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ENews: Volume 11, Issue 3, Third Quarter, 2013

The JAN E-News is a quarterly online newsletter. Its purpose is to keep subscribers informed about low-cost and innovative accommodation approaches; the latest trends in assistive technologies; announcements of upcoming JAN presentations, media events, trainings, and Webcasts; and legislative and policy updates promoting the employment success of people with disabilities.

An e-mail announcement is sent to an opt-in list when a new issue is available. Please use the links at the end of this document to subscribe or unsubscribe.

Index

  1. JAN Participates in the 10th National Training Program of the Society of American Indian Government Employees
  2. Solving the Mystery of Essential Job Functions
  3. Personal Assistance Services (PAS) in the Workplace
  4. Job Coaching as a Reasonable Accommodation
  5. Huntington's Disease Society of America (HDSA) Convention
  6. Publication Update and Training Module on Alternative Input Devices
  7. JAN Blog Growing
  8. JAN Releases New Resources
  9. E-vents
  10. JAN Exhibit and Training Schedule
  11. Subscribe to JAN Newsletter

1 - JAN Participates in the 10th National Training Program of the Society of American Indian Government Employees (SAIGE)

Tifford Brown, Warriors Society, and Louis Orslene, JAN Co-Director

JAN recently participated in the SAIGE 10th Annual National Training Program, Guiding Our Destiny with Heritage and Traditions, at the Kalispel Tribe’s Northern Quest Hotel in Spokane, Washington, June 3-7, 2013.

Formed in 2002, the SAIGE serves as the national organization representing American Indian and Alaskan Native (AI/AN) government employees. SAIGE promotes AI/AN recruitment, retention, equal treatment, and advancement within the government ranks, and assists government agencies in honoring the unique Federal-Tribal relationship.

SAIGE’s 2013 training program provided forums on the most current issues facing AI/AN government employees, as well as issues facing the AI/AN tribes and the people they serve. The plenary sessions offered at the conference included: Indian Country and Federal Indian Law, Equal Employment Opportunity and Human Resources, Indigenous Natural and Culture Resources, Leadership and Professional Development, and Wellness and Health.

In addition, SAIGE held a veterans program developed for and by veterans. The program offered training addressing the needs and interests of AI/AN veterans by highlighting available federal benefits and providing the veterans within the SAIGE community exposure to employment options. The SAIGE group also hosted an all-expense paid youth program designed to develop AI/AN college students into the next generation of leaders and introduce them to prosperous and fulfilling career paths in government. These educational opportunities were complemented by a number of cultural activities including a film festival, as well as ceremonial dancing and singing.

Lou Orslene, JAN Co-Director, presented a session “Creating an Inclusive Workplace for Veterans and Non-Veterans with Disabilities.” The audience included recruiters from a few federal agencies eager to know about disability inclusion. JAN also exhibited at the conference.

Lou sends a thanks out to members of SAIGE who offered a tremendously warm welcome, with special thanks to Shana Barehand, 2013 Training Program Co-Chair, and Jinny Shulenberger, who supported JAN throughout the conference planning.

- Louis E. Orslene, MPIA, MSW, Co-Director

2 - Solving the Mystery of Essential Job Functions

Determining the essential job functions of a position can sometimes be very simple; however, under the Americans with Disabilities Act (ADA), this determination can also be very complex and confusing. When conflict arises between an employer and an employee it may hinge on the determination and interpretation of the essential job functions of a position. This conflict tends to be about what the essential job functions of a position are and whether an employee can perform those essential functions with or without a reasonable accommodation. Controversy in the courts remains. For example, is physical attendance in the workplace an essential function? It depends. Is overtime an essential function? It depends.

According to the rules issued by the Equal Employment Opportunity Commission to implement Title I, the employment provisions, of the ADA (29 CFR Part 1630), the following factors form the foundation for determining which job functions are essential:

Although there may be additional reasons, a job function is considered essential because there is evidence to support such a determination. Evidence of whether a particular function is essential usually includes:

Determining the essential functions of a position should be done on a case-by-case basis. In general, the essential functions of a position include all functions that are not marginal, but from a practical standpoint an employer needs to determine the fundamental duties of a position and keep these determinations up-to-date. The size and type of organization and industry, hiring practices, and current employees are all key pieces in this analysis. Remember to document your process, complete a thorough job analysis, record the important information, detail qualifications, and maintain consistency throughout the process.

For more information on developing job descriptions, see JAN's A to Z: Job Descriptions.

- Beth Loy, Ph.D., Principal Consultant

3 - Personal Assistance Services (PAS) in the Workplace

When you hear the term “Personal Assistance Services” or “PAS,” you may automatically think of a personal care attendant, someone who helps people with disabilities with activities of daily living such as toileting, grooming, and eating. However, PAS often is used as a much broader term that includes other types of assistance such as sign language interpreters, readers, job assistants, job coaches, and even service animals.

As workplace accommodations under the ADA, there are some PAS’s that employers must consider paying for and some they do not. Generally, employers do not have to pay for personal care attendants (except maybe for work-related travel) or service animals because they are for personal needs on and off the job. In contrast, employers may have to pay for other PAS such as interpreters, readers, job assistants, and job coaches that are needed for work-related tasks.

Following are real-life examples of PAS in the workplace:

PERSONAL CARE ATTENDANT

Situation: A clerical worker with muscular dystrophy had been asking co-workers to assist with minor grooming such as helping her put on her coat. However, as her condition progressed, she began asking co-workers to help her transfer on and off the toilet. The employer found out about this practice when one of the co-workers complained after hurting her back.

Solution: The employer talked with the clerical worker and let her know that co-workers could not continue helping her in the restroom, but she could bring in her own personal attendant to help as needed.

SERVICE ANIMAL

Situation: A cashier who was paraplegic and worked in a cafeteria asked to be allowed to use his service dog at work. The employer was concerned about having a dog in the cafeteria.

Solution: The employer found out that while the FDA Food Code prohibits the handling of animals, it allows employees to use service animals in areas not used for food preparation. The Code also states that employees may handle their service animals if, after handling a service animal, the employee follows specific hand washing guidelines. The employee agreed to follow the guidelines and was able to bring his service dog to work.

INTERPRETER

Situation: A government agency contracted with a private company to provide training for the agency’s employees. After the agency hired a person who was deaf, it contacted the company about the need for an interpreter. The company indicated that the government agency would have to provide the interpreter even though the contract specified that the private company would provide accommodations.

Solution: The agency provided the interpreter and then sued the private company for reimbursement based on the contract.

READER

Situation: A small engine mechanic with a learning disability applied for work through a temp agency. The temp agency required all applicants to take pre-placement tests using a computer. The computer had a screen reader, but the applicant requested a reader as he was not familiar with using a screen reader.

Solution: The temp agency asked the applicant to try to use the screen reader, but when he failed the test, the agency provided him with a reader and allowed him to retake the test. He passed using the reader.

JOB ASSISTANT

Situation: A soil and plant scientist had heart disease and was unable to drive. His job required him to go to various sites to do inspections, but he could no longer drive himself. There was no available public transportation to most of the sites.

Solution: The employer hired a driver to take the scientist to his work sites.

JOB COACH

Situation: A claims adjuster with attention deficit disorder who was working from home was having trouble getting organized and meeting productivity standards. He was a client of vocational rehabilitation and asked his employer if he could have a job coach help him get organized. His employer was concerned about having a job coach see confidential claims records.

Solution: The employer decided to hire a job coach that would be a temporary employee of the company. The employer felt like this approach would better allow for holding the job coach to company confidentiality requirements.

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

4 - Job Coaching as a Reasonable Accommodation

Recently, JAN has received a number of inquiries concerning job coaching and how job coaches may be utilized as a form of reasonable accommodation under the ADA. Job coaches specialize in assisting individuals with disabilities to learn and accurately carry out job duties. They may be able to assist individuals in a variety of jobs and with a wide spectrum of disabilities. At JAN, consultants often assist employers who are trying to provide reasonable accommodations for individuals with intellectual, psychiatric, and cognitive impairments who are likely to benefit from the assistance of a job coach. However, job coaches may also be effective in working with individuals with other forms of disability.

The assistance of a job coach is typically meant to be temporary, with the job coach assisting the employee in being able to carry out job duties independently over a period of time. The following are some ways a job coach may be able to help employees with disabilities:

Example:

Situation: A custodian at a Senior Citizens Center has an intellectual disability and a psychiatric disability. He is the sole maintenance worker and is responsible for all cleaning, repairs, indoor and outdoor property maintenance. He performs all the necessary tasks adequately, but has difficulty determining the most efficient order in which to perform them. This sometimes results in important duties being delayed or left unfinished.

Solution: The Center’s Director contacts a local non-profit agency that serves people with intellectual and psychiatric disabilities who sends a job coach to teach the custodian to learn and then apply a system of prioritizing and scheduling all of the maintenance activities. They make a wall chart to support this process, and the job coach is able to begin fading out his weekly visits after six weeks. He visited once per month for three more months by which time the custodian was using the system independently.

Employers may have questions regarding who is responsible for the funding of a job coach and for how long they may be required to provide a job coach as a form of reasonable accommodation. In many cases, funding for a job coach may be provided by an outside agency, such as a vocational rehabilitation office or non-profit. If such funding is not available, employers may be required to try to pay for a job coach if they can do so absent undue hardship. Again, job coaches are typically temporary, and as with all forms of reasonable accommodation, the employer would only be required to try to provide a job coach if it was needed as a form of reasonable accommodation and could be provided absent undue hardship to the employer.

If you think an employee may benefit from a job coach, and you would like to discuss any questions you may have, please contact JAN.

- Daniel Tucker, M.S., Cognitive/Neurological Team

5 - Huntington's Disease Society of America (HDSA) Convention

In June, JAN made its debut appearance at the HDSA's 28th Convention. Lisa Dorinzi led a session specifically for social workers during the Convention’s Professional Training Day. Lisa presented on topics including The Americans with Disabilities Act Amendments Act (ADAAA), disclosing Huntington’s disease (HD), and accommodation ideas for HD. Later during the convention, Lisa did a similar second presentation targeted towards individuals with HD, at-risk individuals, caregivers, and family members. JAN also had a booth set up in the exhibit hall!

JAN and HDSA have been working together to update JAN’s Effective Accommodation Practice Series: Huntington’s Disease, which also made its debut at the HDSA Convention!

Both audiences had very good questions regarding topics that can be very confusing, so let’s take a closer look:

Can a spouse or family member request accommodations for an individual with a disability?

Yes, family members, spouses, health care providers, and/or service providers can make a request for reasonable accommodation on behalf of an individual with a disability, but the individual with a disability may refuse to accept an accommodation that is not needed.

See #2 in EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.

If an employee with a disability is reassigned to a vacant position that happens to be a lower salary, is the employee entitled to keep the original, higher pay?

Unless the employer transfers employees without disabilities to lower positions and maintains their original higher salary, the ADA does not require it.

See #30 in EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.

When should an individual with a disability request an accommodation?

While there is not a set time to request an accommodation, an individual with a disability may want to request accommodations before performance problems arise, or before they become too serious. This is because an employer never has to rescind any disciplinary action (including termination) that occurred due to poor performance prior to an accommodation request.

See #5 in EEOC's Enforcement Guidance: Applying Performance And Conduct Standards To Employees With Disabilities.

What forms of accommodations are not considered “reasonable?”

The ADA does not require an employer to:

Even though an employer is not required to remove essential functions or lower production standards, there is still an obligation to provide workplace accommodations absent undue hardship, which would enable an individual with a disability to either perform essential functions or meet production standards.

See General Principles in EEOC's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.

Lisa Dorinzi, M.S., Consultant, Motor Team

6 - Publication Update and Training Module on Alternative Input Devices

The use of computers and technology in the workplace has become commonplace in many industries and is no longer limited to administrative or information technology (IT) professionals. Education, healthcare, transportation, and manufacturing facilities are just a few examples of industries where having the ability to access information on a computer can be a necessity. Individuals with physical and/or developmental limitations may not be able to use standard computer input devices or other types of technology effectively and may benefit from using alternatives.

Employees with all types of impairments may be able to benefit from using Assistive Technology (AT) in the workplace. AT can mean a device or service that can be used as a tool by a person with a disability to achieve or maintain function. Those with motor impairments may need AT to overcome problems inputting information or using workplace equipment. Individuals with vision impairments might need AT to access information or navigating the workplace. Those who are deaf, hard of hearing, or with speech-language impairments may benefit from AT that helps with communication. And, individuals with cognitive or neurological impairments may need AT to assist them with tasks like reading and writing.

Alternative input devices, one type of AT, are hardware or software solutions that allow users with a variety of impairments to access a computer in a different way. These devices come in many shapes and sizes to accommodate a variety of limitations, including individuals with no hand or finger movement. Examples of alternative input devices include: Expanded keyboards; one-hand keyboards; trackball mice; speech recognition software; or devices that allow users to control a computer with their eyes, head, or breath and mouth.

The updated JAN publication “Alternative Input Devices: Options to Consider” offers additional information and a non-inclusive list of alternative computer input devices typically used by individuals with upper and lower extremity limitations. Additionally, the Just-in-Time training module “Assistive Technology in the Workplace” illustrates the basics of AT and how it can be used in the workplace as an accommodation. JAN offers these resources to employers and individuals who may be considering the use of AT as an accommodation and want to get a better idea of the options available.

Elisabeth Simpson, M.S., Senior Consultant, Motor / Sensory Team

7 - JAN Blog Growing

The Ask JAN Blog provides an opportunity for you to share with others your workplace accommodation solutions. JAN receives over 45,000 contacts per year – conversations with all of you that help us better understand what’s working effectively in your workplaces. We have a great deal to learn from one another. We encourage you to share your experiences and interact with the JAN staff. Your accommodation success stories can benefit many others around the Nation. Enjoy the new postings and additional Spanish selections:

Become a part of the new JAN blogging community!

8 - JAN Releases New Resources

9 - E-vents

10 - JAN Exhibit and Training Schedule

Events of particular interest: Get the most up-to-date and comprehensive training on employing people with disabilities. To view the complete JAN travel schedule go to JAN-on-the-Road.

11 - Subscribe to JAN Newsletter

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This document was developed by the Job Accommodation Network, funded by a contract agreement from the U.S. Department of Labor, Office of Disability Employment Policy (DOL079RP20426). The opinions expressed herein do not necessarily reflect the position or policy of the U.S. Department of Labor. Nor does mention of tradenames, commercial products, or organizations imply endorsement by the U.S. Department of Labor.

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