Volume 7, Issue 2, Second Quarter, 2009
The JAN E-News is a quarterly online newsletter of the Job Accommodation Network. Its purpose is to keep subscribers informed about low-cost and innovative accommodation approaches; the latest trends in assistive technologies; announcements of upcoming JAN presentations, media events, trainings, and Webcasts; and legislative and policy updates promoting the employment success of people with disabilities.
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- Limitations to Establish Disability vs. Limitations to Be Accommodated
- Clearing the Fog: It Takes Time
- Accommodating Tourette Syndrome
- Making the JAN YouTube Accessible
- Workstation Ergonomic Assessment: A Tool for Prevention and Remediation of Repetitive Strain Injury
- JAN Releases New Resources
- JAN Exhibit and Training Schedule
- Contact JAN
When an employee asks for a reasonable accommodation under the ADA, the employer is allowed to request information to determine whether the employee has a disability and to determine whether the requested accommodation is needed because of the disability. When making these two determinations, employers should remember that the limitations needed to establish that an employee has a disability do not need to be the same limitations that are being accommodated. The general rule is that once a person meets the definition of disability, then he or she is entitled to reasonable accommodations for any limitations that result from the disability; the limitations that need accommodating do not have to be the same limitations that established “substantially limited” for purposes of meeting the definition of disability.
Let’s look at some examples:
An employee has a stroke, is returning to work after two months of leave, has speech limitations that will last only a month or so, and has asked her employer for accommodations related to the speech limitations. The employee also has permanent and substantial limitations in her ability to walk as a result of the stroke. First, the employer determines that the employee has an impairment that substantially limits the major life activity of walking so she has a disability. Next, the employer determines that the employee needs an accommodation because of another limitation associated with her disability, her speech. The employer must accommodate the speech limitations even though they are not substantial, unless doing so poses an undue hardship.
An employee has a gynecological disorder that causes infertility. Periodically she experiences severe pain and needs to take a day off. First, her employer determines that the employee has an impairment that substantially limits the major life activity of reproduction so she has a disability. Next, the employer determines that the employee needs an accommodation because of another limitation associated with her disability, her inability to work when in severe pain. The employer must allow the employee to take time off, absent undue hardship.
An employee has MS that causes blurred vision. She also has some occasional heat sensitivity caused by the MS and needs to work in a cooler environment in the summer. First, her employer determines that the employee has an impairment that substantially limits the major life activity of seeing so she has a disability. Next, the employer determines that the employee needs an accommodation because of another limitation associated with her disability, her heat sensitivity. The employer must provide a cooler work environment to accommodate the employee’s heat sensitivity, even though it’s only occasional, unless doing so poses an undue hardship.
So, remember, when an employee requests an accommodation, employers should make two separate determinations: 1) Does the employee have a disability and 2) Does the employee need the requested accommodation because of a limitation (any limitation) associated with the disability.For additional information on the ADA, visit JAN's ADA Library.
- Linda Carter Batiste, J.D., Principal Consultant
Aren’t people supposed to feel better with treatment and medications? Sometimes yes, but other times, no. Medications are used to treat and cure, but often the treatment creates secondary limitations that can be more intrusive than the disease process itself. Sometimes the effects are temporary, coinciding with the treatment, or lasting as long as it takes the person to get adjusted to the new medications. Other times, the effects can be long-term or permanent, lasting after the treatment has been discontinued. This article aims to provide employers with an understanding of the side effect of “brain fog” so they can accommodate employees effectively.
One of the questions JAN consultants often get is whether the ADA requires employers to provide accommodations for brain fog that is caused by a disability, or treatment for a disability. The following is from Reasonable Accommodation and Undue Hardship under the ADA at http://www.eeoc.gov/policy/docs/accommodation.html
Must an employer provide a reasonable accommodation that is needed because of the side effects of medication or treatment related to the disability, or because of symptoms or other medical conditions resulting from the underlying disability?
Yes. The side effects caused by the medication that an employee must take because of the disability are limitations resulting from the disability. Reasonable accommodation extends to all limitations resulting from a disability.
Example A: An employee with cancer undergoes chemotherapy twice a week, which causes her to be quite ill afterwards. The employee requests a modified schedule -- leave for the two days a week of chemotherapy. The treatment will last six weeks. Unless it can show undue hardship, the employer must grant this request.
Similarly, any symptoms or related medical conditions resulting from the disability that cause limitations may also require reasonable accommodation.
Example B: An employee, as a result of insulin-dependent diabetes, has developed background retinopathy (a vision impairment). The employee, who already has provided documentation showing his diabetes is a disability, requests a device to enlarge the text on his computer screen. The employer can request documentation that the retinopathy is related to the diabetes but the employee does not have to show that the retinopathy is an independent disability under the ADA. Since the retinopathy is a consequence of the diabetes (an ADA disability), the request must be granted unless undue hardship can be shown.
The following scenarios illustrate various aspects of “brain fog” and potential accommodations:
Employee: I’m having trouble concentrating on the job because of my medications. I need more time set aside to put my thoughts together and complete tasks.
Employer: I’m not sure how this affects your job. Can you tell me a little more?
Employee: The chemotherapy medications that treat cancer have a side effect of what is called “brain fog” or “chemo brain.” It is interfering with my ability to concentrate on my job tasks, and I need more time to put my thoughts together and complete tasks. For example, we have a workplace policy that calls should be completed in four minutes, including customer service and documentation. It would be easier for me if I could focus on answering the caller’s questions and moving on to the next call, and then taking care of documentation later in the day.
Employee: Ever since I’ve been on these medications, I’ve had trouble with the complex decision making my sales job requires.
Employer: Are you still able to do your job then?
Employee: Yes. I’ve been diagnosed with PTSD since I returned from Iraq. The medications that treat anxiety can have a slowing, fatiguing effect, and I don’t always have the mental energy to work through some of my sales figures and come up with solutions. I think if my job is restructured so that I don’t have to handle filing and mailings, I’d have the extra time to handle the sales issues. If that doesn’t work, I would be open to discussing a reassignment to a vacant position with a less demanding workload.
Employer: I would like to discuss your performance with you. I’ve asked you a couple times to change the cover sheet on these reports, and Marketing is still waiting for you to schedule that meeting. Is there something we can do to improve this?
Employee: Meeting? I must have forgotten it. Could you possibly follow up some of these instructions in email?
Employer: I used to give you instructions verbally without any problems.
Employee: It hasn’t always been difficult. Since I’ve been diagnosed with fibromyalgia, my ability to process a lot of verbal information at once has been compromised. If I get the information a couple different ways, I think I’ll be able to keep track of things. I’ll also talk to my secretary, and perhaps he can find a wipe-off board for me and a larger calendar.
Employee: I’m feeling a little overwhelmed, and I’ve thought of something that might make the day go easier for all of us. Can I stipulate when I do certain job tasks [essential functions of my job]?
Employer: Are you expecting me to structure your day for you? My day is busy enough as it is.
Employee: I can structure my own day, but I would like your input on how it will affect the flow of business. I have insulin-dependent diabetes, and my blood sugar fluctuates throughout the day. My brain is affected by the changing amounts of blood glucose, and my thinking is clearer during some parts of the day more so than others. I’d like to be able to handle phone calls with customers during a particular part of the day rather than throughout the day, and use the other times for more routine tasks.
Employee: The stress level of this fast-paced job is becoming overwhelming. I think I need to adjust my workday and when I handle some of my tasks.
Employer: We’ve restructured your job to include only essential functions since you’ve been diagnosed with MS. I’m not sure we can remove any more. What are your thoughts?
Employee: I don’t think you’ll need to remove any essential functions. Right now the problem is transferring my notes from my conversations with clients into the computer system. I was thinking of a reduced workday, with time spent later working on documentation so I don’t have to deal with it while I’m handling everything else. For example, I might work 6 hours a day, five days a week with Saturdays off. On Sunday I can come in and complete the documentation.
Most of these solutions are small and require no expense. They often require a change in how managers supervise their employees and delegate tasks, and the order in which tasks are completed. These accommodation requests are not a challenge to managerial authority or style, but rather a request to be able to perform the job more effectively.
- Laura Artman, M.A., Graduate Assistant, Cognitive / Neurological Team, and Sheryl Grossman, MSW, Consultant, Self-Employment / Motor Team
Tourette Syndrome (TS) is a neurological disorder characterized by repeated and involuntary body movements (tics) and uncontrollable vocal sounds (NIDS, 2005). In a minority of cases, the vocalizations can include socially inappropriate words and phrases -- called coprolalia (Levi-Pearl, S. & Cohen, J.E., 2003). These outbursts are not intentional. Involuntary symptoms can include eye blinking, repeated throat clearing or sniffing, arm thrusting, kicking movements, shoulder shrugging, or jumping.
These and other symptoms typically appear before the age of 18 and the condition occurs in all ethnic groups with males affected 3 to 4 times more often than females (NIDS, 2005). Although the symptoms of TS vary from person to person and range from very mild to severe, the majority of cases fall into the mild category. Associated conditions can include attention problems, impulsiveness, and learning disabilities.
- Introduce one concept at a time, check for understanding by having the person repeat the information back
- Provide written and verbal instructions
- Provide a model of completed end-product
- Seat individual away from distractions
- Eliminate all unnecessary materials from desk to reduce distractions
- Break assignments into segments of shorter tasks
- Use daily checklist to help the individual get organized
- Allow the individual to get up and move around
- Break long term projects into small, sequential steps, with daily monitoring and frequent assessment
- Number and sequence the steps of a task
- Provide incentives for beginning and completing a task
Dealing with Workplace Stress:
- Allow for frequent breaks
- Provide a quiet place for the individual to go when tics are severe
- Have an agreed upon cue for the individual to leave the room
- Educate coworkers about TS
- Educate other students about TS
- Use a study carrel or cubical
- Draw the individual’s attention to key points by saying “this is important" or “you need to remember this”
- Highlight important concepts in text
American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed. Text Revision). Washington, DC: Author.
National Institute of Neurological Disorders. (2005). Tourette syndrome fact sheet. Retrieved February 12, 2009, from http://www.ninds.nih.gov/disorders/tourette/detail_tourette.htm
Levi-Pearl, S. & Cohen, J.E. (2003). A TSA family/professional publication - Understanding coprolalia: A misunderstood symptom. Retrieved March 26, 2009, from http://www.tsa-usa.org/Goods/A-123DD.pdf
For additional resources on TS, visit JAN's Resource Page.
As JAN continues to delve into social networking venues such as Facebook, MySpace, Twitter, and SecondLife, the focus on accessibility is not forgotten. Although many modifications can be made to these tools, the ability to make them fully accessible depends on the owner of the tool, the user, and the designer. Even if all parties agree that accessibility is imperative, there are sometimes limitations that require an alternative or a creative way to provide information that is accessible. With the extreme growth of social network traffic, JAN hopes to increase awareness of the changes that can be made to improve accessibility. Although not all inclusive, this article provides a starting point for researching how to increase the accessibility of your YouTube.
How can a YouTube be accessible for someone with no or limited vision? Writing a detailed audio script that provides information on what is happening visually during the video can be helpful. This can be done creatively by working what is happening on the screen into the message you want to distribute. You may also want to consider providing audio descriptions, additional narration beyond the traditional audio that is designed to illustrate in words what is happening visually. When designing visuals for your YouTube be sure to use enough contrast so that they are crisp and visible to users with low vision. And, filming well lit footage in high definition can also help your footage be easier to view.
How can a YouTube be accessible for someone with no or limited hearing? Providing open or closed captions that describe the audio verbatim, including non-speech elements such as music or noise, are vital for all video. Open captions are those that are viewable at all times, and closed captions are viewable only to users who activate them.
How can a YouTube be accessible for someone with cognitive or neurological limitations? Limiting complicated transitions, blinking attributes, extensive text, and extraneous noises can be helpful for individuals who are easily distracted or have difficulty absorbing a great deal of information quickly.
Good luck and look for JAN on YouTube!
- Beth Loy, Ph.D., Principal Consultant
5 - Workstation Ergonomic Assessment: A Tool for Prevention and Remediation of Repetitive Strain Injury
In the United States, Repetitive Strain Injury (RSI) is the number one occupational health problem, resulting in more than $20 billion a year in workers’ compensation costs (OSHA) and another $100 billion in lost productivity, employee turnover, and other expenses (Agency for Health Care Policy and Research). RSIs develop as a result of repeated exposure to ergonomic risk factors, one of which is the risk associated with the improper set-up of an employee’s workstation. In fact, thousands of people are diagnosed each year with some kind of impairment directly related to poorly designed workstations.
Using Workstation Ergonomic Assessment to Help Prevent or Remediate RSIs
RSIs result from an accumulation of tension and strain in the body. Ergonomics is the practice of adapting a job or the work environment to the person so work can be performed without harmful strain or injury. Effective ergonomics reduces discomfort and injuries and increases job satisfaction and productivity (University of Washington, Environmental Health & Safety). When bodies are able to perform work that is within their appropriate range-of-motion, less strain is absorbed by the muscular-skeletal system.
Employees operating in an ergonomically correct workstation environment can reduce the possibility of acquiring an RSI. Every component of the workstation, from seating to keyboard to monitor to mouse; from the reach and range and positioning of all a worker’s “tools of the trade”; to how an employee sits (or stands) or postures or positions him or herself while tasking, are all critical to managing the amount of strain imposed on the body on a daily basis – and cumulatively, day after day, ad infinitum. Through ergonomic assessment, employers can ensure that employees are working at the proper height, angle, and location in terms of seating, keyboards, monitors, and other office equipment.
It makes sense that ergonomic assessment should be “Job 1” when a new employee comes onboard, a critical piece of the “how” he or she will perform essential tasks and whether, over time, he or she acquires an RSI.
Solving Ergonomic Problems
Ideally, through solving ergonomic problems, an employer can accomplish the primary goal of RSI prevention while simultaneously enhancing the productivity and job satisfaction of individual employees. Effective ergonomic outcomes result from identifying the ergonomic risk factors associated with an employee and his or her specific task-set, then systematically eliminating or reducing the employee’s exposure to the identified risk factors.
There are three approaches to this process:
1) Engineering controls (physical changes to a job that eliminate or materially reduce the presence of RSI hazards), such as changing, modifying, or redesigning workstations, tools, facilities, equipment, materials, and processes, and work practice controls (changes in the way a job is performed) including using good body mechanics and lifting techniques, rotating or varying tasks throughout the day to minimize muscle fatigue and using tools properly.
2) Administrative controls (the management-controlled work practices and policies designed to reduce exposures to RSI hazard by changing the way work is assigned or scheduled) such as employee rotation, job enlargement, and employer-authorized changes in the pace of work.
3) Ergonomic assessment, employing such tools as The NIOSH Guide to Manual Lifting, postural assessments, risk factor checklists, task frequency and duration assessments, force/weight measurements, dimension measurements, anthropometry data comparisons, energy demand assessment, body mechanics assessment, and assessment of environmental factors. An ergonomic assessment should include an interview of the employee to obtain information about the employee’s position duties, an evaluation of the existing workstation, and observation of the employee performing work tasks.
To help prevent RSIs, employers may want to consider workstation ergonomic assessment and modifications as soon as an employee is hired, especially for computer users or other employees who perform repetitive work. For employees who are already working, changes in workstation set-up or purchase of ergonomic equipment can effect a change that allows the employee to continue working and possibly avoid a lost-time, lost-productivity injury. Ergonomic assessments that result in effective workstation and task-process outcomes are a tool available to employers that can lead not only to a good workstation “fit,” but also to increased employee satisfaction and productivity.
Related JAN Publications
For additional resources on ergonomics, visit JAN's Resource Page.
- Linda Yost, M.S., CRC, Consultant - Motor / Sensory Team
JAN Releases Occupation and Industry Series: Accommodating Educators with Disabilities. Find ADA information, accommodation ideas, and resources related to educators with disabilities. >> Read More.
JAN Releases Entrepreneurship Series: Starting a Non-Profit Organization. This publication discusses the “how to’s” of starting a non-profit business. Its “question and answer” format is designed to help those considering forming a non-profit to think through this decision step-by-step. >> Read More.
JAN Releases Accommodation Information by Topic. This A-Z portal compliments JAN's Accommodation Information by Disability: A-Z and provides extensive information on accommodation-related topics. Want another topic? Email email@example.com for topic requests. >> Read More.
JAN Releases Fact Sheet Series: Job Accommodations for People with Autism Spectrum Disorders (ASD). This publication provides an overview of job accommodations and resources. >> Read More.
Kathy Martinez, Nominee for Assistant Secretary for Disability Employment Policy (ODEP), Department of Labor
On March 20, 2009, President Obama announced his intent to nominate Kathy Martinez to serve as Assistant Secretary for the Department of Labor’s Office of Disability Employment Policy. Ms. Martinez, an internationally recognized disability rights leader specializing in employment, asset building, independent living, international development, diversity and gender issues, is currently the Executive Director of the World Institute on Disability. >> Read more.
ODEP’s Activities and Resources Highlighted in SHRM Article
The Society for Human Resource Management (SHRM) published Can Hiring One Employee with a Disability Make a Difference? The article covers a wide range of disability employment interests including ODEP’s policy activity, EARN, WRP, and more. >> Read more.
Just Released: Database of More Than 1,900 Job Candidates with Disabilities
The U.S. Department of Labor released to employers nationwide a free database of more than 1,900 pre-screened college students with disabilities who are seeking summer and regular employment opportunities. Candidates in this database are pursuing degrees in fields ranging from math and business to IT and law. >> Read more.
JAN Partnering with US Business Leadership Network on 2009 Annual Conference
Join us in National Harbor, Maryland (Washington, DC), on September 15-18, 2009, for the US Business Leadership Networks 12th Annual Conference and National Career Fair at the Gaylord National Resort & Convention Center, offering sweeping views of the Potomac River, Washington, D.C., and Old Town Alexandria, while a river meanders through the lush, multi-level indoor gardens. The 2009 Conference, Connecting The Dots: Business Solutions, is the preeminent national event for business, community leaders, and BLN affiliates that have an interest in hiring, retaining, and marketing to people with disabilities. This year's event promises to provide informational and educational opportunities of the highest quality. Join JAN senior staff members and learn from their expertise at the Job Accommodation Network track! >> Register now!
Military Health System Leader Honored as Federal 100 President’s Award Winner
Dinah F. B. Cohen, Director of the Department of Defense Computer/Electronic Accommodations Program, was presented with the Federal Computer Week President’s Award on March 25. Cohen was recognized for her work with agencies, companies, and government officials to develop, acquire, manage, and use information technology, said Military Health System officials. >> Read more.
NCD Releases Federal Employment of People with Disabilities
The National Council on Disability (NCD) concluded that current efforts to employ people with disabilities in the Federal government have not worked well, but makes recommendations for reversing this trend. The paper examines the status of employment of people with disabilities in the Federal Government and makes recommendations for improving federal hiring and advancement of employees with disabilities. >> Read more.
Events of particular interest:
Get the most up-to-date and comprehensive training on employing people with disabilities in the Federal Sector. To view the complete schedule go here: http://askjan.org/training/On-the-Road.htm
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This document was developed by the Job Accommodation Network, funded by a cooperative agreement from the U.S. Department of Labor, Office of Disability Employment Policy (DOL079RP20426). The opinions expressed herein do not necessarily reflect the position or policy of the U.S. Department of Labor. Nor does mention of tradenames, commercial products, or organizations imply endorsement by the U.S. Department of Labor.