Melanie Whetzel, Lead Consultant – Cognitive/Neurological Team
Just last month, I finished reading Very Late Diagnosis of Asperger Syndrome (Autism Spectrum Disorder) — How Seeking a Diagnosis in Adulthood Can Change Your Life by Philip Wylie. What a wealth of information!
As the title suggests, this guidebook focuses on very late diagnosis of autism, what is involved, what has led up to the diagnosis, and how to cope with it. Included are chapters entitled “The Advantages and Disadvantages of Diagnosis,” “Common Reactions to Very Late Diagnosis of Autism Spectrum Disorder,” “The ‘Coming Out’ Process,” and “How to Live Well with Very Late Diagnosis of Autism Spectrum Disorder.” Information also encompasses co-existing mental health impairments, available supports, and strategies to help newly diagnosed individuals move forward.
At JAN, we receive inquiries from many older individuals who either suspect that they have autism, or have obtained a recent diagnosis. Sometimes they just aren’t sure what to do. I believe I now have a better understanding of the process people have gone through, what their concerns are certain to be, and how we can best assist them.
The next one on my list is Women and Girls with Autism Spectrum Disorder Understanding Life Experiences from Early Childhood to Old Age by Sarah Hendrickx.
Sarah Small, Consultant – Cognitive/Neurological Team
I recently read an article in Counseling Today titled Reconsidering ADHD by Laurie Meyers. She talks about how historically the stereotype for Attention Deficit Hyperactivity Disorder (ADHD) has been a young child who cannot sit still or pay attention and often gets in trouble. However, in reality ADHD can affect anyone and manifest at different stages in life. This means that sometimes an individual may not receive an actual diagnosis until they are in adulthood. She states that ADHD can often be hard to diagnose as it can also resemble other mental health impairments.
She goes on to discuss that even though there is still a lot to learn about ADHD, researchers tend to believe it is a cognitive impairment that affects the brain’s executive functioning. This can cause issues with concentration, hyperactivity, impulsivity, and other signature qualities associated with the condition. Laurie breaks down her article by looking at some challenges associated with childhood, high school to college transition, and adulthood. Throughout, she shares information from a variety of counselors and their personal experiences working with clients who have ADHD and some concepts and techniques that can help individuals adapt and cope.
I was intrigued by this article because as a member of the cognitive/neurological team here at JAN I frequently receive calls regarding ADHD and accommodations. We typically see the condition and how it affects adults at work, so it was interesting to read some perspectives on how it also affects individuals during childhood and school years. It was a good reminder that no diagnosis has a cookie cutter effect.
Matthew McCord, Consultant – Mobility Team
I recently watched a video on Youtube video by Extra Credits titled, Because Games Matter – A Better Vision.
In this video, the Extra Credits team details the story of a young woman named Sara Winters who was born with ocular albinism. This rare vision disorder caused her to have a visual acuity of 20/200, making her legally blind. However, her ophthalmologist made the suggestion that she play video games as a form of therapy to help her eye sight improve. I found this video interesting not only as someone who considers himself a gamer, but also because it illustrates the importance of keeping an open mind to unconventional solutions to problems. For Sara, game therapy helped her brain understand the limited information her eyes could gather and her visional acuity improved to 20/100. Sara’s testimony illustrates that even unorthodox options can be effective, and when it comes to reasonable accommodation options, being effective is what really matters.
Tracie DeFreitas, Lead Consultant — ADA Specialist
As a self-proclaimed ADA geek, I gravitate toward literature and on-line resources that analyze timely and complex ADA and FMLA issues. I know, that sounds riveting, right? But, it can be. New workplace challenges develop every day with each unique disability employment related situation. Reading about recent employment cases and perspectives on enforcement agency guidances and activities satisfies my inner nerd, and also enables me to offer JAN customers useful information to support their ADA and FMLA compliance efforts. There are a number of go-to resources for ADA and FMLA information, including Bloomberg BNA’s Labor & Employment Law Resource Center and the National Employment Law Institute’s publication, Resolving ADA Workplace Questions, but for weekly content, I’ve been reading a couple of trusted legal blogs. For example, I subscribe to the Disability, Leave & Health Management blog published by the law firm, Jackson Lewis. This blog addresses some of the more difficult legal and practical issues employers face when managing disability, attendance, and leave, among other issues. Another favorite blog is FMLA Insights authored by Jeff Nowak, co-chair of Franczek Radelet’s Labor and Employment Practice. FMLA Insights provides insight and analysis on the FMLA, ADA, and similar employment legislation and was selected as one of the Top 100 Legal Blogs of 2016 by the ABA Journal. Both blogs are excellent resources for practical compliance advice on ADA and FMLA issues.
Kim Cordingly, Lead Consultant – Self-Employment Team
My academic background is in economic geography, so I’m currently reading a book by Maureen Molloy and Wendy Larner entitled Fashioning Globalisation: New Zealand Design, Working Women, and the Cultural Economy. At first glance, this book may appear to have little to do with individuals with disabilities starting small businesses. However, I’ve been thinking about how their theoretical framework and research can help us better understand the experiences of women entrepreneurs with disabilities in a U.S. context. Malloy and Larner describe their project in this way: “The book is an attempt to rethink the relationship between changes in the global cultural economy over the past 20 years and changes in middle-class women’s working lives through the exemplary case of the New Zealand designer fashion industry.” At JAN, we are often contacted by individuals with disabilities who fit into the category of “independent artisans,” participating in their creative and local economy. Organizations such as the Women’s Rural Entrepreneurial Network (WREN) in New Hampshire are an example of how entrepreneurial networks can promote and support local women owned businesses that fit into this category. All areas of the U.S. are undergoing distinct economic shifts that affect women’s livelihoods in varied ways. For women with disabilities who pursue self-employment or starting businesses, they are deeply affected by these changes — in terms of the type of businesses they choose to start, what types of networks can support these businesses, and how they think of themselves in their role as a business owner. Work in geography addresses these intersections and how place, space and scale help us better understand women’s experiences in this evolving economic landscape.
Beth Loy, Principal Consultant
Q&A with Damian Sian, Senior Web Accessibility Advisor for Princeton University
Recently I read an article by Damian Sian, who works as the Senior Web Accessibility Advisor for Princeton University. Sian talked about how he got into the accessibility field and the experience he brought from his marketing and test development background. He mentioned two interesting points in his interview that we also find important and challenging at the Job Accommodation Network. First, he discussed the difficulty of making mathematical representations of data accessible. Second, he talked about the importance of collaboration. This article reminds us that the field of accessibility will make great strides if organizations work together to solve accessibility challenges.
Teresa Goddard, Lead Consultant – Sensory Team
A key part of a JAN consultant’s job is finding new and easier ways to do the simple ordinary tasks that most of us take for granted. One of my very first calls here at the Job Accommodation Network involved a question about an intern with limited use of one hand, who was having trouble tying off garbage bags. While it was a small part of the job, the intern wanted to be able to do it independently. A therapist who was working with the young woman called me, a brand-new consultant, looking for a device designed to close garbage bags with one hand. I couldn’t find anything like that in the JAN database. I asked if I could call her back and made my way down the hall to talk to the most knowledgeable product guru I could find, an experienced consultant named Eddie. He listened to the whole story with a quizzical expression, raised his eyebrows and said one simple word, “tape.” He went on to explain how to precut and preset pieces of tape for ease of use with one hand.
Eddie’s lesson in looking for simple easy solutions has led me to look at everyday objects in a new way. Although I now take primarily sensory related calls here at JAN, I still like to look at the pencils, tape, and stacks of books on my desk with an eye to how they can be used as an accommodation. I like to read about new uses for household items as well. This has led to a fascination with how-to books. I recently picked up a second hand copy of Reader’s Digest Practical Problem Solver, which has a lengthy section called “Common Things with Uncommon Uses.” This consists of an alphabetized list of ordinary things like scarves, socks, and shower curtains that can be used in unexpected ways to simplify your life. There are 17 uses for tape listed. It may not be a lofty book, but it is jam-packed with ideas that I had never even considered. Did you know that wearing rubber gloves over your gardening gloves can keep your hands extra warm and dry on cold damp mornings? It is a simple idea that I will be passing on to my callers with temperature sensitivity. Do you have how-to books collecting dust on your bookshelf? Pick one up!
Linda Batiste, Principal Consultant
The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the employment provisions of the Americans with Disabilities Act (ADA), has been cranking out a lot of information in past few months, including some very important ADA-related documents. We use EEOC guidance every day in our work at JAN so I made time to read everything the EEOC published. For employers, the information provided in these documents can be extremely useful.
One of the most important documents is EEOC Enforcement Guidance on Retaliation and Related Issues, which explains the EEOC’s interpretation of what constitutes retaliation. According to the EEOC, retaliation is the most frequently alleged basis of discrimination so this should be a must-read for employers. In addition to retaliation, there’s something called interference under the ADA, which can occur with just one careless sentence from a supervisor. The EEOC’s publication provides the following example:
An employee requests an accommodation. In response, her supervisor tells her that she must try taking medication first or her request will not be considered. This is interference with the employee’s exercise of her rights in violation of the ADA.
Toward the end of the document, the EEOC provides promising practices for employers who want to reduce the likelihood of a retaliation or interference claim against them. The document is pretty long, but there are also a couple shorter, summary documents if you’re not inclined to read the larger document: Questions and Answers: Enforcement Guidance on Retaliation and Related Issues and Small Business Fact Sheet.
In addition to the retaliation document, the other documents the EEOC recently published include:
Proposed Enforcement Guidance on Unlawful Harassment, which is another serious problem for employers. If you want to review this document and comment on it, you have until Feb. 9, 2017.
For federal agencies, there are new regulations related to their affirmative action obligations for employees with disabilities, along with a shorter question and answer document.
The EEOC also publishes information for individuals with disabilities. The most recent document is called Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.
If you haven’t reviewed any of these documents, you might want to take a look at them – it’s a good way to pass the time on a cold winter day – or if you need information related to any of these topics, you can always give JAN a call!
By: Tracie DeFreitas, Lead Consultant — ADA Specialist, and Lou Orslene, Co-Director
The song is in your head now, isn’t it? You know the one. Now you have this vision of a pile of big and little, furry dogs, ears flopping up and down, running wildly, …through the halls of your organization. And suddenly, the music in your head has come to a screeching halt. Who let the dogs…at work? Service and emotional support dogs have become more prevalent as a form of reasonable accommodation for individuals with disabilities employed in private, public, and federal sector workplaces all over the country. Fortunately, the issue of whether or not a dog must be permitted as a reasonable accommodation at work is rarely debated now. Employers are more informed about service and emotional support animals as accommodations and understand that having a dog at work, for some people who require it due to their disability, promotes effective job performance.
While there is little debate over the need to consider access for service and emotional support dogs as an accommodation in the workplace, employers sometimes wonder about the best way to inform others in the workplace concerning Fido’s impending presence. We know that, under the ADA, employers are permitted to share limited information about the animal with those who are on a “need-to-know” basis. For example, a manager or supervisor might be informed about a service dog and how to interact appropriately. However, the employer is not permitted to share disability-related information with co-workers. As this at times can be confusing, let us offer a couple of best practices while teasing out the question of confidentiality and service and emotional support dogs as an accommodation in the workplace.
Let’s start with a couple of best employer practices in regard to service and emotional support dogs. A service or emotional support dog is an obvious accommodation that will immediately be known by others who encounter the dog at work. It’s also an accommodation that could impact other employees. In some ways, it’s like acknowledging the elephant in the room, but a much furrier, smaller elephant, that sometimes barks. Preparing employees for dogs in the workplace, like other accommodations, should begin before a dog arrives, or accommodations are needed. What I mean is, when employees are educated about the ADA and their ability to request workplace accommodations, there can be fewer questions or cause for concern when an accommodation is implemented because people just know – they understand why there is a change at work. So as a best practice, employers who promote an informed and inclusive workplace should offer disability etiquette training to all employees and educate people about interacting with service animals in general.
Another best employer practice in response to an employee accommodation request for the use of a service or emotional support dog is to ask the employee using the service animal how they would like to handle the situation of informing (or not informing) others about the presence of the dog and how to interact appropriately prior to bringing the dog to work. Dog lovers beware and resist the urge to go nose-to-nose with that furry animal! The dog has a job to do. As is often the case, the employee being accommodated may be the best source for input and information. Note that the employee who uses a service dog is free to independently (and voluntarily) share information about their animal and need for accommodation with others in the workplace.
However, if an employee is uncomfortable with the employer sharing information about the service or emotional support dog and the employee prefers not to share information, then it is the employer’s obligation to protect the confidentiality of the employee with a disability and their request of a service animal as an accommodation. But then you may ask yourself, doesn’t the supervisor, manager, or other personnel involved in the provision of the accommodation need to know some information about the accommodation? The answer is yes – but only those who are on a “need-to-know” basis should have this information. For example, a manager or supervisor who is responsible for implementing the use of a service animal in a particular job site. These “need-to-know” personnel will need to know how to effectively integrate the service animal into the workplace, including where the service animal will relieve itself or if the service animal will be included in meeting spaces. However, it could be a breach of confidentiality for employers to reveal why the service or emotional support dog is needed.
So what about the employee’s co-workers? What information can an employer share with them? We know that, under the ADA, employers are not permitted to share disability-related information with co-workers. This would be a breach of confidentiality. We also know that while employers have no particular obligation to inform others that a dog will be allowed on the premises, there are dynamics in the workplace where providing limited information is important. For instance, in the event a co-worker is afraid of dogs or has an animal allergy, or perhaps when questions arise about why a “no animals” policy is being modified.
How then does an employer communicate that a dog will be soon entering the workplace? As stated previously, revealing that an employee is being “accommodated” is a violation of confidentiality, so we suggest employers be cautious about using the terms “service” or “emotional support” dog when announcing that a dog will be allowed on the premises. Informal guidance JAN has received from the Equal Employment Opportunity Commission (EEOC) on this issue notes that verifying that a dog is a service animal and not a pet is revealing that the employer is allowing the animal onto its premises because of the services it performs as a reasonable accommodation. This, in turn, is revealing that the employee using the service animal has a disability, even if the disclosure is not revealing the nature of the disability.
In light of this EEOC guidance, we suggest employers who feel the need to share that a dog will be on the premises can share this information with limited individuals in the employee’s immediate work area. These co-workers, given their working proximity to the employee who requires the service animal, might be informed that a dog will be present, that its particular presence is approved by the employer, and who to contact if someone has an issue or concern regarding the matter. This approach is informative to the extent necessary, makes it clear that the employer is aware and approves the dog’s presence in the workplace, and provides information to co-workers about who to contact if, for instance, they have an allergy or a fear of dogs, so these issues can be resolved privately.
So our tips for communicating to employees about service animals:
- Prepare your workforce for the inevitable presence of a service or emotional support dog with general disability etiquette training including specific information about service animals.
- Discuss with the employee requesting access for a service or emotional support dog as an accommodation their expectations for how others should interact with the dog. Ask what information, if any at all, the employee would like shared with others about the dog’s presence.
- Inform managers or supervisors on a need-to-know basis about service and emotional support dogs as accommodations. Managers or supervisors will need to know what their role is in effectively implementing the accommodation.
- When necessary, let co-workers know in advance that a dog – not a “service” or “emotional support” dog – will be entering the workplace and who to contact if there are questions or concerns.
These resources may help:
Manners Unleashed: Etiquette Regarding Service Dogs
Disability Etiquette in the Workplace
The Manager’s Dilemma: “An employee is asking about a co-worker’s accommodation. As a manager, what do I say?”
Educating the Workforce about the ADA & Accommodations
For more information about service and emotional support dogs in the workplace, please contact JAN to speak with a consultant, or go to AskJAN.org and see the A to Z of Disabilities and Accommodations section, under the topic of Service Animals.
By: Kelsey Lewis, Former JAN Consultant – Cognitive/Neurological Team
With football season in full swing, it isn’t uncommon to hear stories of sports-related head injuries for high school, college, and professional athletes alike. The risk of a Traumatic Brain Injury (TBI), both mild and severe, is a very real threat for players and can occur during both practices and games. But with all of the negative publicity that football attracts regarding head injuries, many people aren’t aware that most TBIs are caused by everyday falls, something that can happen to almost anyone at any time. The Centers for Disease Control and Prevention (CDC) estimates that falls made up approximately 40% of all TBIs between the years 2006-2010, with unintentional blunt trauma (being hit by an object) and vehicle crashes following behind (Centers for Disease Control and Prevention, 2016).
As someone who does not identify as being athletic (although I was a great bench warmer during my soccer career), I never really experienced many injuries on or off the field. So it was much to my surprise when I took a recent spill at home resulting in a mild concussion. After the fall, I immediately felt dizzy, nauseated, and had a pounding headache. I could tell this was like no other injury I had experienced before; I just didn’t feel like myself. The days immediately following the accident, I reported to work as usual, discussed accommodations, and went on with my typical routine. However, I was utterly exhausted, felt oddly emotional, and still had a headache. Finally, on the third day of work after my fall, one of my trusted JAN colleagues intervened and convinced me to take care of myself. I took the next day off along with the weekend to rest, unplugged the electronics, went to the emergency department to make sure everything was fine (it was), and slowly started feeling better within a few weeks. The point of my self-disclosure? To illustrate just how easily and innocently a brain injury can occur, even if it is in the form of a mild concussion, in which one can recover and feel “normal” within a few weeks.
Regardless of whether TBI symptoms are temporary or long-term, accommodations can assist in the recovery and management process. Symptoms from a brain injury may affect:
- Cognitive function (e.g. attention and memory)
- Motor function (e.g. weakness and impaired balance/coordination)
- Sensory function (e.g. hearing, vision, and impaired perception)
- Emotional function (e.g. depression, anxiety, aggression, and impulse control)
- A combination of any of these.
Possible workplace accommodations can include low cost options such as providing a tape recorder in order to remember the content of a meeting or procedural accommodations like providing leave or a modified schedule to recover from the initial injury or go to medical appointments. More involved accommodations to a workspace may include installing ramps and handrails for issues associated with mobility. JAN’s publication Accommodation and Compliance Series: Employees with Brain Injuries provides additional accommodation ideas. Our publication Workplace Accommodations: Low Cost, High Impact provides information from our survey of employers who historically report no cost or low cost for accommodating employees with disabilities.
Regardless of how a TBI occurs or the severity of the injury, one of the most important things to remember is to “take it easy” after one occurs. Rest helps your brain heal and can speed up the recovery process (Centers for Disease Control and Prevention, 2016). Once returning to work, accommodations can help address the limitations resulting from the injury.
Center for Disease Control and Prevention – Injury Prevention & Control: Traumatic Brain Injury & Concussion
Employees’ Practical Guide to Negotiating and Requesting Reasonable Accommodations Under the Americans with Disabilities Act (ADA)
Job Accommodation Network (Original 2005, Updated 2007, Updated 2009, Updated 2010, Updated 2011, Updated 2012, Updated 2013, Updated 2014, Updated 2015, Updated 2016). Workplace accommodations: Low cost, high impact. Retrieved November 15, 2016, from http://AskJAN.org/media/lowcosthighimpact.html
By: Melanie Whetzel, Lead Consultant – Cognitive/Neurological Team
The Americans with Disabilities Act (ADA) celebrated its 26th anniversary this past July. This legislation is purposed to improve the lives of people with disabilities by protecting their rights to have access to employment, public entities, transportation, public accommodations and commercial facilities, telecommunications and more. It helps people with disabilities compete equally for employment and receive the accommodations and protections they need to work.
Are you in need of reasonable accommodations in the workplace due to a disability? Do you know what steps to take in order to get the process started? Disclosure is the first and sometimes the most difficult step. Just thinking about this can often cause anxiety and stress. So what exactly is disclosure?
Disclosure is divulging or giving out personal information about a disability. It is important for the employee to provide information about the nature of the disability, the limitations involved, and how the disability affects the ability to learn and/or perform the job effectively. The employer has a right to know if a disability is involved when an employee asks for accommodations. Ideally, employees will disclose a disability and request accommodations before performance problems arise, or at least before they become too serious.
Let’s look at three main reasons why someone with a disability may choose to disclose a disability to their employer:
1). To ask for job accommodations. As an example, a bus garage employee with a reading disability missed instructions and important announcements that were sent via e-mail. As an accommodation, he requested screen reading software that allows text to be converted into computer synthesized speech.
2). To receive benefits or privileges of employment. The ADA requires employers to provide accommodations so that employees with disabilities can enjoy the benefits and privileges of employment equal to those enjoyed by similarly-situated employees without disabilities. Benefits and privileges of employment include employer-sponsored training, access to cafeterias, lounges, gymnasiums, auditoriums, transportation, and parties or other social functions. For example, an employee with Down syndrome signed up for a nutrition class, but had trouble understanding the information that was presented. His employer asked the instructor to provide pictures of the types of food she was recommending employees eat. The employee was able to use these pictures when making food choices.
3). To explain an unusual circumstance. For instance, someone with temperature sensitivities due to multiple sclerosis (MS) may need to explain to his employer why it would be helpful to work from home while the office air conditioner is being repaired.
Disclosure can be quite simple. You can tell your employer that you need to talk about an adjustment or change that is essential for a reason related to a medical condition. You may use plain English to request an accommodation. You do not have to mention the ADA nor use the phrase “reasonable accommodation.” It can be as easy as saying to your supervisor, “I need to talk to you about the difficulty I encounter when I try to hand write notes due to a medical condition.”
Questions about disclosure? Contact JAN for more information or to discuss an accommodation situation with a consultant.
JAN Topic — Disclosure
The ADA in 2016
JAN ADA Library
By: Matthew McCord, Consultant – Mobility Team
Support from JAN
In light of the tragedy that occurred at the Pulse nightclub in Orlando this week, I’d like to discuss how experiencing a traumatic event can lead to someone developing a disability or having one exacerbated. It is true that traumatic events happen every day and come in many forms. They can happen in a multitude of ways, and certainly do not need to be on the scale of the horrific events at Pulse for them to be considered traumatic. The possible disabilities an individual could experience as a result of trauma or violence is a long list, and the resulting impairments that one may experience because of this is equally large. These can include mobility impairments as a result of acute injuries that affect walking, standing, grasping, bending and reaching; cognitive/mental health impairments that may lead to difficulty tolerating stress, sleep disruptions, depression, anxiety; or multiple internal injuries that cause chronic pain or headaches.
If you have experienced a traumatic event, be it an event like the tragedy at Pulse or otherwise, we here at JAN can help you explore possible workplace accommodations and understand your rights under the Americans with Disabilities Act (ADA). To give you a starting point of what may be helpful for you to request as an accommodation, please explore the A to Z of Disabilities and Accommodations section of our Website. As always, if you have specific questions do not hesitate to contact us via our toll-free phone, E-mail, or chat. Our services are free and all information is confidential.
LGBTQ Issues, Workplace Discrimination, and the EEOC
As a consultant at JAN, the traumatic shooting at Pulse highlights an important topic in terms of workplace discrimination and employment issues — the fact that the Equal Employment Opportunity Commission (EEOC), in addition to enforcing the employment provisions of the ADA and Rehabilitation Act, can also help members of the LGBTQ community when they are subject to discrimination in the workplace. I have read multiple posts on social media during the course of this tragedy stating this trauma is heightened for them by the fact that LGBTQ people still do not have employment protections under federal law. These posts refer to things like at-will employment laws (when an employer can terminate an employee at any time for any reason) and the fact that no federal law specifically mentions providing protections to the LGBTQ community. They state that they can be fired for any reason. But, this is in fact not the case.
The EEOC, which is the federal agency that enforces laws relating to employment discrimination, does in fact accept cases when the discrimination is based on sexual orientation or gender identity. They do this, despite the fact that no federal law specifically mentions that they protect these individuals, because the Civil Rights Act of 1964 provides protection against employment discrimination when it is due to reasons relating to sex.
In the publication below, EEOC writes:
“Although Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity, the EEOC and courts have said that sex discrimination includes discrimination based on an applicant or employee’s gender identity or sexual orientation.”
Preventing Employment Discrimination against Lesbian, Gay, Bisexual or Transgender Workers
We all need to do what we can in light of this tragedy. I hope this assists some of you and also helps to honor those who were lost on that night in Orlando.
What You Should Know about EEOC and the Enforcement Protections for LGBT Workers
By: Tracie DeFreitas, Lead Consultant — ADA Specialist
In his beloved book, Oh, the Places You’ll Go!, Dr. Seuss writes about “The Waiting Place” — an imaginary (or perhaps not) place in life where everyone is waiting for something:
“Waiting for a train to go or a bus to come, or a plane to go or the mail to come, or the rain to go, or the phone to ring, or the snow to snow, or waiting around for a Yes or No…”
In my experience, it seems that employers sometimes feel stuck in this very place when medical information is requested after an employee makes a request for accommodation, during the early stage of the interactive accommodation process.
Medical information isn’t always needed when an accommodation is requested. But, under the Americans with Disabilities Act (ADA), when the impairment and need for accommodation are not known or obvious, employers do have the right to request documentation that verifies the existence of an impairment; that the impairment affects a major life activity; and that the impairment is substantially limiting in some way. There is no required procedure for employers to follow, or medical certification form that must be used to obtain medical information for ADA purposes. Also, there is no ADA-required time frame for employees to obtain medical information requested by an employer after a request for accommodation. This, in some situations, leads those engaged in the interactive process to…the waiting place.
There are ways to detour the waiting place. One way is to have a comprehensive reasonable accommodation policy that serves as a step-by-step guide for the interactive process and includes time frames for each step — time frames that apply to both the employer and the individual with the disability. As part of the process, employers often require individuals to complete “ADA paperwork” – employer-created documents used to gather information about the individual’s impairment and need for accommodation. This paperwork often includes a request for medical information to support an individual’s request for accommodation. The ADA does not regulate the amount of time employees may take to respond to a request for medical information, and so, an expected return date is a detail that really should be included in a reasonable accommodation policy or procedure, and also on the ADA paperwork.
How much time should an individual be allowed to return ADA paperwork and/or to provide a note from a healthcare provider? Because there is no required time frame under the ADA, I often suggest that employers use the same time frame that applies under the Family Medical Leave Act (FMLA). Under the FMLA, employers must allow employees at least fifteen calendar days to obtain the required medical certification (USDOL, 2013). Employees who provide incomplete information should be advised why the certification is incomplete and then allowed a reasonable opportunity to remedy the insufficiency — seven calendar days, for example. Of course, under ADA, the timeframe is up to the employer’s discretion, but this is a sensible place to start and allows time for the individual to meet with his or her healthcare provider. Sometimes, it’s not feasible for the individual to arrange an appointment to see a specialist in this amount of time and exceptions may be necessary. If the employee is making a concerted effort to obtain the required information, take this into consideration.
When there are no time frames, it can be difficult to avoid the waiting place, and this often leads to frustration about how to proceed in the interactive process. So, what can be done to avoid being stuck in the waiting place? Consider the following:
- Request that medical information be provided within a reasonable time frame. Provide an actual deadline. For example, fifteen calendar days after the employer’s initial request.
- Communicate with the employee shortly before the deadline (e.g., five days) to remind the employee, in writing, that the deadline to provide the requested information is approaching.
- If the deadline is not met (even after a reminder), issue a notice that explains that sufficient medical information/completed paperwork was not received and is necessary to proceed with the interactive process. Explain why the information is needed. Consider extending the deadline five more days, or for an appropriate number of days given the specific circumstances (e.g., individual has an appointment with his or her healthcare provider after the specified deadline).
- As a practical matter, when the impairment and need for accommodation are known or obvious, consider focusing on gathering detailed information about the requested accommodation, rather than asking for unnecessary medical information. When medical information is necessary, ask specific job-related medical questions about the individual’s limitations, ability to perform job duties, and need for accommodation, to make the process of obtaining information more efficient. Simply sending the employee to a healthcare provider with a job description will not yield the most useful information. Address the specific work-related issues in order to obtain sufficient information in a timely manner.
- If an accommodation cannot be provided without the requested medical information, because the disability is not known or obvious, it is possible to close or deny a request for accommodation due to failure to receive the necessary medical information. Notify the employee, in writing, why the request was closed or denied.
If the individual’s accommodation request is closed or denied for failing to provide the information, he or she may submit another request at any time. Under the ADA, an individual with a disability may request a reasonable accommodation at any time during the period of employment because the duty to provide reasonable accommodation is an ongoing one (EEOC, 2002). According to the EEOC, if an individual’s disability and need for reasonable accommodation are not obvious, and he or she refuses to provide the reasonable documentation requested by the employer, then he or she will not be entitled to reasonable accommodation (EEOC, 2002).
For more information about requesting medical information under the ADA, please contact JAN to speak with a Consultant, or go to AskJAN.org and see the A-Z of Disabilities and Accommodations section, under the topic of Medical Exams and Inquiries.
U.S. Department of Labor, Wage and Hour Division. (2013). Fact Sheet #28G: Certification of a Serious Health Condition under the Family and Medical Leave Act. Retrieved May 12, 2016, from https://www.dol.gov/whd/regs/compliance/whdfs28g.pdf
Equal Employment Opportunity Commission. (2002). Enforcement guidance on reasonable accommodation and undue hardship under the Americans with Disabilities Act. Retrieved May 12, 2016, from http://www.eeoc.gov/policy/docs/accommodation.html
By: Beth Loy, Principal Consultant
If you take a management class or two, you get a lot of theory. You might read about the Hawthorne Effect, which tells us that employees work harder when they get attention. You may subscribe to the Peter Principle. If you do, you promote employees based on their performance in their current role, not their qualifications for the intended role. You could believe in systems management, where employees are just pieces of a greater machine. But, being a good manager means understanding your workers, and this takes skill and practice.
A good manager has several qualities, including empathy, experience, and knowledge. Listening, leading, and delegating help a manager focus on making good decisions in a global environment. Being transparent, finding ways to motivate and inspire, supporting innovation, and encouraging effective communication are pivotal skills to engaging a productive workforce. But, what about disability? How do we manage disability issues? Let’s look at Ernest.
Ernest has been a manager for 10 years. Recently, his company took on an initiative to hire employees with disabilities. This is new to him, but he’s been known for leading employees effectively while making firm decisions. Ernest can look back at what it takes to be a good manager and push forward with including disability as a function of his management.
For example, Ernest tends to be very empathetic with his decision-making. Whether it’s related to scheduling around soccer games or helping employees navigate their insurance, he tries to find an answer. It’s now up to Ernest to understand that disability is just another area of focus for him. To support this, Ernest can concentrate on:
- Applicants: Recruiting employees with disabilities is an important step in encouraging a disability-friendly environment. Working with service providers and specific job banks enables employers to actively seek talented people with disabilities who are looking for work.
- Interns: Working with a local school or the Workforce Recruitment Program to bring on youths with disabilities will give the organization a chance to work with highly motivated students with disabilities.
- Employees: It’s important to train all employees on disability etiquette and their rights to accommodation under the Americans with Disabilities Act (ADA).
- Frontline Supervisors: All frontline supervisors should be aware of the ADA. Knowing how to recognize an accommodation request and begin the interactive process is crucial.
- Motivational Events: Having guest speakers, celebrating National Disability Employment Awareness Month, creating an employee resource group, or working with a nonprofit will make employees aware of the contributions of workers with disabilities.
It seems Ernest has all of the skills he needs to be successful with his new disability inclusion initiative; now he just needs to take those skills and put them to work. Facilitating the integration of people with disabilities is no different than managing people without disabilities, but you have to drive those changes at your workplace. The Job Accommodation Network can help you do that through training, technical assistance, consultation, and information. And, it’s all for free!
Understand that disability is the one minority group that you can join at any time. Also be aware that if you lack that understanding, the ADA does have teeth, and the enforcing agency for the ADA, the Equal Employment Opportunity Commission, is just a phone call away at (800)669-4000 or (800)669-6820 (TTY).
By: Linda Carter Batiste, Principal Consultant
Remember the old saying, “He knows just enough to be dangerous”? I find this saying popping into my head over and over when I talk with employers about reassignment as an accommodation under the Americans with Disabilities Act (ADA). For what seems like such a straightforward concept, reassignment sure ends up being one of those things employers have trouble getting right. Let me share several of the most frequent things I hear.
First, and I’d say foremost, I hear employers saying, “We’re not allowed to reassign an employee with a disability unless we can’t accommodate in the current job.” Well, this is true unless the employee and the employer agree that reassignment is the best option. I’ve talked to many employers who insist on trying to keep an employee in his current job even when the employee asks to be reassigned because the employer thinks that’s how it must be done. As with many things under the ADA, this is one where there’s an exception to the general rule that reassignment is the accommodation of last resort.
Next, I frequently hear from employers who are in the process of reassigning an employee with a disability and they have found the perfect vacant job. However, the job is a promotion and, the employer says, “We’re not allowed to promote an employee as an accommodation under the ADA.” Okay, that’s half right. The ADA doesn’t require employers to promote an employee as an accommodation, but at the same time it doesn’t prohibit it; employers are not prohibited from going beyond what’s required by the ADA as long as it benefits the employee with a disability.
Another thing I hear from employers is that when reassigning as an accommodation, it is okay to make an employee do his own job search and apply for whatever job openings he finds. My question for these employers is, “How is this an accommodation? Isn’t this what all employees do when they want another job?” The response I often get is, “Well, yes, but we think this is the fair way to do reassignment, we give the employee an equal chance to compete for jobs.” Okay, the problem here is that the other employees don’t have disabilities and they can do their current jobs so you’re really not giving employees with disabilities an equal chance by making them do the same job search as others. When reassigning as an accommodation, you should actively help find an appropriate vacant job and then place the employee in the job without making him compete. Otherwise, you’re not really making an accommodation.
And the final thing I want to mention that comes up a lot in my conversations with employers is related to seniority systems. I get calls from employers who implement seniority systems, but then have all kinds of exceptions to them for all kinds of reasons except disability-related reasons. They cite the Supreme Court holding that said it is “unreasonable” to reassign an employee with a disability if doing so would violate the rules of a seniority system. That does not mean that you write a discriminatory rule into your seniority system and then you get a free pass! It means that if you have a consistent, uniformly applied system in which jobs are assigned by seniority, you don’t have to bypass that system when reassigning under the ADA. But if you grant exceptions, then you might have to grant an exception for an employee with a disability who needs to be reassigned.
So next time you’re faced with reassignment as an accommodation, I hope you’ll remember a saying my dad taught me: “Always lift up the hood and check the batteries.” Applying this to the ADA, you can’t just rely on the general rules you hear; you always need to check for the exceptions!
And for more information about reassignment and other ADA issues, visit the Matrix Radar Blog.
By: Tracie DeFreitas, M.S., Lead Consultant, ADA Specialist
Congratulations, you’re having a baby! You’re overwhelmed with thoughts about designing a nursery, buying baby clothes, diapers (lots of diapers), and meeting your baby for the first time. Pregnancy can be a joyous and exciting time, but it can also present challenges for some workers who experience limitations or complications associated with their pregnancy. This can lead to the need to request job-related changes at work to help you meet the demands of the job and stay-on-track with the pregnancy. Workers who are pregnant should engage in an interactive process with their employer to identify ways to manage the potential impact of pregnancy-related limitations on the performance of their job functions.
Before engaging in an interactive process with your employer, learn about the various laws that offer workplace protections for pregnant workers. You don’t have to be an expert in the laws, but it helps to know which laws can apply to your situation. For example, you may be entitled to job modifications/reasonable accommodations under federal laws like the Pregnancy Discrimination Act (PDA) or the Americans with Disabilities Act (ADA). You may also be eligible for unpaid leave under the federal Family and Medical Leave Act (FMLA). There are also many state and local non-discrimination, pregnancy-disability, and family leave laws that apply to workers who are pregnant.
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 the employee’s limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. A change in duties may 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.
Pregnancy alone is not considered a disability under the ADA (because it is not an impairment), but a worker who is pregnant can be protected under the ADA in some situations. Changes in the interpretation of the definition of the term “disability” resulting from enactment of the ADA Amendments Act (ADAAA) make it easier for workers who are expecting who have pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation under the ADAAA (EEOC, 2014). 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 can 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.
When a job-related change is needed at work because of limitations or complications associated with pregnancy, it is suggested that these changes be requested in writing. Sometimes it’s useful to have a paper trail in case there is a dispute about whether or when you requested an accommodation. Support your request with information from your medical provider regarding your limitations and restrictions. No particular law must be mentioned in your letter, but you’ll want to explain what medical limitations are affecting your ability to perform job functions. This is sufficient to establish a request for accommodation and then that is when the interactive process begins.
JAN offers a document to guide employees in drafting a written request for accommodation. This document is ADA-focused, but can be used as a guide to make a written request for job-related modifications in general, under the PDA or other laws, if ADA is not applicable. For more information see JAN’s How to Request an Accommodation.
After an accommodation is requested, an employer must determine if the employee qualifies and if the accommodation that is being requested is reasonable. Employers are not required to change or eliminate essential job functions or lower production standards as a reasonable accommodation. An employee who is pregnant can be held to the same production standards as others in their job category. For information about accommodation ideas for workers who are pregnant, see the JAN Website.
JAN Consultants can assist workers who are pregnant and their employers by offering information and technical assistance regarding applicable laws, guiding them through the interactive process, and providing accommodation solutions and resources. For additional guidance, contact JAN directly. To learn more about your rights under the PDA, ADA, FMLA, and state laws, see the following resources:
Pregnancy Discrimination Fact Sheet
EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (EEOC, 2014)
Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
The U.S. Department of Labor, Wage & Hour Division — FMLA information
The U.S. Department of Labor also maintains a Website that provides information about state-level employment protections for workers who are pregnant or nursing.
By: Kim Cordingly, Lead Consultant
JAN is fortunate to have many thriving collaborations with organizations throughout the U.S. seeking to advance employment opportunities for individuals with disabilities. One of our strongest alliances is with the National Multiple Sclerosis Society (NMSS) – a national organization that seeks to improve the lives of individuals living with multiple sclerosis (MS) while searching for a cure.
What is MS?
According to the NMSS Web site, “…in multiple sclerosis (MS), damage to the myelin coating around the nerve fibers in the central nervous system (CNS) and to the nerve fibers themselves interferes with the transmission of nerve signals between the brain, spinal cord and the rest of the body. Disrupted nerve signals cause the symptoms of MS, which vary from one person to another and over time for any given individual, depending on where the damage occurs.” Functional limitations may include neuro-cognitive changes, fatigue, mobility impairments, vision loss, and chronic pain.
Employment and MS
Because of the complexity of the progression of MS and its unpredictable nature, each person may be affected very differently in their work life. For some, their career course may be unaffected for many years, while for others, an initial exacerbation of symptoms may lead to leaving employment — often prematurely. Access to, or continuation in, meaningful employment plays a critical role in the health and well-being of adults with MS, consequently the NMSS has made this a priority in the work they do.
Steve Nissen – Senior Director, Employment and Community Programs, NMSS – National Capital Chapter
Since 1998, Steve’s work with the NMSS at both chapter and national levels has focused on the importance of cultivating employment opportunities and supports for individuals with MS. Steve is a co-author of the book Employment Issues and Multiple Sclerosis 2nd Edition (2008) and directs numerous employment-related training and policy initiatives.
In my conversation with Steve, we wanted to highlight some new and updated resources available through NMSS (nationally) that focus on employment. In addition, Steve pointed out that the NMSS Web site has undergone a major facelift — adding resources and enhancing navigation. For those already familiar with the site, and for newbies as well, it will be worthwhile for you to visit the new online face of NMSS.
The employment portal of the Web site offers a wide range of resources for individuals with MS, employers, service providers, family members, and chapter trainers. Collaboration with JAN, particularly in the area of workplace accommodations, is evident throughout the site – including a photograph showing an individual viewing JAN’s Website as a resource. Steve highlighted a new resource on their site called Employment Matters: Managing MS in the Workplace. This training tool offers a video series as well as a written toolkit on how to “…navigate the complexities of managing work and MS.” Topics covered in the video include thinking proactively about employment, recent changes to the Americans with Disabilities Act (ADA), disclosure in the workplace; managing fatigue in the workplace; managing cognitive challenges in the workplace; and assistive technology and the workplace. The toolkit covers developing your skill set; job search strategies; writing a good resume; Social Security disability benefits and work incentives; disclosure issues; accommodation information; and components of the Americans with Disabilities Act (ADA). As a bonus, Employment Matters was designed to be implemented by local NMSS chapter staff and volunteers to address these important employment topics.
Other excellent employment resources available on the NMSS Web site include:
Career Crossroads – A six part video series on employment and MS.
Health Insurance Resources – One of the best sites for providing an overview of all the options, particularly the Affordable Care Act (ACA).
The Win-Win Approach to Reasonable Accommodation: Employment Issues – Discusses the employment provisions of the ADA; implementing reasonable accommodations; and taking a “win-win” approach to this process. NMSS has additional employment related brochures available on their Web site.
Find Services in Your Area – Find a NMSS chapter near you for one-on-one assistance.
An Information for Employers brochure is available.
The video MS Learn Online- Employment and MS features Steve responding to employment related questions.
Steve pointed out that making relevant employment information available to individuals with MS is a priority of the organization. JAN has been a participant in this effort through information sharing and reciprocal consulting, as well as partnering in various training and presentations.
I asked Steve what he thought were some of the biggest challenges for individuals with MS in the workplace. Without hesitation, he shared with me the following:
1. Leaving the workforce prematurely – Research on MS and employment shows that many individuals leave their jobs prematurely when the first exacerbation of symptoms occurs. Well-meaning family members, physicians, and others may be concerned that work is too stressful and support leaving. While each individual situation is unique, research shows with appropriate accommodations and support, many employees with MS can continue to work successfully in their positions. Accommodation consultation and suggestions from NMSS and JAN can provide individualized assistance with these questions.
2. Disclosure – Because symptoms of MS may not be visible, or come and go – the issue of disclosure is a challenge for many. NMSS and JAN can discuss these issues and respond to your specific questions and concerns.
3. Managing symptoms in the workplace – Steve pointed out that often individuals who contact them are not sure how to manage particular impairments in the workplace. An example might be someone who has lost some vision and can no longer view the text on a computer. NMSS and JAN can address these types of accommodation questions, which can empower employees with MS to stay on the job.
4. Being proactive and not waiting until there’s a crisis – Steve shared that too often NMSS and JAN get contacted about a workplace issue when it’s already turned into a “crisis.” He emphasizes to individuals who contact NMSS that “knowledge is power,” so learn as much as possible so you can advocate for yourself and know what resources and services are out there to support you in this process. Be proactive!
Steve is an invaluable employment advocate for individuals with MS around the country and friend to JAN. We thank him and the NMSS for all of their important work on behalf of individuals with MS.
National Multiple Sclerosis Society – Main Web Site
Toll Free: 1-800-344-4867
National Capital Chapter: National Multiple Sclerosis Society
1800 M Street, NW, Suite 750 South
Washington, DC 20036
Toll Free: 1-800-344-4867
“The National MS Society helps each person affected by MS in our area address the challenges of living with MS. We help by raising funds for cutting-edge research, driving change through advocacy, facilitating professional education and providing programs and services that empower people with MS and their families to move their lives forward.”
JAN – Accommodation Ideas for Multiple Sclerosis
Includes various accommodation examples for individuals with MS in the workplace.
Employment Issues and Multiple Sclerosis (2nd Edition) by Phillip Rumrill, Mary Hennessey, and Steve Nissen
“Employment Issues and Multiple Sclerosis, 2nd Edition is a must read for any person with MS that has a question regarding employment and disability. Chapters cover everything from vocational rehabilitation to job placement, and the laws covering employment.”