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ENews: Volume 12, Issue 1, First Quarter, 2014

The JAN E-News is a quarterly online newsletter. 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.

An e-mail announcement is sent to an opt-in list when a new issue is available. Please use the links at the end of this document to subscribe or unsubscribe.

Index

  1. Looking Back, Moving Forward to 2014!
  2. Resources for Compliance with the New Section 503 Regulations and VEVRAA
  3. Providing Temporary Accommodation Solutions
  4. Concerned About Accommodation Costs? Learn About Low Cost Solutions With a JAN Webcast
  5. Dealing with Illegal Drug Use Disclosures
  6. JAN Blog Growing
  7. JAN Releases New Resources
  8. E-vents
  9. JAN Exhibit and Training Schedule
  10. Subscribe to JAN Newsletter

1 - Looking Back, Moving Forward to 2014!

With the closing of 2013 and the beginning of a new year, the Job Accommodation Network (JAN) looks back at trends for the year, hoping to move forward and continue meeting your technical assistance needs throughout 2014. During the year, JAN provided guidance on job accommodations, the Americans with Disabilities Act (ADA)/Rehabilitation Act, and the self-employment of people with disabilities to over 42,000 customers. As we begin a new year, we look back to the refresh of old favorites and look forward to the implementation of new technical assistance tools.

Updated old favorites are now available:

Look back through recently developed technical assistance tools, including JAN’s:

Several trends were identified related to the questions JAN received from customers. These included increases in inquiries related to:

If you have questions from one of these areas, contact JAN now and stay tuned for new tools that can help you move forward in 2014!

- Beth Loy, Ph.D., Principal Consultant

2 - Resources for Compliance with the New Section 503 Regulations and VEVRAA

Is the company or agency you work for a Federal Contractor? If so, do you feel prepared for the March 24, 2014, effective date of the new regulations for both Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)? As an agency that focuses on ADA and reasonable accommodation issues, JAN continues to get compliance questions from employers such as when and how to request applicants and employees to self-identify as a person with a disability or veteran. Employers also want to know how to update their recruiting efforts to target qualified and talented veterans and people with disabilities. This includes reviewing their online job application Websites and processes to ensure accessibility for all. Employers also are looking for resources to create effective reasonable accommodation policies and procedures or to review existing company policies and procedures.

There are many resources to address the above concerns. The Office of Federal Contract Compliance Programs (OFCCP) is conducting a number of free training events. They are all archived so if you miss the live event you can view at your convenience. The OFCCP is also compiling resources for employers to use to more easily comply with the new regulations. The long awaited voluntary self-identification of disability form employers are required to use is one of these resources. Access the OFCCP training webinars and Section 503 or VEVRAA FAQ resources to learn more.

Need a good resource for pre-screened and highly motivated postsecondary students and recent graduates for your internship opportunities or entry level positions? The Workforce Recruitment Program for College Students with Disabilities (WRP) is a free resource to help you do just that. Looking to identify strategies to build disability inclusion into your company culture? ODEP’s Business Strategies that Work: A Framework for Disability Inclusion document can help you develop that strategy.

And of course JAN has a number of resources to help you develop tools to effectively comply with the new regulations. JAN’s Tips for Designing Accessible Websites Including the Self-Assessment SNAP Tool can help your company get started on improving the accessibility of your online job application system. Also, register for JAN’s free monthly Federal Contractor Winter Webcast Series. JAN is providing three 1.5 hour Webcast sessions beginning on January 29th. These Webcasts will provide an overview of the basic requirements of the new Section 503 regulations, practical tips for compliance, best practices for affirmative action, and time for participants’ questions and answers. If you cannot make it on the day of the live Webcast event, all sessions will be archived. And remember, JAN is available for one-on-one consultation to help you make an informed decision when it comes to implementing effective reasonable accommodation. Contact us to have a confidential conversation about your specific concerns.

- Anne Hirsh, M.S., CPDM, Co-Director

3 - Providing Temporary Accommodation Solutions

Employers are encouraged to engage in an interactive process to gather information and identify and implement reasonable accommodation solutions that will enable a qualified employee with a disability to successfully perform job functions. While many accommodations are provided long-term, some accommodations may only be needed temporarily. The Americans with Disabilities Act (ADA) does not set a timeframe for the duration of accommodations, whether they be long or short-term so employers are not precluded from implementing trial or short-term solutions as part of the accommodation process. There are many situations where implementing temporary accommodation solutions can lead to successful employment outcomes. After an employee’s limitations have been identified and job functions are understood, this is the time to consider what accommodations might work – even without absolute certainty regarding effectiveness. From a practical standpoint, employers should try to make temporary accommodations, even beyond the requirements of the ADA, because doing so demonstrates an employer's good faith effort to accommodate. Situations that may warrant provision of a temporary accommodation may include, but are not limited to:

a. Temporary Accommodations While Researching a Permanent Solution

At the beginning stage of the interactive process, it may be necessary to research accommodation solutions, including products or services that may be needed to enable the employee with the disability to perform job functions. Sometimes the solution is not readily available, a piece of equipment needs to be purchased, a service must be arranged, or a vacant position is not available. In these kinds of situations, a temporary solution may need to be implemented until the long-term solution is identified or becomes available. For example, if an employee cannot perform an essential function of a job and requests an accommodation that requires some research, the employer can consider temporarily removing the essential function until a permanent accommodation can be made. If an employer chooses to do this, the employer should make clear to the employee that the interim accommodation is temporary and for what duration the accommodation is feasible. Under the ADA, essential functions are never required to be removed permanently.

b. Temporary Accommodations To Check For Effectiveness

Sometimes employers, and employees alike, are apprehensive about the effectiveness of an accommodation. This apprehension may affect the decision to implement an accommodation. JAN Consultants talk to employers who are afraid to try an accommodation because they think that if they try it out they will be locked into the situation forever. However, this isn’t the case – employers are free to try accommodations and stop them if they do not work. When testing accommodations, make a written agreement with the employee that the accommodation is being tested, how long the test will be, and what will happen if the accommodation doesn’t work. That way, no one is surprised when the accommodation is revisited down the road.

c. Temporary Accommodations

At JAN, we often hear from employers wondering if employees with temporary impairments are entitled to reasonable accommodation under the ADA. The answer to this question is not necessarily clear-cut. Per the ADA Amendments Act (ADAAA) of 2008, the definition of disability is now interpreted differently than under the original ADA. Whereas a temporary impairment was generally not considered a disability in the past, now it is made clear that the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADAAA. Thus, employees with temporary impairments can be eligible to receive accommodation in some cases. The key is whether the impairment is sufficiently severe. For more information, see JAN’s Accommodation and Compliance Series: The ADA Amendments Act of 2008.

In the case of a temporary impairment, clearly the accommodation will be temporary as well. For example, there are many situations where temporary light duty may need to be considered due to significant limitations in lifting. One of the more frequent examples of this is in the case of pregnancy. It is common to have a 20-30 lb. lifting restriction due to pregnancy. In high-risk situations, the restriction can be even greater. Assuming a temporary arrangement is available and does not pose a hardship, employers can consider restructuring job duties or providing light duty to an employee who is pregnant and unable to lift for a temporary period. After recovering from child birth, the employee can be expected to return to her normal duties. In this type of situation, a temporary accommodation allows an employee to continue working while managing limitations, and enables the employer to retain a worker, avoiding the expense of hiring a new employee. While an average pregnancy is typically not considered a disability under the ADA, impairments arising out of, or impairments exacerbated by pregnancy, can rise to the level of a disability – warranting accommodation under the ADA. Also, some state laws require covered employers to accommodate pregnant workers.

d. Temporary Accommodations That Will Cause Undue Hardship in the Future

Another situation when a temporary accommodation may make sense is when an accommodation can be provided now, but the employer knows it will eventually pose an undue hardship. For example, a part-time or flexible schedule may be reasonable now, but as business and staffing needs change this accommodation could become something that is no longer reasonable to allow. It is alright to provide an accommodation now knowing that it cannot be a long-term solution due to the likelihood of undue hardship. An individual receiving an accommodation is not necessarily entitled to receive it forever. However, it is important to document and communicate to the employee that the accommodation is intended as a short-term solution, and that alternative effective solutions may need to be explored if/when undue hardship results.

Documenting Temporary Accommodations

Documenting accommodation efforts is always an essential part of the interactive process. When a temporary solution is implemented, it should be documented just as any other accommodation. If the employer uses a reasonable accommodation approval form, the form might include information regarding temporary accommodations. For example, the form might include the following types of questions:

If an approval letter is more the employer’s style of response, here is some sample language to consider including in the body of the letter:

This letter serves to inform you that your request for [list accommodation(s)], requested on [date], has been approved on a temporary basis and will be in effect until [date]. We are providing this accommodation on a temporary basis [for XYZ reason(s)]. At the completion of the temporary/trial time period, the accommodation will be reviewed to determine [if it is still needed/if it is effective/can continue to be provided without posing an undue hardship/alternative or additional accommodations are necessary.]

Conclusion

Overall, temporary accommodations can be beneficial for employers and employees alike. Temporary accommodations can offer an employer time to research other accommodations, can provide an opportunity to test the effectiveness of an accommodation, and can keep workers productive instead of out on a leave of absence – which is good for an employer’s bottom-line. Employers are not penalized for going beyond the requirements of the ADA, and by providing temporary accommodations can demonstrate good faith in the interactive process.

- Tracie DeFreitas, M.S., Lead Consultant, ADA Specialist

4 - Concerned About Accommodation Costs? Learn About Low Cost Solutions With a JAN Webcast.

We all know how important it is to make workplace accommodations. Effective accommodations can bring about many benefits beyond ADA compliance. Most of the employers who contact JAN for accommodation ideas are very motivated to do the right thing and make an effective accommodation, but costs are a common concern. Fortunately, as JAN’s research on the costs and benefits of accommodation shows, accommodations do not always have to be expensive. In fact, information from the JAN study showed that over half of the accommodations reported in the study were made at no cost, and a typical cost of accommodation, when there was a price tag, was about $500.

When you contact JAN for accommodation ideas, we will do our best to talk with you about a range of options to consider. Many times it is possible to come up with low cost or even no-cost alternatives. In some cases, a minor policy change can be an effective accommodation. Some examples include simple changes to scheduling procedures, leave, and attendance policies. Changes in procedures can also be helpful. Sometimes all that is necessary is a simple change in the way things are done, such as a change to the way job tasks are assigned.

Purchasing equipment, can also cost less than you might think. Sometimes it is possible to use a mainstream product, like a special kind of pen to accommodate an individual as an alternative to buying more expensive dedicated assistive technology. Sometimes it’s even possible to find a way to accommodate using equipment that is already available in the workplace, for example by buying an app for a tablet that the person is already using. In other cases an accommodation approach may involve the purchase of equipment that seems expensive, but the long-term cost could be less over time because the approach is effective and the product is durable.

Here are more situations and solutions that involve low cost accommodations:

For more information on low cost solutions, check out JAN’s Webcast Series Archives where you can find JAN's Webcast on Low Cost Solutions. You may also be interested in JAN’s publication on Workplace Accommodations: Low Cost, High Impact.

- Teresa Goddard M.S., Senior Consultant, Sensory Team, and Burr Corley M.S.W., Consultant, Motor Team

5 - Dealing with Illegal Drug Use Disclosures

JAN frequently receives calls concerning employees who are either in recovery from drug addiction or are currently using drugs. While drug addiction can meet the definition of disability under the ADA, individuals who are currently illegally using drugs are not covered. So, a person who is in recovery from drug addiction may be entitled to reasonable accommodations, but current users could be subject to termination with no protection under the ADA if an employer learns of an employee’s illegal drug use. The definition of “current” in this context means that the illegal use of drugs occurred recently enough to justify an employer's reasonable belief that involvement with drugs is an on-going problem. It is not limited to the day of use, or recent weeks or days, in terms of an employment action. There isn’t a clear definition for what constitutes “recent.” It is determined on a case-by-case basis, depending on the specific situation.

So what should employers do when employees disclose they have a drug problem and are currently using illegal drugs? As far as the ADA is concerned, it’s really up to the employer and the employer’s policies. However, from a practical standpoint, immediate termination may not always be the best option. Given the time and expense that goes into posting a position, interviewing, hiring, and training a new employee, the employer may want to consider giving the employee a chance to continue in his/her position if the employee expresses a sincere desire to get and stay clean. In such circumstances, employers can require employees to sign a “firm choice” or “last chance” agreement. Such an agreement serves as a contract between the employee and employer laying out the terms by which the employee can avoid termination. The following are some of examples of employment situations involving employees with drug addiction and ways employers may handle such situations:

As these examples illustrate, it is at the employer’s discretion as to whether to keep an employee that is a current user of illegal drugs, but it probably makes sense to consider all of the factors before determining which course of action to take. Such factors may include the amount of experience and skills the employee has, the nature of the employee’s work, how the employer found out about the drug use, and how sincere the employer believes the employee is about getting and staying clean.

For more information and accommodation ideas that may be helpful for individuals with drug addiction, visit JAN's A to Z: Drug Addiction.

6 - JAN Blog Growing

The Ask JAN Blog provides an opportunity for you to share with others your workplace accommodation solutions. JAN receives over 40,000 contacts per year – conversations with all of you that help us better understand what’s working effectively in your workplaces. We have a great deal to learn from one another. We encourage you to share your experiences and interact with the JAN staff. Your accommodation success stories can benefit many others around the Nation. Enjoy the new postings and additional Spanish selections:

Become a part of the new JAN blogging community!

7 - JAN Releases New Resources

8 - E-vents

9 - JAN Exhibit and Training Schedule

Events of particular interest: Get the most up-to-date and comprehensive training on employing people with disabilities. To view the complete JAN travel schedule go to JAN-on-the-Road.

10 - Subscribe to JAN Newsletter

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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.

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