From the desk of Melanie Whetzel, M.A., CBIS, Principal Consultant, Team Lead
What is the employer’s role in the interactive process when an employee may not be able to fully understand everything that is involved in the process? And just what is involved? The first step of the process requires the employer to recognize an employee’s request. What if the employee with cognitive impairments isn’t able to understand the ADA and make a request? The employee may not know about the ADA, or how it applies to him. He may not understand the official language that is often used, such as accommodations, medical documentation, limitations, and essential functions, and how these terms apply to him and his job. He may not know that he isn’t fully completing his job tasks because he may have a limited ability to understand the entire scope of the job. He may understand that he is having a problem, but he may not know what to do about it.
Generally speaking, it is up to the employee to disclose the disability and ask for accommodations when he feels there may be performance or conduct issues that are tied to the disability. Here’s how the Equal Employment Opportunity Commission (EEOC) addresses the issue in its guidance The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities:
Ideally, employees will request reasonable accommodation before performance or conduct problems arise, or at least before they become too serious. Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance or by misconduct.
We advise employers to bring up performance and conduct issues, but in no way imply or ask if a disability is involved. We also advise them to ask the employee if he / she needs assistance to meet the performance or conduct standard, but be careful not to use the word accommodation. Employers want to be careful not to assume and / or imply that the employee has a disability, but rather bring the performance or conduct issues to the employee’s attention and give the employee the opportunity to disclose a disability at that time. We also advise that if the employee doesn’t disclose a disability and link it to the performance or conduct issues, then the employer can agree to offer assistance, but can certainly move ahead in the disciplinary process. When a disability is involved and the employee links it to the inability to reach performance or conduct standards, the employer never has to excuse the issues that have occurred in the past, but would certainly want to be cautious in moving ahead. For more from the EEOC:
It is generally preferable that the employee initiate any discussion on the role of the disability. Ideally, employers should discuss problems before they become too serious in order to give the employee an opportunity as soon as possible to address the employer’s concerns. An employee who is on notice about a performance or conduct problem and who believes the disability is contributing to the problem should evaluate whether a reasonable accommodation would be helpful. An employee should not assume that an employer knows about a disability based on certain behaviors or symptoms. Nor should an employee expect an employer to raise the issue of the possible need for reasonable accommodation, even when a disability is known or obvious.
So this last statement made in reference to employees expecting an employer to raise the issue of the possible need for reasonable accommodation, even when a disability is known or obvious cannot be taken as a blanket statement. An employee who has been notified about a performance or conduct problem may or may not be able to realize or determine that the disability is contributing to the problem nor be able to evaluate whether a reasonable accommodation would be helpful.
In a different EEOC guidance entitled Questions & Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act (ADA) see how the same situation takes on a different solution:
Are there circumstances when an employer must ask whether a reasonable accommodation is needed when a person with an intellectual disability has not requested one?
Yes. An employer has a legal obligation to initiate a discussion about the need for a reasonable accommodation and to provide an accommodation if one is available if the employer: (1) knows that the employee has a disability; (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability; and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
See the example given in the guidance as well:
A flower shop employee with an intellectual disability is in charge of stocking the containers in the refrigerators with flowers as they arrive from the suppliers. Each type of flower has a designated container and each container has a specific location in the refrigerator. However, the employee often misplaces the flowers and containers. The employer knows about the disability, suspects that the performance problem is a result of the disability, and knows that the employee is unable to ask for a reasonable accommodation because of his intellectual disability. The employer asks the employee about the misplaced items and asks if it would be helpful to label the containers and refrigerator shelves. When the employee replies that it would, the employer, as a reasonable accommodation, labels the containers and refrigerator shelves with the appropriate flower name or picture.
Although this is a great example of an accommodation that might be effective for persons with intellectual disabilities, it could also apply to people with cognitive impairments in general. What are cognitive impairments? Cognition is the act of knowing and / or thinking. It includes the ability to understand, remember, and use information. It also includes the ability to pay attention and concentrate, process and understand information, remember, communicate, plan and organize, reason, problem solve, and make decisions and judgements. Cognitive impairments may be caused by many different disabilities and medical impairments, and will vary greatly from person to person depending on the extent of their disability. Disabilities that might cause or contribute to cognitive impairments include but are not limited to intellectual and learning disabilities, autism spectrum disorders, attention deficit / hyperactivity disorder, sleep disorders, brain injuries, stroke, epilepsy, mental health conditions, multiple sclerosis, and cerebral palsy. The side effects of medication taken for disabilities and medical conditions may contribute to the difficulty individuals may have in their cognitive functioning as well.
To get a better picture of what this might look like on the job, see the following examples:
Loretta is an employee with depression and anxiety who had great difficulty understanding what information the employer was trying to obtain from the ADA paperwork, a required step in the accommodation process. The questions on the forms for the employee and her doctor did not contain user-friendly terms, and because of her mental state, Loretta found them impossible to navigate. When a consultant at JAN explained what the forms were asking for, and was able to put the wording into terms Loretta was able to understand, she was much relieved and said she would get them on to her medical provider to continue on with the process.
Derek, an employee with Down syndrome, was not performing the full scope of his position. He was a mail clerk who had difficulty remembering to go for his second mail collection run when he was involved in other tasks. As he went on his mail runs every morning, he was stopping to have coffee and chitchat with the various departments and taking so much time that his morning runs ran into his afternoon runs. This wasn’t an issue for Derek, as he didn’t seem to realize the full extent of the tasks he was leaving undone.
Derek’s manager went with him on his runs one day to see what the issues might be, and that is when it was discovered how much time Derek was spending socializing. The manager immediately remedied the situation and offered assistance in the form of accommodations, because he felt that not only was Derek unable to grasp the totality of his position, he was also unable to determine what he needed in order to perform his full job. Derek was provided with a watch that vibrated to alert him when it was time to start both of his mail runs. The watch was also used to help him gauge if he was working speedily enough. The manager determined where in the run he should be at the halfway mark and had a timer set for that interval for both runs. This helped Derek speed up if he hadn’t yet reached the indicated department.
Toby was a country club employee who was having difficulty with motivation in the mornings, and was unable to initiate the tasks he was responsible for. Extended training on how to do the tasks, along with a task list were proving to be unsuccessful motivators. When asked what he thought would help, Toby was not really able to verbalize what he needed. The employer noticed that a friendship had developed between Toby and a pro shop employee. The pro shop employee described the relationship as a grandfatherly one. He began to mentor Toby by doing periodic “checks” on him during the mornings. The response was very positive, and Toby worked successfully, seemingly eager to please his new friend.
Millie was a fast food employee who worked very diligently sweeping and cleaning tables, but was often unsure of what she needed to do when, so she frequently stood around doing nothing. Her manager realized what was happening and asked Millie if a schedule of tasks she needed to do would be helpful as a reminder and Millie was all for it. The list was prioritized in picture form so Millie was able to see what needed to be done next. The accommodation that was provided kept Millie busily completing her tasks and her manager happy with her performance.
As you can see from these examples, there may be a need for an employer to help the interactive process along when attending to employees with cognitive impairments who may need accommodations to successfully perform the essential functions of their positions and meet performance and conduct standards, but are unable to realize the need. Even though there appears to be a dichotomy in guidance of whether to rely on an employee himself to ask for accommodations to successfully perform his job functions or if the employer has the responsibility to ask, maybe the best way to look at it is in a more practical sense of job improvement that will be a win/win for everyone. If the goal of job counseling is to improve the conduct or the performance of the employee, then it really behooves the employer to realize that any step taken towards helping an employee with a cognitive impairment is a step taken towards the improvement that will benefit not only the employee, but other employees and the employer in general. This should make it a much easier decision.