The firm recently conducted a webinar on the new ADA Amendments Act (ADAAA) final regulations, titled "The ADAAA Final Regulations: Developing Your Rapid Response Plan." Following are frequently asked questions raised by webinar participants, related to the final ADAAA regulations.

QUESTION: How will the amended ADA affect the enforcement of attendance policies? How do you interpret FMLA versus ADA? If we've made an accommodation for an employee to be off work for a certain time frame and when they are expected to return to work they cannot, how long do we have to continue to accommodate the employee? If an employee has excessive absenteeism due to medical condition, and have used all their FMLA time, can we terminate for absenteeism?

ANSWER: A qualified employee with a disability may be entitled under the ADA to leave with job protection beyond what the FMLA requires. The EEOC has taken the position that "no fault" policies that provide for automatic termination after a specified amount of time off work are inconsistent with the "individualized analysis" requirement of the ADA, even if the length of time to automatic termination is very generous (as much as a year with pay, in one situation challenged by the EEOC).

Accordingly, to avoid risk of an ADA challenge, employers should allow employees who have exhausted FMLA leave but need additional time off work due to a condition that may qualify as a disability the opportunity to request additional leave as a reasonable accommodation. In evaluating whether additional leave is reasonable, courts have looked to factors such as how much more time the employee likely needs; the nature of the job and organization; whether the employee is expected to be able to perform all essential job functions with or without reasonable accommodation upon the return to work; whether the expected return date is reliable or uncertain (which may be evidenced by a pattern of previous extensions); and whether the employee is likely to have ongoing unplanned absences.

QUESTION: If an employee is being treated for high blood pressure, would you still need to treat him or her as disabled? If not, what happens if he or she voluntarily stops taking treatment?

ANSWER: An employee who is being successfully treated for high blood pressure may qualify as disabled under the amended ADA, because that evaluation is now made without considering "mitigating measures" such as medication. However, if the employee is being successfully treated, he may not need any accommodation to perform his essential job functions. If he does, it is his responsibility to raise the issue unless the need is obvious.

If the employee voluntarily stops taking treatment, which triggers some need for accommodation, the employer cannot refuse the accommodation simply because the need was avoidable. Employers may not require employees to follow a regimen of treatment, even if prescribed by the employee's health care provider, as a condition of engaging in the reasonable accommodation process.

QUESTION: How do you deal with an employee when the doctor's note does not substantiate a need for job modification yet the employee still refuses to do a part of the job?

ANSWER: If the employee indicates that she believes she is medically unable to perform a job responsibility, or that it is medically unsafe for her to do so, do not force her to do so. Rather, tell her that in order to evaluate whether she might be relieved of that responsibility, you need health care provider documentation verifying any work restrictions she has. Until that information is received, take interim measures such as relieving the employee of the job responsibility on a temporary basis (if feasible) or, if that is an essential job function and there is no temporary accommodation that will allow the employee to perform the job in a manner she considers medically safe, place the employee on temporary leave to allow time to work through the situation.

QUESTION: What is unreasonable? Is there a dollar amount or percent of job duties to consider?

ANSWER: Under the ADA, unreasonable is truly in the eye of the beholder, because the statute requires an individualized analysis that takes into account not only the individual's medical situation but also the nature of the job and the resources of the employer. Rejecting a requested accommodation as too expensive can invite an inquiry into how the organization is spending its funds on other priorities, so that rationale should be used with caution. There is no established percentage of job duties that may need to be reassigned as a reasonable accommodation, although common sense would dictate that employers do not have to reassign responsibilities that are a substantial part of the job.

QUESTION: We use a form on which employees requesting accommodation fill out what they need and their doctor tells us why. We then have this reviewed by an occupational nurse, who makes a recommendation as to whether the company should approve the request. If we don't approve it, does this count as a step in the interactive process?

ANSWER: Yes, I believe it would count as a step in that process. I’d recommend making sure that the employee understands why the request was denied and has an opportunity to respond. Also, if a medical need for accommodation is established, but the particular form of assistance requested is denied for business reasons, it’s important to invite the employee to suggest alternatives that might be more workable to demonstrate the sort of give-and-take the ADA contemplates. It’s also always helpful to be able to show, where possible, that the company offered some alternative to what was requested that would likely be equally effective in allowing that employee to perform all essential job functions.

QUESTION: Regarding reassignment, what if no other job is available?

ANSWER: The ADA (still) does not require employers to create positions for employees displaced from their jobs due to a disability, where no reasonable accommodation will allow them to successfully perform all essential job functions. So if, at the time someone with a disability is displaced, there is no open position for which he or she is qualified, there is no need to offer reassignment as an accommodation. Of course, if the employer knows at the time that a suitable position is just about to come open, that should be considered, but the basic evaluation is as of the time the disabled employee is displaced from his or her job.

QUESTION: What percent of increased overhead do you anticipate for companies due to ADA?

ANSWER: Hard to say, but the EEOC has estimated that the average cost of accommodation is $150, and that the overall incremental increase in the cost of accommodations attributable to the ADAAA and final regulations will be in the range of $60 million to $183 million annually, nationwide. That is just the cost of accommodation, and I believe the $150 figure used in arriving at that range is low. The agency estimated that the cost to employers of training and compliance associated with the final regulations as insignificant (without dollarizing what they consider “insignificant”).

I disagree with a number of the agency’s assumptions, but can’t really estimate how much additional cost employers will incur under the ADAAA. A lot will depend on how courts apply the final regulations.

QUESTION: Are there new forms that employee's physician will need to complete to verify a medical need?

ANSWER: Unlike with the FMLA, the EEOC has not provided any template forms for requesting verification of an impairment that substantially limits a major life activity, or a need for accommodation at work. The EEOC did acknowledge, in supplementary information accompanying the new regulations, that employers may request supporting medical information to verify a disability if the disability and/or need for accommodation are not obvious or already known.

My guess is that many employers will develop their own questionnaires or forms requesting verification of disability and a need for accommodation under the new rules. Because the ADA still requires an individualized assessment, any template questionnaire or form that an employer develops should be reviewed in each situation and tailored appropriately, to make sure it is not requesting information beyond what the employer has a legitimate need to verify. \

QUESTION: Who defines "reasonable accommodation"?

ANSWER: Ultimately, a judge or jury will. That may sound flip, but since “reasonable” is such a subjective term, it’s really in the eye of the beholder. The employer has to make its decision whether a requested accommodation poses undue hardship and then must simply be prepared to defend that conclusion. The EEOC, or eventually a judge or jury, may well take the view that the employer could have/should have done more without undue hardship, so it’s important to play devil’s advocate before denying an accommodation that is a close call.