Reply Brief — Perry Hopman, Petitioner v. Union Pacific Railroad

i

APPENDIX TABLE OF CONTENTS

Page

EEOC, Diabetes in the Workplace and the ADA .......1a

EEOC, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans

with Disabilities Act (1992) ....................................8a

Brief of the EEOC as Amicus Curiae in Support

of Plaintiff/Appellant, Gleed v. AT&T Mobility

Services, Inc. ..........................................................15a

1a

EEOC, Diabetes in the Workplace and the ADA

***

ACCOMMODATING EMPLOYEES WITH DIABETES

The ADA requires employers to provide adjustments

or modifications – called reasonable accommodations –

to enable applicants and employees with disabilities to

enjoy equal employment opportunities unless doing so

would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending

on the needs of the individual with a disability. Not all

employees with diabetes will need an accommodation

or require the same accommodations, and most of the

accommodations a person with diabetes might need

will involve little or no cost. An employer must provide

a reasonable accommodation that is needed because of

the diabetes itself, the effects of medication, or both.

For example, an employer may have to accommodate

an employee who is unable to work while learning to

manage her diabetes or adjusting to medication. An

employer, however, has no obligation to monitor an employee to make sure that she is regularly checking her

blood sugar levels, eating, or taking medication as prescribed.

10. What other types of reasonable accommodations may employees with diabetes need?

Some employees may need one or more of the following

accommodations:

•

a private area to test their blood sugar levels

or to administer insulin injections

2a

•

a place to rest until their blood sugar levels

become normal

•

breaks to eat or drink, take medication, or test

blood sugar levels

Example 6: A manufacturing plant requires employees to work an eight-hour shift with just a one-hour

break for lunch. An employee with diabetes needs to

eat several times a day to keep his blood sugar levels

from dropping too low. Absent undue hardship, the employer could accommodate the employee by allowing

him to take two 15-minute breaks each day and letting

him make up the time by coming to work 15 minutes

earlier and staying 15 minutes later.

•

leave for treatment, recuperation, or training

on managing diabetes[ ]

•

modified work schedule or shift change

Example 7: A nurse with diabetes rotated from working the 6:00 a.m. to 2:00 p.m. shift to the midnight to

8:00 a.m. shift. Her doctor wrote a note indicating that

interferences in the nurse’s sleep, eating routine, and

schedule of insulin shots were making it difficult for

her to manage her diabetes. Her employer eliminated

her midnight rotation.

•

allowing a person with diabetic neuropathy[ ]

that makes it difficult to stand for long periods of time to use a stool

•

reallocation or redistribution of marginal

tasks to another employee

3a

Example 8: A janitor, who had a leg amputated because of complications from diabetes, can perform all

of his essential job functions without accommodation

but has difficulty climbing into the attic to occasionally

change the building’s air filter. The employer likely can

reallocate this marginal function to one of the other

janitors.

•

reassignment to a vacant position when the

employee is no longer able to perform his current job

Example 9: Following complications from neuropathy

that resulted in a toe amputation, a hotel housekeeper

requests to be reassigned to a laundress position because the job would require less walking. Although the

employer does not have to “bump” another employee to

create a vacancy, it should determine whether the

housekeeper is qualified for the new position and

whether it would be an undue hardship to reassign her.

The vacant position must be equivalent in terms of pay

and status to the original job, or as close as possible if

no equivalent position exists. The position need not be

a promotion, although the employee should be able to

compete for any promotion for which she is eligible.

Although these are some examples of the types of accommodations commonly requested by employees with

diabetes, other employees may need different changes

or adjustments. Employers should ask the particular

employee requesting an accommodation what he needs

that will help him do his job. There also are extensive

public and private resources to help employers identify

4a

reasonable accommodations. For example, the website

for the Job Accommodation Network (JAN)(http://

askjan.org/media/Diabetes.html) provides information

about many types of accommodations for employees

with diabetes.

11. How does an employee with diabetes request a reasonable accommodation?

There are no “magic words” that a person has to use

when requesting a reasonable accommodation. A person simply has to tell the employer that she needs an

adjustment or change at work because of her diabetes.

A request for a reasonable accommodation also can

come from a family member, friend, health professional, or other representative on behalf of a person

with diabetes.

Example 10: A custodian tells his supervisor that he

was recently diagnosed with diabetes and needs a

week off to attend a class on how to manage the condition. If leave for this length of time and/or for this reason would not be allowed under an existing leave

policy, the employee’s request for leave is a request for

reasonable accommodation (for example, an exception

to or modification of the leave policy).

12. May an employer request documentation

when an employee who has diabetes requests a

reasonable accommodation?

Yes. An employer may request reasonable documentation where a disability or the need for reasonable accommodation is not known or obvious. An employer,

5a

however, is entitled only to documentation sufficient to

establish that the employee has diabetes and to explain why an accommodation is needed. A request for

an employee’s entire medical record, for example,

would be inappropriate as it likely would include information about conditions other than the employee’s

diabetes.[ ]

Example 11: When an employee asks for one week of

unpaid leave to attend a class on how to manage his

recently diagnosed diabetes, his employer asks for a

letter from the employee’s doctor. The employee submits a letter from his endocrinologist stating that the

employee has been diagnosed with Type 2 diabetes and

that the one-week class will teach him how to monitor

his blood glucose levels, administer insulin injections,

and plan his meals. The doctor’s letter is sufficient to

demonstrate that the employee has a disability and

needs the requested reasonable accommodation. If the

employee makes a subsequent accommodation request

related to his diabetes (for example, asks for a shift

change) and the need for accommodation is not obvious, the employer may ask for documentation explaining why the new accommodation is needed but may not

ask for documentation concerning his diabetes diagnosis.

13. Does an employer have to grant every request for a reasonable accommodation?

No. An employer does not have to provide an accommodation if doing so will be an undue hardship. Undue hardship means that providing the reasonable

6a

accommodation will result in significant difficulty or

expense. An employer also does not have to eliminate

an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its

standards, or excuse violations of conduct rules that

are job-related and consistent with business necessity

and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property).

If more than one accommodation will be effective, the

employee’s preference should be given primary consideration, although the employer is not required to

provide the employee’s first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide

an easier or less costly accommodation as long as it is

effective in meeting the employee’s needs.

14. May an employer be required to provide

more than one accommodation for the same employee with diabetes?

Yes. The duty to provide a reasonable accommodation

is an ongoing one. Although some employees with diabetes may require only one reasonable accommodation,

others may need more than one. For example, an employee with diabetes may require leave to attend a

class on how to administer insulin injections and later

may request a part-time or modified schedule to better

control his glucose levels. An employer must consider

each request for a reasonable accommodation and

7a

determine whether it would be effective and whether

providing it would pose an undue hardship.

15. May an employer automatically deny a request for leave from someone with diabetes because the employee cannot specify an exact date

of return?

No. Granting leave to an employee who is unable to

provide a fixed date of return may be a reasonable accommodation. Although diabetes can be successfully

treated, some individuals experience serious complications that may be unpredictable and do not permit exact timetables. An employee requesting leave because

of diabetes or resulting complications (for example, a

foot or toe amputation), therefore, may be able to provide only an approximate date of return (e.g., “in six to

eight weeks,” “in about three months”). In such situations, or in situations in which a return date must be

postponed because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their

progress and discuss the need for continued leave beyond what originally was granted. The employer also

has the right to require that the employee provide periodic updates on his condition and possible date of return. After receiving these updates, the employer may

reevaluate whether continued leave constitutes an undue hardship.

8a

EEOC, Technical Assistance Manual on the

Employment Provisions (Title I) of the Americans

with Disabilities Act (1992)

***

III.

The Reasonable Accommodation Obligation

3.1

Overview of Legal Obligations

***

•

The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any

time that a person’s disability or job changes.

***

3.3

What Is A Reasonable Accommodation

Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things

usually are done that enables a qualified individual

with a disability to enjoy an equal employment opportunity. An equal employment opportunity means an

opportunity to attain the same level of performance or

to enjoy equal benefits and privileges of employment

as are available to an average similarly-situated employee without a disability.

***

Accommodations to Ensure Equal Benefits of

Employment

Reasonable accommodations must be provided to enable an employee with a disability to enjoy benefits and

9a

privileges of employment equal to those enjoyed by

similarly situated non-disabled employees.

For example: Employees with disabilities must have

equal access to lunchrooms, employee lounges, rest

rooms, meeting rooms, and other employer-provided or

sponsored services such as health programs, transportation, and social events.

(See Chapter VII for further discussion of this requirement).

***

3.5 Some Examples of Reasonable Accommodation

The statute and EEOC’s regulations provide examples

of common types of reasonable accommodation that an

employer may be required to provide, but many other

accommodations may be appropriate for particular situations. Accommodations may include:

•

making facilities readily accessible to and usable by an individual with a disability;

•

restructuring a job by reallocating or redistributing marginal job functions;

•

altering when or how an essential job function

is performed;

•

part-time or modified work schedules;

•

obtaining or modifying equipment or devices;

•

modifying examinations, training materials

or policies;

•

providing qualified readers and interpreters;

10a

•

reassignment to a vacant position;

•

permitting use of accrued paid leave or unpaid leave for necessary treatment;

•

providing reserved parking for a person with

a mobility impairment; and

•

allowing an employee to provide equipment or

devices that an employer is not required to

provide.

3.10

Examples of Reasonable Accommodations

***

3.

Modified Work Schedules

***

Some examples of modified work schedules as a reasonable accommodation:

•

An accountant with a mental disability required two hours off, twice weekly, for sessions

with a psychiatrist. He was permitted to take

longer lunch breaks and to make up the time

by working later on those days.

•

A machinist has diabetes and must follow a

strict schedule to keep blood sugar levels stable. She must eat on a regular schedule and

take insulin at set times each day. This means

that she cannot work the normal shift rotations for machinists. As an accommodation,

she is assigned to one shift on a permanent

basis.

•

An employee who needs kidney dialysis treatment is unable to work on two days because

11a

his treatment is only available during work

hours on weekdays. Depending on the nature

of his work and the nature of the employer’s

operation, it may be possible, without causing

an undue hardship, for him to work Saturday

and Sunday in place of the two weekdays, to

perform work assignments at home on the

weekend, or to work three days a week as

part-time employee.

People whose disabilities may need modified work

schedules include those who require special medical

treatment for their disability (such as cancer patients,

people who have AIDS, or people with mental illness);

people who need rest periods (including some people

who have multiple sclerosis, cancer, diabetes, respiratory conditions, or mental illness); people whose disabilities (such as diabetes) are affected by eating or

sleeping schedules; and people with mobility and other

impairments who find it difficult to use public transportation during peak hours, or who must depend upon

special para-transit schedules.

4.

Flexible Leave Policies

Flexible leave policies should be considered as a reasonable accommodation when people with disabilities

require time off from work because of their disability.

An employer is not required to provide additional paid

leave as an accommodation, but should consider allowing use of accrued leave, advanced leave, or leave

without pay, where this will not cause an undue hardship.

12a

People with disabilities may require special leave for a

number of reasons related to their disability, such as:

•

medical treatment related to the disability;

•

repair of a prosthesis or equipment;

•

temporary adverse conditions in the work environment (for example, an air-conditioning

breakdown causing temperature above 85 degrees could seriously harm the condition of a

person with multiple sclerosis);

•

training in the use of an assistive device or a

dog guide. (However, if an assistive device is

used at work and provided as a reasonable accommodation, and if other employees receive

training during work hours, the disabled employee should receive training on this device

during work hours, without need to take

leave.)

***

6. Acquisition or Modification of Equipment

and Devices

***

•

In some cases, it may be a reasonable accommodation to allow an applicant or employee to

provide and use equipment that an employer

would not be obligated to provide.

•

For example: It would be a reasonable accommodation to allow an individual with a visual

disability to provide his own guide dog.

***

13a

7. Adjusting and Modifying Examination, Training Materials, and Policies

***

c.

Other Policies

Adjustments to various existing policies may be necessary to provide reasonable accommodation. As discussed above (see 3.10.3 and 3.10.4), modifications to

existing leave policies and regular work hours may be

required as accommodations. Or, for example, a company may need to modify a policy prohibiting animals

in the work place, so that a visually impaired person

can use a guide dog.

VII. NONDISCRIMINATION IN

OTHER EMPLOYMENT PRACTICES

***

7.10

Leave

•

An employer may establish attendance and

leave policies that are uniformly applied to all

employees, regardless of disability, but may

not refuse leave needed by an employee with

a disability if other employees get such leave.

•

An employer may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to

provide additional paid leave, but accommodations may include leave flexibility and unpaid leave. (See Chapter III.)

•

A uniformly applied leave policy does not violate the ADA because it has a more severe

effect on an individual because of his/her

14a

disability. However, if an individual with a

disability requests a modification of such a

policy as a reasonable accommodation, an employer may be required to provide it, unless it

would impose an undue hardship.

For example: If an employer has a policy providing 2

weeks paid leave for all employees, with no other provision for sick leave and a “no leave” policy for the first

6 months of employment, an employee with a disability

who cannot get leave for needed medical treatment

could not successfully charge that the employer’s policy is discriminatory on its face. However, this individual could request leave without pay or advance leave

as a reasonable accommodation. Such leave should be

provided, unless the employer can show undue hardship: For example, an employer might be able to show

that it is necessary for the operation of the business

that this employee be available for the time period

when leave is requested.

15a

Brief of the EEOC as Amiens Curiae in Support

of Plaintiff/Appellant, Gleed v. AT&T Mobility

Services, Inc., pp. 16-18

Although working without pain or the risk of exacerbating a medical condition is not precisely a

“privilege” or “benefit” of employment (as those terms

normally connote something additional that an employer provides to its employees), working in pain certainly affects the conditions of one’s employment. The

benefit/privilege provision in the statute and regulation makes the broader point that the accommodation

requirement is not as limited as the district court held.

This Court has embraced this broader understanding

of the accommodation requirement, noting that the

“reasonable accommodations” requirement extends

beyond essential job functions, as that term may include workplace “ ‘[m]odifications or adjustments that

enable a covered entity’s employee with a disability

to enjoy equal benefits and privileges of employment. . . .’ ” Kiphart v. Saturn Corp., 251 F.3d 573, 586

(6th Cir. 2001) (quoting 29 C.F.R. § 1630.2(o)(1)). See

also Curry v. Empire Berol, USA, 1998 WL 13407, at *4

(6th Cir. Jan. 7, 1998) (same).

Other courts of appeals, and district courts, likewise have held that an employer’s obligation to provide

reasonable accommodation extends to more than essential job functions. See, e.g., Feist v. La. Dep’t of

Justice, 730 F.3d 450, 453-54 (5th Cir. 2013) (holding

that “the district court erred in requiring a nexus between the requested accommodation and the essential functions of Feist’s position” because reasonable

16a

accommodations are not restricted to modifications

that enable performance of essential job functions);

Sanchez v. Vilsack, 695 F.3d 1174, 1180-81 (10th Cir.

2012) (holding that employer must provide transfer as

a reasonable accommodation to employee who needed

it to obtain medical therapy, even though employee

could perform essential job functions without transfer) (Rehabilitation Act case);5 Buckingham v. United

States, 998 F.2d 735, 741 (9th Cir. 1993) (employee who

is able to perform essential job functions may nonetheless be entitled to reasonable accommodation of a

transfer so he can receive better medical treatment)

(Rehabilitation Act case); see also Fedro v. Reno, 21

F.3d 1391, 1395-96 (7th Cir. 1994) (Rehabilitation Act

may require accommodation for employees to pursue

therapy or treatment for their handicap or enjoy the

privileges and benefits of employment equal to those

enjoyed by non-handicapped employee); Jacques v.

Clean-Up Group, Inc., 96 F.3d 506, 515 n. 9 (1st Cir.

1996) (same under ADA); Nawrot v. CPC Int’l, 259

F. Supp. 2d 716, 726 (N.D. Ill. 2003) (accommodation

obligation under the ADA includes removing barriers

that prevent individuals with disabilities from obtaining medical treatment). Therefore, regardless of

whether Gleed needed an accommodation to perform

his essential job functions, AT&T’s accommodation obligation included making modifications or adjustments

that would enable him to avoid aggravating his pain or

other symptoms of his disability while working.