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ENews: Volume 15, Issue 1, First Quarter, 2017

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 ADA’s Association Provision
  2. Practical Ideas for Accommodating Individuals with Rheumatoid Arthritis
  3. Out with the Old, In with the New…Supervisor
  4. What Does “Sufficient” Mean? – A Deconstructive Series for ADA Terminology
  5. Providing a Reader as an Accommodation
  6. HIPAA and Consent to Obtain Medical Information for ADA Purposes
  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 ADA’s Association Provision

Most people know that title I of the Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified applicants and employees with disabilities and requires employers to provide reasonable accommodations for those applicants and employees as well. However, not as many people are aware that the ADA also prohibits discrimination against some employees even though they do not have disabilities. This part of the ADA is called the “Association Provision.”

What is the ADA’s Association Provision?

According to the Equal Employment Opportunity Commission (EEOC), the Association Provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability.  This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association. The ADA does not require a family relationship for an individual to be protected by the Association Provision. The key is whether the employer is motivated by the individual's relationship or association with a person who has a disability.

The EEOC provides the following examples of actions that violate the Association Provision:

Do employers have to provide a reasonable accommodation to an employee without a disability due to that person's association with someone with a disability?

No. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation.  For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability.  However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability. This means, for example, that if an employer grants leave to other similarly situated employees for care of family members without disabilities then it would be discriminatory not to grant an employee the same to care for her disabled family member. In other words, employers must give the same benefits and privileges of employment to all employees, but they do not have to give more to employees who have family members with disabilities.

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

2 - Practical Ideas for Accommodating Individuals with Rheumatoid Arthritis

Millions of workers are affected by limitations associated with arthritis. Most of these individuals need very few accommodations. Osteoarthritis (OA) is the most common type of arthritis and typically worsens with age. Rheumatoid arthritis (RA), although not as common, can cause significant limitations in individuals of all ages. With RA, one’s immune system attacks the joints and inflammation can affect the entire body.

RA affects joints in a way that limits both sides of the body. You could term it as a bilateral condition. So, for example, if you have RA in one hand, you have it in the other. Because it is an autoimmune disorder, RA can also affect the lungs, heart, skin, blood, nerves, and eyes. The most common issues heard at JAN are from limitations due to joint pain and stiffness in the upper and lower body, fatigue, and temperature sensitivity.

Let’s look at a few situations where individuals with RA were accommodated.

When accommodating an individual with RA, it’s important to remember that limitations vary among individuals. They could also change as the weather changes and temperature fluctuates. Talking with the individual is always an important first step in implementing reasonable accommodations. Find more information on accommodation ideas for individuals with RA in JAN’s Accommodation and Compliance Series: Employees with Arthritis.

- Beth Loy, Ph.D., Principal Consultant

3 - Out with the Old, In with the New…Supervisor

Anyone who has been employed at an organization for a lengthy period of time is likely to experience a change of supervisor at some point in their tenure. A change in management can often bring a fresh perspective on business operations, but for employees with disabilities, this change can sometimes impact effective accommodations that were provided by a previous supervisor. At JAN, we frequently hear about situations where accommodations were rescinded or changed – incidentally or deliberately – when new management arrives. For example, when a change is made to a telework policy that requires all employees to be present in the office, or an attendance policy is modified in a way that impacts flexible scheduling.

Employers should be aware of the potential ADA risks of violating employees’ rights to accommodation in these kinds of situations. In particular, uninformed new supervisors may risk requesting new medical information to support previously approved accommodations or may burden employees with disabilities by requiring a new interactive process to continue to receive effective accommodations. Change happens and we are often forced to accept it, but employers need to be smart and make informed decisions before making changes that often impact employees with disabilities. To facilitate a smooth transition, it’s important to educate new management about ADA policies and procedures and current accommodations before they part with old ideas, in favor of their own. JAN can offer some practical tips to help new management transition and avoid common ADA and accommodation mishaps. Consider the following:

The idiom "Out with the old, in with the new" is sometimes thought of when new management comes on-board. The changes that come with transition can be quite impactful, particularly for employees with disabilities who have worked to receive effective accommodations. Remind new management to think about the ADA and accommodations before making quick decisions to break away from past ideas about workplace operations.

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

4 - What Does “Sufficient” Mean? – A Deconstructive Series for ADA Terminology

A topic that we talk about daily here at JAN is medical documentation. This is an important topic to understand. When an employee requests an accommodation, employers have the right to request sufficient medical documentation to assist them in determining whether the employee meets the ADA’s definition of disability and needs the requested accommodation because of the disability. Of course, medical documentation may not be requested if the disability and need for the requested accommodation are already documented or obvious to the employer. However, one portion of this topic that can be difficult to understand is what makes medical documentation “sufficient.” To that end, let’s discuss this topic and break it down into simple terms.

Before we dive into the details, we need to discuss two things. First, as medical documentation is used to help the employer determine that the individual meets the ADA’s definition of disability, we should briefly go over this definition. The ADA’s definition of disability is defined simply as a physical or mental impairment that substantially limits one or more major life activities. There is a JAN Consultants’ Corner article that describes the definition of disability and the process of determining whether an individual meets it in more detail. It is a very helpful tool to have in your toolkit should you be rusty or new to the process.

Second, we need to discuss what the Equal Employment Opportunity Commission (EEOC) has said on the topic of sufficient medical documentation. Under question 10 of the EEOC document titled, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) it states that, “Documentation is sufficient if it: (1) describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed.” With this information in mind, let’s talk about this in more manageable pieces and describe what each part means.

Nature, severity, and duration

As you likely noticed, the description of what makes medical documentation sufficient is broken into two numbered portions. The portion listed under #1 is intended to help the employer make the determination that the individual meets the definition of disability. To describe the nature of the impairment, the medical provider may give a general description of the impairment. For example, an anxiety disorder could be described as a mental health impairment or multiple sclerosis as a neurological impairment. To describe the severity, the medical provider will normally try to simply gauge how acute the individual’s manifestation of the impairment is in comparison to the general population. Finally, describing the duration explains how long the impairment is expected to last, or when the individual’s condition will likely improve.  

Activities that the impairment limits

This portion of the description refers to the major life activities that the individual is limited in performing. An individual’s impairment can impose several different limitations, but to meet the definition of disability, the individual only needs to show that he or she is substantially limited in one. Because of this, it is typical for the information provided here be brief and not an all-inclusive list of limitations that the individual may experience.

Extent impairment limits ability to perform activities

Where the previous piece of the description identified relevant activities that the impairment will limit, this section strives to explain how much the impairment limits the individual in performing those activities. Usually, this section and the previous section will be addressed simultaneously. For example, a medical provider stating that an individual is “limited in lifting no more than 20 pounds” is stating the activity being limited (lifting) and also the extent the ability to perform that activity is limited (no more than 20 pounds). An important thing to note is that when you are comparing the extent of these limitations to others to determine if a substantial limitation exists, the individual is not to be compared to similarly situated individuals. Compare individuals with disabilities to the general population rather than one another.   

Substantiates why the accommodation is needed

This is the only portion listed under #2 in the description. This is because this portion is not needed to make the determination that the individual meets the definition of disability. However, this portion is still very useful as it explains how the accommodation that the individual is requesting will assist them. Employers are only required to provide accommodations that are needed due to disability-related needs. Therefore, this portion shows the link between the requested accommodation and how it helps the individual manage the needs imposed upon them by their disability. For example, medical documentation stating that an individual needs “a noise canceling headset to help minimize distractions while working” is providing the link between the requested accommodation (the headset) and how it helps the individual (to minimize distractions).

Conclusion

When reviewing medical documentation, it is important to remember why it is part of the process. Sometimes, employers get caught up in the procedure of how an accommodation request is normally handled. It is helpful to have consistency, but it is critical to remember that medical documentation’s purpose is to help make the determination that an individual meets the ADA’s definition of disability and needs the requested accommodation. Therefore, if you have not been provided everything that the EEOC describes as sufficient medical documentation, but you feel you have enough information to make that determination, then you are permitted and encouraged to move forward. If it helps, then think of the sufficient medical documentation description as a benchmark for how much medical information the employer is permitted to request if needed, rather than the amount that all individuals have to provide before the request is reviewed.

- Matthew McCord, M.S., CRC

5 - Providing a Reader as an Accommodation

Inquiring employers and employees alike want to know about readers as accommodations under the ADA. Does an employer have to provide a reader as an accommodation for an applicant or an employee with a disability? Who needs a reader? Who qualifies as one?  Where does an employer find a reader who is qualified?  Isn’t that giving the employee a bit of an edge?  Hopefully the following information will help answer these and the many other questions JAN frequently receives in regard to readers as accommodations.

According to the Technical Assistance Manual: Title I of the ADA, a reasonable accommodation is any change in the work environment or in the way things are usually done that results in equal employment opportunity for an individual with a disability.

An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business.

Some examples of reasonable accommodation include:

Providing Qualified Readers

It may be a reasonable accommodation to provide a reader for a qualified individual with a disability, unless it would cause an undue hardship. In some job situations a reader may be the most effective and efficient accommodation, but in other situations alternative accommodations may enable an individual with a visual or reading disability to perform job tasks just as effectively.

When an applicant or employee has a disability, the employer and the individual should engage in the interactive process to identify specific limitations the individual experiences in relation to specific needs of the job and to assess possible accommodations.
For example: People with visual impairments perform many jobs that do not require reading. Where reading is an essential job function, depending on the nature of a visual impairment and the nature of job tasks, print magnification equipment or a screen reader may be more effective for the individual and less costly for an employer than providing another employee as a reader. Where an individual has to read lengthy documents, a reader who tape-records the documents so the employee can listen to them may be a more effective accommodation.

Providing a reader does not mean that it is necessary to hire a full-time employee for this service. Few jobs require an individual to spend all day reading. A reader may be a part-time employee or full-time employee who performs other duties. There currently is no standard for providing or hiring readers, and no certification requirements exist. However, the person who reads to an employee with a disability must be a skilled reader, reading competently enough to enable the employee to perform his or her job effectively. It would not be a reasonable accommodation to provide a reader whose poor skills hinder the job performance of the individual with a disability.

The same principle applies for readers in testing situations.  The reader needs to be familiar with the vocabulary of the test, particularly if it is specialized or technical.  A reader in a testing situation is exactly that – a reader.  The reader does not rephrase the questions or the answers, nor would he /she explain or expound upon a question or define words or concepts. The purpose of a reader is to ensure that the test-taker with a disability has the same opportunity as test-takers without disabilities to access the testing content.  If a test measures knowledge, then a reader may be a valuable and appropriate accommodation.  A reader would be an inappropriate accommodation when the test is measuring reading skills and not knowledge.   

For example, a person with dyslexia should be given an opportunity to take a written test orally, if the dyslexia seriously impairs the individual's ability to read. But if ability to read is a job-related function that the test is designed to measure, the employer could require that a person with dyslexia take the written test. However, even in this situation, reasonable accommodation should be considered. The person with dyslexia might be accommodated with a reader, unless the ability to read unaided is an essential job function or such an accommodation would not be possible on the job for which s/he is being tested or would be an undue hardship. For example, the ability to read without help would be essential for a proofreader's job. Or, a firefighter applicant with dyslexia might be disqualified if he could not quickly read necessary instructions for dealing with specific toxic substances at the site of a fire when no reader would be available.

Training situations and opportunities may require a reader as an accommodation as well.  Employees with disabilities must be provided equal opportunities to participate in training to improve job performance and provide opportunity for advancement. Training opportunities cannot be denied because of the need to make a reasonable accommodation, unless the accommodation would be an undue hardship. Accommodations that may be necessary, depending on the needs of particular individuals, may include:

Situation:  Jonas, an applicant for a firefighter’s job in a large city, has a learning disability that limits his ability to read competently when required to do so under time constraints, such as in a testing environment. He asks for a reader as an accommodation for the application test.

Situation:  Katarina, a newly hired administrative aid requests the use of a reader for the longer documents she will review as part of her job responsibilities. Katarina has had a brain injury and finds her comprehension and concentration waning when she is required to read large amounts of print.

Situation: Jo, a job applicant with vision difficulties, is required to take a computer test to assess reading skills. She asks for an accommodation of taking the test on paper instead of on the computer because of the visual difficulties she experiences when reading from a computer screen.

If you have questions that concern providing a reader for an applicant or employee, consider contacting a consultant at JAN for assistance.

- Melanie Whetzel, Lead Consultant – Cognitive/Neurological Team

6 - HIPAA and Consent to Obtain Medical Information for ADA Purposes

An employee submits a letter restricting him from lifting more than 20 pounds. The healthcare provider’s letter doesn’t indicate the reason for the lifting restriction, or the expected duration of the restriction. Does this employee have a disability? How long is he restricted in his ability to perform job duties?

An employee returned to work after a short leave of absence related to a gastrointestinal disorder. She requested approval to use unplanned intermittent leave when flare-ups occur. How frequently are flare-ups expected to occur? How much intermittent leave is she likely to need in a six month period?

An employee has a seizure disorder and asked his employer not to contact emergency services if he has a seizure at work that lasts a short period of time. Is this safe? What should the employer do while he’s having a seizure, and after? What is meant by “a short period of time”?

These workplace accommodation situations are common and illustrate that sometimes seemingly simple questions arise as part of the interactive process (IP). The answers to these kinds of questions can have a significant impact on the provision of accommodations and so obtaining appropriate medical information in a timely manner is important for an effective IP. Certainly, employers may ask employees to obtain additional, clarifying information from a healthcare provider, but sometimes it can be more efficient for an employer to contact an employee’s healthcare provider directly to obtain what is needed to proceed in the IP. For example, when an employer has a clarifying question about an employee’s restrictions or needs to know more about the anticipated frequency of the need for intermittent leave, it may be more efficient to call the healthcare provider. In some situations, a healthcare provider will be able to quickly answer a few direct questions to help an employer process a request for accommodation or facilitate return to work.

Provided an employer’s request for medical information is job-related and consistent with business necessity, the ADA does not prohibit employer representatives from directly contacting healthcare providers when medical information is needed in support of a request for accommodation. The catch – healthcare providers cannot not share patients’ protected health information with employers who contact them directly without first having formal authorization to do so (DHHS, 2016). The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule restricts the disclosure of protected health information by healthcare providers to anyone without patient consent, including employers. The HIPAA Privacy Rule sets the national standard for protecting individuals’ medical records and other personal health information.

Other regulations, like the Family and Medical Leave Act (FMLA), may restrict who is permitted to contact an employee’s healthcare provider directly. Under the FMLA, direct authentication or clarification of the employee’s medical certification must be obtained by a healthcare provider, a human resource professional, a leave administrator, or a management official. A direct supervisor may not contact an employee’s healthcare provider for medical information (USDOL, 2016). State laws may also restrict employers from contacting healthcare providers directly.

When there is reason to contact a healthcare provider directly, employers should confirm that the employee for whom information is needed has either signed the HIPAA authorization form available through the healthcare provider, or signed a document, such as an “authorization to release medical information,” evidencing express consent for the healthcare provider to disclose the individual’s private medical information to a party named in the consent. Employer-drafted authorizations to release medical information should be HIPAA compliant. JAN does not provide legal advice or review releases for compliance. Consult an appropriate legal professional for guidance. However, the following elements might be included in an authorization to release medical information for ADA purposes:

Additional elements may be required to meet HIPAA compliance. For additional information regarding the HIPAA privacy rule and employment, see Employers and Health Information in the Workplace. For information about the ADA and requests for medical information, go to AskJAN.org, A to Z of Disabilities and Accommodations, under the topic of Medical Exams and Inquiries.

Resources

U.S. Department of Health & Human Services (DHHS). (2016). Summary of the HIPAA Privacy Rule. Retrieved October 31, 2016 from http://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html.

U.S. Department of Health & Human Services (DHHS). (2016). Employers and Health Information in the Workplace. Retrieved October 31, 2016 from http://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html.

U.S. Department of Labor (DOL), Wage and Hour Division. (2016). FMLA Frequently Asked Questions. Retrieved November 4, 2016 from https://www.dol.gov/whd/fmla/fmla-faqs.htm#10.

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

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

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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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