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ENews: Volume 11, Issue 4, Fourth 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. A Look Into the New Section 503 Regulation: Be Proactive to Ensure Equal Access Through Your Information/Communication Technologies
  2. Addressing Performance Issues in the Workplace
  3. Dealing with Conduct Issues under the ADA
  4. Accommodations for Driving
  5. Cataplexy: Rare But Relevant!
  6. Coming in November - "Just-in-Time" Module on Ergonomics in the Workplace
  7. JAN Blog Growing
  8. JAN Releases New Resources
  9. E-vents
  10. JAN Exhibit and Training Schedule
  11. Subscribe to JAN Newsletter

1 - A Look Into the New Section 503 Regulation: Be Proactive to Ensure Equal Access Through Your Information/Communication Technologies

On August 27, 2013, the Office of Federal Contract Compliance Programs announced revisions to the current regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended. Section 503 prohibits Federal contractors and subcontractors from discriminating in employment against individuals with disabilities and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. This revision strengthens the affirmative action provisions of the regulations and makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the Americans with Disabilities Act (ADA) Amendments Act of 2008.

The regulation was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. Generating much discussion after its release is the requirement to collect and maintain self-identification data from applicants when applications are primarily received over the Internet. How may contractors invite applicants to self-identify as an individual with a disability in this manner? Contractors are able to invite applicants to self-identify as an individual with a disability at the same time the contractor solicits demographic data on applicants. This requirement actually follows a previous Internet Applicant Rule that came into effect in February 2006 under Executive Order 11246.

But, in response to public comments, OFCCP revised a proposed requirement that a contractor “ensure that its use of information and communication technology is accessible to applicants and employees with disabilities.” However, the regulation does require that the “contractor shall ensure” that applicants and employees with disabilities have “equal access to its personnel processes, including those implemented through information and communication technologies,” including providing necessary reasonable accommodations. Contractors are also “encouraged” to make their information and communication systems accessible, even in the absence of a specific accommodation request.

Given that the term accessible is always changing and evolving, where can employers begin when looking at making their systems accessible? A good place to start is JAN’s 15-step SNAP tool. Although it is a self-evaluation tool that is designed to apply to online application systems, the tool is a resource that provides a place to begin an accessibility review of any information or communication technology. To assist with making these systems accessible, follow JAN's 10 tips for making your Website accessible and work through JAN’s SNAP Process: 1) Self assess your online systems with your selected team, 2) No is not an answer to accessibility modifications, 3) Accept challenges from all types of users (internal and external), and 4) Prioritize accessibility first with support from top management. Being proactive with these systems is a good investment legally, technically, and financially. Ensure that you don’t have to worry about this area of your business, and begin with JAN’s resources:

- Beth Loy, Ph.D., Principal Consultant

2 - Addressing Performance Issues in the Workplace

Good employee performance is critical to the success of any business. This is why it is important for employers to have performance standards and to be consistent in applying those standards to all employees. However, employers often struggle with handling performance problems when it comes to employees with disabilities. JAN Consultants do receive calls from human resource professionals, managers, and supervisors who are uncomfortable handling situations where an employee with a disability is not meeting performance standards. Commonly, management has not addressed the problem with the employee because they do not know how to approach the situation and there may be uncertainty about how to apply performance standards to an employee with a disability. Or, they experience apprehension related to enforcing a standard; that it could appear as though the manager is discriminating against the employee with a disability under the ADA.

Employers have the right to define the essential functions of a job, to require that all employees meet qualitative and quantitative standards, and to evaluate employees according to those standards in a way that is consistent and uniform – which is key when it comes to ADA compliance. Regardless of medical impairment, employees must be qualified, be able to perform essential job functions, and can be expected to meet qualification standards that are job-related and consistent with business necessity. A qualified employee with a disability is someone who can perform the essential functions of a job (with or without accommodation) AND meet the required performance standards of his or her position. The ADA is designed to give workers with disabilities an equal opportunity to succeed on the job, not a greater opportunity. Thus, employees with disabilities should be held to the same performance standards as other similarly situated employees.

Medical impairment often has no bearing on performance, but when it does, employers should be prepared to handle such situations. When disability contributes to performance issues, reasonable accommodation may be required to assist an employee in meeting a uniformly applied standard. Reasonable accommodation can play a key role in preventing or improving performance problems. The objective, however, is to enable the employee to meet the standard as opposed to changing, removing, or ignoring the standard. The Equal Employment Opportunity Commission (EEOC) has made it clear that employers have no obligation to modify or disregard performance standards as an accommodation under the ADA. This is explained in EEOC’s enforcement guidance entitled, The ADA: Applying Performance and Conduct Standards to Employees with Disabilities.

JAN offers practical guidance regarding how to handle performance issues in the workplace. The first step is to identify the problem. Employers should address performance issues as soon as they develop – with all employees, not just employees with disabilities. Having uniformly applied standards in place allows employers to consistently evaluate employees and to more easily identify and respond to problems that develop. If an employee has a known disability, the employer should not assume that the performance problem is disability-related. Similarly, if an employee has not disclosed a disability, an employer has no obligation to ask whether a disability is impacting performance. Of course, there are times when it is clear that a disability is affecting performance. What can an employer do then? Technically, when there is a known impairment and an employer has good reason to believe that performance is impacted because of the employee’s disability, an employer may ask if an accommodation is needed – but is not required to do so. Under the ADA, the onus falls upon the employee to make it known to the employer that performance is impacted by the disability and accommodation is needed.

In all scenarios described above, the next step is the same; once the problem has been identified, meet with the employee to discuss the issue. When discussing the problem with the employee, the employer should be direct, let the employee know what the problem is, that it must be addressed, and explain the consequences of not addressing it. In some cases, the employee may be unaware that a problem exists. Offer clear expectations regarding the standard of work that must be met.

To successfully manage performance issues in the workplace, JAN suggests that HR professionals, supervisors, and managers be trained to:

Why this approach? The employer is is putting the employee on notice that he or she can ask for help – basically, an accommodation – and how to go about doing this. If the employee indicates that the problem is related to a disability, then the employer should initiate the interactive process to determine whether the ADA applies and if there are accommodations that will resolve the problem. For help with this process, JAN offers a simple step-by-step approach known as The Interactive Process.

The overall message is that it is best to deal with performance issues as soon as they develop, rather than ignore them. There is no benefit to the business or employees in disregarding performance standards. Ignoring standards can do an injustice to employees by not holding them to clear expectations and giving them an equal opportunity to succeed and can also negatively impact business operations. The key is to be uniform and consistent. Employers who have concerns about any perception of discrimination can avoid an ADA claim by being consistent in their practices and documenting efforts to enable employees to meet required standards through accommodation, when appropriate. For more detailed information regarding performance, and also conduct issues, the following resources are available:

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

3 - Dealing with Conduct Issues under the ADA

Conduct problems may be some of the most difficult issues to address in the workplace and oftentimes have little to do with a disability. Employers are often mystified by the nature and range of conduct issues that crop up. For more information on conduct issues, how they can be handled under the ADA, and real life situations and solutions, please read on.

According to the EEOC’s guidance on The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, employers need not lower a conduct standard for an employee with a disability and can hold that employee to the same standard they hold other employees to. However, if a disability is causing the misconduct, the employer will need to consider providing accommodations to help the employee meet the standard. There is no specific timeframe in which an employee is required to ask for an accommodation under the ADA, but it would be advantageous for employees to disclose a disability and request reasonable accommodation before conduct problems arise, or at least before they become too serious. The timing of a request for reasonable accommodation is important, because an employer does not have to revoke discipline (including a termination) or an evaluation warranted by misconduct that occurs prior to an accommodation request.

Employees should not assume their employers know that an accommodation is needed just because the employer knows about the disability, nor does the employer’s awareness of the disability require the employer to ask the employee if the misbehavior is caused by the disability.

It is a good practice for employers to initiate a discussion about conduct problems before they become too serious in an effort to give employees the opportunity to address the concerns. An important point to make here is that an accurate assessment of an employee’s conduct may alert the employee that the disability is contributing to the problem. This may lead the employee to request reasonable accommodation to address the problem and improve behavior, which can be beneficial to both the employee and the employer.

See the following situations and solutions that involve conduct issues and standards:

Situation: A sales associate in a retail location strikes another employee while on a break. When the store manager intervenes, he terminates the employee who hit her co-worker. The employee discloses that she has bipolar disorder and is under a lot of stress and anxiety right now due to a spouse’s job loss.

Solution: The employer does not ask anything about the disability, nor does he rescind the termination. The company policy states a zero tolerance for fighting.

Situation: An employee with a known panic disorder is confronted in a small enclosed office space by her supervisor. Even though the employee knows that leaving the discussion without permission will not be viewed favorably, she tells her supervisor that she cannot be confronted and stay in this small space. After the supervisor warns her that stepping away from the conversation will result in a termination, the employee chooses to walk away.

Solution: The employer terminates the employee, the same punishment given to any employee who is insubordinate. The employee protests her termination, telling the supervisor that her panic and need to leave were results of her anxiety disorder. She says she was trying to get away from her supervisor when she felt the panic rising, but he ordered her not to leave the room. The employee apologized to her supervisor and asked to be reinstated. She also asked that in the future she be allowed to walk away from threatening situations because her stress and panic may cause her to act inappropriately. The employer leaves the termination in place because the employee’s request for reasonable accommodation came after her defiant behavior.

This example may not be as clear-cut as the supervisor thought. Since the disability was known, there might be an argument in the employee’s favor that she was asking for an accommodation when she told her supervisor that she could not be confronted and stay in that small space. It might also be said that she was not able at that time to think clearly and ask specifically for an accommodation to help, she just knew she had to get out of the situation before something more severe happened. If her supervisor did know she had an anxiety disorder, he may have been able to recognize what was happening and defuse it. The supervisor might have taken disciplinary action that was not as severe as termination, and allowed the employee the benefit of the doubt. This approach would certainly show a good faith effort to accommodate under the ADA.

Situation: A nurse with severe depression was written up after several verbal warnings for inappropriate conduct. She was placed on a thirty day plan of improvement (PIP) and warned that if the behavior did not stop within the stated time period, she would be let go. The employee decided to disclose her disability and ask for accommodations that would assist her in responding more appropriately to co-workers.

Solution: Because the employee disclosed and asked for accommodations, the employer put the PIP on hold until the employee provided medical documentation and accommodations could be made. The hospital did not have to rescind the discipline that occurred before the disability was known, but while employers can hold employees to the same conduct standards they hold others to, they are obligated to provide accommodations to help employees meet those standards. In this situation, once accommodations were put into place, the employer started the PIP.

Situation: An employee has recently begun to have workplace issues with refusing to do any work from her computer. She has suspicions that the employer has been monitoring her by placing devices in her computer. The employer assured her that is not the case, and had the IT department check out her computer as well, but the employee still refused to do any work that involved her computer. Because of the nature of these issues, the employer assumed that the employee was having psychological issues. He then required the employee to go home and prohibited her return to work until she had been cleared for duty by a psychiatrist.

Solution: By demanding a fitness-for-duty exam to be completed by a psychiatrist, the employer was assuming that the employee had a mental health impairment. A more effective alternative would have been to hold the employee to the performance and conduct standards of working from her computer and treating her refusal as a disciplinary infraction. This may have given the employee the opportunity to disclose that she was having issues, or may have given the employer the opportunity to ask this employee if there was something the employer could do to assist her in getting her work done. If the employee refused to cooperate with the employer at that point, she could be progressively disciplined according to company policy.

Situation: A 911 dispatcher began to have panic attacks on the job that caused him to leave his workstation and the phone lines to take a walk outside the building to try to calm himself down. The episodes lasted anywhere from 20-45 minutes and were increasing in frequency. What started out as a couple of episodes a month had progressed to several episodes daily.

Solution: The supervisor viewed this situation as a direct threat, and requested medical information from the employee to show that he was able to safely do his job. He included a job description for the physician to review. The supervisor also asked for strategies to keep this from happening on the job.

A direct threat means that an individual will be dangerous to himself or others. A health or safety risk can only be considered if it is “a significant risk of substantial harm.” Direct threat can be a pretty high standard to meet. The employer could have handled the situation as a performance issue – the employee was not doing his job if he was away from his workstation and not taking phone calls while having the panic attacks. If the employee disclosed at that time, then the employer could still have requested the medical information as a way to help understand how the impairment affects the employee. Accommodations that could reduce the anxiety at work that caused the panic attacks would then be considered.

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

4 - Accommodations for Driving

What is an employer’s responsibility to provide an accommodation for driving, and what are some accommodations available for driving? These are common questions that we receive at the Job Accommodation Network. To answer these questions, we need to consider that there are many different reasons that an individual may need an accommodation for driving. Some people may need accommodations related to their commute to work, others might need accommodation for on-the-job travel such as site visits in the field, and still others may be professional drivers who are responsible for transporting persons or material as an essential function of their jobs.

In addition, there are many different impairments that may interfere with a person’s ability to drive. For example, an office worker with a back condition who has difficulty sitting for long periods may be unable to handle a long commute. Or, a social worker who does home visits may experience a sudden spinal injury with paralysis and may need to have modifications to a work vehicle or find an alternative means of transportation. Or, a professional driver may have a seizure disorder and be temporarily disqualified from driving. As you can see each case is individual and may require different accommodation solutions.

Driving Related to Commuting to and from Work

Let us start with accommodation for driving to and from work. Many employees drive as a part of their commute to work and some may need to drive for a long time during their commute. Commuting to work can be a problem for many reasons, for example employees who have sitting restrictions due to a disability, employees with bowel and/or bladder issues that require frequent use of a restroom, employees who cannot operate a foot pedal due to limitations in the use of their lower extremities, employees who have difficulty operating a steering wheel due to limitations in the use of the upper extremities, and employees with medical conditions such as severe epilepsy that may limit their ability to operate a vehicle safely.

Employers, when faced with a request for accommodations related to an employee’s commute, might think that they are not responsible for the employees commute because it is outside of the work environment. To a certain extent that is true; employers do not have to provide transportation to and from work and/or pay for modifications for an employee’s personal vehicle as an accommodation under the ADA, unless they provide transportation or vehicle modification for all employees in general.

However, even though employers do not have to provide transportation to and from work, there are accommodations that employers must consider such as modifying an employee’s schedule so she can use public transportation or allowing an employee to work at home to avoid commuting all together. The reason employers must consider these types of accommodations is because employers control the time and location of an employee’s work as part of the work environment.

For more information, see:

Finally, another possible accommodation issue that may come up related to an employee’s commute to work is allowing the employee to park in an accessible parking space at work if the employer provides parking for employees. This might mean reserving the closest spot available to entrance. For individuals who use mobility devices, accommodations could include room to transfer in and out of the mobility device and access to a ramp and an accessible entrance. For more information about parking as an accommodation, see: Parking and the ADA, Act 1.

Driving Related to Job Performance

Employees with disabilities sometimes need accommodations for driving on the job. An employer’s responsibilities to provide an accommodation for on-the-job driving are greater than for commuting to work because clearly the driving is a part of the work environment. The first thing employers need to do is determine whether driving is an essential function of an employee’s job. For more information about how to determine when driving is an essential function, see: EEOC Informal Guidance Letter: ADA/Drivers License/Essential Functions/Reasonable Accommodation.

If driving is not an essential function, then the employer needs to consider accommodations such as providing alternative transportation or performing the job in another way that does not require travel. If driving is an essential function, then the employer needs to try to provide accommodations that would enable the employee to drive. For example, in the case of a professional driver where driving is clearly an essential function of the job, the employer may need to consider accommodations such as limiting hours or driving distance (if such accommodations would help) or allowing leave time until the employee can drive again. Or, depending on the employee’s limitations, it might be possible to modify the vehicle to enable the employee to overcome his limitations related to driving. For a list of products that may be useful for modifying a vehicle, see JAN's SOAR.

When considering modifying an employee’s work vehicle, an employee and employer may benefit from a referral to a certified driver rehabilitation specialist. Here is link to the Association for Driver Rehabilitation Specialists.

With professional drivers who are responsible for transporting people or materials, there are often federal requirements related to a driver receiving a Commercial Driver’s License (CDL). Under the ADA, employers do not have to disregard such federal standards. However there may be waivers, exemptions, and/or pilot programs through which employees with disabilities who do not meet these qualifications could still get their CDL. You can find out information regarding these waivers at: U.S. Department of Transportation's Waivers, Exceptions, and Pilot Programs.

Finally, there may be some situations where the employer may need to consider reassignment as an accommodation. This may be the case where, for example, driving is an essential function of the job, the employee is unable to drive due to a disability, and there is no accommodation that the employer can provide to enable the employee to drive. For information about reassignment, see: EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship.

Conclusion

As always, the best accommodation will depend upon the employee’s abilities, the essential functions of the employee’s job, and the employer’s capacity to provide the accommodation without incurring an undue hardship. If you have any questions, please contact JAN. You can contact us through phone, chat, or email.

- Burr Corley, MSW, Consultant, Motor Team

5 - Cataplexy: Rare But Relevant!

Cataplexy by itself is a rare disease, but is considered one of the major indications of narcolepsy. Cataplexy is the sudden loss of muscle tone or temporary paralysis caused by extreme emotion (laughter, stress, or anger). While a cataplectic attack is usually very short in duration and leaves no residual effects, there may be symptoms that would require workplace accommodations. Some of the most common limitations stemming from a cataplectic attack are weakened speech, vision issues, trouble balancing, upper extremity weakness, and/or collapsing.

Below are examples of how cataplexy has been successfully accommodated in the workplace.

For more information and accommodation ideas that may be helpful for individuals with cataplexy, visit JAN's A to Z: Cataplexy.

- Lisa Dorinzi, M.A., Consultant, Motor Team

6- Coming in November - "Just-in-Time" Module on Ergonomics in the Workplace

Ergonomics is the process of fitting a job to a particular individual. Implementing appropriate ergonomic principles can help employers satisfy their accommodation obligations under the Americans with Disabilities Act (ADA), help employers limit their workers’ compensation costs, and create a safe and inclusive workspace. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Applying ergonomic principles or using equipment in order for the job to be performed safely and effectively may be part of a reasonable accommodation for an employee with a disability.

In some cases, an employee who is in need of an accommodation may request ergonomic products or equipment; while in other cases, an ergonomic assessment may need to be performed. Ergonomic assessments can help both the employer and employee have a better understanding of alternative ways the job could be performed or if equipment such as alternative keyboards, patient lifting devices, or material handling products would be beneficial for an employee to use. Ergonomic assessments can be performed by an in-house safety or human factors employee who is qualified to perform an analysis on an employee’s work environment and make appropriate recommendations. When this is not available, an employer may need to look elsewhere for ergonomic consulting services or they may want to consider training for future ergonomic assessment needs.

JAN provides information about ergonomics in the workplace at JAN's A to Z: Ergonomics. This resource page includes a list of organizations that offer ergonomic assessment consulting services, referrals, and training materials. This list is not exhaustive, and JAN does not specifically endorse these organizations over others that provide similar services. In November, JAN wil also be releasing a “Just-in-Time” training module on Ergonomics in the Workplace to its library on the Multimedia Training Microsite. This module will explore various medical conditions that could benefit from an ergonomic assessment or job analysis, ergonomic products that could constitute a workplace accommodation under the ADA, an overview of ergonomic assessments, and how ergonomics can be applied in a variety of settings, including manufacturing, healthcare, and office jobs. JAN offers these resources to employers and individuals who may be considering ergonomic assessments as an accommodation and want to get a better idea of the options available.

- Elisabeth Simpson, MS, 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 40,000 contacts per year – conversations with all of you that help us better understand what’s working effectively in your workplaces. We have a great deal to learn from one another. We encourage you to share your experiences and interact with the JAN staff. Your accommodation success stories can benefit many others around the Nation. Enjoy the new postings and additional Spanish selections:

Become a part of the new JAN blogging community!

8 - JAN Releases New Resources

9 - E-vents

10 - JAN Exhibit and Training Schedule

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

11 - Subscribe to JAN Newsletter

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

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