Avoiding and Defending ADA Claims

The number of successful ADA claims is increasing rapidly.

In 2011, over 25,000 ADA charges were filed and over $100 million were recovered by charging parties. This is up from $54 million recovered in 2007. Some of the most common charges are for the following conditions: back, mental, diabetes, heart, and anxiety.

What can employers due to avoid and defend ADA claims?

Attorney Ellen McLaughlin, a partner in the Chicago office of Seyfarth Shaw, presented her recommendations at the SEAK 32nd Annual National Workers’ Compensation and Occupational Medicine Conference.

Attorney McLaughlin recommended the following:

Proactive Steps Employers Should Take Now

  • Have an accommodation process:
    • Create/revise a reasonable accommodation policy
    • Train supervisors and managers to recognize accommodation requests and handle those appropriately
    • Request for accommodation form/confirmation of accommodation request
    • Document possible accommodations considered
    • Document subsequent interactive steps
    • Document contacts with outside resources (if applicable)
    • Consider accommodation committee
    • Document employer’s decision (include reasons if request denied)
    • Communicate decision to employee, document same
    • Consider accommodation log
    • Remember:
      • Increased focus on reasonable accommodation
      • Interactive process must be an individualized assessment
      • Consistency and uniformity of approach is key
      • Documentation is critical to prove employer engaged in the interactive process and reasons for denial of reasonable accommodation (undue hardship)
      • Medical documentation requested should be tailored to the specific circumstances
      • Applicability of GINA
      • Interaction with FMLA

Food for Thought

  • Remember that the EEOC’s position is often different
  • than case law
    • But, EEOC’s enforcement agenda is clear
    • Cases are most typically filed as pattern and practice cases, with significant exposure
    • EEOC charges – red flags
    • EEOC Guidance in this area should be coming out
    • sometime in the next 12 months
    • Review policies and practices relating to leave and
    • attendance issues
    • Be vigilant about requiring detailed but narrowly tailored
    • medical information
    • Make sure HR is in the loop

Attorney Ellen McLaughlin is a partner in the Chicago office of Seyfarth Shaw LLP and former past national Chair of the Labor & Employment Law Department. Ms. McLaughlin is a frequent lecturer on a wide variety of employment and labor law topics. Ms. McLaughlin has served as a guest lecturer for the American Bar Association, National Employment Law Institute, Society for Human Resource Management, Corporate Counsel Institute, American Arbitration Association, American Hospital Association, Illinois State Chamber of Commerce, Illinois State Bar Association, Retail Industry Leaders Association, American Hospitality & Lodging Association, and Metropolitan Chicago Health Care Council. She has written extensively on employment issues and co-authored “A Client’s Guide to the ADA, FMLA and Workers’ Compensation.” She also co-authored the “The Family and Medical Leave Act” and “Employee Selection Procedures” chapters in Federal Employment Laws and Regulations and Employment Discrimination — How to Comply, both R.A. Apland publications. She also authored “Physicians and the ADA: Examining Current Policies,” Medical Staff Leader, and “Status of Staff Physicians Uncertain under the ADA”. She co-authored comments to the EEOC’s proposed regulations for the ADA as well as the ADA Amendments Act, and comments to the DOL’s proposed regulations for the FMLA on behalf of national employer coalitions. In June 2011, she was one of two management attorneys in the country invited by the EEOC to testify at a public hearing on the issue of leave as a reasonable accommodation. She speaks on a national basis on leave issues and is widely recognized as one of the nation’s foremost ADA and FMLA experts.

The SEAK 33rd Annual National Workers’ Compensation and Occupational Medicine Conference will be held on July16-18, 2013 on Cape Cod, MA.

Steven Babitsky is the conference leader.