Who Let the Dogs…In?

Posted by Kim Cordingly on November 18, 2016 under Accommodations, ADAAA, Employers | Comments are off for this article

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.

 

 

The Everyday Dangers of Brain Injuries

Posted by Kim Cordingly on November 17, 2016 under Accommodations, ADAAA, Employers | Comments are off for this article

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.

Resources:

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

Disclosure Basics

Posted by Kim Cordingly on November 10, 2016 under Accommodations, ADAAA, Employers, Products / Technology | Comments are off for this article

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.

Resources:

JAN Topic — Disclosure

The ADA in 2016

JAN ADA Library

Resources for Those Affected by Trauma Related Disability and LGBTQ Workplace Supports

Posted by Kim Cordingly on June 17, 2016 under Accommodations, ADAAA, Employers | Comments are off for this article

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.

Resource:

What You Should Know about EEOC and the Enforcement Protections for LGBT Workers

Avoiding “The Waiting Place” After Requesting Medical Information

Posted by Kim Cordingly on May 13, 2016 under Accommodations, ADAAA, Employers | Comments are off for this article

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:

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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.

References:

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

Disability Inclusion as a Function of Managing

Posted by Kim Cordingly on January 12, 2016 under Accommodations, ADAAA, Employers | Comments are off for this article

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).

As the Old Saying Goes…

Posted by Kim Cordingly on January 4, 2016 under Accommodations, ADAAA, Employers | Comments are off for this article

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.

Requesting Accommodations Due to Pregnancy-related Limitations

Posted by Kim Cordingly on April 17, 2015 under Accommodations, ADAAA, Employers | Comments are off for this article

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.

 

Employment Matters: A Conversation with Steve Nissen at the National Multiple Sclerosis Society (NMSS) – National Capital Chapter

Posted by Kim Cordingly on May 12, 2014 under Accommodations, ADAAA, Employers, Organizations | Comments are off for this article

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.

Additional Resources:

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
Phone: 202-296-5363
Fax: 202-296-3425

“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.”

April is Donate Life Month: Accommodations for Employees Who Have Received Organ Transplants

Posted by Kim Cordingly on April 14, 2014 under Accommodations, ADAAA, Employers, Organizations | Comments are off for this article

By: Burr Corley
Consultant, Motor Team

April is National Donate Life Month focusing attention on the importance of organ and tissue donation in much needed medical transplants. Donate Life America and its partnering organizations feature activities throughout the month of April to bring awareness to the needs of those awaiting transplants, and how individuals can become involved in this issue.

We here at JAN think this is a good opportunity to discuss accommodation ideas for people who have experienced an organ transplant. According to data on organ transplants featured on the Website WebMD, the most commonly transplanted organs are the kidneys, liver, heart, pancreas, lungs, and small intestine. For those individuals given a new lease on life with their new organs, they often face significant challenges during their recovery. This not only includes time spent recuperating from a surgical procedure, but often a lifetime of managing medications they must take to keep their bodies from rejecting the new organ. Some of these medications have significant side effects. Many individuals who have undergone an organ transplant anticipate returning to their career after a successful transplant. An effective accommodation can make this possible.

The definition of disability was expanded when the Americans with Disabilities Act (ADA) was amended in 2008 so the ADA now protects a lot more people. As a result, individuals in need of organ transplants are probably entitled to accommodation under the ADA if they work for covered employers. An employer with an employee who needs an organ transplant might want to be aware of accommodations the employee might need before, during, and after a transplant.

Before The Transplant

An organ transplant is a medical procedure to replace a failing organ with a new, healthy one. Many transplant candidates have been managing a chronic illness for years before being considered for a transplant. For example, candidates for receiving a heart transplant may be experiencing cardiomyopathy, which is characterized by an enlarged heart and the weakening of the heart muscle. Liver transplants are typically needed for individuals with severe liver diseases such as cirrhosis.

Many individuals may have already requested and received accommodations from their employer at this point. However, being a candidate for a transplant may require some additional accommodations. In particular, while on the list for a transplant, the patient will require medical examinations in preparation for the surgery. These exams may be done at treatment centers some distance away from where the employee lives and works. According to the Equal Employment Opportunity Commission (EEOC), allowing for a flexible schedule so the employee can attend treatment appointments and/or permitting flexible use of leave could be an effective accommodation. In some circumstances, allowing the employee to work in an alternate location could also be an accommodation option.

During and After the Transplant

A transplant patient is usually put on a list and must wait for a period of time before he or she can receive an organ. This is a process that can take years, so the timing of the transplant is often unpredictable. Employers will want to work out leave arrangements ahead of time so the employee can focus on his or her treatment and recovery. After the transplant, there will often be a recovery time during which the employee will not be able to work. The doctor may also restrict the employee from driving so the employer may want to look into accommodations for driving.

When the employee does return to work, the employer may want to be aware of some limitations that may require accommodation. First of all, individuals who have received an organ transplant often have extensive follow up appointments that they must attend so the transplant team can monitor how they are faring with their new organ. These appointments will be necessary for the rest of the employee’s life. Again, an employer should be aware it may be necessary to consider schedule modification and/ or flexible use of leave as an accommodation so the employee can attend these appointments. In addition, the individual who received the transplant is likely to be taking medications that lessen the risk of the patient’s body rejecting the transplanted organ by suppressing the immune system. These are called immunosuppressant medications. With a suppressed immune system, the employee may need accommodations to help avoid infections.

Here are some ideas for accommodating an individual with a suppressed immune system:

  • Allow employee to avoid work around infectious agents
  • Provide the employee a private office with a computer keyboard, mouse, and telephone keypad that can be sterilized
  • Limit the employee’s exposure to situations in which there could be at risk of infection
  • Allow the employee to work from home
  • Allow for flexible leave time

A suppressed immune system and the side effects of anti-rejection medications from a transplant may not be the only limitations that need to be accommodated in the workplace.

Here are other side effects and health problems that may need to be accommodated depending on the particular type of transplant:

  • Tremors – Some of the anti-rejection drugs can cause the transplant patient to have tremors. Although it covers a different impairment, JAN’s publication on Accommodations for Essential Tremors can be a good source for accommodation ideas.
  • Increased risk of diabetes – One out of 10 patients who undergo an organ transplant develop Type 2 Diabetes. Here is a JAN publication on Accommodations for Employees with Diabetes.
  • Increased risk of heart disease because of elevated cholesterol — Here is a publication from JAN with information about accommodations for employees with heart conditions.
  • Increased risk of high blood pressure.
  • Gastrointestinal problems – Here is a page from the JAN Website addressing accommodations for gastrointestinal issues.
  • Patients may develop gout or have symptoms of gout worsened because of immunosuppressant medication.
  • Anxiety and Depression – As with any major life changing event, undergoing a transplant procedure can contribute to symptoms of anxiety and depression. Here is a JAN publication on accommodating employees with mental health impairments.

With accommodations for individuals who have organ transplants, there is not a one size fits all solution. Not every transplant recipient is going to experience all of the limitations listed above. Over time, the transplant patient’s risk of rejection is lowered so the treatment team may reduce the level of medication he or she needs, and side effects will be reduced. As with any interactive accommodation process, a good source of information about what is needed is the employee who requested the accommodation. Medical documentation can also be useful from the employee’s treatment team. As always, you can contact JAN with your questions at (800)526-7234 (Voice), (877)781-9403 (TTY), or visit us on the Web at AskJAN.org.

Resources:

Donate Life America

“Donate Life America is a 501(c)3 not-for-profit alliance of national organizations and state teams across the United States committed to increasing organ, eye and tissue donation.  Donate Life America manages and promotes the national brand for donation, Donate Life, and assists Donate Life State Teams and national partners in facilitating high-performing donor registries; developing and executing effective multi-media donor education programs; and motivating the American public to register now as organ, eye and tissue donors.”

WebMD – Organ Transplant Overview