A well-qualified applicant applies for a job at a nonprofit and lands an in-person interview. The applicant explains that their service dog will accompany them. The hiring manager is left with questions: Does the manager have to agree? Does this entail agreeing to permit the service dog in the workplace if the applicant is hired? Can the manager ask the applicant about the service dog in the interview? The manager just doesn’t know how to handle the situation, reasoning that avoidance is the least risky approach.

The applicant gets a lukewarm interview while the hiring manager stares uncomfortably at the service dog. The candidate with the service dog is deemed “not a good fit.”

Or, the interview is canceled. A different applicant receives a job offer. The hiring manager doesn’t believe the approach is discriminatory. But this dynamic clearly contributes to barriers to employment for individuals with disabilities.

A Critical Aspect of Equity

A 2017 study shows that when three applicants with identical qualifications applied for the same job, the applicants who disclosed a disability were 26% less likely to receive interest from employers.[1] In addition, data suggests that applicants with physical disabilities tend to receive higher ratings than similarly-qualified applicants with cognitive or emotional disabilities.[2]

When an applicant has a disability, hiring managers are afraid to say or do the wrong thing and expose the nonprofit to liability. Everyone’s afraid of getting sued. And while no one really wants to admit it, many people are still very uncomfortable talking about disabilities. By learning more about how to navigate disability issues in the hiring process, nonprofits will reduce their risk and open their hiring pool to well-qualified candidates who are often overlooked.

A Level Playing Field

In addition to being a critical aspect of equity (and haven’t we all been working on equity lately?), making accommodations for applicants with disabilities is required under the Americans with Disabilities Act (ADA).[3] Many state laws also protect applicants from discrimination based on disability and may have a lower employee threshold.[4] The ADA, which covers employers with 15 or more employees, requires that employers make reasonable accommodations for applicants or employees unless it would cause an undue hardship. These protections extend to not just responding to individual requests for accommodations, but also to structuring a hiring process in which qualification standards don’t negatively impact individuals with disabilities. So, a better-to-do-nothing approach actually increases an employer’s liability.

Almost always, a little flexibility is all that is necessary. There’s a difference between treating every applicant the same (meaning precisely identical circumstances) and offering a level playing field for evaluating applicants. The conditions of an interview can change without negatively impacting the nonprofit’s ability to evaluate all applicants fairly. Just like moving an in-person interview to an accessible location will not impact the interviewers’ ability to assess the applicant fairly, a service animal in the room will not impact the assessment of skills, experience, and education.

Tips on Handling Accommodation Requests During the Hiring Process

Nonprofits can boost their confidence in handling accommodation requests during the hiring process by following a few simple steps:

• Unless the request is wildly onerous, do your best to accommodate it. An applicant who is immunocompromised may request a virtual interview, and someone with limited mobility may need to meet close to the building entrance. Someone with anxiety may need to take a break or simply to have the interviewers advised that their evaluation of the applicant’s competency should not be affected by signs of nervousness. Making such accommodations may mean making an exception to written policies or to long-standing practices. If you truly cannot make the requested accommodation, ask the applicant if other accommodations would work instead of just saying no.
• It’s best to have someone other than the hiring manager handle any accommodation issues. For example, if your nonprofit has a human resources manager, that person should be the contact for managing accommodation issues, leaving the hiring manager to focus just on the applicant’s qualifications. In a nonprofit without a dedicated human resources function, the accommodation may be managed by the executive director. Keep the explanation about the circumstances as simple as possible, with the applicant’s privacy in mind. The person or group that is interviewing the applicant doesn’t need to know the details about the disability.
• Don’t ask questions during the interview about the accommodation or any perceived limitations. If the applicant brings up accommodations they would need as an employee, do not discuss the details of how accommodations would work. The inquiry should be limited to whether the applicant can perform the job, with or without accommodation.[5] Keep the focus on determining who is best qualified for the position based on their skills and experience. Defer any discussion of accommodations on the job until after the applicant has accepted an offer. The interview stage is not the right place to work out those details.
• Employers may ask whether applicants need accommodation, so long as they’re asking all the applicants the same question. One way to put this inquiry is, “Can you perform the essential functions of this job with or without accommodation?” That’s sort of an awkward sentence, which is why it fits better as a yes/no question in the initial application. Never ask a question like this only to the applicant(s) who you think might be disabled (there’s a lawsuit for that). It’s perfectly appropriate to put the physical requirements of a job in the description and advertisement for the position and just leave it at that.
• If you decide not to hire an applicant who requested an accommodation or disclosed a disability, make sure to document and supported the decision with objective business reasons. If the applicant pool is similar in terms of qualifications, then it’s even more important to set out objective, business-related reasons why a particular applicant received an offer, and to document these at the time the decision is made. Beware the overused phrase “not a good fit.” Managers love to say that someone is “not a good fit” because it’s so general, it could mean anything. But that’s the problem – it’s really doesn’t mean anything. It comes across as an excuse. If you’re a well-qualified applicant who happens to have a disability, and you got as far as the interview stage, imagine being told you’re “not a good fit.” That can sound an awful lot like, “We don’t employ people with disabilities here.” Be ready to explain hiring decisions using objective, specific reasons that are related to the job.

Health and Safety Issues and COVID-19

Employers do not have to make accommodations that would present a direct threat to the safety of their staff, clients, or to the individual requesting the accommodation. This is a well-settled area of law —the most important case on this issue is now almost twenty years old. When Mario Echazabal applied to work at an oil refinery plant owned by Chevron, the pre-employment medical screening revealed a liver condition that would have been exacerbated by the working environment. Chevron took the position that chemicals at the refinery would pose a threat to Echazabal’s health and declined to hire him. The ensuing lawsuit wound all the way to the U.S. Supreme Court.[6] In its decision, the court sided with Chevron, relying on a provision of the ADA that permits job-related qualifications, consistent with business necessity, that protect the health and safety of the applicant or employee.[7] Because the chemicals at the refinery posed a direct threat to Echazabal’s health and safety, Chevron had not violated the ADA by refusing to hire him. Although oil refineries aren’t a typical workplace for nonprofits, questions of safety and disability surged during the pandemic.

Most recently, the question of what constitutes a direct threat is coming up in the context of employer policies on vaccinations for COVID-19. A mandatory vaccination policy is a qualification that must be job-related and consistent with business necessity.[8] Many employers, particularly in healthcare, are firing employees who refuse COVID-19 vaccinations, on the basis that their unvaccinated status present a direct threat to the health and safety of the employer’s staff and patients.[9] Even if an employer has a mandatory vaccination policy, it’s still a bad idea to ask about vaccination status until after a job offer has been made. Medical inquiries should never be part of a hiring process, including asking about an applicant’s vaccination status. The EEOC has indicated it views pre-offer questions about medical conditions as unlawful.[10] Employers who have adopted a mandatory vaccination policy may make that policy known, but any engagement with the applicant on their vaccination status should take place after an offer is made.

In today’s competitive market for workers, nonprofits need to cast as wide a net as possible for the most qualified employees. By having the confidence to handle requests for accommodation during the hiring process, nonprofits have the opportunity to hire great candidates who might otherwise be overlooked.

References

[1] Ameri, M., Schur, L., & Meera, A. (2015). The disability employment puzzle: A field experiment on employer hiring behavior (NBER Working Paper Series 21560)

[2] “Applicants with physical disabilities, as opposed to applicants with cognitive or emotional disabilities, are also rated as more desirable job applicants.’ (Combs & Omvig, 1986; Stone & Sawatzki, 1980) Patterns of Discrimination in Hiring Job Applicants With Disabilities: The Role of Disability Type, Job Complexity, and Public Contact by Gouvier, Sytsma-Jordan and Mayville, 2003

[3] “Discrimination is prohibited against a qualified individual with a disability in regard to a number of actions by an employer, including hiring.” 42 U.S.C.S. 12112(a) The ADA applies to employers of 15 or more. Consult an attorney for advice on what laws apply to your nonprofit.

[4] California’s Fair Employment and Housing Act, for example, applies to employers of 5 or more.

[5] “…an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.” EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA” October 17, 2002

[6] Chevron U.S.A. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045 (2002)

[7] 42 U.S.C. 12113(b): Qualification standards. The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. See also 42 U.S.C. § 12112(b); 29 C.F.R. §§ 1630.10, 1630.14(b)(3).

[8] In addition, employers with mandatory vaccination policies should have a process for requesting medical or religious exemptions.

[9] The direct threat analysis may also apply to requests for medical or religious exemptions from a mandatory vaccination policy. Due to the complex and evolving nature of these questions, nonprofits should consult with an attorney when handling requests for exemptions from a mandatory vaccination policy.

[10] “Under the law, an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant.” EEOC Guidance on Preemployment Disability-Related Questions and Medical Examinations. October 10, 1995 https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical See also 42 U.S.C. § 12112(d)(2); 29 C.F.R. §§ 1630.13(a), 1630.14(a),(b).

To answer that question, let’s take an example: A social service nonprofit has a very talented manager who has been with the nonprofit for several years. The manager supervises approximately 10 staff members, most of whom have at least 3 years of experience in this field and a master’s degree in social work.

The number of clients the nonprofit serves has increased, and so has the workload. Everyone agrees to bring on another staff member soon. The manager strongly urges the hiring of their nephew, who just graduated from college with a bachelor’s degree in social work. Aside from a 4-week internship, the nephew has no real-life work experience in this field, but the manager insists that the nephew is a hard worker, a fast learner, and that the manager can vouch for his character 100%.

The staff have several concerns:

• Suspicions that the reasons the manager may have for wanting to hire their nephew are based more on maintaining family harmony than serving the agency and its clients
• Concerns that supervising a family member may prove problematic to the manager’s ability to ensure this employee’s performance expectations are satisfactorily met
• Concerns the fair and impartial treatment of staff may be compromised

However, the manager holds fast to the idea that a nonprofit can overlook all these “formalities” when hiring staff.

In short, the staff could see the dark clouds of nepotism on the horizon.

What Are the Symptoms of Nepotism?

As you can imagine, this is a very common situation—and a problematic one if handled improperly.

Let’s start with the basics about nonprofit organizations. A nonprofit, notwithstanding the humanitarian, charitable, religious, or social mission it might have, is nevertheless still a business. As such, the nonprofit is subject to a considerable number of laws that impact how it’s organized and operated. This requires compliance with all applicable laws impacting many aspects of the day-to-day operations of the organization, including issues related to finance, corporate responsibility, and yes, labor and employment issues.

Some nonprofits, often smaller ones, tend to overlook these responsibilities and operate the nonprofit as a family-owned small business that often overlooks the “formalities” that legal compliance might impose. This is a very risky way to operate a nonprofit, and it goes without saying that a nonprofit organization should always run as a business complying with all laws and sound principles of good business judgment, all for the purpose of successfully carrying out the nonprofit’s mission.

One of the more important aspects of running any organization is to avoid the risk of nepotism, usually defined as favoritism granted to relatives and friends. In the example, the manager wanting to hire their nephew seems to fit this definition. The negative implications of hiring, supervising, or even merely working with family members or close friends who have personal relationships with any current employee, especially supervisors or managers, are obvious but often disregarded.

Examples of such potential problems, among many others, include:

• A perception of favoritism toward the relative or close friend
• The risk that a supervisor, if related to or close friends of the employee, may be tempted to treat their relative or friend with a relaxed degree of supervision or evaluation
• The possibility that other employees may feel like they might get in trouble if they have a conflict with the relative or friend of another employee and that the non-related employee’s side of things will be disregarded
• A perception on the part of the other employees that they are second-class citizens
• Poor workplace morale

What does a non-related co-employee do when, after dealing and interacting with the nephew, the co-employee concludes that contrary to the manager’s opinion, the nephew is neither hard worker, a fast learner, or of good character?

Creating a Policy

The risks that come with nepotism or hiring relatives or close friends of existing employees, executive directors, and board members of a nonprofit must be carefully monitored and avoided.

This does not mean that qualified relatives or friends of any existing employee cannot or should not be hired to join the nonprofit’s staff in all circumstances. What it does mean is that nonprofits should hire and handle all aspects of that person’s employment to avoid appearances or creating perceptions of favoritism.

The best place to start to ensure this problem is avoided and controlled is to implement a clear and effective nepotism/conflict of interest policy.

Such a policy should, at a minimum, make the following clear:

• The nonprofit, as an organization, avoids and disapproves of nepotism, favoritism, and conflicts of interest.
• The nonprofit is not averse to hiring relatives or close friends of current employees, but that hiring will be based on qualifications and experience and never on these relationships.
• Family members will not be included in the hiring decisions of other family members. And, even when the family member is not directly involved in the process, it is important to have a clear and transparent hiring process.
• Any relatives or close friends of current employees will not be supervised or evaluated by their relatives or friends, and employees will not be involved in, or attempt to influence, any work-related decision that may involve a close friend or relative, including those involving compensation or benefits.
• Relatives or close personal friends are to scrupulously avoid creating the appearance or perception of favoritism in the workplace, by either word or conduct.
• Any employee that enters a close personal relationship with a coworker must report the relationship to their supervisor to determine if a conflict of interest exists.
• If such a close relationship develops, or if an employee becomes related to a co-employee, the nonprofit will take appropriate action to ensure that any potential for a conflict of interest due to that relationship is eliminated.

Considerations of professionalism, adherence to the law, good business practices, and dedication to the nonprofit’s mission should serve as the guiding principles to operating any nonprofit. Relaxation of those principles, including hiring a possibly unqualified and inexperienced individual based upon a close relative’s subjective opinion, is likely to jeopardize the integrity of not only how the nonprofit is run, but the nonprofit’s mission.

If you want to overwhelm a nonprofit manager, tell them an employee has requested an accommodation for a disability, and ask them to find out the organization’s obligations. When managers face trying to navigate a confusing web of laws, a common result is to just reject the employee’s request. Nonprofits may have the best of intentions when drafting enthusiastic and inclusive policies, but these goals are abandoned when managers become overwhelmed by the process or fear of lawsuit. By breaking down the terminology used in federal workplace disability law, we hope to encourage nonprofits to navigate these issues with more confidence. This not only creates a more inclusive workplace, it increases retention and productivity, as well as broadening the pool of employees that your nonprofit hires from.

When the Americans with Disabilities Act (ADA) was passed in 1990, it was considered a sweeping civil rights law, with implications for the workplace as well as public accommodation, public services, communications and transportation. Following a series of decisions by the U.S. Supreme Court which narrowed the definition of “disability,” the ADA was amended and updated to reflect a more contemporary view of inclusion. Following the 2008 amendments, it became significantly easier to qualify as an individual with a disability under the Act.

One of the main goals of the ADA was intended to remove traditional barriers to employment for individuals with disabilities.[1] The ADA requires covered employers to provide reasonable accommodation to employees or applicants with disabilities, unless doing so would cause an undue hardship.[2] The Equal Employment Opportunity Commission (EEOC) is charged with enforcing the ADA in employment, and issues regulations and guidance to assist in interpreting the specifics of the law. Many states also have laws that parallel the provisions of the ADA.

Nonprofits should know whether state anti-discrimination laws also apply to their organization. In California, for example, these laws apply to employers of five or more, and define a disability as an impairment (note the absence of the word “substantial” as compared to the federal law). In addition, differences between how the thirteen federal circuit courts interpret the ADA means, unless the U.S. Supreme Court has stepped in with a definitive decision, disability discrimination law can vary considerably across the U.S.

Terminology in the Americans with Disabilities Act (ADA)

Understanding the workplace implications of the ADA means understanding the terminology. The basic rule is: covered employers are obligated to engage in the interactive process with qualified applicants or employees to provide reasonable accommodations that will allow them to perform the essential functions of their job, unless such an accommodation would cause an undue hardship to the employer. [3]

Whew! That’s a lot. No wonder it can feel overwhelming. Now let’s briefly look at each of these terms and break them down into practical steps.

Disabled Individual. Contrary to popular belief, the ADA does not identify a list of medical conditions that would render someone disabled under the law. A disabled individual is defined as one of the following:

• Someone with a physical or mental impairment that substantially limits one of more major life activities
• A person who had a history or a record of such an impairment
• A person who is perceived by others as having such an impairment

As emphasized in the 2008 amendments, it is the nature of the impairment—that is, the effect on the individual’s ability to engage in certain activities—that will determine whether they are “disabled” under the law. Chasing down whether an individual is truly “disabled” is rarely productive—it’s better to focus on the requested accommodation instead. That said, the law does allow the employer to require medical certification of the disability and work limitations if the employer chooses.

Essential Functions. Essential functions are those core duties of the job that, if eliminated, would change the fundamental nature of the job. Having a function listed on a job description will not be sufficient proof that the duty is “essential.” Qualifications that are preferable for the job are also not “essential.”

The issue of what defines “essential functions” has been the subject of a great deal of litigation. In 2018, a Texas-based employer learned a $2.6M lesson in ADA compliance when it was sued by the EEOC for violating the ADA. The company provided food demonstrators to grocery stores and had a strict policy that its employees could take no more than a 10 minute “sitting break” every two hours. Otherwise they had to stand as they were working. The company refused to make exceptions to this rule for individuals whose medical conditions meant they couldn’t stand for two hours at a time. According to the employer, standing is an essential function of the job. The court found that standing for 110 minutes out of 120 was not an “essential function” of a food demonstrator. The store settled with the EEOC before a verdict in the lawsuit. [4]

Interactive Process. An individual’s request for an accommodation triggers the employer’s obligation to engage what is referred to as interactive process. Although interactive process is intended to be an “informal dialogue” between the employer and employee, most employers do document this process carefully to protect themselves. Employers need to understand two critical things about the interactive process. The first is that there are no “magic words” that trigger an obligation to begin this process. The employee doesn’t have to use the word “accommodation.” The ADA therefore puts the burden on the employer to recognize when an employee is requesting a change to their work schedule, duties or environment that stem from their own disability (as opposed to a request that is simply for their own convenience). Clarify whether it’s necessary to start the interactive process simply by asking the employee, “Is there anything you need?”

The second critical point is that the interactive process not optional. Even if an employee cannot show that the employer failed to provide a reasonable accommodation, not going through the interactive process is its own cause of action. In other words, an employer can be liable for violating the ADA by refusing to engage in the interactive process.[5]

In one case involving the production line of an auto manufacturing plant, a manager denied an employee’s request for a part-time schedule. The employee had made clear the request was due to their own medical condition. The manager did not initiate the interactive process, but just told the employee that part-time work was “not an option.” The court found this outright rejection of the request was a failure to engage in the interactive process.[6]

The employer wouldn’t necessarily have been obligated to provide the schedule, but they are obligated to engage with the employee to try to find a solution that would keep the employee working. Employers run afoul of the interactive process when they reject an employee’s request for accommodation out of hand, without considering the wider context—including whether other accommodations, such as transfer to another job, might be effective. The key point of the interactive process is to find an accommodation that will allow the employee to remain employed. Even if the employer doesn’t think they can provide the accommodation requested by the employee, they must go through the interactive process to determine the nature of the employee’s limitations and explore alternative accommodations.

Reasonable Accommodation. A reasonable accommodation is any change that will allow an employee to perform the essential functions of their job. It might be a schedule change, it might be a modification of nonessential duties, a leave of absence, the ability to bring a service dog to work, remote work, special equipment or services.

If there are multiple accommodations that will allow the employee to perform the essential functions of the job, the employer may choose the one that is the easiest to implement, even if it is not the employee’s preferred accommodation.[7] As long as the accommodation provided enables the employee to perform the essential functions of the job, it will be considered satisfactory.

In a lawsuit, once the plaintiff has shown that the accommodation they need is reasonable, the employer will have the burden of proving that the accommodation would have created an undue hardship.[8] This puts strong pressure on the employer to make the accommodation if at all possible, and if they truly cannot, to carefully document why.

Undue Hardship. Logically, if the accommodation for an employee is described using the word “reasonable,” then the standard refusing such an accommodation would be anything that is “unreasonable.” Not so. Undue hardship is a much higher standard, one that looks not just at the employee’s role but at the entire organization. The EEOC defines an undue hardship as “an action requiring significant difficulty or expense.”[9] What is considered a significant difficulty or expense is considered in light of the overall resources of the employer. Every situation will be different. Critically, making an exception to an employer’s policy does not, by itself, create an undue hardship. Similarly, an employer’s concern that other employees will regard the accommodation as unfair, or that other employees may want a similar accommodation, is also not an undue hardship.

Common Issues When Implementing Reasonable Accommodations

Just as important as understanding what an employer is obligated to do is understanding what they are not obligated to do.

A reasonable accommodation does not require employers to accommodate lower productivity. If a therapist is required to have a patient caseload of 20 patients, and the employee requests a smaller caseload, the employer need not lower that standard. But the employer should explore alternatives, for example, a part-time schedule, offloading of nonessential duties, or transfer to another job.

Nothing in the ADA requires employers to tolerate the use of illegal drugs in the workplace. While alcoholism (but not drug addiction) is recognized as a disability, an appropriate accommodation would be time off to allow for treatment. While it may be appropriate to have ancillary services to support the work of an employee, it would not be a reasonable accommodation to create a position whose function is solely to assist the disabled employee. An unpaid leave of absence is an appropriate accommodation, even if the employee would not be entitled to medical leave under the employer’s policies.[10] The right to leave, however, is not unlimited. Case law on the ADA has consistently found that employers are not required to provide leaves of absence for an indefinite period (including repeated requests for extensions). Employers must be able to show that the employee was clearly warned their employment is at risk if they could not return from leave, and to clearly articulate why the position cannot be held open for the requested leave period.

While schedule modifications are very common types of accommodations, one that would prevent other employees from doing their jobs is an undue hardship. Let’s examine two circumstances to see how that might work:

• An employee with a mental health condition takes a medication that makes them groggy in the morning. The employee requests a regular work schedule of 10 a.m. to 7 p.m. The other employees in the nonprofit work 8 a.m. to 5 p.m., and the regular staff meeting is held at 9 a.m. The employee’s colleagues or manager may sometimes find it inconvenient that they have a different schedule, but it doesn’t prevent them from doing their jobs. There’s nothing about having the meeting at 11 a.m. instead of 9 a.m. that creates an undue hardship for the employer.
• In a different setting, this change might not be practical. If an employee cannot come into work until 10 a.m., and they are a teacher in a preschool that runs from 8 a.m. to noon, then they are likely not qualified for the job. Compare that situation to a preschool that offers both morning and afternoon sessions, where moving the employee to an afternoon classroom would be an appropriate accommodation.

The ADA is a mechanism for removing barriers to employment, not a trap for well-intentioned employers. The situations that end up in court are those that are highly complex or were truly bungled or ignored by the employer. It’s easy to lose sight of how straightforward making accommodations can often be.

Nonprofit managers make accommodations all the time, often without realizing it. Take a situation where an employee asks to adjust their schedule one day a week, so that they can go to their regular physical therapy appointment. The employee’s supervisor agrees and asks the employee if they can avoid scheduling the appointment on Thursday afternoon, when the weekly meeting with the state funding agency is held. That change represents an accommodation for the employee. There’s no complex process, no documentation needed, no extended negotiation, yet you can see each of the definitions and steps in this interaction. It’s a simple change that allows an employee to continue working.

The discussion about disabilities at the workplace so often focuses on the liability that it’s easy to lose sight of how common these accommodations really are. But accurate and understandable information about the employer’s obligations results in a more productive and accessible workplace. Removing the hurdles an individual with a disability may face in the workplace represents meaningful accessibility, one that allows both the employer and the employee to focus on their work rather than their limitations.

References

[1] Employment is only one aspect of the ADA. The ADA also promotes equal opportunity for individuals with disabilities in the areas of public accommodations, transportation, state and local government and telecommunications.

[2] Title I ADA generally covers employers with 15 or more employees, including state and local governments, employment agencies and labor unions. There is no exception for nonprofits. Some states have separate disability discrimination laws with a lower employee threshold. Consult an attorney if you are unsure whether your nonprofit is covered by the disability discrimination laws.

[3] Although the word “employee” is used throughout this article, the ADA applies to both applicants and employees.

[4] EEOC Press Release November 21, 2019 (https://www.eeoc.gov/newsroom/crossmark-pay-265-million-settle-disability-lawsuit)

[5] U.S. Airways, Inc. v Barnett, 535 U.S. 122 S. Ct. 1516, 1523 (2002)

[6] Fisher v. Nissan North America, Inc., 951 F.3d 409 (6th Cir. 2020)

[7] See Appendix to 29 C.F.R. 1630.9

[8] U.S. Airways, Inc. v Barnett, 535 U.S. 122 S. Ct. 1516, 1523 (2002)

[9] See 42 U.S.C. § 12111(10) (1994); 29 C.F.R. § 1630.2(p) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997)

[10] The EEOC has taken the position that “no fault” attendance and leave policies are inconsistent with the ADA. These policies result in discipline or dismissal when a certain absence threshold is reached regardless of the reason the employee was not at work. All attendance and medical leave policies should have a written exception for individuals with disabilities.