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ENews: Volume 13, Issue 2, Second Quarter, 2015

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. Wellness Programs and the ADA: A Carrot or a Stick
  2. When New Technologies Hurt
  3. Getting Over the Bump: Pregnancy at Work
  4. Relay Calls: Types and How to Make a Call
  5. In the Spotlight: Stroke
  6. Tech Tip: Converting a PowerPoint file to PDF
  7. New "Who I Am" Public Service Announcement from ODEP
  8. JAN Blog Growing
  9. JAN Releases New Resources
  10. E-vents
  11. JAN Exhibit and Training Schedule
  12. Subscribe to JAN Newsletter

1 - Wellness Programs and the Americans with Disabilities Act (ADA): A Carrot or a Stick

Employers are hoping to reap the benefits of healthier workforces, for example, healthier employees may be more productive and miss less work. As a result, many employers are implementing wellness programs to encourage employees to address health risks, get in better shape, and hopefully avoid the onset of many preventable diseases. The Health Insurance Portability and Accountability Act (HIPAA), as amended by the Patient Protection and Affordable Care Act, has several provisions that promote and regulate wellness programs. For more information about wellness programs in general, see: Workplace Wellness Programs Study from Rand Health, sponsored by the U.S. Department of Labor and the U.S. Department of Health and Human Services.

But what does the ADA have to do with wellness programs? Well, for one thing, the ADA regulates when employers can ask employees for medical information and how much information can be required. Many wellness programs include health risk assessments and medical screenings (e.g., blood pressure, weight, and cholesterol), which are considered medical information. The general rule under the ADA is that employers are allowed to gather this type of medical information as part of "voluntary" wellness programs. One of the unanswered questions that employers have grappled with has been whether offering incentives to employees to participate in wellness programs affects whether the program is voluntary.

In its recently released notice of proposed rulemaking (NPRM), the Equal Employment Opportunity Commission (EEOC) offers an answer to this question: to encourage employees to participate in wellness programs, employers can use incentives in the form of a reward or a penalty up to 30% of the cost of employee-only health coverage. The cost of employee-only health coverage means the combined amount paid by the employer and the employee. However, while the NPRM says employers can use incentives, it also states that employers cannot reduce or deny health benefits because an employee refuses to participate in a wellness program. These proposed changes to the ADA rules are mostly in line with what employers are already allowed or required to do under HIPAA, but the proposed rules extend to some wellness programs that HIPAA doesn't cover.

The EEOC invites your comments on its proposed rule regarding incentives as well as other changes related to wellness programs. If you are interested in reviewing the NPRM, see http://www.eeoc.gov/eeoc/newsroom/release/4-16-15.cfm. The deadline for public comment is June 19, 2015.

Also note that the obligation to provide reasonable accommodation under the ADA applies to participation in workplace wellness programs, so contact JAN if you need accommodation ideas!

- Linda Carter Batiste, J.D., Principal Consultant

2 - When New Technologies Hurt

Technology has indisputably opened up doors for many people with disabilities.  But, there is a downside to many new technologies; many of the new technologies give off electromagnetic radiation. This radiation may come from ultraviolet emanating from cheap light sources, computer monitors, and plasma TV’s; wireless devices giving off radio waves and microwaves, and wired/electronic appliances giving off radio-frequency electromagnetic fields.

For some people who are hypersensitive to these forms of radiation, exposure can mean anything from migraines to gastrointestinal symptoms to lapses in concentration and memory, among other things.

Just as in situations where exposure to fragrances/chemicals can trigger an exacerbation of symptoms, the best accommodation is often to use telework.

When worksite presence is necessary, potential accommodations can include:

Check out more helpful hints in JAN’s new publication Effective Accommodation Practices (EAP) Series: Job Accommodations for People with Electrical Sensitivity

3 - Getting Over the Bump: Pregnancy at Work

Pregnancy can be a joyous and exciting time for expecting workers, but it can also present challenges at work for some individuals who experience limitations or complications associated with their pregnancy. When pregnancy-related limitations develop, an employer may have to consider making work-related modifications to enable a pregnant worker to remain in the workforce during pregnancy. Both the individual and the employer should work together to identify ways to manage the potential impact of pregnancy-related limitations on performance of job functions. As part of this interactive process, it is important to be aware of the various laws that can require job-related modifications or leave for pregnant workers, including the federal Pregnancy Discrimination Act (PDA), ADA, and Family and Medical Leave Act (FMLA), as well as the many state and local non-discrimination, pregnancy-disability, and family leave laws that apply to workers who are pregnant.

With the maze of statutes that can apply in pregnancy-related situations, it is challenging for employers to figure out their responsibilities and for pregnant workers to understand their rights. How far must an employer go to make modifications? What is reasonable? Are all pregnant employees entitled to job-related modifications, or shall we say, accommodations? To get past the bump, JAN suggests starting with the PDA simply because it is currently the only federal statute that specifically applies to pregnancy in the workplace. The PDA forbids employment discrimination based on pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The law requires employers to treat a pregnant employee who is temporarily unable to perform, or is limited in performing, the functions of her job because of her pregnancy-related limitations in the same manner as it treats other employees similar in their ability or inability to work (EEOC, 2014).

Under the PDA, a covered employer is responsible for making job-related modifications [also thought of as accommodations] for pregnant workers that are similar to those made for other employees who are temporarily unable to perform job functions. The duty to request a change in job duties falls on the employee who is pregnant. An employer can request reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. A change in duties can include light duty, alternative assignments, additional breaks, or unpaid leave, if these types of modifications are provided to other workers who are not pregnant, but are similarly limited. According to the EEOC, this means that employers should consider providing modifications, like light duty, for employees who are pregnant in the same way they do for employees on workers’ compensation or who are being accommodated under the ADA, without making an entitlement distinction based on the source of the employee’s limitations.

Recently, the U.S. Supreme Court issued a decision in the long anticipated pregnancy-discrimination case of Young v. United Parcel Service of America, Inc. (UPS). This is the case of Peggy Young, a UPS driver who requested a light duty assignment due to a lifting restriction associated with her pregnancy. UPS denied her request, even though it had a practice of offering light duty assignments to other employees who were temporarily unable to lift or perform more strenuous duties. UPS argued that the decision to deny Young’s request was based on a policy to only provide light duty to accommodate workers who were either injured on-the-job, were covered under the ADA, or who lost their Department of Transportation certification to drive. Young filed against UPS under the PDA, claiming that UPS failed to provide her the same accommodations it provided to employees who were not pregnant, but who were similar in their ability to work.

The Supreme Court did not necessarily rule in favor of Young or UPS in this case. The Court essentially decided that employers have a high burden of justifying policies or practices that provide accommodations to some categories of employees, but not to workers who are pregnant. Ultimately, this case establishes that when accommodations like light duty are already provided to some employees, it may be difficult for an employer to demonstrate that there is good justification for not accommodating workers who are pregnant who have similar limitations. The Court’s decision can be interpreted as a warning flag to employers, encouraging them to treat pregnant employees’ requests for work-related changes under the PDA similarly to accommodation requests under the ADA, and to engage in an interactive process. This case was remanded to the lower court to determine if UPS can meet the burden of justifying its policy regarding light duty. However, since the case was filed, UPS has voluntarily changed its accommodation policy to not exclude pregnant workers.

While the Young case did result in significant findings from the Supreme Court under the PDA, the case may not have as much impact on post-ADA Amendments Act (ADAAA) pregnancy-related situations. Changes in the interpretation of the definition of the term "disability" resulting from enactment of the ADAAA make it much easier for workers who are pregnant who have pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation under the ADA (EEOC, 2014). Pregnancy alone is not considered a disability under the ADA (because it is not an impairment), but a worker who is pregnant can now be protected under the ADA in many situations. For example, a pregnant employee may be entitled to reasonable accommodation for substantial limitations resulting from pregnancy-related complications or for limitations resulting from an exacerbation of an existing impairment due to pregnancy (e.g., pregnancy-related anemia, gestational diabetes, preeclampsia, substantial lifting restrictions, bed rest, etc.). Accommodations may include a modified schedule, ability to have snacks or drinks at a workstation, a modified attendance policy, frequent breaks, light duty, or leave, among other solutions.

Remember, the maze leads to not only federal pregnancy-related non-discrimination laws, but also protections against pregnancy discrimination, accommodation requirements, and leave rights and responsibilities at the state and local levels. For example, some states, like Illinois (effective January 2015), have enacted laws that expressly require employers to provide reasonable accommodations to employees who have work-related limitations due to pregnancy, childbirth, or a related condition, barring undue hardship. Be prepared to comply with state laws that offer broader protections than federal laws. The U.S. Department of Labor (DOL) maintains a Website that offers information about state-level employment protections for workers who are pregnant or nursing. To access this information, visit http://www.dol.gov/wb/maps.

JAN Consultants can assist employers and workers who are pregnant by offering information and technical assistance regarding the maze of federal statutes, guiding them through the interactive process, and providing accommodation solutions and resources. The following tips may be useful to employers who are struggling to manage pregnancy-related issues in the workplace:

For more information about responsibilities and rights under the PDA and ADA, view JAN's A to Z: Accommodation Ideas for Pregnancy.

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

4 - Relay Calls: Types and How to Make a Call

Many people inquire as to how they can reach an individual who is deaf or hard of hearing by telephone. This includes the question of how to make a call using Telecommunications Relay Service (TRS). A relay call allows individuals who cannot hear or who may have other disabilities that may prevent them from using a standard telephone to place and receive calls. The call is placed to communication assistants (CA’s), who help to facilitate the calls. TRS is available in all 50 states as well as the U.S. territories. Also, there is no cost for an individual to use this service.

First, let’s look at all of the different ways an individual who is deaf or hard of hearing can place a call. There are many types or forms of TRS that an individual can use. They include Text-to-Voice teletypewriter (TTY) based TRS, Voice Carry Over, Speech-to-Speech Relay Services, Captioned Telephone Services, Internet Protocol (IP) Relay, IP Captioned Telephone Service, and Video Relay Services (VRS).  Each TRS offers the user different ways to communicate.

Now that we’ve covered the different types of TRS that an individual who is deaf or hard of hearing can use to communicate via telephone, I’m sure you’re wondering how a hearing person would place a call to an individual, especially if the hearing person does not have any special equipment such as a TTY.

Some individuals have a standard telephone phone number that is already set up and linked to relay. You may be able to dial the phone number directly.  However, the most common way is to dial 711, which is available in all states. Dialing 711 will link you directly to the relay service and a CA, who will then place the call. (Note: 711 is not available for VRS and IP relay.)  So making a call is as simple as dialing 711. When making a relay call, the CA will ask if you have ever used relay before. If you haven’t, don’t worry, the CA will help you.

Please keep the following in mind.  If you receive a call from someone who is using relay, please do not hang up. Some people mistake this type of call as a telemarking call. You should hear “Hello, this is the relay service. . .” when you answer the phone.

There are also some rules of etiquette that are used when communicating via relay, most commonly when communicating via TTY. Because it is difficult to know when a person has finished speaking, it can be hard to take turns. Some of the most commonly used abbreviations are GA, which stands for “Go Ahead,” SK, which stands for “Stop Keying,” and SKSK, which indicates that the conversation has ended.  Some individuals will use this etiquette verbally when having a conversation via relay. For example, when you are done speaking, you may say “Go Ahead” so that the CA knows that you have finished what you are saying. If you don’t do this, don’t worry. The CA will still be able to tell when you have finished and communicate this to the other person.

For more information or questions related to relay calls, please contact JAN to speak with a Consultant.

Resources

- Traci Jordan, MS, CRC; Consultant, Sensory Team

5 - In the Spotlight: Stroke

May is American Stroke Month. Every 40 seconds someone has a stroke, and one out of six people will suffer a stroke in his or her lifetime (American Stroke Association, 2015). The limitations of a stroke depend on where the stroke occurred. For example, a stroke can affect vision when it happens in the back of the brain. Up to two thirds of people experience some change to their vision after a stroke (National Stroke Association, n.d.). Vision loss is typically visual field loss, such as blind spots and tunnel vision; or visual perception problems, such as double vision or depth perception; however, color vision deficiency and long-term blurriness are also common.

Accommodations for individuals who have had a stroke vary, but for those with vision loss, technologies are available to help them overcome these limitations. These technologies may help with reading printed material, accessing computer information, writing notes and completing forms, accessing a telephone, working with money, reading from an instrument, assembling parts, driving, working with light sensitivity, distinguishing colors, and being mobile. Examples of accommodations cover a wide range of industries:

This month we put the spotlight on stroke and look at additional accommodations for communication, mood, and mobility. Please feel free to contact JAN and speak to a consultant if you have questions that might be a little complicated or are not effectively answered by this article.

JAN Contributors:

- Teresa Goddard, M.S., Team Leader Sensory Team
- Beth Loy, Ph.D., Principal Consultant
- Elisabeth Simpson, M.S., Lead Consultant, Motor Team
- Melanie Whetzel, M.A., Lead Consultant, Cognitive / Neurological Team

5a. Accommodations for Speech and Language Impairments Resulting from Stroke

Strokes can impact communication in a variety of ways depending on the part of the brain affected.  Three typical speech and language impairments arising from stroke include dysarthria and apraxia, which impact one’s control over the movements of the muscles used in speaking; and aphasia, which causes difficulty understanding and using language.  Some individuals who are recovering from stroke may have undergone evaluations to determine whether they would be helped by assistive technology such as augmentative and alternative communication (AAC) devices. This may be more likely for individuals with severe apraxia of speech that is not responding well to other treatments. They may also have learned or be in the process of learning compensatory techniques such as using a slower rate of speech or using other communication methods like typing, writing, drawing, or gesturing to support and enhance communication.

While there is no one best method to support individuals with speech and language impairments resulting from stroke, some tips for listeners and communication partners include:

You can read more about accommodation ideas for speech-language impairments from JAN's A to Z: Stroke and more about speech-generating devices from JAN's Searchable Online Accommodation Resource (SOAR).

Some communication access technologies designed to facilitate communication between individuals who are deaf or hard of hearing and hearing communication partners may also be helpful to support communication with a person who has had a stroke, particularly if the person communicates more easily by typing and reading. Examples of two such devices that are designed with features to support public access include UbiDuo and Interpretype.  For more information on these see information from JAN's SOAR. You can also learn more tips on communicating with individuals who have had a stroke on the website of the American Speech-Language-Hearing Association (ASHA).

5b. Accommodations for Hemiparesis Resulting from Stroke

Hemiparesis, which is a weakness of one side of the body, is one of many residual effects of having a stroke that limit physical or motor functioning (National Stroke Association, 2014). According to the National Stroke Association, about 8 out of 10 individuals who survive a stroke will experience hemiparesis. Depending on the area of the brain where the stroke occurred, either the left or the right side of the body may experience a reduction in muscle strength. The degree to which motor functioning is limited depends on the individual and improvement in physical ability can be seen as a result of therapy and various forms of treatment.

Hemiparesis can also limit an individual’s ability to perform a job or parts of a job, and those planning or preparing to return to work following a stroke may need to explore accommodation options. An individual experiencing hemiparesis may have difficulty walking, standing, balancing, climbing, grasping, or gripping objects for precision or detailed work tasks, and could experience general muscle fatigue or a lack of coordination (National Stroke Association, 2014). Depending on the type of job and the essential functions of the position, one or more accommodations may be needed to ensure that a return to work is successful for an individual with hemiparesis.

In general, accommodations could include the purchasing of equipment or assistive technology for an individual who uses a computer or performs detail-oriented assembly work. If an individual uses a mobility aid such as a scooter or wheelchair, worksite and/or workstation modifications may need to be made. A restructuring of a job, either to perform essential functions in a different way or reallocate marginal functions, flexibility in breaks, and leave to seek treatment may be potential accommodations to explore. Reassignment to a vacant position may be necessary if accommodations cannot be made in the current job or if an accommodation would pose an undue hardship.

Below are a few accommodation examples for individuals with hemiparesis:

If an employee requests an accommodation related to hemiparesis, the employer should work to find a solution that suits the needs of everyone.

5c. Accommodations for Mood Disorders Resulting from Stroke

A stroke is a life-changing event that can affect an individual’s emotional well-being as much as his/her physical function. Many of us know and understand the physical (weakness, paralysis), cognitive (memory, processing), and communication (speech, language) challenges stoke survivors face, but we may not be aware of the challenges faced when mood disorders occur as result of a stroke.

Although stroke effects are unpredictable, mood disorders such as depression, anxiety, and pseudo-bulbar affect (PBA) are common. According to neuropsychologist Dawn Giuffre, Ph.D., of Medstar National Rehabilitation Hospital, researchers are seriously evaluating whether certain types of strokes or strokes in certain areas of the brain produce mood disorders. So far, studies suggest that simply having a stroke increases the risk of either anxiety or depression, or having both. Research also indicates that PBA is more common in survivors of brainstem stroke, but it can occur in strokes in other areas (Caswell, 2014).

Depression affects between one- and two-thirds of stroke survivors. It is characterized by feelings of overarching sadness, lack of pleasure in activities that were previously enjoyed, or changes in eating and sleeping patterns. By contrast, anxiety occurs when a survivor focuses on worries and concerns, without the ability to resolve those concerns. Anxiety affects about one-fifth of survivors (Caswell, 2014).

PBA symptoms are frequent, incontrollable outbursts of crying or laughing. The episodes are inappropriate to the situation, such as laughing at a funeral or crying at a joke. Another characteristic of PBA episodes is that even in an appropriate situation, the reactions are exaggerated. PBA has not been as thoroughly investigated as depression or anxiety, but it is not uncommon. It impacts 28 to 52 percent of stroke survivors, according to studies (Caswell, 2014).

If you or someone you know has had a stroke and is experiencing a mood disorder as a result, consider job accommodations that can be provided to assist with the return to work. The following real-life situations and accommodation solutions may be helpful:

For additional information, accommodation ideas, and resources related to limitations resulting from stroke see JAN's A to Z: Stroke.

Resources

6 - Tech Tip: Converting a PowerPoint file to PDF

When converting a PowerPoint file to Portable Document Format (PDF), “Save as PDF” is just the first step.

To start with, make sure that the presentation file is fully accessible – all images that convey meaning need to have alt-text, for example. Once you have saved the file as a PDF, open it in Adobe Acrobat.

Under the “Accessibility” Tools option, use the “Touch Up Reading Order” tool. Usually the conversion process does tag items, but manual editing is necessary to make sure it’s done correctly. Click and drag to select the text or image you want to tag. Once you have it selected, choose the option in the “Touch Up Reading Order” panel that corresponds with the structure you’ve selected. For example, for body text on the slide, choose the “Text” option. If something is purely decorative or does not convey meaningful information (such as header text that is identical on every slide), choose the “Background” option. This will cause that image or text to be ignored by a screen reader.

If an image does convey meaning, make sure that it has alternate text defined. If it had alt text in PowerPoint that text should have transferred over, but a manual check is always a good idea. You can set the alt-text by right-clicking on the image or using “Tools”/”Accessibility”/”Set Alternate Text.”

Once everything on the slide is tagged correctly, check that the reading order matches the visual flow of the slide. Each tag on a slide is numbered in the order that it will be read in. To change that order, you can drag and drop the tags in the “Order” panel. When everything is completed, make sure to check your PDF with a screen reader or the built-in “Read Out Loud” option.

- Lyssa Rowan, Social Media/Web Coordinator

7 - New "Who I Am" Disability Awareness Materials Available

When it comes to expressing a commitment to disability inclusion, there is no wrong time to start or step too small. But, not all employers, especially small businesses, may know how to effectively communicate such a commitment to their employees. Now, the Campaign for Disability Employment has several new materials that can help — all centered on the video public service announcement (PSA) titled "Who I Am."

This PSA features nine diverse people with disabilities — some obvious and some not — sharing the many ways they describe themselves, from personal interests to family relationships to occupations. Among them is film and television actor RJ Mitte, best known for his role in the hit television series "Breaking Bad."

Employers can use "Who I Am" and its discussion guide to facilitate staff training and education efforts around the issues of disability employment and workforce diversity. In addition, they can order one or more of the PSA's posters, which can be used to create workplace diversity displays or freshen-up bulletin boards, waiting areas and break rooms. A Spanish-language poster is also available, as is a Spanish-language version of the PSA.

"Who I Am" and its accompanying suite of products provide an easy no-cost way for employers to express a commitment to a diverse workplace welcoming of the skills and talents of all qualified people, including people with disabilities. The full suite of “Who I Am” disability awareness materials can be ordered free of charge online at http://promotions.usa.gov/odep.html#featured.

8 - 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!

9 - JAN Releases New Resources

10 - E-vents

11 - 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.

12 - 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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