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ENews: Volume 15, Issue 3, Third 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. Can “Non-traditional” Health Care Providers Provide Medical Documentation?
  2. Service Dog Breed Exclusions and the ADA
  3. Postpartum Depression
  4. Suicidal Ideation in the Workplace
  5. What Does Reasonable Mean? – A Deconstructive Series for ADA Terminology
  6. Still time to register: JAN Academy Pre-conference Featured at the US BLN Annual Conference Monday, August 21, 2017
  7. JAN Blog Growing
  8. JAN Releases New Resources
  9. E-vents
  10. JAN Exhibit and Training Schedule
  11. Subscribe to JAN Newsletter

1 - Can “Non-traditional” Health Care Providers Provide Medical Documentation?

Under the ADA, when an employee requests an accommodation, the employer is entitled to sufficient medical documentation from an “appropriate health care professional” when the disability and/or need of accommodation are not obvious. Here at JAN, there has been an onslaught of questions pertaining to what constitutes an appropriate health care professional.

With the ever changing landscape of health care and wellness, more and more people are choosing “non-traditional” healthcare providers for their treatments and medical opinions. Non-traditional providers can refer to a variety of things, but what we see most often is chiropractors, acupuncturists, reflexologists, and massage therapists as opposed to physicians.

So can these non-traditional providers serve as appropriate health care professionals in terms of providing ADA documentation?

In some cases, yes, an employer should be willing to accept medical support that comes from a non-traditional provider. Let’s look at an example:

If an employee has a documented back impairment and a chiropractor is recommending periodic breaks for stretches and rest, then that could make sense. Chiropractors are trained to manage back impairments and their symptoms.

On the contrary, it becomes tricky if a chiropractor is providing medical documentation for someone with a mental health impairment, something a chiropractor is typically not trained to diagnosis or treat. So in this case, an employer may want to find out if the chiropractor is qualified to diagnose or treatment mental health impairments and if not, the employer can probably refuse to accept the documentation.

So it is a case-by-case determination when choosing to accept documentation from non-traditional providers; there is no hard and fast rule.

As far as the ADA goes, an employer should focus on the sufficiency of the documentation and whether the provider is qualified. For more insight on what is considered sufficient, see https://AskJAN.org/media/Medical.htm

If you have a question about medical documentation or anything else ADA and accommodation related, feel free to reach out to JAN and speak with a Consultant.

- Lisa Mathess, M.A., Senior Consultant, Motor Team

2 - Service Dog Breed Exclusions and the ADA

Inquiries related to the Americans with Disabilities Act (ADA) and service or emotional support animals as workplace reasonable accommodations are among the most common and wide-ranging inquiries received by JAN’s ADA team. JAN contacts inquire about all sorts of issues pertaining to allowing dogs in the workplace. Aside from posing general rights and responsibilities access questions, employers ask about their responsibility to consider allowing emotional support animals into the workplace; how to handle situations when other employees are allergic to or afraid of dogs; animal access rights when employees work outside of the traditional office setting; what training and documentation can be required; and, best practices for notifying others about the impending presence of a dog at work – among many other issues. Anecdotally, it seems clear that the number and diversity of inquiries related to dogs in the workplace continues to grow, and the related issues rank among the top five general ADA inquiries received.

A question has cropped up a few times recently about service animals and breed exclusions. For example, can a service animal that is a Pitbull be excluded as an accommodation in the workplace simply based on its specific breed because of fears or generalizations about how that breed might behave? Sometimes local laws or ordinances ban breeds of dogs that have a history of unprovoked aggression or attacks, such as Pitbulls or German Shepherds. Employers are curious about how these exclusions apply in the work environment when an excluded breed is a service animal for an employee with a disability. Can employers use breed limitations to exclude certain dogs and deny this type of accommodation at work?

We must remember that, according to the Equal Employment Opportunity Commission (EEOC), title I of the ADA does not require employers to automatically allow employees to bring their service dog to work. This is different from the service animal access requirements of title III of the ADA, which apply to service animals in public accommodations and commercial facilities. Instead, allowing a service or emotional support dog into the workplace is a form of accommodation that employers must consider allowing when requested by an applicant or employee, barring undue hardship. This allows employers to make decisions about allowing animals into the workplace by assessing the individual’s need for accommodation, learning how the animal serves the individual, determining if the dog can behave appropriately, and making the decision that the accommodation will not pose a hardship.

Information about excluding specific breeds as service animals is not included in the ADA title I regulations or in EEOC formal enforcement guidance. However, the U.S. Department of Justice (DOJ) does address breed exclusions under the ADA title III regulations. While the title III regulations do not cover title I employment situations, the information still might be used to making decisions related to workplace.

Two sections of the ADA title III regulations address service animals and breed exclusions. The regulations can be found at https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm.

Excerpts of each section are included here and can be found under the definition of “Service Animal” related to Alerting to intruders and Breed limitations.

Alerting to intruders. “…if an individual uses a breed of dog that is perceived to be aggressive because of breed reputation, stereotype, or the history or experience the observer may have with other dogs, but the dog is under the control of the individual with a disability and does not exhibit aggressive behavior, the public accommodation cannot exclude the individual or the animal from the place of public accommodation.”

Breed limitations. “The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. … Public accommodations have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal's actual behavior or history—not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety.”

Using the DOJ’s analysis of breed limitations, it is understood that excluding a dog based on fears or generalizations about the dog’s breed limits the rights of individuals with disabilities by making access decisions based on what is believed, as opposed to what is evident. How does this translate to the workplace? The same understanding can apply. It makes sense, given what we know from DOJ, that employers should not simply exclude a service dog as an accommodation solely on the basis of its breed. Rather, employers should determine that the particular dog behaves appropriately, does not exhibit aggressive behaviors, and does not evidently pose a direct threat. The breed alone may not be enough to demonstrate evidence of direct threat, but employers may ask questions and gather information about a dog’s behavior and history to ensure that an individual’s particular service animal (not simply the breed) does not pose a direct threat.

When access for a service animal is requested as a job accommodation and the need for the accommodation is not obvious, employers are not limited in asking questions about the individual’s use of the animal. This is different from the limitations on service animal inquiries under title III of the ADA. When an employee with a disability requests to use a service animal at work, the employer has the right to request documentation or demonstration that the service animal is trained, will behave appropriately, is housebroken, and will not disrupt the workplace. Employers are not expected to allow an animal into the workplace that poses a legitimate direct threat, cannot behave appropriately in the work environment, or is disruptive. When an employer has legitimate concerns about a particular breed of dog, it may be useful to ask some additional questions as part of the interactive process. For example:

Every day we receive challenging questions related to the ADA and dogs in the workplace. JAN consultants do their best to offer practical guidance to address the many issues employers face in this area of reasonable accommodation. If you have questions about this topic, contact JAN to speak with a consultant, or visit the A to Z of Disabilities and Accommodations section of AskJAN.org, and see the topic of Service Animals.

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

3 - Postpartum Depression

The birth of a baby can prompt a mixture of strong emotions, from elation and joy to fear and apprehension. It can also bring on something you might least expect – depression. Many new moms experience the "postpartum baby blues" after childbirth, which commonly include mood swings, crying spells, anxiety, and difficulty sleeping. Baby blues typically begin within the first two to three days after delivery and may last for up to two weeks.

While the baby blues are a temporary condition, some new moms experience a more severe, longer-lasting form of depression known as postpartum depression. Postpartum depression may be mistaken for baby blues at first — but the signs and symptoms are more intense and last longer, eventually interfering with the ability to care for the baby and handle other daily tasks. Symptoms usually develop within the first few weeks after giving birth, but may begin later — up to six months after birth.

Postpartum depression can last well into the time when many new mothers had planned to return to work. How can a new mom manage depression and return to work? Let’s look at some ideas that might be helpful in the workplace to help ease the strain and make a work / life balance a little easier to achieve.

Although pregnancy is not a disability under the Americans with Disability Act (ADA), pregnancy-related impairments, such as postpartum depression, may be considered disabilities for which employers would be obligated to provide reasonable accommodations unless they were to cause a hardship.

Accommodation Ideas:

Concentration

Managing Stress / Emotions

Sleep Disturbances

Fatigue

Attendance

Situations and Solutions:

Situation:  Marcella, who was diagnosed with post-partum depression, is unable to return to work on her scheduled return date. She asks her employer for the accommodation of an extra month of leave in order to seek treatment.

Solution: The employer found no hardship in extending the leave for another month, and agreed to provide the accommodation.

Situation:  Jacquie is a new mom returning to work with post-partum depression. She   requested to work from home three days a week instead of the standard one day all employees were allowed. She asked to do so on a temporary basis, not knowing for sure how long it would be necessary.

Solution: After determining that the employee would most likely be able to do her work from home the two extra days per week, the employer allowed telework on a trial basis to see how well it would work. They agreed to meet with Jacquie weekly in order to touch base and see how effective the accommodation was for both parties. 

Situation:  Nora is trying to return to work after an extended maternity /post-partum leave. She asked for a flexible schedule to help her battle fatigue due to insomnia and the medications she takes. As part of the flexibility, she asked to start her day an hour before others or to stay an hour after others had left in order to have more uninterrupted, quiet work time. She also asked if breaks and lunch could be redistributed so that she had shorter, more frequent breaks to get up and move around.

Solution:  Even though all employees had a fairly stringent schedule, the employer found no hardship in allowing the flexibility this employee asked for and agreed to try the accommodation of a flexible schedule.

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

4 - Suicidal Ideation in the Workplace

According to the American Psychological Association, suicide accounts for approximately two percent of all deaths in the United States. Suicide is a tough and uncomfortable topic for most, however, suicidal thoughts might accompany a variety of disabilities, medical conditions, or high stress situations. If someone is experiencing these thoughts it may impact all aspects of their life, including work.
Let’s consider some examples of how suicidal ideation might present itself in the workplace and some practical tips for how an employer might address the concern.

Example 1: Jane has been working with her company for 5 years. Recently she has started to struggle with depression. She had been working with her psychiatrist, but up until this point had no reason to disclose the condition to her employer. One morning Jane was having a difficult time and was experiencing some suicidal thoughts. She called her employer to let them know what was going on and that she was going to check herself into a local mental health facility.

Example 2: Bill was diagnosed with PTSD two years ago after experiencing a traumatic event. He previously disclosed the condition to his employer and has an accommodation in place of telework as needed. One day Bill did not feel at his best, but decided to go into work anyway. While sitting at his desk he suddenly became alarmed by some suicidal thoughts that he was having. He was unsure what to do and could not focus on his work so he decided to go talk to his supervisor.

Example 3: Jordan loves her job and was always the first one to the office in the morning. She was frequently teased for not taking advantage of the ability to wear jeans on Fridays as she was always dressed very professionally. She was often seen stopping to say good morning to each of her coworkers on her way down the hall. Over the period of a month one of Jordan’s coworkers started to notice that Jordan had been increasingly late for work. She was still dressing professionally, but often seemed disheveled with messy hair and no makeup at times, which is unlike her. The coworker felt this was odd, but wanted to respect her privacy. By the end of the month Jordan had stopped saying good morning and the coworker witnessed her beginning to take personal items home and return others to the office supply closet. When this occurred, the coworker decided to talk to the manager.

Let’s first take a look at Jane’s situation. A call off expressing suicidal thoughts is likely not something that should warrant an automatic termination. An employer would want to remain objective and recognize the situation as an accommodation request. Jane is indicating what is going on and that she needs leave time to attend medical treatment. As with any accommodation request, when the condition is not known or obvious the employer is entitled to some documentation to support the need for accommodation.

Solution: In this case, the employer informed Jane that they would process the leave and told her to go receive the help that she felt she needed. They told her that once she is settled to let them know how they might receive documentation from the facility and an approximate return to work date. The employer also notified Jane that if for some reason she could not contact them directly to have the facility, family member, or a friend do so as a way to keep them informed and provide the needed information.

Next, we have Bill who was going to his supervisor’s office to inform her of the thoughts he was having. If an employee approaches an employer in the workplace and indicates that they are having suicidal thoughts, there may be an instinct to immediately send the employee home. While the intention may be good, simply asking the employee to leave might not be the best suited response. Here are a few questions the employer might keep in mind.

Solution: The supervisor talked with Bill about what was going on. She asked if she might call Bill’s wife to come to the office or if he felt that he needed to go to the hospital. They decided to call Bill’s wife. When she arrived the three of them discussed the situation. Bill decided that his wife would drive him to see his doctor. The supervisor called and let security know that Bill’s car would be in the parking lot until someone could return to pick it up. She also told Bill that she would need a doctor’s note clearing him to return to work. Bill’s wife agreed to call the supervisor the next day to update her on when Bill might return.

In our last example, you will recall that Jordan’s coworker was informing the manager about her concerns. According to the Equal Employment Opportunity Commission (EEOC) an employer has the ability to inquire about a disability or send for a medical exam when they have reason to believe, based on objective evidence, that the employee’s ability to perform the essential functions of the job is impaired or that the employee might pose a direct threat. This might also be done if reliable information comes from a credible third party. In this case, the employer would want to consider who the information is coming from and make sure that it is based on objective evidence and not speculation.

Solution: Since this particular coworker was someone who had worked with Jordan for years and could explain some of the behavior changes that she had seen, the manager decided to bring Jordan in to have a conversation. The manager mentioned the recent late arrivals as well as some concerns they have received that she has not seemed like herself lately. The manager explained the importance of being on time and that there are only so many occurrences that can take place in the conduct policy. They also asked how things were going. Jordan disclosed to her manager that she has had some things going on in her personal life and has been feeling increasingly overwhelmed at home and at work. She indicated that she was unsure that she could handle all of it anymore. The manager informed Jordan of the EAP that is available for all staff and offered to walk her down to their office.

It’s important to remember that each situation is case by case and individualized. The most important tip would be to remain objective and assess the situation. The EEOC provides information on the topic of direct threat in Section 4.5 Standards Necessary for Health and Safety: A “Direct threat” of the Technical Assistance Manual: Title I of the ADA

Also see the EEOC’s Enforcement Guidance: Disability- Related Inquiries and Medical Exams under the ADA for guidance on what types of documentation might be asked for.

Additional Resources:

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

5 - What Does Reasonable Mean? – A Deconstructive Series for ADA Terminology

A common question we discuss often here at JAN is whether or not any given accommodation would be considered a reasonable accommodation. There are many different examples of what a reasonable accommodation can be. Some possibilities include: schedule modifications, purchasing assistive technologies, and restructuring the duties of the job. You can find many more accommodation examples on our A to Z of Disabilities and Accommodations page. Although these examples are helpful, they do not help answer the fundamental question of what makes a reasonable accommodation “reasonable.” To that end, let’s discuss this by breaking it down into simple terms.

Before we begin, we need to discuss what the Equal Employment Opportunity Commission (EEOC) has said on this topic. Under the General Principles section of the EEOC document titled, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act it states:

“A modification or adjustment is "reasonable" if it "seems reasonable on its face, i.e., ordinarily or in the run of cases;"(8) this means it is "reasonable" if it appears to be "feasible" or "plausible."(9) An accommodation also must be effective in meeting the needs of the individual.(10) In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position. Similarly, a reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job. Finally, a reasonable accommodation allows an employee with a disability an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.”

With this information in mind, let’s take it in more manageable pieces and describe what each part means. Afterwards, we will discuss if an otherwise reasonable accommodation can be considered unreasonable.

“Seems reasonable on its face…”

This piece of the description directs us to view the determination from a bird’s eye view. It intends for us to review the accommodation being requested without weighing all of the details of the request or how the request will impact the employer. A helpful method I suggest is to look at the situation as though you are an outsider looking in. For instance, would you think it would be reasonable for someone with a sleeping disorder to work a consistent shift rather than a rotating shift that exacerbates their sleeping limitations? If it seems reasonable from an outsider’s perspective, then it is a good indication that it meets this piece of the description.

Must be effective in meeting the needs of the individual

While the previous portion directs us to not consider the details of the request, this part discusses how the accommodation being reviewed needs to genuinely be an accommodation that will be beneficial to the individual’s disability-related needs. This normally will be obvious for accommodations that are specifically requested by the individual or their physician, as they wouldn’t be suggesting them if they didn’t believe they would be effective. However, employers have the right to review options. So, if options other than the requested accommodation are being considered, remember that employers have an obligation to put forth a good faith effort to provide an accommodation that will be genuinely beneficial to the individual in overcoming the workplace barrier involved.

Equal opportunity to enjoy the benefits and privileges of employment

It is common for people to understand the importance of providing accommodations to enable an employee to perform the essential functions of the position. After all, an employee may not be qualified for the position if he cannot perform the essential functions of that position with or without reasonable accommodations. Despite this importance, it is not the only situation where accommodations need to be considered. Individuals with disabilities have the right to partake in all aspects of employment, from application to advancement, which involves much more than the day to day duties that they must perform in their position. They also have the right to attend and enjoy things like employer sponsored events or company parties. So, it is important to be mindful of the fact that accommodations must be provided to enable someone with a disability to be able to enjoy all of the various benefits and privileges of employment. Even if it is something as simple as modifying the menu of a company sponsored dinner or choosing a different venue to have that dinner within.

When does a reasonable accommodation become unreasonable?

The answer to this question can vary depending on what source you are drawing information from. Some sources say that if a particular accommodation is not effective for the individual’s specific needs or if the accommodation poses an undue hardship for the company, the accommodation is still considered a “reasonable” accommodation.  They see it as something that describes what an employer might have to do to meet the disability-related needs of any given individual. However, other sources say that an accommodation that poses an undue hardship on an employer or an accommodation that is not effective at meeting the individual’s disability-related needs, is an “unreasonable” accommodation. The important thing to keep in mind here is that in most cases this distinction may not matter. In the event of an EEOC complaint, if the individual can show that an effective form of accommodation was possible, then the employer would have to objectively prove why they did not provide that accommodation.

- Matthew McCord, M.S., CRC

6 - Still time to register: JAN Academy Pre-conference Featured at the US BLN Annual Conference Monday, August 21, 2017

On Monday, August 21st, 2017, the JAN Academy will be featured as a pre-conference to the US Business Leadership Network (US BLN) Annual Conference in Orlando, Florida. The JAN Academy will be presented twice on the 21st, in the morning from 9:00-12:00 and again in the afternoon from 2:00-5:00 for those who cannot make the morning session.

The JAN Academy will offer participants the opportunity to learn from JAN’s experience as the leading source of expert, confidential guidance on workplace accommodations and disability employment issues. The JAN Academy is designed for reasonable accommodation professionals responsible for developing and deploying reasonable accommodation policies and practices.

Last fall, JAN launched the Job Accommodation Toolkit designed to assist companies in refreshing or developing a robust and equitable accommodation infrastructure, which is an essential element of creating an inclusive workplace culture. The Toolkit contains a number of sample policies and procedures from corporations known to be inclusive as well as video training developed with input from these leaders.

At this year’s JAN Academy, participants can expect to delve deeper into the Toolkit to review various best and emerging policies and practices. This will provide the opportunity for participants to compare and contrast their practices with those of their peers. In addition to discussing the latest accommodation policies and practices, JAN will also present new video training modules on topics such as return-to-work and disclosure. These will be included in the Toolkit and will be available following the JAN Academy.  

JAN Academy participants will also be part of demonstrations of various assistive technologies that are enabling workplaces to be more inclusive. These technologies include video relay services, refreshable Braille display, screen reading software, the Work Autonomy App, and video resumes using iMovie. Representatives demonstrating assistive technologies include John R. Macko, Director, National Center on Employment at the National Technical Institute for the Deaf, Rochester Institute of Technology; Peter Fay from IBM Aging and Accessibility Solutions; Ryan Jones, Program Manager, Enterprise Compliance from VFO (formerly Freedom Scientific); and Jennifer White, CEO, Able Opportunities, Inc.

In addition, JAN will demonstrate the Mobile Accommodation Solution – the first mobile accommodation case management tool designed in collaboration with IBM, US BLN, AAPD, NBDC, and DMEC. The app will be made available free in the iOS App Store in late 2017/early 2018.

Participants can choose to attend the JAN Academy in addition to full registration for the US BLN Conference, or the JAN Academy can be attended as a stand-alone event. The cost of the three-hour JAN Academy preconference is $200, and participants will receive HRCI CEU credits.

Registration is limited to 65 participants for each session, so please register now! To register, go to http://conference.usbln.org/2017_conference.

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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