THE ADA

WHERE ARE WE NOW?

Tulsa Equal Employment

Opportunity Coordinators Association

April 7, 2010

Presented By:

Thomas D. Robertson
BARROW & GRIMM, P.C.
110 West 7th Street, Suite 900
Tulsa, Oklahoma 74119
(918) 584-1600
robertson@barrowgrimm.com
 PROBLEM 1

Your company’s President went to a business lunch last week where

someone mentioned that the ADA got amended and probably covers a lot
more people. He asks you what the ADA is, and then tells you to review
the office workforce and let him know if there are any employees potentially
covered by this newly-changed ADA.

Because you took out an adjustable rate mortgage five years ago and
are paying 21% interest on you & your spouse’s palatial home in South
Tulsa, you snap to on this project. These three individuals are current
employees, but you are not sure whether they would be considered a
qualified individual with a disability under the new law. What do you tell the
President on each of these?

1. Your assistant, Alice Achy, has arthritis which makes it difficult for her
to do certain tasks. She seems to have the most trouble reaching for
the shelves above her desk where you store the notebooks with
critical information. She can do it, but it causes pain in her shoulder.

2. Arthur Add, an expediter in the office, is well meaning and works hard
to accomplish his job. He sometimes has trouble concentrating on
his work and sometimes leaves one project undone while moving on
to another. You once heard him talking to a coworker about having
trouble concentrating “when he forgets his medicine.”

3. David Details is an engineer for your company, and he is a typical

detail-oriented engineer. He does excellent work, but can’t work on a
team as he simply cannot relate to others. His personality is such
that he can’t interact well with other employees, and has to be
generally left alone.
 PROBLEM 2

Returning from work after your vacation, you find a few problems
needing your attention. Upon seeing what awaits you, you vow to never
again go on vacation.

Your assistant denied a leave request for an employee, Ilene

Injection, to attend a one week training program on managing diabetes.
Ilene has made no secret of her condition, but it has never been an issue at
work. Ilene has excellent attendance, has always worked the hours
requested even if overtime was involved, and has managed her blood
sugar well so that it has never interfered with work. Ilene’s doctor
recommended that she go to this seminar so she could stay up on the
latest developments in diabetes management, and avoid problems. Your
assistant tells you that Ilene did not have any paid time off accumulated,
and she didn’t think the company had to go any farther than that as Ilene
was clearly not handicapped or disabled, so no issue of accommodation
was in play.

One of your supervisors has conducted a ‘Reduction in Force’

consisting of one employee. Upon questioning the supervisor you learn
that he laid off an individual who had recently had a motorcycle accident.
The accident caused a very severe broken arm, but the employee had
apparently recovered and returned to work without restrictions. The
foreman explained to you that he knew this individual would have trouble
later on, as his Uncle had experienced a similar broken arm, and later in life
it caused him severe pain and substantially reduced arm strength and
range of motion. Your supervisor explained that he wanted to act before
the condition got bad, to avoid trouble later.
 PROBLEM 3

An employee approaches you with a request for a job transfer. He is

currently working as a Customer Service Representative for you, and that
is an extremely high-stress position. CSRs are on the telephone most of
the day, dealing with customers who call to complain about some aspect of
the company’s products. The CSRs have to deal with irate people all day
long and it’s a tough job which requires patience and a thick skin.

The employee shares with you that recently he has developed

heartburn after 3 or 4 hours on the job. He has tried everything he can
think of to help it – he has changed his diet to eat mainly bland foods, has
taken every over-the-counter medication which is supposed to relieve
heartburn, and has even begun meditation where he breaths deeply and
goes to his happy place when he starts to feel stress. None of it is working,
and he thinks he needs another job.

You are caught in a quandary as your spouse has just experienced

the same symptoms, and the “heartburn” turned out to be blocked arteries.
He had to have heart surgery to install several bypasses and stents. You
know the cost of that hospital stay was over $90,000.00, and that your
current insurer would probably refuse to renew your insurance or double
your rates if your company had another $90,000.00 claim. Also, the only
other positions the employee is qualified to perform is filled, so you’d have
to involuntarily move someone else, or pay to retrain the CSR for some
other job. You conclude that you need to terminate this employee before
the heart attack which is coming. Do you have any ADA concerns?