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ENews: Volume 15, Issue 2, Second Quarter, 2017

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. Taking a Service Animal to a Job Interview: Public Access or Reasonable Accommodation?
  2. June is Alzheimer’s Awareness Month
  3. Leave of Absence for Cosmetic or Elective Surgeries: When is it Considered an Accommodation Request?
  4. Return to Work After Hospitalization for Mental Health Treatment
  5. Overtime Restrictions and the ADA
  6. JAN Blog Growing
  7. JAN Releases New Resources
  8. E-vents
  9. JAN Exhibit and Training Schedule
  10. Subscribe to JAN Newsletter

1 - Taking a Service Animal to a Job Interview: Public Access or Reasonable Accommodation?

Issues related to service animals in the workplace continue to confuse both employers and the individuals with disabilities who use the service animals, but one of the most confusing issues is whether a job applicant has a right to take a service animal to a job interview. The answer depends on whether the interview is part of a public event, such as a job fair, or a private, one on one interview in the employer’s place of business. Why does it matter whether the job interview is public or private? It matters because there are different rules under the Americans with Disabilities Act (ADA) related to service animals in public places versus places of employment.

Public job fairs are typically covered by title II (state and local government) or title III (public accommodations) of the ADA depending on who sponsors the fair.  They are usually open to anyone who wants to attend so they are considered public. Under titles II and III of the ADA, individuals with disabilities attending a public job fair have a right to take their service animals with them according to Department of Justice guidelines.

For private, one on one job interviews, title I (employment) of the ADA applies, assuming the employer has at least 15 employees. Under title I, individuals with disabilities do not have an automatic right to bring a service animal to a job interview; bringing an animal into an employer’s place of business is a form of reasonable accommodation, meaning the job applicant must ask to bring the service animal to the interview and the employer must consider the request.

But what should an employer do if a job applicant shows up with a service animal without prior approval? From a practical standpoint, the best thing might be to go ahead and conduct the interview if possible and then discuss the service animal if the applicant is offered the job. This way, the employer focuses on the job applicant’s qualifications and not on the employee’s disability. In some cases, the employer might need to ask about the service animal as part of determining whether the applicant is qualified. For example, if the applicant is applying for a food service job, there will be work areas where the service animal is not allowed and the employer may need to make sure the applicant can perform the job without the service animal present at all times. For purposes of the job interview, this discussion should be brief and focused on job performance.

For job applicants with disabilities who use service animals, there are a couple of different options for the job interview. First, the applicant can notify the employer that he/she uses a service animal and ask whether the service animal can be used during the job interview. Applicants should be prepared to provide medical documentation if the employer requests it; under the ADA, employers are allowed to require medical documentation when an applicant or employee requests an accommodation and the disability and/or need for accommodation is not obvious or previously documented. Some employers try to minimize medical documentation related to accommodation requests for job interviews, so hopefully applicants will not be required to provide any, but it is good to be prepared.

The other option is to not use the service animal during the job interview. Some people need their service animal with them at all times, but others are able to be without the service animal for brief periods and opt to wait to talk with an employer about the use of the service animal until after a job offer is secured.

Also, there may be state laws related to service animal access that require employers to automatically allow job applicants to bring a service animal to the job interview. For information about state laws, see http://servicedogcentral.org/content/node/51

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

2 - June is Alzheimer’s Awareness Month

Many employers contact JAN to find out how to best handle situations where they don’t know what is specifically going on with an employee, but what they do know is that the employee is unable to do the job functions s/he has done in the past. Under the ADA, employers should not assume an employee has a disability or a medical condition, but many of these employers have known the employee in question for years and know what they have been capable of in the past. The employers come to realize that something has changed and that the change is progressive.

We encourage employers to handle performance issues as just that — performance issues — and then begin an interactive conversation with the employee. Sometimes employees will admit to the employer that they have noticed their abilities aren’t as sharp as they used to be, but other times employees aren’t aware or are unable to understand the extent of their inability to do their job tasks. This is where the employer can take steps to address the performance but also request medical information and family help to better understand what might be going on with an employee.

Memory problems are one of the first symptoms of Alzheimer’s disease. Symptoms of other medical conditions such as stroke, tumors, sleep disorders, Parkinson’s disease, side effects of medications, infections, and non-Alzheimer’s dementia may also cause problems with memory. Some of these conditions are treatable and some possibly reversible; so obtaining current and accurate medical information could be the first step in resolving the issues and determining what steps to take next.

Helpful Hints for the Accommodation Process

Employer:

Employee:

The following accommodations may be helpful. For a full list of possible accommodations, see JAN’s Accommodation and Compliance Series: Employees with Alzheimer's Disease as well as other resources on Alzheimer's Disease.

Memory:  

Organization:  

Time Management/Completing Tasks:

Difficulty Performing Job Duties:

Situations and Solutions

A principal of an urban secondary school could no longer perform the duties required in the administration of such a large school. She was accommodated with a reassignment to a much smaller high school. She was provided with updated training in some of the select procedures she was having the most difficulty with, as well as color-coding of the problematic policies and procedures.  

An educational assistant was unable to initiate work throughout the day, but particularly at the start of the day. She had difficulty remembering tasks, as well as being distracted by the collection of knick-knacks and photos crowded on her desk. Her workspace, which was a little bit isolated, was moved to an area where she could be mentored. She was provided with a schedule of detailed tasks to perform at various points in the day, and with help, she cleared her desk of most of the clutter in order to help maintain concentration.

A lab tech was unable to follow procedures.  His employer set up a system of checks, but it was taking the supervisor an inordinate amount of time to check the test results, many of which were found to have inaccurate results. A color-coded flowchart of steps was provided, as well as grouping like tests together so that he could do the same procedure multiple times. Color coding the testing procedures online helped the tech find and use them easier and more accurately than printed copies.

A sales manager with early onset Alzheimer’s was unable to navigate his travels, but he was still able to perform the duties of a sales position. As an accommodation, he was reassigned to a lower position that he was qualified for. The sales position required no travel, and the employee was able to make contacts by phone and emails, successfully performing the essential functions.

If you are working through a similar situation and need the assistance of a consultant, please feel free to contact JAN for a more individualized accommodation consultation.

For More Information or Resources

To get information about Alzheimer's and learn about support groups and services for people with the disease and their caregivers, please see JAN's Resource list for Alzheimer's Disease.

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

3 - Leave of Absence for Cosmetic or Elective Surgeries: When is it Considered an Accommodation Request?

In recent years there has been an increased focus on how employers address requests from employees for a leave of absence. Leave has always been a form of accommodation under the ADA, and employees may request a leave of absence for many reasons, including recovery from surgery. But what if the surgery is purely cosmetic or elective? What if the cosmetic surgery is to correct a disfigurement? Or, what if an elective surgery goes awry and complications resulting from the procedure lead to the employee needing accommodations? Each of these situations can, and should, be addressed on a case-by-case basis, but can be confusing to work through. The following examples illustrate the various types of issues related to accommodation requests for cosmetic surgery.

Requests for leave to recover from cosmetic surgery

The U.S. Equal Employment Opportunity Commission (EEOC) has offered guidance on the provision of leave as an accommodation under the ADA. While employers continue to learn more about this form of accommodation and how it can be implemented, certain situations may arise that aren’t directly addressed in formal or informal guidance. Let’s consider an example related to a request for leave for cosmetic surgery.

An employee elects to have a rhinoplasty (nose job) and an abdominoplasty (tummy tuck) and will need four weeks of leave while recuperating. The employee requests the time off as an accommodation. Does the employer have to provide leave under the ADA?
Probably not. In order for any individual to be entitled to accommodations under the ADA, including leave, they must first meet the definition of disability. To have a disability under the ADA, a person must first have an impairment. Assuming the individual did not need to have cosmetic surgery for reasons related to an underlying medical condition, there is no physical or mental impairment present in this situation and therefore the person would not be covered under the ADA.  In cases where an individual does not meet the definition of disability, the employee would not be entitled to leave under the ADA. Of course, if other options to take leave (i.e. vacation or sick time) are available to the individual these could be offered.

Requests for leave to recover from surgery to correct cosmetic disfigurement

Situations where surgery is needed to correct a cosmetic disfigurement can be easier to address just by referencing how the EEOC has defined “impairment” under the ADA. When the ADA was amended in 2008 there was no change to the definition of impairment, although there were references made to the immune system and circulatory system to keep language consistent. By definition, the term “impairment” means:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed "mental retardation"), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Unlike the previous situation and example, in a case where an employee is requesting leave to recover from surgery to correct a cosmetic disfigurement we know that the individual would have an impairment. Let’s look at a more specific example.

An employee was badly injured in a car accident as a teenager. Second and third degree burns to his arms and face had warranted the need for reconstructive surgeries over the years. After working for his company for nine months, the employee requested 6 weeks of leave to undergo a reconstructive burn surgery on his arm. He would also be required to wear a protective arm dressing during the recovery period. The employee knew that he would not eligible for leave under the FMLA, but requested leave under the ADA.  Would the employer need to provide the leave?

Yes, absent undue hardship. In this situation the employee probably would meet the definition of disability as cosmetic disfigurement would be considered an impairment and the recovery from the surgery would limit at least one major life activity--operation of a major bodily function (i.e. skin). In this case, the employer would need to provide leave for the employee to recover from surgery, absent undue hardship, and consider accommodations so that the employee could return to work while wearing the protective arm dressing.

A similar need may arise for those undergoing reconstructive surgery following a mastectomy related to cancer. In these types of situations an employee who was having breast reconstruction surgery would be covered under the ADA as an individual with either a current impairment or a record of impairment, as cancer is one impairment that should easily be found to substantially limit a major life activity.

Complications resulting from an elective surgery and requests for leave or other forms of accommodation

JAN consultants take a wide variety of questions about accommodation and often hear of complex and complicated situations. In the previous two situations we looked at cases where a person doesn’t meet the definition of disability and cases where it would easily be determined that an individual does meet the definition of disability. But what about cases where someone might not initially be covered under the ADA, but complications arise during a medical procedure and an accommodation request is made? Let’s look at an example.

An employee was allowed to take a couple of weeks of her paid vacation to undergo breast augmentation. The procedure was expected to be quick and the employee was scheduled to return home the same day. They surgery went well, but the employee developed an infection shortly after and was admitted to the hospital. The employee contacted her employer and requested additional leave.  Would the employer have to consider providing leave when the initial procedure was elective?

Although the employee would not have met the definition of disability prior to the breast augmentation surgery, the limitations experienced as a result of the infection would impact immune functioning. As stated above, in light of the ADA Amendments Act (ADAAA), any physiological disorder or condition affecting one or more body system would be considered an impairment. Immune system function would fall under this category and therefore the individual would have an impairment and the employer would need to then look at whether or not the infection substantially limited a major life activity. How the infection occurred does not matter as much as the impact that the infection is having on the individual’s ability to perform a major life activity. In this situation, leave would need to be provided as an accommodation, absent undue hardship.  

As we continue to learn more about how leave as an accommodation can be used in the workplace, situations will arise that aren’t cut-and-dry. Requests for leave to undergo cosmetic or elective surgeries can sometimes fall under the ADA and should not automatically be dismissed or denied. Again, an individual making a request for accommodation must meet the definition of disability under the ADA. Situations should be considered on a case-by-case basis and individualized assessments must be done. JAN is able to help employers and individuals during the interactive process to help ensure that requests for leave to undergo cosmetic or elective surgeries are handled appropriately. Additional information on how to determine if an individual is covered under the ADA can be found at JAN’s ADA Library.

- Elisabeth Simpson, M.S., CRC, Lead Consultant, Motor Team

4 - Return to Work After Hospitalization for Mental Health Treatment

At JAN we frequently receive questions about returning to work when an employee has been out on leave due to a mental health impairment. Often times these questions come when an employer receives a note clearing the individual to return to work after being out for some time or hospitalized to receive in-patient care to treat symptoms.

Employers will call with concerns about whether the employee is truly ready to return to work. Sometimes the employer will have witnessed an incident at work that resulted in the employee taking leave. Other times it might simply be concerns related to the knowledge of the diagnosis and hospitalization. This is a hard topic and there are no definite answers.

When these questions arise we will suggest relying on the medical documentation that has been provided and trusting that if the medical provider has released the employee to return to work then the employee must have been deemed ready.

The employer might seek clarification as to if there are any accommodations needed for the employee’s return. There may or may not be accommodations needed, but having the conversation ahead of time will hopefully help to facilitate a smooth transition.
What about situations where an incident occurred violating conduct rules, which led to the employee going out on medical leave? Must the employer completely disregard the incident? According to the EEOC, employers may hold all employees to the same performance and conduct standards. Therefore, an employer would not have to disregard or excuse the employee from any disciplinary action, but might discuss with the employee if there are any accommodations that may help prevent future violations or help to improve performance.

With that being said, here are a few practical tips

The EEOC provides the following example in its Enforcement Guidance: Disability- Related Inquiries and Medical Examinations of Employees under the ADA

As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined. Shortly thereafter, he was hospitalized for six weeks for treatment related to the condition. Two days after his release, the employee returns to work with a note from his doctor indicating only that he is "cleared to return to work." Because the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat due to a medical condition, it may ask the employee for additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination.

Additional Examples:

An employee was on leave for 12 weeks while attending an in-patient therapy program for depression. Approaching the end of the program the employee’s spouse contacted the employer to notify the employer of a return to work date. The employer requested a note from the doctor releasing the employee to return to work and providing information about any accommodations needed for the return. The employee submitted the note clearing her to return and asking if she could work part time for the first 2 weeks to transition back into the workplace. The employer was able to provide the accommodation without any hardship and worked with the employee to determine what hours she would be in the office during those 2 weeks.

An employee with PTSD was meeting with his supervisor regarding performance. The employee was experiencing increased anxiety with the upcoming anniversary of the traumatic event. The employee had not shared the increased anxiety with the employer and performance was suffering. The employer started to discuss with the employee that they would be implementing a performance improvement plan (PIP). The employee became overwhelmed and stormed out of the meeting. Later that day, the employee informed the employer that he was having a hard time due to a medical condition and needed to take leave to attend a treatment program. The employer put the PIP on hold and implemented the leave as an accommodation. Upon the employee’s return to work, the employer requested documentation and reinstated the PIP to accurately assess performance.

An employee with a mental health impairment was having increased symptoms and started an altercation with a coworker. The employee was seen shoving the coworker before the altercation was broken up by other employees. Due to concerns of safety and violation of the conduct policy, the employer asked the employee to leave for the day. According to company policy, that type of violation would result in termination. The employee told the employer that he felt the incident occurred due to his disability and heightened symptoms. Due to the nature of conduct and no prior disclosure or request for accommodation, the employer chose to continue with the termination.

For more information, see:

- Sarah Small, M.S., CRC, Consultant, Cognitive/Neurological Team

5 - Overtime Restrictions and the ADA

Sometimes employees are unable to work overtime (OT) due to limitations associated with a medical impairment. Employers are then faced with determining if the ability to work overtime (or more than a certain number of hours in a shift/week) is required, or if it is necessary to provide a reasonable accommodation that aligns with an employee’s medical restrictions. Offering a modified work schedule is a type of accommodation under the ADA, and so employers sometimes must consider excusing employees with qualifying disabilities from working overtime, unless it can be shown that the ability to work overtime is a qualification standard or essential job function.

JAN cannot indicate if exempting an employee with a disability from working overtime is required as an accommodation because each situation must be assessed case-by-case to determine what is reasonable. As part of the interactive process, it is necessary to determine if the ability to work overtime in a particular position is either a qualification standard that is job-related and consistent with business necessity, and/or an essential function of that position. Employers are not required to change or ignore qualification standards or essential functions as accommodation under the ADA. This means, in some situations, that an employee who is medically unable to work required overtime (with or without accommodation) due to a disability, may not be qualified to remain in the current position.

The EEOC has noted that the ability to work overtime may be a qualification standard that employers must show is job-related and consistent with business necessity in order to be required. The standard must be a legitimate qualification for the specific job the standard is being used for and must relate to performing the essential functions of the position.

Alternatively, some courts have held that the number of hours worked (i.e., fulltime work or more than 40 hours) in certain jobs can be an essential part of that job and that working overtime can be an essential job function. In either case, much of the evidence needed to demonstrate that requiring the ability to work overtime is a standard that is job-related and consistent with business necessity will be the same evidence needed to show that working overtime is an essential job function.

From a practical standpoint, when tackling this accommodation issue, it's important for employers to factually determine why working overtime is required. Employers who receive requests for overtime exemption should not assume automatically that overtime is an essential function of a particular job. Rather, careful analysis of the job in question is required. Evidence will include information about whether or not all employees in a particular position are actually required to perform the function and if removing the function will fundamentally change the job. If it is found that overtime is not an essential function or a qualification standard, then exemption may need to be considered, barring undue hardship. The EEOC offers useful information to assist employers in establishing job-related qualification standards and identifying the essential functions of a job. To learn more, see:

Many factors can impact the determination of whether or not overtime is required and if it is a reasonable accommodation to exclude employees who are restricted from working overtime, including:

The following steps may be useful when exploring exemption from overtime as a reasonable accommodation under the ADA:

For more information about overtime issues, reasonable accommodation, and the interactive process, please contact JAN to speak with a consultant.

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

6 - 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!

7 - JAN Releases New Resources

8 - E-vents

9 - 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.

10 - 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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