1. Transitioning into Adulthood: Understanding, Requesting, and Implementing Reasonable Accommodations in the Workplace The Reasonable Accommodation Training Group The Wick Law Office Holly V. Franson and Benjamin E. Wick 1127 Auraria Parkway, Suite 5 Denver, CO 80204 www.wick-law.comwww.wick-law.com www.reasonableaccommodationtraining.comwww.reasonableaccommodationtraining.com Copyright © 2016 The Wick Law Office, LLC

2. The implementation of the ADAAA in 2009 greatly expanded the protections for individuals with disabilities in the workplace. Since the ADAAA, there is a greater focus on reasonable accommodations than ever before and employers are under increased pressure to respond to reasonable accommodation requests in a manner that complies with the law. This session provides an overview of an employer’s obligations under the ADAAA and discusses best practices for disclosing disabilities to employers, requesting reasonable accommodations in the workplace, implementing reasonable accommodations, and determining whether those accommodations are effective. Copyright © 2016 The Wick Law Office, LLC

3. The ADA and ADAAA Title I of the Americans with Disabilities Act (“ADA”), which came into effect in 1990, prohibits employers from discriminating against a qualified individual with a disability in applying for jobs, hiring, firing, advancement, and other terms and conditions of employment. The ADA Amendments Act of 2008 (“ADAAA”) was enacted on September 25, 2008, and became effective on January 1, 2009. Congress believed that the courts had interpreted the definition of disability far too narrowly. The ADAAA mandates that the definition of disability be construed more broadly. Copyright © 2016 The Wick Law Office, LLC

4. ADA Coverage Title I of the ADA applies to employers with more than 15 employees. This includes: private employers, state and local governments, employment agencies, labor organizations, and labor-management committees. The Rehabilitation Act of 1973 (“Rehab Act”) applies to the federal government. Section 504 of the Rehab Act incorporates the ADA and ADAAA by reference. There are numerous state and local statutes with different coverage requirements. For example, an individual is covered under the Colorado Anti-Discrimination Act if the employer employs one employee or more. Copyright © 2016 The Wick Law Office, LLC

5. Who Is Covered Under The ADA? The term disability means: (1) a person who has a physical or mental impairment that substantially limits one or more major life activities; (2) a person with a record of a physical or mental impairment that substantially limits one or more major life activities; or (3) a person who is regarded as having a physical or mental impairment. An individual with a disability must be able to perform the essential functions of the job with or without a reasonable accommodation. Requires an individualized assessment of each employee or applicant. Copyright © 2016 The Wick Law Office, LLC

6. Major Life Activities Major life activities: examples include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Major bodily functions are considered major life activities: this includes but is not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Understanding major life activities is important because under the ADA, a reasonable accommodation must be provided to a qualified individual who is substantially limited in a major life activity, where it would not pose an undue hardship. Copyright © 2016 The Wick Law Office, LLC

7. What Does It Mean To Be Substantially Limited In A Major Life Activity? This is compared to an individual in the general population. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (other than eyeglasses or contact lenses). The length of an impairment does not in and of itself determine whether the individual has disability. Temporary, non-chronic impairments that do not last for a long time and that have little or no long term impact usually are not disabilities. However, an episodic impairment is a disability if it would substantially limit a major life activity when active. Copyright © 2016 The Wick Law Office, LLC

8. What Is An Essential Function? Essential functions are the fundamental duties of a position. There are several reasons for which a job function may be considered essential, including: the reason the position exists is to perform that function; there are a limited number of employees available among whom the performance of the function can be distributed; and/or the function is highly specialized so that the incumbent in the position is hired for her expertise or ability to perform that particular function. Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1262 (10th Cir. 2009); 29 C.F.R. § 1630.2(n)(3). Determination of essential functions is fact-specific and not based solely on the employer’s statement of duties. Marginal duties are duties sometimes performed in an employee’s position, but which are not essential to perform the fundamental duties of the position. Must be qualified: an individual with a disability must be able to perform the essential functions of the position with or without a reasonable accommodation. Copyright © 2016 The Wick Law Office, LLC

9. Deciding Whether to Disclose Generally, there is no requirement to disclose disability to employer. If you know accommodations will be needed, then you probably need to disclose. If you are unsure whether accommodations will be needed, you may consider waiting to disclose. The decision to disclose should not be made in a vacuum. Think about the job duties and requirements. Ask questions about the workplace and any job duties outside those listed in the job posting. Discuss with people you trust. Focus on how your disability impacts your ability to perform the job. Copyright © 2016 The Wick Law Office, LLC

10. When do I Disclose my Disability? In the cover letter. During the interview. After you have been offered the position, but before reporting to the workplace. After you are working in the position. Do not wait to disclose until you are experiencing significant difficulties with performance or conduct issues. Copyright © 2016 The Wick Law Office, LLC

11. Strategies to Use When Disclosing a Disability Only need to disclose medical condition, how it impacts ability to perform functions of the position, and requested accommodations. Recognize that you may be working with someone who does not know what Autism or Asperger’s Syndrome are, or is otherwise unaware of how the medical condition impacts you in the workplace. Solution-driven disclosure: Think about the specific job duties or performance measures impacted by your disability. Brainstorm possible reasonable accommodations in advance of disclosure. Remove limitations unrelated to work and consider ways to accommodate yourself. Copyright © 2016 The Wick Law Office, LLC

12. Sample Reasonable Accommodation Request I am writing to make a request for a reasonable accommodation under the Americans with Disabilities Act. I have been diagnosed as having Asperger’s Syndrome. My disability limits my ability to communicate and interact socially at times. In the course of performing in my position, I have frequently been receiving deadlines for completing tasks verbally. I am requesting that any deadlines for the completion of tasks occur in writing, even if they have been conveyed to me verbally. I would like to discuss with you the best way to implement this accommodation. Copyright © 2016 The Wick Law Office, LLC

13. What Is A Reasonable Accommodation In The Workplace? Any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. According to the Job Accommodation Network ("JAN"), a service from the U.S. Department of Labor's Office of Disability Employment Policy, the bulk of reasonable accommodations cost absolutely nothing, while the rest typically cost only $500. Copyright © 2016 The Wick Law Office, LLC

14. Requesting A Reasonable Accommodation There are no “magic words” required to request a reasonable accommodation, nor does the reasonable accommodation request have to be in writing. The individual must request a change or adjustment to the workplace because of a medical condition. The phrase “reasonable accommodation” does not have to be used nor does the individual have to reference the ADA. A reasonable accommodation request can arise where the employee has a disability and is in obvious need of a workplace modification. A request for reasonable accommodation can be made by the employee or by someone acting on his or her behalf. The reasonable accommodation must be related to the disability. Copyright © 2016 The Wick Law Office, LLC

15. Common Reasonable Accommodations There are infinite options for reasonable accommodations. Both parties need to work together to find solutions by using the interactive process. Common reasonable accommodations: Modification of work schedule Modification of workplace policies Modification of workplace equipment or location Changing the method, frequency, or types of communications Providing a break or rest area Allowing flexible use of break or rest area Reducing workplace distractions Working from home Leave Job restructuring Reassigning marginal job functions Altering how/when an essential or marginal function is performed Copyright © 2016 The Wick Law Office, LLC

16. Common Accommodations for Individuals on the Autism Spectrum Time Management Divide large assignments into several small tasks or chunks Set a timer to sound an alarm after assigning ample time to complete a task Provide a checklist of assignments Plan and structure times of transition and shifts in activities Supply an electronic or handheld organizer and train on how to use it effectively Use a wall calendar to emphasize due dates Develop a color-coded system (each color represents a task, or event, or level of importance) Allow co-worker or supervisor to add entries on the calendar or to double-check entries added by the employee Memory Provide written instructions and checklists Allow use of a recorder Allow additional training time for new tasks Offer training refreshers Provide minutes of meetings and trainings Use flow-chart to indicate steps in a task Provide verbal or pictorial cues Use a color coding scheme to prioritize tasks Use notebooks, planners, or sticky notes to record information Use sticky notes as reminders of important dates or tasks Provide labels or bulletin board cues to assist in location of items Copyright © 2016 The Wick Law Office, LLC

17. Concentration To reduce auditory distractions: Provide a noise canceling headset Hang sound absorption panels Provide a white noise machine Relocate employee's office space away from audible distractions Redesign employee's office space to minimize audible distractions To reduce visual distractions: Install space enclosures (cubicle walls) Reduce clutter in the employee's work environment Redesign employee's office space to minimize visual distractions Relocate employee's office space away from visual distractions Breaks for mental fatigue, including short walks, getting up for a drink of water, and rotating through varied tasks Job restructuring so the most difficult tasks are performed at the time of day the employee has the most mental energy or stamina Organization and Prioritization Develop color-code system for files, projects, or activities Use a color coding scheme to prioritize tasks Use weekly chart to identify daily work activities Use a job coach to teach/reinforce organization skills Assign a mentor to help employee Allow supervisor to assign prioritization of tasks Use electronic organizers, mobile devices, and e-mail reminders Assign new project only when previous project is complete, when possible Provide a "cheat sheet" of high-priority activities, projects, people, etc. Organize work space to reduce clutter Provide separate work areas with complete sets of supplies for differing tasks Schedule a weekly time to clean / organize work space Take time at the end of each day to organize and set up for the next day Copyright © 2016 The Wick Law Office, LLC

18. Multitasking Separate tasks so that each can be completed one at a time Create a flow-chart of tasks that must be performed at the same time, carefully labeling or color-coding each task in sequential or preferential order Provide individualized/specialized training to help the employee learn techniques for multi-tasking (e.g., typing on a computer while talking on the phone) Identify tasks that must be performed simultaneously and tasks that can be performed individually Provide specific feedback to help the employee target areas of improvement Remove or reduce distractions from work area Supply ergonomic equipment to facilitate multi-tasking Clearly represent performance standards such as completion time or accuracy rates Paperwork Automate paperwork by creating electronic files when possible Use speech recognition software to enter text or data into electronic files Save time filling out paper forms by completing information in advance, using pre-filled forms, or adhering pre-printed stickers Use checklists in place of writing text Provide templates of letters or e-mails Color-code forms for easy identification Re-design commonly used forms Use large font Double space or triple space Provide adequate space for hand-written response Social Skills Provide a job coach to help understand different social cues Identify areas of improvement for employee in a fair and consistent manner Use training videos to demonstrate appropriate behavior in workplace Encourage employees to minimize personal conversation, or move personal conversation away from work areas Provide sensitivity training (disability awareness) to all employees Encourage all employees to model appropriate social skills Adjust the supervisory method to better fit the employee's needs Adjust method of communication to best suit the employee's needs Allow the employee to work from home Copyright © 2016 The Wick Law Office, LLC

19. Attendance Allow flexible work environment: Flexible scheduling Modified break schedule Work from home/Flexi-place Getting to Work on Time Have a routine of putting and keeping things in their place (keys, phone, glasses) Prepare for the next day's work the night before Create a checklist for yourself and others Place sticky notes on the door, dashboard, or wherever you will see them Turn off distractions – including cell phones Set a timer or a programmable watch to pace yourself http://askjan.org/media/execfunc.html Copyright © 2016 The Wick Law Office, LLC

20. What Happens After Requesting A Reasonable Accommodation? Need to evaluate whether the accommodation is effective. The interactive process is ongoing and can continue after the accommodation begins. Engage in discussions about whether the accommodation is effective and whether any modifications are needed. Update the accommodation periodically if needed. Particularly important for limitations that are unstable, changing, unpredictable, or progressive. Keep the lines of communication open. Do not treat this as an adversarial process. Employees should be encouraged to discuss with the employer if the accommodation is not effective or needs to be changed due to change in circumstances. There are limited circumstances where it may be appropriate to revaluate the necessity of the reasonable accommodation based on changes in an individual’s medical condition. Copyright © 2016 The Wick Law Office, LLC

21. When Can A Reasonable Accommodation Be Denied? Undue Hardship: A reasonable accommodation would pose an undue hardship if it would cause significant difficulty or expense to the employer. Factors to be considered include: the nature and cost of the accommodation; the overall financial resources of the facility or facilities involved; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; the number, type, and location of its facilities; and the type of operation or operations of the covered entity. Direct Threat: A direct threat occurs when the individual poses a significant risk to the health or safety of the employee/applicant or others that cannot be eliminated by a reasonable accommodation. Copyright © 2016 The Wick Law Office, LLC

22. Examples Of When An Accommodation May Pose An Undue Hardship Or An Individual May Pose A Direct Threat Crowell v. Denver Health & Hosp. Auth.,2014 U.S. App. LEXIS 13965 (10th Cir. Colo. 2014) (unpredictable flexible schedule permitting employee to leave work when medical episodes occur is unreasonable). Robert v. Bd. of County Comm'rs of Brown Cnty.,691 F.3d 1211, 1217 (10th Cir. Kan. 2012) (“When an individual can execute the essential functions of her job from home, working remotely may be a reasonable accommodation.”). Duvall v. Georgia-Pacific Consumer Prods., L.P., 607 F.3d 1255, 1257, 1264 (10th Cir. Okla. 2010) (reaffirming that the employer must offer the employee a vacant position rather than considering the employee along with other individuals, and explaining that “a position is ‘vacant’ for the purposes of the ADA's reassignment duty when that position would have been available for similarly-situated nondisabled employees to apply for and obtain”). Egresi v. U.S. Postal Serv., EEOC App. No. 0120081555 (Aug. 16, 2012) (no direct threat where agency alleged complainant’s orthotic boot presented a risk of substantial harm and there was no evidence agency engaged in an individualized assessment of potential harm). Seymour v. U.S. Postal Serv., EEOC App. No. 0120093459 (July 12, 2012) (direct threat because complainant posed a danger to himself where he had unpredictable seizures that caused him to fall to the ground and injure himself and he worked around heavy machinery). Copyright © 2016 The Wick Law Office, LLC

23. Final Thoughts Every individual, disability, job, workplace, and reasonable accommodation is different. While you can draw on prior experiences, an individualized assessment must occur. The employee is entitled to an effective accommodation. This is not necessarily the accommodation of choice. Copyright © 2016 The Wick Law Office, LLC

24. Helpful Resources The Equal Employment Opportunity Commission- www.EEOC.govwww.EEOC.gov The Job Accommodation Network- www.askjan.orgwww.askjan.org The Office of Personnel Management- www.opm.gov/policy-data- oversight/disability-employmentwww.opm.gov/policy-data- oversight/disability-employment The Wick Law Office- www.wick-law.comwww.wick-law.com The Reasonable Accommodation Training Group- www.reasonableaccommodationtraining.com www.reasonableaccommodationtraining.com Copyright © 2016 The Wick Law Office, LLC