public.

12:00 Luncheon (Hosted by NELI)

1:00 Practical Reasonable Accommodation Issues

Discussion of common and practical reasonable accommodation issues in the workplace, including when an employer should proactively approach employees to discuss possible accommodations, how employers should respond to employee requests, whether a “cost/benefit” reasonableness analysis is still an available argument after the Supreme Court’s U.S. Airways decision, how to document the “interactive process,” whether/where this process is legally mandated, whether/how much “leave” is required, how “leave” under the ADA relates to FMLA leave, whether non-competitive reassignment, modifications to seniority policies, light duty, work-at-home, shift changes, parking spaces, or commuting assistance are required, whether misconduct must be excused, and undue hardship issues, including the effect of an accommodation on other employees’ ability to safely and efficiently perform their jobs, costs of the accommodation, and how to handle conflicts between reasonable accommodations and collective bargaining agreements.

2:45 Refreshment Break

3:00 Enforcing Conduct Rules

Discussion of the U.S. Supreme Court’s 2003 Raytheon case on conduct-related issues and lower court decisions and EEOC guidance concerning enforcement of conduct rules, such as rules on drugs, alcohol, violence, safety, co-worker courtesy, and tardiness, analysis of EEOC’s controversial enforcement position on conduct rules, and practical considerations concerning whether an employer should ever refer an employee with an apparent mental disability to a doctor when the employee is breaking workplace rules.

3:15 Questions and Examinations of Applicants and Employees

Analysis of recent cases concerning ADA’s restrictions on medical questions and exams, and discussion of EEOC’s latest formal and informal policies on questions and exams of employees, including fitness-for-duty exams, permissible questions when an applicant or employee requests reasonable accommodation, and confidentiality issues, including whether the ADA’s confidentiality restrictions apply to voluntarily disclosed information, whether employers should post notices of employee injuries/illnesses, whether e-mail can be used to notify co-workers of such conditions, and whether employers can lawfully solicit donated leave for employees who need additional leave.

4:00 Case Study on Reasonable Accommodation

Interactive session analyzing a practical disability-related scenario likely to arise in the workplace, including discussion of relevant evidence and documentation.

4:30 Adjourn

Instructor
David K. Fram is NELI’s Director, ADA and EEO Services. In this position, Mr. Fram conducts in-house training on the ADA and other EEO issues for employers, including manufacturers, service providers, colleges and universities, law firms and bar associations, and state and local governments, frequently pursuant to settlement agreements between parties in court or administrative proceedings. Mr. Fram provides guidance to individuals, including human resource professionals and attorneys, concerning difficult workplace situations to help resolve these issues in a manner consistent with federal law, and he assists in formulating effective strategies and arguments in on-going cases as a consulting expert. He is available to serve as a testifying expert during administrative proceedings before the EEOC, state and local EEO agencies, and federal and state courts as well. Prior to joining NELI, Mr. Fram served as Policy Attorney at the EEOC, where he helped formulate the federal guidelines implementing the ADA. He is the author of Resolving ADA Workplace Questions, the definitive ADA compliance guidebook.

Sponsor Background:
NELI is a non-profit educational organization headquartered in Denver, CO with offices in Washington D.C.

The Institute conducts seminars, briefings, conferences and other training programs, publishes, and provides related services (In house Training, Counseling, Consulting, Investigations, HR and Glass Ceiling Audits, and Expert Witness Testimony) which meet the needs of the legal and other publicity and privately formed organizations.

The Institute's activities pertain exclusively to employment law compliance , the application of the law to human resource practices, and practice and produce before administrative bodies and in state and federal courts.

NELI works closely with its National Advisory Board composed of distinguished practitioners who play an active role in planning our activities and providing our services.

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