JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy. 1 Accommodation De)construction JAN Webcast Series December 5, 2015 Tracie DeFreitas, M.S. JAN Lead Consultant, ADA Specialist

 Understanding the Interactive Process  Asking the Right Questions  Accommodation Deconstruction 2 Discussion Topics

 A collaborative effort to identify effective accommodation solutions – it’s that simple.  Creates a standard of practice  Facilitates communication and inclusion  Demonstrates good faith  Leads to ADA compliance 3 What is the Interactive Process?

4 JAN’s Interactive Process

Do you know…what you don’t know? 5

About the medical impairment:  What is the nature of the impairment?  What are the limitations/restrictions?  How long will the impairment last?  What is the duration of restrictions? Can medical documentation be obtained?  Yes, when the disability and need for accommodation are not known or obvious 6 Ask the Right Questions

About job functions & performance:  What job functions, policies, or procedures are affected by the limitations?  Is performance or conduct affected?  Are there any safety issues?  Can job functions be performed in a different way? 7 Ask the Right Questions

About job accommodations:  What type of accommodation is needed?  Job Restructuring, Modified Schedules, Modified Policies, Assistive Technology, Telework, Leave, Reassignment, Service Animal, etc.  Is the accommodation reasonable?  Is the accommodation effective?  Is the employee still qualified and able to perform job functions? 8 Ask the Right Questions

Accommodation De)construction 9

Jovie has bipolar disorder and was having difficulty managing the stress of the tree trimming season at Gimbel’s. She requested and was approved to bring her emotional support dog, Jingle, to work as an accommodation. How was it determined that an emotional support dog would be a reasonable accommodation for Jovie? 10 Allowing a Support Animal

 Does the employee have a disability?  Bipolar Disorder  What are her limitations/restrictions?  Difficulty managing stress and emotions while experiencing the side effects of periodic prescription changes  What job functions are affected?  Handling stress, working with others, staying focused  How will the dog support her ability to perform job functions?  Calm her, redirect focus, help her cope with stress 11 de)construction

 Modify “no-animals” policy  Does it matter that this is an emotional support dog, not a service dog?  No - there is not a specific definition of service animal under title I of the ADA  What documentation may be requested?  Why the dog is needed  Is it trained to be in a work environment 12 de)construction

 Can the accommodation be implemented on a trial basis?  Written agreement  How long will it last  What factors might end the trial period early  Will the dog affect others or business operations?  Unduly disruptive to other employees or to the ability to conduct business 13 de)construction Woof!

 Are there other accommodations that might be considered?  Encourage the use of stress management techniques  Allow telephone calls during work hours to mental health professionals and others for support  Allow breaks as- needed  Allow a flexible work schedule  Refer to EAP 14 de)construction

 What happens when other employees have an allergy to or fear of dogs? Eliminate in-person contact…  Work in different areas of the building  Establish different paths of travel  Allow alternative communication (i.e., chat, , phone, tele/videoconferencing)  Allow flexible scheduling to work at different times  Allow work from home or a different location 15 de)construction

Minimize exposure if in- person contact cannot be eliminated…  Provide a private/enclosed workspace  Use a portable air purifier at each workstation  Develop a plan to not use common areas, such as the break room and restroom, at the same time  Temporarily implement other accommodations during meetings/training attended by both employees 16 de)construction

 Frequently clean work area, including carpets, cubicle walls, and window treatments  Use HEPA filters with existing ventilation system  Suggest dander care products for dog  Allow periodic breaks to go outside, take medication, or leave to go to healthcare provider 17 de)construction

Buddy requested a new supervisor because his has a tendency to call impromptu team meetings, change deadlines unexpectedly, and frequently yells at employees when he gets frustrated with performance. Buddy’s employer determined that this was not a reasonable accommodation, but provided alternative solutions. How did Buddy and his employer decide on the accommodations to implement? 18 Changing a Supervisor Image courtesy ”Elf”

 Does the employee have a disability?  Generalized Anxiety Disorder  What are his limitations/restrictions?  Difficulty handling change, maintaining concentration, meeting deadlines, and coping with stress  How is Buddy’s performance affected?  Management style makes it impossible for him to work effectively, meet deadlines, concentrate on one task at a time 19 de)construction

 Does an employer have to change a person's supervisor as an accommodation?  Employer does not have to provide a new supervisor (under most circumstances)  Understand why the accommodation is being requested  Is there a pattern?  Supervisory methods may need to be changed as a form of accommodation 20 de)construction

Change supervisory methods by:  Providing day-to-day guidance and feedback  Providing written job instructions via  Providing positive praise and reinforcement  Scheduling meetings in advance, or only on certain days  Developing strategies to deal with conflict  Assigning a liaison to serve as a buffer between employee and supervisor  Scheduling regular meetings to set goals and review progress  Developing clear expectations of responsibilities and the consequences of not meeting performance standards  Encouraging open and honest communication 21 de)construction

Nicholas had a seizure and was restricted from driving for six months. His job required him to make special deliveries, all over the country, but he could not perform this duty for an extended period of time. What happens when an employee cannot perform essential job duties? 22 Reassignment

 Does the employee have a disability?  Seizure Disorder  What are his limitations/restrictions?  No driving; 6 months  What job functions are affected and are they essential?  Driving; yes  Can he be accommodated temporarily with alternative duties?  Is he still qualified for his current position?  Is there an equivalent vacant position he can be reassigned to as an accommodation? 23 de)construction

Reassignment:  Must only reassign to a vacant position  Equivalent first; lower level if no equivalent  Must be "qualified"  Do not have to compete  Do not have to be best qualified  Do not have to bump  Collaborative duty to look for positions  Length of process will vary 24 de)construction

Emily returned to work after treatment and recovery from cancer. She was accommodated with an extended leave of absence of six weeks beyond FMLA. How is extended leave, beyond FMLA, addressed as a possible accommodation under ADA? 25 Providing Leave

 What information is available to ascertain that extended leave could be needed?  Surgery and treatment to last beyond 12 weeks  Does she have a qualifying disability under the ADA?  Yes; cancer is a disability  Notify the employee about FMLA expiration and ADA rights 26 de)construction Dear Emma, “…If you are unable to return to work by the expiration of leave due to your own medical impairment, you may request a leave extension…” Dear Emily, “…If you are unable to return to work by the expiration of leave due to your own medical impairment, you may request a leave extension under the Americans with Disabilities Act (ADA)…”

Engage in an interactive process  Request anticipated date of return  Determine reasonableness of duration of leave  Can the position be held? If not, what about reassignment?  Communicate with employee  Document impact of leave on business operations 27 de)construction

Walter has a gastrointestinal disorder that flares-up frequently. During flare-ups, he misses work unexpectedly or arrives late. This has affected completion of work products, namely, the proper printing of books. After several absences, tardies, and printing errors lead to progressive discipline, he disclosed his medical impairment to his employer. When disability impacts performance/conduct, what should happen? 28 Meeting Performance/Conduct

 Has the performance standard been applied consistently and uniformly?  How is the medical impairment impacting ability to meet the performance standard?  Can a medical provider confirm the need for intermittent absences and tardiness?  Can the attendance policy be modified as an accommodation? 29 de)construction

 What impact will intermittent absences have on operations?  Can unscheduled, accrued paid leave or unpaid leave be used, as-needed, due to the medical impairment?  Can there be a “window of arrival?”  Modify attendance policy  FMLA may apply 30 de)construction

Miles has multiple sclerosis, which affects his mobility. His employer offers two employee parking lots; one is close to the building but he is frequently unable to find an accessible spot in that location. Miles requested (or, demanded) a designated accessible parking space as an accommodation. How did Miles’ employer address the possibility of designating a parking space as a reasonable accommodation? 31 Providing Parking

 Does the employer have control over parking?  What parking is available to employees?  What parking is available to Miles?  How do other employees access “accessible” spaces?  Is it reasonable to designate a space?  How will the space be designated? 32 de)construction

Leon has a neurological condition that is impacted by warm temperatures. He is particularly impacted by his thirty-minute commute to work, and walking the distance from parking to the building. Leon requested to work from home, as-needed, during extreme temperatures. How did Leon’s employer determine if the accommodation was reasonable? 33 Working from Home

 Should accommodations related to an employee’s commute be considered?  Yes, when commute is affected by medical impairment  Do not have to transport, but may have to consider other reasonable accommodations  Does the employee have a disability?  Neurological condition  What are his limitations/restrictions?  Affected by extreme heat, dizziness, fatigue, difficulty walking 34 de)construction

 Why does the medical impairment necessitate working from home?  Does the employer have a telework program?  Can essential job functions be performed from home?  When will Leon be approved to work from home (i.e., what temp)? 35 de)construction

 How will Leon be supervised?  How will his performance be monitored?  How will he interact with others?  Does Leon have the equipment he needs to work from home?  Is the employer responsible for providing it? 36 de)construction

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