Workplace Strategies Watercooler 2025: Top Complex ADA Issues

Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Sheri Giger: Hi, I’m Sheri Giger from the Pittsburgh Ogletree Deakins office, and I am here with my esteemed colleagues, Charles Thompson from San Francisco, Jamie Ashton from Dallas, and Mike Riccobono from Morristown. We are here in Las Vegas, and we have just finished a three-hour in-depth session on the most complex issues, or some of them, under the ADA. So, let’s start. So, Jamie, you had talked about the interactive process, so why don’t you give us a summary of what you talked about?

Jamie Ashton: Awesome. Yes, excited to be here. We had a great session, and I think that we got the most questions from this topic, so I’m happy to go over them. I’m going to cover some of the common mistakes that employers make during the interactive process. The first one is the failure to recognize that the employee requested an accommodation. The key here is that there are no magic words required under the ADA to signal that the employee needs an accommodation to perform the essential functions of their job. While it’s the burden of the employee to make the accommodation request, they can do so in numerous different ways. For example, they can provide a doctor’s note saying that they need leave for a surgery, or they can just tell their supervisor, “Hey, I threw my back out. I’m unable to stand or sit or do whatever workplace requirement that there is.” So, we just want to make sure our folks understand to look out for those accommodation requests.
The next one is requesting too much medical information or not enough from the employee. So, we want to make sure that we’re getting just enough information to understand the employee’s restrictions and limitations and timeframe for the accommodation. We’re not looking for a full medical history here. That’s not something that we need or want, and we want to make sure that whatever medical information we get, we keep strictly confidential.
Another common mistake, failure to make an individualized assessment. The ADA requires us to make a case-by-case assessment about what kind of accommodations employees need based on their individualized needs. So, we can’t just make blanket forms or blanket assessments. We have to conduct it in an individualized manner.
The next common mistake, failure to ensure mutuality of the conversation. I cannot tell you how many times I get calls from clients, and they tell me about an ADA scenario, and I ask them, “Well, what did the employee say?” And they said, “Oh, I didn’t speak to the employee.” Speaking to the employee is such a critical key, significant, any other word you want to describe for very, very important part of the interactive process, we cannot skip over it. We want to hear what does the employee think? What kind of accommodations does the employee think that they need?
The next common mistake, denying an accommodation request because we have never made that accommodation before. That is not a reason to deny an accommodation request. We need to be creative. We need to think outside of the box and come up with different options for accommodations that we can provide employees. And we need to do an assessment of whether or not we can provide accommodations that allow the employee to perform the essential functions of their job by actually reviewing what those essential functions are and how long the limitation that they need is.
The next common mistake is denying an accommodation because we don’t want to create a slippery slope. We cannot use assumptions or conclusions that are not grounded in fact in order to make an accommodation decision. We have to once again look at this in an individualized manner.
The next common mistake, and this one is super important, failure to document the accommodation decision or the interactive process. We have got to remember to document when the employee makes a request. Every time we talk to the employee and go through the interactive process, we want to take credit for all of the hard work we are doing and going through the interactive process and accommodating the employee. And we can’t do that if we don’t have the proper documentation supporting our decision or our engagement in the process.
And then the last common mistake I’m going to mention is accommodating by removing essential functions. The ADA does not require employers to remove an essential function of the employee’s job as an accommodation. While we can remove marginal job functions, we don’t have to remove essential ones. And once we start doing that, we’re in one, setting a precedent that we’re going to be doing that in the future, and two, we’re now making the argument that an essential function may not necessarily be an essential function of the job.

Sheri Giger: That was a great in-depth analysis of common mistakes, and I know that the audience loved it and asked a ton of questions. So, thank you for summarizing those for us now. So, Charles, I think we should talk about undue hardship. What are your thoughts?

Charles Thompson: Here are my thoughts. So, let’s divide this up, Sheri, because you and I both spoke about this, into financial costs and operational costs.

Sheri Giger: I like it.

Charles Thompson: If I’m an employer and you spoke about financial costs, how much attention do you think, or rather, let’s put it this way, how successful do you think most employers are going to be with making the argument that, “Hey, this just costs me too much financially and therefore it’s an undue hardship in order to institute this accommodation”?

Sheri Giger: So, if that’s the leading factor of undue hardship, then employers will have a hard time showing that cost is truly an undue hardship.

Charles Thompson: Why do you say that?

Sheri Giger: Well, there’s a few factors going on here, a few considerations. One is it’s not just the cost of perhaps an employee being out and maybe having to bring a temp person in, or maybe that goes against the budget of the department. Ultimately, the entire financial situation of the employer will be looked at and reviewed. And depending on the size of the employer, that’s really hard to show that one accommodation, maybe an undue hardship based on cost.

Charles Thompson: And why is that? I mean, are they going to look at, I guess it’s the bigger the employer, the court’s not going to limit it just to that particular department.

Sheri Giger: Correct. They won’t limit it to the department or the branch or location. They could kind of go up the corporate work chart and look at the entire organization as a whole, which the bigger you are, the harder it’s going to be to show that one accommodation is going to be unduly costly.

Charles Thompson: And if the employer relies on costs, hard costs, is the employer risking that the other side could force open and get a look at the employer’s financial books?

Sheri Giger: Well, yes. If we have to show that it’s an undue hardship, and you know what evidence is there? Well, let’s look at the books. What are the actual costs?

Charles Thompson: Right. And look, you managed to spend $200,000 a year on, I don’t know, gym memberships for the executives or-

Sheri Giger: Golf outings.

Charles Thompson: … golf outings, et cetera,

Sheri Giger: Or something similar.

Charles Thompson: Right, right.

Sheri Giger: So, I think cost typically would not be the leading factor from a best practice. But what would be examples of undue hardship maybe from an operational standpoint, Charles?

Charles Thompson: Yeah, I think that that’s where the employer needs to make his stand, because that’s what courts are looking for. What are the operational costs of the accommodation for which the employee is asking? So, you and I get these in all the leave questions all the time. So let’s use leave as an example in operational costs. So, if you are the employer, give me a couple of things that you’d be looking at to establish operational undue hardship.

Sheri Giger: Well, a few things in the context of leave. One would be what is the impact on other employees? So, for example, are we having to deny other employees from taking PTO or a vacation? Are we having to mandate overtime so as to unduly disrupt other employees’ schedules when mandated overtime has never been part of the equation?

Charles Thompson: Right, right, but it’s not overtime because of the cost of the overtime, right?

Sheri Giger: Correct. Or of the schedule and impact on other employees. All of a sudden, do they have to start working weekends when we’ve never had to come in weekends to catch up on anything?

Charles Thompson: Or are they able to take PTO to take some time off?

Sheri Giger: Correct. They may not be able to take PTO. Another consideration would be, for example, what’s happening with customer service? Are we truly delaying meeting targets that customers expect so that we have a longer turnaround time, or there all of a sudden are customer complaints because we can’t get the product or the service to the customer on time?

Charles Thompson: So, is the leave causing exactly as you say, an impact on customer service? Is it causing an impact on internal projects not getting done? Because, so for example, the supervisor has to do not only the supervisor’s work, but also the employee who’s missing, right? If this is, for example, a sales force and you have the regional director having to go check on the stores that a particular salesperson is supposed to be working on, and the regional person doesn’t have time to do performance improvement reviews, pips, or performance reviews, et cetera. So, I think that if you’re going to be successful, you need to show operational costs and you need to be specific about those costs.

Sheri Giger: And I think that the more operational effects that hurt operational effectiveness there are, then there’s stronger the position that there is an undue hardship. One thing, Charles, do you, I know what you think, but I’m going to ask you the question anyway.

Charles Thompson: Now I’m concerned.

Sheri Giger: So oftentimes we hear that, “Well, employee morale will suffer because of that if we provide this undue hardship.”

Charles Thompson: Employee morale is not enough.

Sheri Giger: Correct.

Charles Thompson: All right? And you can’t just say employee morale. What you need to do is show what likely is affecting employee morale, such as, you and I have already talked about, they can’t get any time off. They can’t go about their lives, right? So anyway, you know that we cover both of those things during the session. Mike, do you want to talk a little bit about hidden disabilities, please?

Mike Riccobono: Thanks, Charles. Yeah. One of the things we spent some significant time talking about were these hidden disabilities or conditions that are not readily apparent to others. This can include things like learning disabilities such as dyslexia and ADHD, mental health disorders such as anxiety, depression and bipolar disorder, chronic health conditions such as diabetes, asthma, or Crohn’s disease, and then cognitive impairments such as dementia and traumatic brain injury. We’ve seen in recent years is these conditions, these disabilities becoming more prevalent in the workplace. More employees are coming forward to share that they have these disabilities and then requesting accommodations because of those disabilities.
Something else that we’ve also seen is that despite the fact that I think society in general has made great strides to recognize mental health issues and support those who have those types of conditions, there still does remain a stigma around mental health. And so, for that reason, what we find is there are some employees that are fearful of coming forward and sharing with their employer what condition they have. Oftentimes, that’s sometimes motivated by the idea by the employee that the employer will be suspicious of that fact again, because it’s not something that’s readily apparent, something that can’t be seen directly as would be the case with a physical disability in many instances.
Nonetheless, these mental health issues are creating a number of workplace issues for employers. First and foremost, it’s leading to legal claims. We’re seeing an increase in disability discrimination, failure to accommodate, failure to engage in the interactive process, and also retaliation claims for requesting medical leave. We’ve also seen this have a significant effect on employees’ attendance and also their performance at the workplace.
One of the questions that was brought up is to what extent can an employee essentially rely upon or use their mental health issues or illnesses and the symptoms that may arise from them as an excuse for their performance issues? Well, fortunately, the EEOC and the ADA is very clear in saying that employers can hold employees with disabilities including mental health issues to the same performance and production standards as employees without disabilities in the same job. So, you’re not required to lower or change a production standard because of an employee’s disabilities or their symptoms. But, and this is a big but, you may be required to provide assistance to that employee in meeting a specific production standard. So don’t lose sight of the fact that just because an employee is using a symptom or mental health illness as a reason for why they’re not performing at the same level as a reason for you to take disciplinary action against them or fail to accommodate them in performing the essential functions of the job.
Another issue that’s come up recently is, especially with mental health illness issues, is when an employee’s mental health poses a direct threat to the safety or health of themselves or other, the ADA does permit an employer to require that an employee not pose a direct threat to the health and safety of them or others. Direct threat is defined as a significant risk of substantial harm to the health or safety of the individual or others, which cannot be either eliminated or reduced by a reasonable accommodation. The key here for employers is when making a direct threat assessment or determination that it’s based on objective, individualized, and fact-based assessment and not based on suspicions or theories about the employee’s mental health and what effect it may have on the workplace in general.
In that regard, there are a couple factors that an employer can use to decide or evaluate When an employee’s mental health does pose a direct threat. There’s four factors. The first is the duration. So, a risk that is temporary may not be a direct threat versus a long-lasting or persistent condition. You also are supposed to consider the nature and severity. So, you consider there the type of harm that could occur and how serious it would be if it happened. The third factor is the likelihood of harm. A risk that is highly probable would be considered obviously more serious than a risk that is only a remote possibility. And then finally, we’re supposed to look at the imminence of the harm. Consider how soon the harm could occur. So those are the guidelines an employer should look at when considering whether an employee poses a direct threat.
We also talked about the importance of job descriptions. Why are job descriptions so important? They’re important because they are supposed to set forth the essential functions of the job. And when you’re evaluating whether a proposed accommodation is in fact reasonable and/or whether it poses an undue hardship to the employer, the first document and probably the best document to look at is the job description. So if you’re not listing there the essential functions of the job, it’ll be difficult for you to deny a request for a reasonable accommodation on that basis. So, make sure your job descriptions do set forth not only the requirements for the position, but also what the essential functions of the job should be.
Lastly, we talked about the use of service animals in the workplace. That is something that employees with mental health conditions are frequently using. The types of service animals that can be used most frequently are dogs. There are psychiatric service dogs. There are seizure alert dogs. And there’s also sensory signal dogs who assist autistic individuals with sensory overload. The ADA does require that employers allow service animals in the workplace, but it does distinguish service animals from emotional support animals. Emotional support animals are those that simply provide comfort just by being with a person. They’re not trained, the dog is not trained, or the animal is not trained to perform a specific task that’s related to the person’s disability. A service animal, in contrast, is an animal that has been individually trained to do work or perform tasks for an individual with a disability. And the task performed by the animal must be directly related to the person’s disability. So those are possible accommodations that an employer should be aware of as well.

Sheri Giger: Mike, I think that the topic of hidden disabilities is so important these days, and you highlighting that information was really valuable to the audience, and it will continue to be an important topic. But I want to ask Charles a few questions. So, Charles, getting back to-

Charles Thompson: Are these personal or professional?

Sheri Giger: Oh, purely professional. How much leave is too much, Charles? Is FMLA enough?

Charles Thompson: FMLA is not enough. And as you and I both spoke about earlier today, you and I get this question, we all get this question all the time. It’s like, how much is too much? Is this enough? Could you just give me a bright line that I can follow? And generally, we can’t. We can give you the different parameters, but it’s more difficult to give you a bright line as to when too much is too much. We know that FMLA is not enough. So, just because you’ve given all the FMLA they have available does not mean you’ve satisfied your duty to provide additional leave as a reasonable accommodation. In fact, in California, at the end of FMLA or California Family Rights Act, you have to engage in the interactive process with the employee to determine if more leave is needed. So, FMLA is not enough. What about inflexible leave policies? And maybe you could tell us what those are.

Sheri Giger: Right. So, many employers choose to have kind of a non-FMLA medical leave of absence policy. I call those MLOAs and-

Charles Thompson: Wait, wait. What does MLOA stand for?

Sheri Giger: Medical Leave of Absence policy.

Charles Thompson: Sorry, I did not spell it correctly in my mind. Sorry.

Sheri Giger: Non-FMLA, Medical Leave of Absence or MLOAs. So, these are policies that we see that an employer may provide medical leave for an employee’s own condition that may have a time period involved. And this is when an employee is not eligible for FMLA. So maybe 30 days or 60 days or even 90 days. And I think the key is, I know the key is that you cannot use those policies as automatic cutoffs. That, once you’ve exhausted that time period under those policies, then you cannot simply terminate. But what do you need to do, Charles? Continue to engage in the interactive process.

Charles Thompson: I really like it when you ask me the question, and then answer it right after.

Sheri Giger: I know, I can’t help myself.

Charles Thompson: Thank you.

Sheri Giger: Sorry.

Charles Thompson: No, that is true. Sometimes you can’t help yourself. So, I think one of the things you need to do is look at what jurisdiction are you in? Because different courts have had different standards. For example, the Tenth Circuit, for example, there’s a case that said that a leave of absence in more than six months is per se unreasonable. And to me that is different from what, in California, we would judge it on a case-by-case basis.

Sheri Giger: And I think that’s the general rule. And it’s interesting to see what courts have different opinions on this topic.

Charles Thompson: Yeah. So, let’s go to one final topic: indefinite leave. So, we know that 12 weeks is not enough, but what about indefinite leave? What’s the issue with indefinite leave, and how do you define indefinite leave?

Sheri Giger: I mean, we know what the EEOC’s position is on this, which is indefinite leave is really not reasonable under the ADA. And while there are select jurisdictions where the analysis may be a bit different, you’re right. Well, how do we know it’s indefinite, right? So, it could be indefinite when there really is no known return-to-work date or anticipated return to work date, which we can get information from a healthcare provider of the employee on that. But there’s also the concept of, there’s a lot of extensions of leave going on here, but is there a bright line there, Charles?

Charles Thompson: No, there’s no bright line. But what you’re trying to establish is that every time, right, three days before the one-month leave is up, that you get another doctor’s note, and then you get another doctor’s note and then you get another doctor’s note. So, that indicates to me that this leave is going on forever.

Sheri Giger: So, it’s almost like the multiple extensions are almost transforming the need for leave to indefinite in nature.

Charles Thompson: That is right. And then you look at the impact on the operations of the indefinite leave, and you start thinking to yourself about whether this is undue hardship. I mean, there are a lot of different factors there, but I think that what you and I did agree on is that we cannot accept in limited circumstances, give people or provide, I don’t know, what I’m going to call a brightline rule, which is incredibly frustrating for employers and for us.

Sheri Giger: Absolutely. It’s always a gray area. It’s case by case, and part of it is a risk analysis of course, too. So, that wraps up a very general overview of what we discussed during our three-hour session with a great audience who had great questions. And I thank you, Mike and Jamie and Charles, for being part of all of the team. And I think it’s time for us to have this as a happy memory and enjoy Las Vegas.

Announcer: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.