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ENews: Volume 14, Issue 1, First Quarter, 2016

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. The Use of Sample Forms under the ADA
  2. To Ask, or Not to Ask? – Knowing When to Request Medical Information
  3. Prevent Harassment and Bullying in the Workplace
  4. Executive Function Deficits, Higher Level Employees, and Accommodations
  5. Accommodating Employees with Ménière’s Disease
  6. Returning to Work after a Diagnosis of Sepsis
  7. JAN Blog Growing
  8. JAN Releases New Resources
  9. E-vents
  10. JAN Exhibit and Training Schedule
  11. Subscribe to JAN Newsletter

1 - The Use of Sample Forms under the ADA

Unlike some other federal laws, the Americans with Disabilities Act (ADA) does not require employers to use standardized forms when gathering medical information from employees. In fact, I've heard representatives from the ADA's enforcement agency recommend that employers not use forms at all. Why? Because the ADA limits how much medical information can be gathered from employees in various situations, for example when an employee requests a reasonable accommodation. Also, employers are prohibited from asking for medical information they already have. Using standardized forms may include medical questions beyond what's allowed for any given situation. For example, employers are not supposed to ask for proof of disability when the disability is obvious or has already been documented. Asking for new medical documentation to prove disability each time an employee asks for an accommodation can violate this rule.

If you're familiar with the resources on the JAN Website, you may be thinking, "Hey, don't you have a whole bunch of sample forms on your site?" And you would be right — we do have a bunch of sample forms that we developed in response to all the requests we get for them.

So how should you use these JAN sample forms in light of what I just said about potentially violating the ADA medical inquiry rules? The key is that you need to customize them each time you use them and in some way indicate what information you need. For example, you could highlight the sections you want the healthcare provider to complete. You could completely remove sections as needed before sending the form to the healthcare provider. Or you could even pull out the questions you want answered and send them in a customized letter to the healthcare provider.

Also, there may be specific questions you have for an employee with a unique situation that you might want to add to the form before you send it to the healthcare provider.

We all like shortcuts to help us get our work done more efficiently and sample forms can do that, as long as you keep the ADA medical inquiry rules in mind and remove any questions you don't need answered on a case by case basis.

For a list of JAN's sample forms, see JAN's A to Z By Topic: Sample Accommodation Related Forms. And for some practical suggestions about gathering medical information in response to accommodation requests, see the following article.

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

2 - To Ask, or Not to Ask? – Knowing When to Request Medical Information

JAN Consultants respond to a variety of inquiries from employers about the ADA rules related to asking for medical information in response to receiving an accommodation request. Sometimes employers are uneasy about making medical inquiries and requesting medical documentation. The ADA does not require employers to request medical information after receiving a request for accommodation. However, in some situations, employers feel compelled to request medical information because sometimes the disability and need for accommodation are not known or obvious. As part of the process of determining if an individual is eligible to receive accommodations, an employer has the right to know if that person has a substantially limiting medical impairment. Requesting medical information is one way to learn this.

In its enforcement guidance on Reasonable Accommodation and Undue Hardship under the ADA, the Equal Employment Opportunity Commission (EEOC) makes clear that employers are permitted to ask for reasonable documentation about an employee’s disability and limitations when the medical impairment and/or need for accommodation are not obvious (see question 6). When an accommodation request is received, how does an employer decide when it makes sense to ask for medical information, and what information is really needed to process a request? There are no simple answers to these questions because each accommodation situation is unique. It’s really about knowing what you don’t know and understanding the impact medical documentation may (or may not) have on making reasonable accommodation decisions. The following questions and tips may help:

What is known about the individual’s medical impairment?

When the impairment is obvious, medical documentation may not be necessary. For example, if an employee who uses a wheelchair requests that his desk be raised as an accommodation, the impairment and need for accommodation are obvious. Medical documentation about the impairment will not be necessary, but information regarding the appropriate desk height will be. The individual with the disability may be able to provide the information that is needed in order to implement the accommodation.

When the impairment is not obvious, employers may request documentation that verifies the existence of an impairment (e.g., learning disability, seizure disorder, mental health impairment, back injury, etc.), that the impairment affects a major life activity (e.g., reading, concentrating, interacting with others, lifting, etc.), and is substantially limiting in some way. For example, if an employee shares that she is having difficulty meeting the employer’s attendance policy because of the side-effects of medication but has never disclosed a disability before, it may be necessary to gather information about the individual’s medical impairment and limitations, how her ability to meet the attendance policy is affected, and what accommodation is needed.

Under the ADA, in response to an accommodation request, an employer may ask what impairment is involved, why medication is needed, and its impact on job performance. An individual may be asked to obtain a letter from his or her healthcare provider (or to complete ADA paperwork) that verifies the existence of an impairment, includes details regarding the individual’s limitations, and explains why accommodation is needed at this time.

What is known about the individual’s limitations and how the limitations affect performance of job duties, or ability to meet performance/conduct standards?

In order to effectively process an accommodation request, it is important to have at least a basic understanding of how limitations impact the performance of job functions (or ability to meet standards). For example, if an employee discloses that she has a back injury, has a lifting restriction, and needs light duty, then more information will be needed in order to proceed in the accommodation process.

What is the lifting restriction (e.g., 10 lbs., 20 lbs.)? What specific job duties are impacted? What is meant by “light duty”? There is no universal definition of “light duty” and so the healthcare provider should explain what “light duty” means with respect to the individual and his or her ability to perform job duties. Is the lifting restriction temporary or permanent? Is the need for light duty temporary or permanent? In this type of situation, medical information may be needed to verify the existence of the back impairment and to gain a better understanding of the individual’s specific restrictions as recommended by the healthcare provider.

What is known about the need for accommodation?

If the need for accommodation is apparent, talk to the individual about his or her specific needs. Discuss the type of accommodation (e.g., schedule modification, intermittent leave, work from home, work-related equipment, etc.) and how the individual believes the accommodation will enable him or her to perform job duties, or meet performance/conduct standards. If the need for accommodation is understood, the type of accommodation is clear, and a change can easily be implemented, then medical documentation regarding the need for accommodation may not be necessary.

If the need for accommodation is not apparent, confirmation may be requested from the healthcare provider that a change is needed at work due to a medical impairment. For example, if an employee requests a space heater because she has rheumatoid arthritis that is exacerbated by below average indoor temperatures at work, the employer may seek confirmation from the healthcare provider that the accommodation is needed due to her medical impairment. Employers may ask what limitations are causing work-related issues and what, if any, suggestions the healthcare provider has for accommodation. Healthcare providers may not always know what accommodations will benefit the individual, or may not have time to provide detailed information. JAN Consultants can help employers, individuals with disabilities, healthcare providers, and others, identify accommodation solutions.

Knowing when to request medical information can be tricky. Remember, the ADA does not require employers to request medical information. Before asking, consider the impact the information will (or will not) have on effectively processing an accommodation request. The individual who requested the accommodation is often a good source of information about the disability and accommodations. If the individual cannot provide the necessary information, then medical documentation can be useful. The key is to only ask for information that is needed to process the accommodation request.

For more information about requesting medical information or engaging in the interactive accommodation process, please contact JAN to speak with a Consultant, or go to AskJAN.org.

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

3 - Prevent Harassment and Bullying in the Workplace

Does your workplace have a conduct policy that addresses bullying and harassment?  If so, have employees and supervisors been trained on the policy and would they know where to find it if needed?  The Workplace Bullying Institute (WBI) 2014 U.S. Workplace Bullying Survey tells us that 27% of Americans have suffered abusive conduct at work, 21% have witnessed it, and 72% are aware that workplace bullying happens.  According to EEOC Chair Jenny R. Yang, workplace harassment is alleged in approximately 30% of all charges filed with the EEOC. For more than a year now the EEOC has had a Select Task Force on the Study of Harassment in the Workplace. This is an important issue for employers to pay attention to. 

The WBI defines workplace bullying as “repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is:

If harassment in the workplace is severe enough, an employer can be held liable.  Not all bullying activity would be considered harassment for purposes of Federal law, but employers will still want to address the behavior.  Employers need to understand how the EEOC defines harassment and who in the workplace may be protected by various Federal laws.  Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the ADA of 1990.  The EEOC does a great job of defining what could constitute harassment and who may be covered by the various laws.

On the EEOC Website there is a page that discusses harassment in the workplace.  In this document EEOC states:

“Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”

Whether the conduct issue rises to the level of bullying or harassment where the individual may have protection under Federal laws, employers should address the issue head-on.  At JAN, we do receive inquiries from both employers and individuals on conduct and behavior issues that some who contact us allege may be workplace harassment.  Questions from JAN customers range from how to prevent bullying and workplace harassment in the workplace, to whether a specific situation as described to us considered workplace harassment, to how to accommodate workers with disabilities should they need it when dealing with a workplace harassment situation. 

Allowing a support person in meetings where sensitive issues (such as possible harassment in the workplace) will be discussed is an approach that may be helpful for all employees.  Having a support person present at meetings with the employer is a form of reasonable accommodation that the employer must consider if an employee needs the support person because of a disability. In the EEOC guidance document Questions and Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act, “help in understanding job evaluations or disciplinary proceedings” is listed as a possible type of accommodation.

JAN has two resource documents on the issue of workplace harassment.  JAN’s document on Employees Experiencing Workplace Harassment will help employees develop a plan should they feel they or someone they work with is being bullied or harassed.   JAN’s document for employers titled Addressing Workplace Harassment: Employer’s Responsibilities will help employers review existing or develop new policies and procedures for preventing and dealing with workplace harassment. 

Employers will also find the EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors to be a useful document.  It further defines the issue, but also provides great information to again review or develop a policy. It also provides a great list of questions to ask parties and witnesses involved in a possible workplace harassment situation. Use of these questions can help an employer conduct a fair and impartial investigation into the alleged harassment.  

This EEOC guide on Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors may also inform employers on steps to take to prevent harassment as well as address alleged harassment. JAN recently provided a webcast titled “Addressing Workplace Harassment – Employer’s Responsibilities.”  You can view the archived webcast here:  http://AskJAN.org/webcast/archive/index.htm 

As stated in the beginning of this article, bullying and harassment is prevalent in the workplace and cannot be ignored.  Take a minute to locate your company harassment/conduct/workplace bullying/violence policy.  Ask yourself if the average employee in your company could find it if needed.  If the answer is no, it is time to revisit and train your workforce on your company’s culture of not tolerating workplace bullying, harassment, or any inappropriate conduct in the workplace. 

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

4 - Executive Function Deficits, Higher Level Employees, and Accommodations

Executive functions are high-level mental processes or abilities that influence and direct more basic abilities like attention and memory. The term executive function describes a set of cognitive abilities that include the ability to plan, organize, and strategize; pay attention to and remember details; start and stop actions; and form concepts and think abstractly. Executive functions also keep us from behaving in inappropriate ways.

Executive functions are important for successful adaptation and performance in the daily situations in our lives.  They allow us to begin and complete tasks, and to persist when we are faced with challenges.  We need to be able to recognize unexpected situations and adjust our plans quickly when unusual or sudden events crop up and interfere with our regular routines. 

Disabilities that may occur or be exacerbated and limit the ability to fully use higher level thinking skills include but aren’t limited to Alzheimer’s and other forms of dementia, brain injury, mental health impairments, epilepsy, multiple sclerosis, and learning disabilities.

Naturally, employees with deficits in executive functions who work in higher level positions that require more frequent or sustained use of these higher level thinking skills are likely to run into situations where they will need accommodations to complete the tasks and duties of their positions. Let’s look at a several higher level positions and a just few of the myriad thinking skills that are required.

A Look at Higher Level Positions

As you can see from the short list above, these higher level positions require some very specific and advanced cognitive processing skills.  When a cognitive disability develops or is exacerbated, daily tasks and duties may become difficult.  Employees who never have had performance issues in the past may now find tasks problematic. And because these positions are higher ranking ones, often at the management level, the process of providing accommodations may be difficult, awkward, and unfamiliar. 

Helpful Hints for the Accommodation Process

A Brief Look at Accommodation Ideas for Executive Functioning Deficits

For more information, see our publication Accommodation and Compliance Series: Employees with Executive Functioning Deficits for a more complete list of accommodations. Also see JAN's A to Z: By Limitation for a more extensive list of accommodations.

- Melanie Whetzel, M.A., Lead Consultant, Cognitive/Neurological Team

5 - Accommodating Employees with Ménière’s Disease

Ménière’s disease is a disorder of the inner ear caused by a buildup of a fluid called “endolymph” in a part of the ear known as the “labyrinth.”  Endolymph is necessary for the normal functioning of the inner ear, but excessive amounts can interfere with the cells that send signals from the ear to the brain. This can cause problems with hearing and balance. There is no specific laboratory test for Ménière’s disease, so diagnosis is typically made based on information about the type, frequency, and nature of symptoms, and by ruling out other conditions that cause similar symptoms. 

Ménière’s disease causes ringing in the ears (tinnitus), fluctuating hearing loss, a feeling of fullness in the ear, and episodes of severe dizziness or vertigo.  In addition, people with Ménière’s disease may be more likely to have migraine headaches.  It is not unusual to experience new or increased anxiety along with a diagnosis of Ménière’s disease. This may be caused in part by concern about where and when one will happen to be when unexpected dizziness and other symptoms occur.  Depending on the person, vertigo resulting from Ménière’s disease may come on suddenly, or the person may experience ringing or buzzing in the ears or a loss of hearing before the onset of dizziness and difficulty balancing. Nausea may also accompany vertigo.

Treatment for Ménière’s disease involves managing symptoms such as vertigo using medication as well as attempting to modify levels and action of endolymph through low-sodium diets, medications such as diuretics, use of medical devices, and surgery when other treatments prove ineffective. Some individuals may also benefit from cognitive behavioral therapy to manage anxiety related to concern about future attacks of vertigo.  Individuals may also use lifestyle changes and alternative medicine approaches such as avoiding caffeine and using exercise like Tai Chi in an effort to manage symptoms. Although more research is needed to know how effective lifestyle and alternative medicine interventions may be in modifying the course of Ménière’s disease, they may help to ease the stress and anxiety that people with Ménière’s disease experience as a result of the unpredictability of their symptoms.

Accommodation needs of employees with Ménière’s disease can be similar in many ways to the needs of employees who are hard of hearing, have tinnitus, or have balance difficulties, depending on what symptoms a person is experiencing.  However, since the symptoms of Ménière’s disease come and go episodically, employees may not need to use the same accommodations all the time. Ideally, employees should be allowed to take the lead in deciding whether and when to use accommodations such as amplification and tinnitus masking, since symptoms such as hearing loss and tinnitus are not usually constant for those with Ménière’s disease. 

In contrast, employees may need consistent support to maintain a diet, exercise, and medication regimen needed to manage their conditions, and may need time off for tests, treatments such as injections and surgeries, and to manage sudden exacerbations of symptoms.  Employees may need certain accommodations only during episodic exacerbations of symptoms or “attacks.” It may make sense to consider offering to make a plan of action to plan ahead for exacerbations or attacks that occur at work, particularly if the individual is prone to severe vertigo and needs to rest and recover or relocate to a different work area temporarily, use rescue medications, or leave the workplace to go home or to receive treatment following an attack of vertigo. 

Here is a sample "Plan of Action." It includes an example of how to fill out the form for a person with epilepsy, but it could be modified to assist an employee with a different impairment such as Ménière’s disease.

The following links to information on accommodations for employees with hearing impairment, vertigo, and ringing in the ears may be a good place to start when exploring accommodation ideas for employees with those symptoms.

For more information on accommodating employees with Ménière’s disease, please contact JAN.

Resources:

- Teresa Goddard, M.S., Lead Consultant, Sensory Team

6 - Returning to Work after a Diagnosis of Sepsis

Sepsis is a condition we don’t discuss much, but there are more than one million cases diagnosed each year. Sepsis is a blood infection. The body’s immune response to the infection causes chemicals to be released that result in inflammation. This response can cause organ damage or even failure.

For about 50% of all people diagnosed with sepsis, the condition is fatal. The number of cases has soared due to an increase in the number of seniors, antibiotic resistance, and the survival rates of individuals with low immunity.

With such a somber outcome, it’s sometimes unimaginable to think that those who have survived sepsis are able to return to work. However, they do, and often they need accommodations to do so. Sepsis is such a substantial condition that it more than likely meets the definition of disability under the Americans with Disabilities Act Amendments Act (ADAAA). Every situation is different, so let’s look at that definition.

The definition of disability is an impairment that substantially limits a major life activity. So when determining whether an employee with sepsis has a disability, you need to know:

  1. Does the employee have an impairment? If yes,
  2. Does the impairment affect a major life activity? If yes,
  3. Does the impairment substantially limit the major life activity? Consider:

More than likely, an individual who has sepsis is going to be protected under the ADA. So, what accommodations might be needed? Leave is the most common request when someone is diagnosed with sepsis. Dealing with the condition can result in long hospital stays, and it can take a great deal of time to return to work. Once an employee does return to work, the individual may need flexible scheduling, telework, and a reduced schedule while continuing to recover. Again, it takes time to work back up to a full-time schedule.

Max, for example, was a caller to JAN who needed accommodations as he transitioned back to work. He was dealing with migraines and heat sensitivity, which were caused by the treatment for his sepsis. Max was an accountant so he was able to do some work remotely. His employer added task lighting and a dimmer switch to his office to help with his migraines when he was in the office. Max was also given a fan and flexibility in his schedule during extreme heat. After six months of flexibility, he returned to full productivity.

With a sepsis diagnosis, it’s important to realize that limitations are going to be very individual; depending on how the condition affects the body, limitations could be different. The treatment for sepsis can also cause limitations. A resource to help determine additional accommodations is JAN’s Accommodation Information by Limitation: A to Z.

- Beth Loy, Ph.D., Principal Consultant

7 - 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!

8 - JAN Releases New Resources

9 - E-vents

10 - 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.

11 - Subscribe to JAN Newsletter

To subscribe to or unsubscribe from JAN Updates:

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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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