Accommodation and Compliance Series Beyond Accommodation Policy: Practice is Everything Anne Hirsh, M.S. and Lou Orslene, MSW, MPIA Job Accommodation NetworkPO Box 6080Morgantown, WV 26506-6080(800)526-7234 (V/TTY) jan@jan.wvu.eduhttp://www.jan.wvu.edu What Supervisors Need to Know About Employee Requests for Reasonable Job Accommodations Front line supervisors need to know basic information about the Americans with Disabilities Act (ADA) so to appropriately respond to employee requests for an accommodation. The purpose of this document is to give basic information. Links are provided so one can explore an issue in more detail. For general or specific questions on these issues, please call the Job Accommodation Network for a free consultation at 800 526-7234v/tty. What is the Americans with Disabilities Act (ADA)? The ADA is a complex federal civil rights law. Title I of the ADA requires employers with 15 or more employees to provide reasonable accommodations for employees with disabilities. Under Title I of the ADA, an employer can expect employees with disabilities to meet the production standard of their job, but they may have to provide a reasonable accommodation to enable them to do their jobs effectively. Employers must also consider accommodation for job applicants and to provide employees with equal benefit and privilege of employment. For more information on employer responsibilities in relation to the ADA go here: http://www.jan.wvu.edu/media/EMPLOYERRESP.html. What constitutes a request for reasonable accommodation? Under the ADA, there are no specific forms or terms that an individual must use to request an accommodation. According to the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADA, an accommodation request does not have to be in writing and the ADA does not include specific guidelines or forms for requesting reasonable accommodation. An individual is not required to mention the ADA or use the phrase reasonable accommodation in a verbal or written request; the individual only needs to let the employer know that an adjustment or change is needed because of a medical condition. Courts have generally agreed with the EEOC. The EEOC offers the following guidance on requesting an accommodation. http://www.eeoc.gov/policy/docs/accommodation.html#requesting 1. How must an individual request a reasonable accommodation? When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for a reasonable accommodation. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition. While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a reasonable accommodation. See web link above for more information and footnotes. Title I of the ADA does not prevent employers from creating their own Accommodation Request Form. Many employers have done so. Here is an example of such a form: http://www.jan.wvu.edu/media/raemployersform.htm What should supervisors do when they get a request for a job accommodation? Supervisors should listen carefully and help identify the specific job performance issue(s) that is the problem for the worker. Since employees may not say they are requesting a job accommodation, but may simply be saying they need help doing their job because of a medical condition, supervisors may need to review the company accommodation policy and process with the employee. Supervisors should be trained on the company accommodation policy. This should include knowing if the company has a specific accommodation request form, how to locate the form, and whether they are to distribute it or if the point of contact (often HR) will distribute. If supervisors are to refer the request to HR or another point of contact within the company, they should communicate with the employee that the referral has been made, and what the next step in the process will be for the individual. Effective communication between the supervisor and worker is vital to identifying and implementing effective accommodations. Confidentiality Any and all medical information a supervisor receives is to be kept confidential. To facilitate the accommodation process, the supervisor will need to share the information with those who make the accommodation decision. The employee should be informed of this by the supervisor. The EEOC offers the following guidance on confidentiality of medical information: http://www.eeoc.gov/policy/docs/guidance-inquiries.html The ADA requires employers to treat any medical information obtained from a disability- related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA. How supervisors know if an employee is protected by the ADA? The ADA does not contain a list of medical conditions that constitute disabilities. Instead, the ADA has a general definition of disability that each person must meet (EEOC, 1992). A person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having such an impairment (EEOC, 1992). For more information about how to determine whether a person has a disability under the ADA, visit http://www.jan.wvu.edu/corner/vol02iss04.htm. Front-line supervisors typically do not make the decision as to whether an employee is considered a person with a disability. Many employers have a team of individuals that determine if and what accommodations are to be implemented. A good policy will involve supervisors in the process of determining effective accommodation options. What are some examples of reasonable accommodation? Accommodations can be described as any modification or adjustment to the work environment that enable the worker to do the job effectively. The EEOC provides the following guidance on the topic. http://www.eeoc.gov/policy/docs/accommodation.html There are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is done. These include: making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; and reassignment to a vacant position. For more specific accommodation examples view JAN’s Accommodation Fact Sheet Series: http://www.jan.wvu.edu/media/fact.html. Can supervisors tell co-workers about implantation of an accommodation? Generally NO! Discussing accommodation issues often requires disclosure of disability. All disability information must be kept confidential. The EEOC offers the following guidance on this issue: http://www.eeoc.gov/policy/docs/accommodation.html 42. May an employer tell other employees that an individual is receiving a reasonable accommodation when employees ask questions about a coworker with a disability? No. An employer may not disclose that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers.(111) An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out 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. An employer may be able to make this point effectively by reassuring the employee asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons. Since responding to specific coworker questions may be difficult, employers might find it helpful before such questions are raised to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees. In providing general ADA information to employees, an employer may wish to highlight the obligation to provide reasonable accommodation, including the interactive process and different types of reasonable accommodations, and the statute's confidentiality protections. Such information could be delivered in orientation materials, employee handbooks, notices accompanying paystubs, and posted flyers. Employers may wish to explore these and other alternatives with unions because they too are bound by the ADA's confidentiality provisions. Union meetings and bulletin boards may be further avenues for such educational efforts. As long as there is no coercion by an employer, an employee with a disability may voluntarily choose to disclose to coworkers his/her disability and/or the fact that s/he is receiving a reasonable accommodation. 111. 42 U.S.C. § 12112(d)(3)(B), (d)(4)(C) (1994); 29 C.F.R. § 1630.14(b)(1) (1997). The limited exceptions to the ADA confidentiality requirements are: (1) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; and (3) government officials investigating compliance with the ADA must be given relevant information on request. In addition, the Commission has interpreted the ADA to allow employers to disclose medical information in the following circumstances: (1) in accordance with state workers' compensation laws, employers may disclose information to state workers' compensation offices, state second injury funds, or workers' compensation insurance carriers; and (2) employers are permitted to use medical information for insurance purposes. See 29 C.F.R. pt. 1630 app. §1630.14(b) (1997); Preemployment Questions and Medical Examinations, supra note 27, at 23, 8 FEP Manual (BNA) 405:7201; Workers' Compensation and the ADA, supra note 52, at 7, 8 FEP Manual (BNA) 405:7394. Please note that the information contained in this publication is to be used as a guide only and is not legal advice. If legal advice is needed, contact a legal service. Much of the information contained in this publication is from guidance provided by the Equal Employment Opportunity Commission (EEOC) available at http://www.eeoc.gov. If further information is needed, please call JAN at 800-526-7234 v/tty. This publication does not represent a statement of policy by the U.S. Department of Labor. Resources: Selected Job Accommodation Policy and Process Examples EEOC Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation: http://www.eeoc.gov/policy/docs/accommodation_procedures.html JAN Sample Reasonable Accommodation Request Form for Employers: http://www.jan.wvu.edu/media/raemployersform.htm Documenting the Accommodation Consideration/Selection Process Under the ADA: A form to keep track of proposed accommodations. By Robert Hall: http://www.workforce.com/archive/feature/22/23/70/224221.php Selected Training Resources JAN DVD “Using JAN”. This 8 minute video shows how employers can use JAN to help them determine appropriate accommodation needs for an employee and to help the employer comply with the Americans with Disabilities Act. http://www.jan.wvu.edu/ppt/Using_JAN/Using_JAN.htm#video JAN’s Presentation Library has short videos and power point presentations on various employment and accommodation topics. http://www.jan.wvu.edu/ppt/ Milt Wright and Associates, Inc., is a publishing, training, and consulting firm focused on Job Creation and Employment Resources. This firm sells several excellent videos and written guides on supervisor, ADA, and employment issues. In addition, they offer live training. http://www.miltwright.com/c_training.htm ADA & IT Technical Assistance Centers offer publications, teleconferences, web casts, and live training for employers, service providers, and people with disabilities. http://www.adata.org/ar/employers.htm ADA & IT Centers ADA Basics On-line Course. http://www.adabasics.org/ There are, of course, several more training resources developed by government and private entities. You can find items specific to your state by doing a Google search. Private entities offering training should be reviewed for quality like any other training. Selected Training Conferences of Interest for Supervisors and Managers Job Accommodation Network Annual Conference. 2006 in Boston, MA. Check the JAN Conference Web for updated date and specific location information. http://conference.jan.wvu.edu/ Perspectives on Employment of People with Disabilities in the Federal Sector. This annual conference, which is co-sponsored by 6 federal agencies and chaired by the Office of Disability Employment Policy, brings together federal EEO officials and personnel representatives who deal with issues that affect the employment of people with disabilities within the federal government. The 2005 conference will be held December 7-9, 2005, in Bethesda, MD. http://www.dol.gov/odep/programs/perspect.htm EEOC offers courses, on-site training and hosts an annual conference (EXCEL) and Technical Assistance Program Seminars. Federal employees and managers trust and rely on the quality of our training designed specifically for federal personnel. Non- federal participants also benefit from the expertise provided in many of these programs. http://www.eeotraining.eeoc.gov/profile/web/index.evt?PKwebID=0x53328e1&varPage= home Federal Dispute Resolutions Annual Conference and Training. Various dates and locations. http://fdrconferences.org/Conference.html US Business Leadership Network (BLN) Annual conference and State/local BLN training events . November 1-3, 2005, in Pittsburgh, PA. http://www.usbln.com/events/Conference2005.htm http://www.usbln.com/network/index.html\ National Workers' Compensation and Disability Conference. Chicago, IL. November 15-17, 2005. http://www.wcconference.com/ National Association of ADA Coordinators. Miami, FL. October 24-27,2005. http://www.jan.wvu.edu/naadac/index.htm Additional Resources and Documents of Interest JAN’s Searchable On-line Accommodation Resource or SOAR: http://www.jan.wvu.edu/soar/index.htm JAN’s Reasonable Accommodation and the ADA Process: http://www.jan.wvu.edu/media/raproc.html JAN’s Accommodation Fact Sheet Series: http://www.jan.wvu.edu/media/fact.html ODEP’s Advancing Opportunities: Accommodations Resources for Federal Managers and Employees: http://www.dol.gov/odep/pubs/misc/advance.htm Equal Employment Opportunity Commission. A technical assistance manual on the employment provisions (title I) of the Americans with Disabilities Act: http://www.jan.wvu.edu/links/ADAtam1.html This publication is funded under a contract supported by the Office of Disability Employment Policy of the U.S. Department of Labor, contract #J-9-M-2-0022. The opinions contained in this publication are those of the contractor and do not necessarily reflect those of the U.S. Department of Labor.