The Manager’s Dilemma: “An employee is asking about a co-worker’s accommodation. As a manager, what do I say?”

Posted by Kim Cordingly on December 18, 2013 under Accommodations, ADAAA, Employers | Comments are off for this article

By: Louis Orslene, JAN Co-Director

When I’m on the road presenting, I often get this question. Usually it is from a supervisor or hiring manager, but at times from a human resource (HR) specialist who is responsible for advising managers. Being a manager, I understand the dilemma. The manager’s role is to keep a team well informed on issues affecting the team with the ultimate goal of insuring team cohesiveness and productivity.

When asked about another employee’s accommodation, the manager can take the approach that this information is none of the business of co-workers or other employees. However, as many who have served in this role know, this may not be the most pragmatic approach. And, as David K. Fram, Esquire, Director of the ADA & EEO Services for the National Employment Law Institute (NELI) suggests “…employees – or unions – may insist on knowing why one employee gets to perform the job in a different manner.” Thus, this complicates the manager’s dilemma.

At times, when it comes to sharing information involving an employee accommodation, managers are caught between the proverbial rock and a hard place. As with much of managing, it is a balancing act. On one hand, the manager must protect the confidentiality of the accommodated employee which also serves to minimize risk for business. On the other hand, the manager needs to communicate changes in the team environment to insure team morale, motivation, and ultimately productivity.

For guidance on this issue, let’s look to two national authorities on the topic of disabilities in the workplace — the Equal Employment Opportunity Commission (EEOC), who enforces the employment provisions of the Americans with Disabilities Amendments Act (ADAAA), and NELI.

The EEOC offers:

“If employees ask questions about a coworker who has a disability, the employer must not disclose any medical information in response.  An employer also may not tell employees whether it is providing a reasonable accommodation for a particular individual.”

Fram from NELI adds:

“Some disability advocates have argued that disclosing that someone is receiving an ADA reasonable accommodation essentially reveals that the individual has a disability.”

So as a manager, “What then can I say?” First, I would suggest for the manager or HR specialist to request assistance from their legal department. A response to this question may have already been developed and sanctioned by the legal staff. If not, the EEOC offers that a manager:

“…may explain that it is acting for legitimate business reasons or in compliance with federal law.”

Fram writes that in the proceedings for Williams v. Astrue, 2007 EEOPUB LEXIS 4206 (EEOC 2007), the EEOC offered employers additional language to be considered.

Thus, a manager might also say:

“…it has a policy of assisting any employee who encounters difficulties in the workplace,” and that “…many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer’s policy to respect employee privacy.”

However, one of the most concise and informative answers to this question was articulated in a recent Employer Assistance and Resource Network (EARN) Webinar by speaker Susan W. Brecher, Esquire, of Cornell University. Susan suggests that managers say:

 “…we look and treat employees individually and make considerations based upon good business reasons which allows for privacy of each individual.”

Of the responses I’ve heard to date, I think this is the best. It provides just enough information without speaking directly to the specifics of the individual being accommodated.

References:

EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC NOTICE, Number 915.002 , Date 3-25-97, page 18.

NELI’s The Human Resource Guide to Answering ADA Workplace Questions (8th Edition), 31st Edition 9/2011, Page III-41-42.

EARN Webinar, The Interplay between FMLA and ADAAA Human Capital Development, Cornell University, ILR School.  Thursday, September 27, 2012.

Service Dogs as a Workplace Accommodation for Employees with Diabetes

Posted by Kim Cordingly on December 5, 2013 under Accommodations, ADAAA, Employers, Trending Topics | Comments are off for this article

By: Teresa Goddard, Senior Consultant, Sensory Team

November was American Diabetes Month, so predictably JAN consultants received many inquiries about accommodations for employees with diabetes. JAN customers often ask about the most common type of accommodation for a particular condition. Anecdotally, I would say that a modified schedule, such as flexible start times and modified break schedules, is one of the most common types of accommodation we discuss during calls about diabetes. Other typical accommodation solutions include providing a space for the employee to store medication and food; policy modifications which allow an individual to eat at one’s desk; or procedural modifications related to travel reimbursement which may be needed to avoid passing extra costs related to food, and medication storage or other disability related travel expenses on to the employee. However, over the past few years, I’ve noticed the number of questions we receive about the use of service dogs by employees with diabetes seems to be increasing. I’ve also fielded numerous questions on this topic during presentations and trainings, as well as the day-to-day calls here at the office.

The number of calls we receive at JAN related to employees with diabetes who use service animals to assist with management of their condition continues to be relatively small in comparison to the total number of accommodation inquiries we receive about diabetes. However, we have seen a gradual increase since the passage of the ADA Amendments Act of 2008 (ADAAA). Because of the ADAAA, individuals with diabetes are more easily able to show they are covered under the ADA.  One of the changes that occurred when the ADAAA went into effect is that major bodily functions now count as major life activities for purposes of determining whether or not someone meets the definition of disability under ADA.  In addition, Equal Employment Opportunity Commission (EEOC) guidance on the ADAAA specifically mentions functions of the endocrine system as an example of a major bodily function that counts as a major life activity.  This is important for individuals with diabetes because the pancreas, which produces insulin, is an important part of the endocrine system.  While there is still no list of conditions that are always covered under the ADA, it is likely that most people with a diagnosis of diabetes will be able to show that they are substantially limited in the functions of their endocrine system.

The increased interest in service dogs as an accommodation for diabetes may have to do with their ability to alert individuals to blood sugar problems. Service dogs for individuals with diabetes are sometimes referred to as hypoglycemia alert dogs. In order to be considered a service animal as opposed to an emotional support animal, the dog has to be trained to perform some type of task. Hypoglycemia alert dogs are trained to prompt an individual with diabetes or episodes of hypoglycemia that their blood sugar levels may be dropping. The mechanism by which a hypoglycemia alert dog can detect a change in blood sugar is not fully understood.  A recent study published in the journal Diabetes Care (Dehlinger et al., 2013) did not support the idea that dogs use their sense of smell to detect changes in blood sugar. However, the sample size was small. The study also did not rule out the possibility of dogs using behavioral cues rather than scent to detect changes in blood sugar. Many more studies will be needed before we can fully understand how hypoglycemia alert dogs detect changes in blood sugar and the circumstances under which they can do so reliably. It is my understanding that not all dogs are able to do so.

Although hypoglycemia alert dog is a term that is typically used to refer to a service dog used by an individual with diabetes, some of our callers have reported that their dogs can also alert to hyperglycemia.  Hypoglycemia means low blood sugar whereas hyperglycemia means high blood sugar.  Different treatments are required for each of these conditions. Those who are prone to episodes of both may need to test their blood sugar level when alerted by the dog in order to know what to do next.

Dogs may alert individuals with diabetes to a change in blood sugar in different ways, but one common method is to nudge the individual who is experiencing an episode, or to vocalize in a manner similar to a whine or a whimper. To an outside observer, this may appear similar to a dog asking to go outside or for food, but the meaning is clear to the individual with diabetes. Some dogs may be trained to perform more complex tasks such as retrieving glucose tablets.

One issue that comes up frequently during calls about hypoglycemia alert dogs in the workplace is the fact that training methods tend to be different from those of other service animals. It is not unusual among users of hypoglycemic alert dogs for a pet that is already part of the family of the person with diabetes to undergo service animal training. This is different from the training of many service animals whereby the animal is trained through a specialized program (often with participation of the future owner) and then placed into service. Sometimes the individual may train the animal on their own with the support of a diabetes-related medical provider or support organization. This may complicate the process of providing medical documentation to an employer, particularly if the training is done by the individual with a family pet.

Over the years, service animals have taken on an increasingly important role as an accommodation option for people with disabilities to succeed in the workplace. For individuals with diabetes, hypoglycemia alert dogs can help mediate a potentially serious health condition so that the employee can continue to be a productive part of the workforce.

For additional information see:

Service Animals in the Workplace

Accommodation Ideas for Employees with Diabetes

Reference:

Dehlinger, K., Tarnowski, K., House, J. L., Los, E. L., Hanavan, K., Bustamante, B., Ahmann, A. J., & Ward, K. W. (2013). Can trained dogs detect a hypoglycemic scent in patients with type 1 diabetes? Diabetes Care, 36(7), e98-e99.

Thoughts from JAN’s Co-Directors for National Disability Employment Awareness Month

Posted by Kim Cordingly on October 30, 2013 under Accommodations, ADAAA, Employers, Entrepreneurship / Self Employment, General Information | Comments are off for this article

October is National Disability Employment Awareness Month and this year’s theme is “Because We Are EQUAL to the Task.” While this month is a great time to raise awareness of the many valuable contributions of America’s workers with disabilities, it’s also an opportunity to reflect on the many changes over the years in how we think about disability and employment.

Job Accommodation Network (JAN) co-directors Anne Hirsh and Lou Orslene have a collective 40+ years of experience providing leadership at JAN. As the JAN Blog editor, I thought this was an opportune time to ask them to share their views on some of the issues at the heart of increasing employment opportunities for individuals with all types of disabilities.

In my initial question, I asked Anne and Lou to talk about the biggest changes they’ve observed during their tenure at JAN for people with disabilities in the employment arena.

Anne’s immediate reply was the Americans with Disabilities Act (ADA). She and I both began working at JAN prior to the passage of the ADA, so witnessed firsthand what a game changer this was. In those early days, some of the first questions regarding the employment provisions of the ADA were fielded by JAN consultants, with Anne coordinating our rapid increase in call volume. A related point she emphasized was the pathway created by the ADA for an individual to disclose one’s disability and subsequently request an accommodation. JAN’s work over the years has been at the forefront of facilitating this process.

On another front, Anne reflected on changes over the past 10-15 years when JAN received calls from parents asking about their children with disabilities transitioning from school to work. In recent years however, the tables have turned in that we’re now receiving an increasing number of calls from adult children contacting us about aging parents who acquire disabilities later in life and need to continue to work. Lou remarked this is a major shift in today’s workforce – many individuals are working longer while still being affected by the aging process. He suggested that employers should have proactive policies and training related to disability and employment because we are all likely in our lifetimes to be impacted by health issues in the context of work. Employers are starting to recognize the benefits of retaining aging employees who, despite an impairment, are capable of continuing to contribute to a business’ success.

Another change Anne remarked on was the increase in the number of students with disabilities in the higher education system. Lou added that particularly in his travel to conferences and training events, he encounters many more highly trained young adults with disabilities applying for positions or currently employed. This progress was fostered by the passage of the Individuals with Disabilities Education Act (IDEA). He remarked that while there is still much room for much improvement in educational parity and hiring rates, notable progress has been made. Programs like the Workforce Recruitment Program for College Students with Disabilities (WRP) and other internship programs are designed to enable talented and motivated college students and graduates to reach their goal of a productive career in their chosen field.

Likewise in the education arena, Lou pointed out that veterans with service-connected disabilities returning from the wars in Afghanistan and Iraq are taking advantage of the Post-911 GI Bill, which supports their educational goals and transition into civilian employment. This will mean more disabled veterans will be entering the workforce or choosing entrepreneurship, which will further diversify and strengthen our economy.

Lou noted a change as well in how we think about inclusion and diversity. It has become more commonplace for issues around disability to be incorporated into mainstream diversity programs and policies, whereas in the past, this was not the case. This shift means that expectations are changing as to what a diverse and inclusive workforce looks like. He added, “We can only expect this shift to increase in speed with the broadening of the coverage under the ADA Amendments Act (ADAAA) along with the new Section 503 regulations.”

My second question for Anne and Lou involved what they saw as the greatest contributions JAN has made in advancing employment opportunities for individuals with disabilities over the past 30 years.

For both Anne and Lou, two words exemplified what they saw as one of JAN’s most important contributions – confidence and competence. For individuals with disabilities, JAN consultants have educated customers on how to become better self-advocates. After thousands of calls to JAN — ultimately one conversation at a time — consultants have provided the information, resources, and guidance so that individuals can become more knowledgeable and empowered to move forward with their goals. Lou explained the same is true for the employers who have contacted JAN. Often HR professionals or managers encounter situations with applicants or employees where they are unsure what to do. They may have an ADA question, a particular accommodation situation, or both. JAN’s consulting services provide a free and confidential way for employers to discuss these situations and concerns. Employers therefore feel more confident and competent when hiring and accommodating qualified workers with disabilities; applicants and employees with disabilities feel more empowered to voice what they need to be successful on the job.

Anne highlighted a second unique JAN contribution — the role our consultants play in problem solving and sharing potential accommodations solutions with customers on a case by case basis. Lou pointed out this knowledge is then shared through JAN’s networking and training with other organizations – particularly service providers. He believes this outreach has expanded with JAN’s effective use of social networking tools and training platforms. Lou emphasized JAN’s strong commitment to support the work of other organizations thereby connecting people and organizations together in support of our collective goal of creating a more inclusive workforce.

My final question for Anne and Lou was on a more personal note – asking each to comment on what they feel is the best part of their jobs as co-directors at JAN.

Both Anne and Lou emphatically stated the best part of their job was making an impact on the lives of the customers JAN serves. As co-directors, both spend a great deal of time on the road and they each stated how blown away they are by the stories they are told about how someone’s life was affected by the guidance they received from JAN. These affirmations are received as well on an ongoing basis through emails, phone calls, and follow-up data. Anne attributes this success to the JAN staff, who she describes as “some of the most dedicated people she knows.” Both said they are constantly amazed at the day-to-day effort and passion the staff brings to their work.

Editor’s Note: Thank you to Anne and Lou for sharing their thoughts for this Blog. The JAN staff appreciates their vision, dedication and leadership.

Trending Topics – Nursing Mothers and the ADA

Posted by Kim Cordingly on June 4, 2013 under Accommodations, ADAAA, Employers, Trending Topics | Comments are off for this article

By: Tracie Saab, Lead Consultant

JAN Consultants handle a wide-range of employment inquiries from people all over the country.  Every week there are issues that trend for one reason or another. For example, this week we fielded several inquiries from employers about accommodating nursing mothers. Employers asked what obligation they have to provide accommodations under the Americans with Disabilities Act (ADA) for mothers who either need breaks or a private space to express milk or nurse. What requirement is there under the ADA to provide accommodations for nursing mothers?

Under the ADA, a qualified person with a disability is someone who has an impairment that substantially limits a major life activity. According to the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, lactation is a pregnancy-related condition but uncomplicated pregnancy and lactation are not disabilities covered by the ADA. Thus, an employer would not be required to provide accommodations for mothers who are nursing as a requirement under that statute.

However, in March of 2010, the Patient Protection and Affordable Care Act (P.L. 111-148, “Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (FLSA) to require covered employers to provide accommodations to nursing mothers under that law. The amendment requires employers to provide such accommodations as breaks and a private place, not a restroom, to express milk during the workday. In addition to this federal mandate, there are many state laws related to breastfeeding in the workplace. Federal requirements do not preempt a state law that provides greater protections to employees and so employers should become familiar with any state requirements.

The National Council of State Legislatures offers information regarding state breastfeeding laws. Also, the U.S. Department of Labor offers information about the accommodation requirements imposed on employers by section 7 of the FLSA. The following resources are available:

JAN’s quarterly ENews offers information about accommodation ideas for nursing mothers.

Contact the U.S. Department of Labor, Wage & Hour Division, for FLSA technical assistance at 866-487-9243 or 877-889-5627 (TTY).