This transcript was created using an automated transcription service and may contain errors.
Around the ADA, there’s a lot of legal terms, there’s a lot of things that… you know, it’s just… it seems so heavy. But if they truly understand, it’s really just a promise of equal access to opportunity for everyone.
We can never make solid arguments on lack of good information, so we gotta engage and ask the questions and find out, can we accommodate?
Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m JoDee Curtis, owner of Purple Ink and Powered by Purple Ink, and with me is my friend and co-host Susan White, owner of Susan Tinder White Consulting, an HR consulting practice.
Our topic today is on the Americans with Disabilities Act, better known as the ADA. We frequently get requests from our listeners to talk about different kinds of topics or different questions they have on some things, and legal is probably one of our top topics in general that we hear about. But recently, someone asked about the ADA, and I thought, hey, this is something we haven’t talked about yet. To provide a little bit of background on the ADA – and this is straight from the Department of Labor’s website – “The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications, and access to state and federal government programs and services as it relates to employment.” It also protects the rights of both employees and job seekers. And while the Department of Labor does not actually enforce the ADA, it does offer publications, technical assistance, and other resources on the basic requirements of the law, covered employers’ obligations to provide accommodations, and qualified job applicants and employees with disabilities. In addition to the US Department of Labor – which, I didn’t even realize this until I looked into this more, although it all makes sense – there are actually many federal agencies that have a role in enforcing or investigating claims involving the ADA. Some of those are the Equal Opportunity Commission, the Department of Transportation, the FCC, the Department of Justice, the Department of Education, and the Department of Health and Human Services. This Act was signed into law in 1990. Its overall purpose is to make the American society more accessible to people with disabilities. I know, Susan, you and I have both traveled extensively in countries outside of the US, and there really are a lot of differences. I mean, I’ve been many places that did not accommodate…
…that part of the population, right?
I know. I think about the cobblestones and all the… the beautiful historic sites and things. Oh, they’re just really difficult if you have a mobility issue. I think it’s one thing that we’re really doing right here. We put a real emphasis on making sure accessibility is everywhere.
Yeah, so I mentioned the original Act was signed in 1990. But in 2008, there was an amendment that was passed to broaden the definition of what a disability really means. The ADA is divided into five different areas, and our podcast today will focus on the first one, which is employment law. But just to point out the other four areas, they also include public services, public accommodations, telecommunications, and group of just other areas, too. So let’s talk about who does it cover? Well, the ADA protection applies primarily, but not exclusively, to individuals who meet their definition of disability, and that is that someone has a physical or mental impairment that substantially limits one or more of their major life activities. It might also be a disability if they have a record of such an impairment or is regarded as having such an impairment. So who does the ADA apply to from an employer standpoint? Well, the employment provisions of the ADA apply to employers of 15 employees or more, but the public accommodations provisions apply to all sizes of businesses, state and local governments, regardless of the number of employees. When more than six federal agencies are involved in enforcing this act, as well as all of the different areas that it covers, it’s bound to be tricky, right? Lots and lots of questions. And I think as… as HR professionals, or even legal professionals or employers run into different things all the time, right? The tools we’re using to do our jobs have changed over time and need to be addressed by this act as well. So Susan, we have talked a lot of legal and policies so far, and there are lots of examples of accommodations that are complicated and expensive, such as building a ramp for wheelchair access, building an elevator, offering interpreters, accessible technology, and other workplace adaptive equipment. But many accommodations are also very simple and inexpensive. Susan, do you have some examples of accommodations that maybe you were able to provide to someone or just others you have heard about?
Well, you know, I think probably one that just comes up a lot is providing extra breaks for people based on a physical condition, or even it can be a mental condition that people need more breaks. And honestly, if you… if you… especially given the size of most organizations, you can accommodate that. It may be that they work a little different hours, because they need every maybe two… two and a half hours to sit down for a bit. I certainly have seen where people need to sleep during their lunch as opposed to, you know, going out. So I’ve seen sleep rooms created in different businesses. You can go to JAN, the Job Accommodation Network, free government site – in fact, you get there by askjan dot org – and they have incredible ideas. For almost any type of disability, someone has suggested accommodations. It’s a great place to go, a great resource that’s all… at all of our fingertips. I think most of us are thinking we have to buy new monitors or move new desks. And that is true sometimes. But most the time, it’s things that are really tailored to somebody’s needs.
You know, I’ve had two clients that we’ve worked over the years, one of them had an employee who was legally blind, but technically could see some, just had very little visibility. But one of the things he asked for was to have stickers put on the microwave so that he knew you know which button, or if he wanted to put it in for three minutes or four minutes, then he could actually feel those on the microwave. Right? That’s such a simple accommodation that can make the difference. Like, this guy, if he were the only one in the break room, he couldn’t use the microwave. We also have a client that is an airport, and I remember the first time I met with them, they asked if I wanted a tour of their control tower, which I thought would be really neat and fun. And it was, but I also remember asking them on the way up what they would do if someone there had a physical disability, because it was the craziest way on how they got up to the control tower. Now I don’t know if they’re all like this, this was one, but we took an elevator part of the way, we went up some very skinny rounding staircases, we walked across a bridge, we… I mean, it was crazy. And I said, you know, how would you ever accommodate someone with a disability? Well, step number one, he said “I’ve never thought about that before.” Right? Because they hadn’t had someone. But he did go on to say they actually at any one time have at least one or two controllers up actually in the tower, but that they also have controllers down on the ground in the black room they have. And so at times he said people could just choose to work in that room instead of going up to the top. Now there were some different responsibilities, but it was… people with titles and certifications in that could do it.
Yeah. Yeah. And we have invited two guests today to help us learn more on this topic. Our first guest is Kim Dinwiddie. Kim is the Vice President of Coaching and Consulting Services at our own Purple Ink. Her passion is providing HR solutions to clients by helping them build their HR infrastructure through technology compliance, and people. She has held and consulted in several corporate HR leadership positions in a wide variety of industries, and she has a lot of hands-on experience leading HR initiatives and compliance issues as well.
So Kim, I know some leaders and managers, when they’re thinking about implementing some ADA processes and/or making accommodations for some of the employees, they tend to think sometimes that it’s not fair to have one person treated specially or having “special privileges,” as they might see it. How can you best respond to that if a manager or… comes to you or it is well known that that is their perception?
Well, I think first, it’s most important to be sure that managers are educated on, you know, what the Americans with Disabilities Act actually is, to be sure that they understand that it really is a federal law that protects the rights of people with disabilities by really just eliminating any barriers that there may be in order for them to participate in, you know, many aspects of, you know, their lives and just working. And I think really, it’s about that equal access to opportunity for everyone. And I repeat that a lot of times to managers so they really understand that, because, you know, around the ADA, there’s a lot of legal terms, there’s a lot of things that… you know, it’s just… it seems so heavy. But if they truly understand it’s really just a promise of equal access to opportunity for everyone, that kind of helps it. I also like to just talk about, you know, “special privileges.” Sometimes managers see that as offering something superior to them and that’s why it’s not fair. But you know, it’s important to understand that really, those accommodations are intended to ensure that everyone has rights and employment equal to those that do not have the disabilities. So if it’s a modification to a job, a work environment, or the way the work is performed that really allows that individual with a disability to do those essential functions of the job, it isn’t about special privilege, it truly is just about a reasonable accommodation. But I do think education is really critical. And it’s also something that doesn’t come up a lot. And so it may be… you know, it can’t be a one and done, like, hey, managers, here’s what the ADA is all about, and then, you know, in two years, expect them to remember that, because that’s probably not going to happen. It needs to be that ongoing conversation with them.
I especially love how you started that – and some good advice for us when we’re talking about it, too – is that you talked about removing obstacles more than… It’s not about the special privileges. It’s about the removing obstacles to give them an equal opportunity.
So Kim, how has the increased awareness and focus on mental health affected employers in terms of ADA?
Yeah, you know, what I’ve really noticed most is that managers, also HR professionals, it’s almost like we’re navigating a new landscape. There’s not really that comfort level in how to handle the conversations because, you know, it used to be as soon as people talked about kind of mental health, everyone took a step back and said, oh, I don’t want to talk about that with you, I’m not the right person to talk about it with you. So you know, they’re just trying to figure out, you know, how do we have these conversations? And you know, what also I’m noticing is that people are finding that that climate in the workplace is really lacking some level of trust. And it’s actually kind of opening up some folks’ eyes to say, you know, we thought we had a very engaging environment, that, you know, employees felt safe, that they had that level of trust, and well, maybe, maybe it’s not really there. So that’s been an interesting aspect also, of, you know, what we’re finding, but, you know, it’s important for organizations to understand that one in five people actually experience a mental health condition in their lifetime. And that statistic, I think, is just staggering. And, you know, when things, issues arise, we need to have a plan in place and not just something that’s just the right thing to do. Not… it’s about, you know, legal compliance, but really, we want to be sure that we’re able to connect with the individuals and be sure that we’re providing them what they need, too. And, you know, an interesting… I had a client reach out to me, and they had someone who, you know, was actually going through a mental health crisis and were… that’s beyond just a condition, but their initial response, you know, I started asking questions like, what’s going on? What’s the employee saying? And they said, “We didn’t even ask any questions, we just called you right away.” That’s what I mean that that landscape, they’re like, I don’t know what to do here about this. And, you know, there’s… there’s tons of information out there now, just… just about, you know, how to really handle those mental health conversations, the resiliency, and so I tell people just get educated, you know, I say that all the time. But find out what you are able to ask… and to be honest, really, anything goes. And it’s more about just saying, you know what, if you’re not comfortable sharing that information with me, that’s okay. I just want to make sure you’re okay. In this situation, it was a mental health crisis. And I asked the manager, I said, Did you ask them if they have thoughts of harming themselves? And they’re like, I can’t ask that. Well, you can and you should. And that just initial question then led into further conversation to discuss, okay, what’s going on? What type of accommodations maybe, you know, are they needing or others needing? And with that mental health, you know, conditions, accommodations, really vary, very differently from what other kind of accommodations are. You know, sometimes, it’s… you know, just like people’s strengths or their work environments or job duties vary, accommodations also vary. So it is interesting, I think, shift for managers to really be, you know, dealing with now, and HR folks, like I said, because they haven’t really had to deal with a lot. But people are, you know, it’s just… just being talked about more. And there’s not a stigma around it, thank goodness, like there used to be. So I think we’re actually pivoting in the right direction. But we just need to be sure that everyone knows how to handle it when it comes up.
Great advice. And, Kim, if we get back to the basics, what does it mean when employers talk about the interactive process?
I think the very first thing I always tell, you know, our clients is just you have to remember to move forward in good faith. That’s the most important thing. And you know, again, like I said before, most of us in our… you know, those HR seats or putting on that HR hat, we aren’t dealing with these requests on a day out… day in day out basis. It only comes up occasionally. So when it does come up, you just kind of have to pause and put together a plan. Hopefully you have some written processes in place that you can figure out and follow. But you know, really, it’s the discussion about the disability, looking at that with compliance with the ADA, and the most important thing with that interactive process is it is a collaborative dialogue between the employer and the employee. It’s not a one-way street. It’s a two-way street. Both individuals need to have the conversation, ask questions, ask those clarifying questions even, to make sure that you have a good understanding. And really, the whole purpose of that interactive process is to really determine whether an effective, reasonable accommodation can actually be made and if that accommodation is going to enable the employee to perform the essential functions of their job. And, you know, employers are obligated to initiate that process when they become aware that there may be a need for an accommodation. And that may mean that the employee actually requested it or it could also mean the employer just became aware that there may be a need of an accommodation and that could be through just observation.
I don’t have this statistic with me, but I remember the last time I looked at it most accommodations are, like, just a couple hundred dollars at most. And so employers who try to say it’s an undue hardship, it’d be really tough as an employer to… for most accommodations they’re simple and very cost effective.
Absolutely. And I have had, you know, situations where, you know, maybe someone needs a new monitor and you know, that employee went out and did some research and they found this monitor that may be, you know, a few thousand dollars, and for a small organization, that could be a big ask. Well, but you don’t stop there. That’s when that interactive process, collaborative dialogue takes place and say, okay, well, what about that monitor is really fitting your needs? And so then as the employer, you can go do more research and see if there may be another solution. So what I like to remind people is you may have to go through two or three solutions before you both are in agreement with something that is going to work. You know, it’s not just a one and done thing. And it’s also important to know that you may put an accommodation in place that you think is going to be effective and realize, okay, it’s not, so we’re going to have kind of backtrack, have some more dialogue, and figure out maybe a different accommodation.
Yeah, that’s great. So how have hybrid or flexible work arrangements benefited employers, employees regarding the ADA, and has there been any negatives to it, do you think?
Yeah. Well, I think the pandemic… you know, all seems to circle around that, all our conversations, doesn’t it? But I think that actually really opened us up for employers and employees to have different options than maybe they had in the past. Because now, you know, there’s a capability that they can, you know, perform maybe work remotely, where before the pandemic, you know, that was an accommodation that actually was asked quite frequently and the answer was typically always no, we don’t have the technology, we don’t know that you can really do the job that way. So I feel like that’s benefited, because it truly has opened that door, again, because processes, technology, that’s all in place now and it makes for, you know, flexible work arrangements, definitely a reasonable accommodation. So that has helped shift job satisfaction and reduced absenteeism, which has, you know, definitely been a benefit. On the flip side, what’s interesting, though, to me is that, you know, we talked about that, oh, special privilege, you know, now that employers are starting to say, okay, employees, we want you to come back into the office, well, there’s maybe have some employees that need accommodations, and they’re trying to force them into, no, we’re making everybody come in, it’s only fair that you do. Well, that’s when it’s important to take a step back and be like, hold on, we’re not… this isn’t just, you know, all of your employees, this is a reasonable accommodation that we need to actually work through and talk through. So that’s been an interesting… I guess we’ll say, not as positive benefit to it. And, you know, it’s interesting, because they have to navigate, is it truly an accommodation, or is it a want or need? You know, so just again, that’s when those dialogues… it’s so important to be collaborative when you’re having those.
And do you recommend that it be HR that has those conversations so that direct managers aren’t aware of diagnoses of mental conditions or other physical conditions?
I think if there is an HR staff, definitely. There’s typically in any organization now, even if you don’t have true HR, there’s someone designated, you know, to have that. We do have some of our clients actually reach out just because they don’t have HR and so they utilize us, you know, in that role, because the managers aren’t comfortable in having those conversations. And that’s understandable, you know, and that’s again, I think we’re… I think cultures are shifting a little bit when, you know, they’re looking at that level of safety and trust in the organization as far as when they’re able to have those conversations.
Well, and Kim, you know, we love to talk about joy. What is your advice to our listeners, for them to create more joy at work?
I think having that safe space to just have those dialogues that are needed, to not worry about being judged. You know, I think there’s a stigma that, you know, has happened in the past. And I think that’s important to make sure that you have a work environment that stigma doesn’t exist, and people can be authentically them and they communicate what they need, because that… that, you know, makes the JoyPowered® workspace for the employee but also the employer. You know, we obviously want people to come to us if there’s something that they need to, you know, reach their full potential, so we don’t want any barriers up. And again, that’s what ADA is about is just eliminating those barriers. And I think that is what’s going to lead to that JoyPowered® workspace.
Yeah. Love it. Well, thank you so much for joining us today, Kim, you’ve had some great advice for our listeners and also for me. I’ve learned a lot from you this morning.
Thank you so much, Kim.
Thank you. Thank you for having me.
Our second guest today is Jackie Gessner. She is an employment law attorney with extensive experience representing employers of virtually all sizes of businesses in the areas of employment counseling and litigation. Jackie regularly defends employers in federal and state courts and before state and local civil rights agencies, the EEOC, and the Occupational Safety and Health Administration, better known as OSHA.
Jackie, we’re so glad to have you here.
Thank you, Susan. Well, I’m very happy to be with you both today.
Are there any new legal requirements when it comes to employee disabilities or workplace accommodations that employers need to know?
The answer to this question is yes. In fact, there is just a new federal law that went into effect a couple of weeks ago, so it’s pretty fresh and new for employers to be in the process of actually complying with, and that is the Pregnant Workers Fairness Act, the PWFA. And this law basically provides that now in addition to protections from just discrimination and unfair treatment, pregnant workers have a right to be accommodated in the workplace, just as individuals with disabilities. And what’s interesting about this is I think a lot of employers thought, “well, don’t we already have to do that?” or “we’re already doing that, so what does this mean for us?” And really, I think that this just brings a lot of employers and a lot of different states into a level playing field on pregnancy accommodations. You know, a lot of states already had these laws making it such that, you know, when someone’s pregnant at work, it doesn’t just mean you have to show you’re disabled or you have a pregnancy-related medical condition to get a disability. But now all those pregnant workers can, if they are able to and want to, continue working through part of that pregnancy, are entitled to things like additional break time, the ability to take, you know, a sitting break, or an additional rest break, water break, even getting closer parking options if walking long distances becomes more of a challenge. I think a lot about our manufacturing clients here when I think about uniforms, and having uniforms that will fit pregnant workers is another accommodation that’s going to be required and that people need to think about. And the interesting thing about this law is that it makes clear that employers can’t just say you need to take leave, you know, whether paid or unpaid, and that’s going to be the accommodation that we’ll provide. Instead, it’s that they must go through the interactive process. And if there’s an accommodation that will let that pregnant worker keep working, you know, while they’re medically able to do so, that’s what has to be provided. It’s a unique twist on the ADA. You know, a lot of the standards match what the ADA has, but that’s something different that I think is really kind of aimed and sending a message that Congress wanted the ability for if a pregnant worker decides, I need to keep making money during this period of time and… and I can and want to keep working for them, to have the ability to do so and not just be told, you’re gonna have to take leave time because you gotta do the job the way it’s written. So that’s kind of a brand new law, although not new to some employers in some states. I think it’s a good change to again, bring that level playing field back for those pregnant workers who want to keep working while they have the ability to do so.
I think it’s a great change. And I know that… we’re recording this in 2023. It blows my mind that it’s 2023 before this kind of legislation passed.
Jackie, I’m curious if that… if this law, which is… you said is new to some people and not new to every state. Could that be used, maybe, what might be deemed as against that person? For example – could be anyone disabled, but let’s stick with the pregnancy question – that if someone is… the doctor tells them they should go on bed rest for their final month, but then – because they have a more physical job, but then the employer says, no, we can make accommodations that you could work from home while you’re lying on the couch, and so we need you to keep working.
Yeah, I think that in this interesting situation, you really kind of got both laws going on. You’ve got the ADA and this new law, because in that example, they would already have the right to an accommodation of some leave time, because they’ve been called to bed rest, and you kind of brought an interesting twist, or what if they’re sort of somebody who can work remote, and it’s not a manual job that they can do anywhere? What then, right? And I think that this will bring in what we’re going to talk about more today, which is the ability to ask more questions as the employer and find out whether or not… does that restriction, you know, include an inability to perform the work, you know, is there some additional limitation going on, makes it hard for them to, you know, be focused and be able to do their tasks during regular work hours, due to some other, you know, limitation on, again, their focus or fatigue or ability to, you know, be as alert as they would, and if those things aren’t going on, and the person is just wanting to be able to work in a more comfortable environment where they can take those breaks, right? This will create kind of a whole new communication with the employee on what can we do and what do you need, based on what your doctor is telling you?
And what are some scenarios – maybe some you’ve had with some of your clients or just others you’ve heard of – where employers fail to address employee accommodation requests?
Yeah, I’ve seen this in a couple of different ways. You know, the calls that we’ll get sometimes will be in the middle of the accommodation process. Maybe it’ll be after they’ve already responded to the employee’s request, and now we gotta figure out how do we best get this across the finish line in a way that gets that employee what they need. And I think about one kind of key area is assumptions regarding whether or not an accommodation can be made, and this really results in basically not responding at all to the request. Because if you’re the manager or the HR looking at what the employee is telling you and thinking, oh, there’s going to be no way that we can accommodate that, that’s just… how would we ever even do anything to help this employee be able to work, and the result then being a lack of any communication or really kind of non-substantive communication that’s shutting down that interactive process because they’re thinking there’s nothing that can be done. And the problem with that is, that is a failure to accommodate. You know, the process is there because it’s required… it’s required to have said, let’s find out some more information. You know, I need to ask a few questions about how this might limit you and maybe have your doctor give you information that you can turn into me so that I can better understand it. But we’re never going to be successful in responding to a claim like that if we haven’t done anything. You know, we’ve got to show we had a good faith intention to try to work with them and figure that out. And so that’s where I see that kind of assumption on the front end that there’s gonna be no reasonable accommodation shutting down the interactive process and making for a ripe claim for failure to accommodate. So that’s one area where I sort of always encourage, especially at the front end, we have to be engaged, we cannot make those assumptions and we’ve gotta ask some questions. And probably the second area where I’ve seen, you know, this similar kind of issue come up is where the employee happens to be in the middle of a difficult disciplinary process and maybe they are, you know, one strike away from termination or termination considerations have already begun, and that’s when they mention, I’ve got this limitation and the response there from a manager or an HR person saying, well, we’re already on this track and we already see where this is going, so again, we’re kind of just not going to do much on the interactive process side. And that, unfortunately, isn’t going to excuse the failure to engage. It’s… it’s a requirement no matter where you are at with that employee. And so I always answer my clients’ questions on that. How… What do we do, you know, we… we have a disciplinary process we have to address but now they’ve raised this problem that it’s going to make it look like we’re only doing this because they’ve said they need some sort of change. And I always say there’s… that means there’s two trains going, and they need to keep going. You know, keep up with what you’re doing, you know, be true to the issue that was already going on if there was one. But remember, you’ve now got a second obligation, and you’ve got to start that process and bring in HR if they’re not already in and have them handle that because, again, of that sort of foreseeing like you know what might happen, and it’s ultimately not going to be successful.
I’m so glad you brought that example up, because so often I can hear the employer saying, “they’re just making that up,” or “they’re just, you know, now… it has nothing to do with what we’re working on or the fact they’re not performing, but now they’re using that as an excuse. They’re trying to hijack our process.” And in reality, you don’t know that. You should assume nothing. I love your thing. We’ve got two trains going now and we’ve gotta let them both run down their tracks. That’s a great… I’m gonna use that.
Yeah, exactly right. And your description is exactly how they come up. But as you can kind of see in how you described it, it’s just making an assumption. And we can’t… we can never make solid arguments on lack of good information. So we gotta engage and ask the questions and find out, can we accommodate? And maybe the accommodation lasts for one week because their termination process might already be done. But again, we have to have done it for that week.
Fair enough. Well, I love that you’re mentioning about we’ve got to ask questions, you got to really go deeper, we just can’t make assumptions. Employers are generally cautious when approaching employees’ medical issues, like they don’t want to touch it with a 10-foot pole. What should employers know about the interactive process to make sure that they feel comfortable when asking the right questions?
Yeah, I think it’s really fair for a lot of individuals who step into this role and are told you cannot ask employees about their medical condition, you can’t ask them about their disabilities. And that’s true most of the time. There’s a lot of reasons why that information is never needed, certainly on hiring decisions and things like that, which is why we’re told don’t ask, you don’t need that information. But the difference here is you do need some information. And in the interactive process, you can and should be asking questions that you have open in your mind of, well, how long is this employee going to have this limitation? Or what really is the limitation? Because employees don’t always have a great ability to explain what their doctor is telling them on their medical restrictions, or maybe they haven’t really, actually asked their doctor to spell it out for them, and have just kind of mentioned, yeah, it kind of hurts when I do this and I think, you know, I’m going to need some help for a little while. Well, that’s very unclear. But that’s often the kind of information we might be getting. And so we absolutely are entitled to ask questions to the employee so that we can get that information. And what I really like to do is help my clients craft some sort of letter that the employee takes to their doctor and tell them have them fill this out. And that way we’ve written the questions and the questions are not “tell me your entire medical history” or “please attach the employee’s entire medical file” because that is too broad, and that would be restricted. But what the questions can ask are things like, how long is this limitation going to last specifically? What are the symptoms that will impact the employee’s ability to do the job? And what might be some accommodations? You know, always including that question is a smart move because it shows we’re getting this information because we’re trying to make an accommodation decision and that’s the only reason that we need it. And so, I strongly encourage my clients who are HR managers, directors, and senior-level management-side folks to feel comfortable in knowing they can ask those types of questions, definitely, during an interactive process, and definitely should be getting that information documented.
Disabilities are really broadly defined and lots of different kinds of conditions or diagnoses are, as you just alluded to, maybe they’re just temporary or maybe they’re long-term. How can we help employers understand what limits apply with regards to accommodations? Like, what are they required to provide or not?
Yeah, this is always one of the most difficult decisions that comes up where we do have some type of change or modification that’s needed to the job and what we have to figure out is, is that a reasonable accommodation, and where does reasonableness stop? And the reason it’s so difficult is because it’s not the same one workplace to another, it’s really depending on the facts of what does that employee do? What do they do the most? And then, is the job set up in a way that… is there anyone else who might be able to help? And what are their, you know, essential job functions? So the limits kind of allow for us to understand that it’s going to be very hard to show that an accommodation is unreasonable because it’s too expensive or because it’s really hard for us to obtain some type of, you know, unique mechanism or device that would enable that person to do that job. And that’s solely because that, you know, undue expense or undue hardship due to an expense is going to be a really high burden to me. It’s going to have an eye toward what does the entire corporation have, all divisions and locations, what’s their, you know, budget, and that’s how we’ll judge whether or not it’s too expensive. And so instead of focusing on things like expense, or it’s really hard for us to get this thing and install it, the focus should really be on is this requiring some type of permanent change to the essential job functions, the thing that the employee does the most of, and that’s not minimal, that’s not an insignificant task. So I think about, for example, opening mail. You know, if you are a receptionist who occasionally has to open mail, but it’s not what you do most of the day, and if you develop arthritis, some sort of limitation that makes it painful or hard to open mail, and it’s pretty easy for someone else to, you know, come by occasionally and take care of opening the mail, or there’s another receptionist who works a different schedule, and that person can easily take care of the mail, something like that isn’t going to be an essential job function, because again, it’s maybe minimal, or there’s easily somebody else that can help. But if I just changed the workplace to somebody who works in a mailroom, whose job is to sort mail all day, and we identify that, well, they’re going to need to be able to do something else, because now they’ve developed, you know, a life permanently changing arthritic condition, whatever it might be. Now that’s saying, well, I basically can’t do my essential job function, which is to day in and day out sort mail with my hands. We now have to, again, think of a different way to go through an interactive process with that person. Remember, we can’t just shut it down and assume there’s nothing but this. This might be a situation that leads to where we are making a permanent change to what that person does day in and day out that’s not a minimal task and it’s really hard for us to find a way to remove that task from their job without, again, permanently changing the job that they fill.
Jackie, when employees just need time away from work as an accommodation, are employees required to provide that? Especially if employees are not entitled to medical or FMLA leave – maybe they’re not eligible for it. Do employers need to do anything?
Definitely. And this is, again, where the repeated theme of engaging with the employee becomes really important, because leave or limited leave is a reasonable accommodation in some situations. Solely because an employee’s not eligible for some type of FMLA or medical leave that’s offered by the employer does not mean that there isn’t potential leave that must be provided, because they could be an individual with a disability and that might be the accommodation they need. You know, they need a couple of weeks off to get some treatments and their doctor said they’re… they can’t work during this time, will be unable to perform any work, and the treatments will be finished in two to three weeks. Well, something like that is gonna be very hard for us to say we can’t find a way to accommodate it because the doctor said, here’s how long it will last, and they’ll be back at the end of this week. Of course, the difference is when a serious condition has set on and the doctor has no idea when or if ever they might be able to return to work. And so that’s where those questions and, you know, information to provide to the doctor and fill out are critical. If the answer is, I’m just going to need some time off and I’m not sure when I’ll be back. And that’s where we have to say, you know, hold on, we’re going to need more information, let’s work with you. We want you to feel better soon and that’s our primary motivation, but here’s information we’ll need you to collect from your doctor. And that’s really kind of important to remember, because it’s sometimes viewed as if no FMLA, then the story’s over. But that will trip up a lot of employers who forget the ADA does still apply and kicks in, and most conditions under the FMLA are going to likely be considered disabilities under the ADA.
I guess that’s why this topic can be so confusing for people, is because there’s so many different individual scenarios or diagnoses or job responsibilities that you really have to look at each situation as an individual case, right?
And I think that’s why we need Jackie on speed dial.
Jackie, if our listeners need help in dealing with ADA issues or other legal issues, what’s the best way for them to reach you?
Yeah, absolutely. I… I work with Gutwein Law, which is a great firm. I’m in Indianapolis, but we’re in a couple of different locations. And I can be reached at any time. My contact information is on LinkedIn and on Gutwein Law’s website. Phone, email, feeling free to reach out anytime is perfectly appropriate and acceptable to me and it won’t be considered a strange thing, because it happens frequently. As you all can imagine, when these situations pop up, they’re urgent, and you need an answer right away. So it’s not rare at all for me to get a call from someone saying, “Hi, I just need help with this question. I think you can answer it,” something like that.
That’s great. And we’re gonna put your contact information in our show notes. But just in case we have a listener who needs to find you right away, how do you spell your law firm’s name?
Oh, great question. Yeah, there’s a lot of hard G names going on here. Gutwein Law is G-U-T-W-E-I-N.
Perfect. Thank you so much. And then finally, we… before you leave us, we’d love to ask a JoyPowered® question. Jackie, in your mind, what’s one small step people can do in this area to create more joy at work?
So it’s kind of dovetailing on what JoDee just mentioned, but because things are so varying person to person and we don’t always know someone’s situation, the thing that I try to remind myself and other people is to remember when someone is out and it’s causing you frustration at work, or you’re the manager and you’re frustrated, is to solely remember the fact that there may be a difficult, serious medical situation going on that’s taking up all the oxygen from that employee’s, you know, daily life, that figuring out how am I going to get to work, you know, on time, the next day is maybe the last thing on their list. And so providing just a little bit of grace when you’re the coworker or when you’re the manager is, I think, going to go a long way to helping a lot of people not feel as though they need to just sort of suck it up and work through some pain. It, I think, relates a lot to the fact that a lot of people go to work sick, which makes other people sick, and just not having the ability to kind of understand that there’s always potentially something else going on that you don’t know about. Being a good coworker in that regard can help go a long way.
I love that advice.
Me too. Well, thank you so much for joining us today, Jackie.
Thank you for having me, JoDee and Susan. It’s great being with you both.
JoDee, we have a listener question today. The following question came from a listener of one of our previous podcasts. As you know, we welcome questions from all of our listeners. Question is, one listener says they love working in their HR-adjacent role as a staffing coordinator. “The work I do is meaningful and important to my organization. However, my boss is a micromanager who does not take feedback well. He has a 225% turnover rate and often is described as a person who is more focused on written organization policy than the very human aspect of employee retention. I have not succeeded in finding another position with a different organization yet. I will most likely be supervised by my current boss at some level for the foreseeable future with my current company. How can I make the best of this tough situation?”
Well, you know, you’ve heard me say this many times on our podcast, because my tendency is to be more direct, so one approach – might not work for everyone – is to sit down and have a conversation with him about this. And our listener mentioned that her boss didn’t take feedback well, but maybe making some specific suggestions on, “I’m doing… working on Project A, and I think I’ve got this down and I can really do this independently, and I think I could just do it and come back to you when the project is over for your review. Would that work for you?” Another suggestion might be to say, “When you check in with me so often, I get the sense that you don’t trust me, and I really would like to earn your trust on this. What can I do to earn your trust on this specific action or this specific project?”
I was gonna say, JoDee, I really do love that. I love the direct approach. Sounds like it’s not going to get any better unless you do something better or do something different or if you leave, and I think that leaving, then everybody loses, right? So I think I’d do exactly what you did, and I think I would start the conversation out with, “I’m here to make you successful, and I want to do a good job at this organization, but I care about you,” and I hope that you do, because you want it to be authentic, “and how we’re functioning today, I’m not sure that I’m optimizing all the things I could be doing for you. Your checking in with me a lot does cause me to wonder if you trust me and… and that hurts my relationship with you and I wanted to make it better.” So I would just go from a whole vantage point is, I really want to make this company better, I want to make us better, and I can make you look better. And hopefully that appeals to him.
I love it. Very powerful, right? We all want to look better and feel better, work better, right? So attacking it…
We do. We do.
…on that line is amazing.
Well, good luck to you. We’d love to hear how it goes.
In our in the news segment today, there was a press release from Flexjobs.com on May 1 of 2023, and that said despite a changing job marketplace and uncertain economy, the National Association of Colleges and Employers reports that new Gen Z grads and job seekers in particular prefer remote and hybrid work options remain a priority when looking for a post-college career. In fact, recent studies have found that nearly a quarter of Gen Z students and new grads ranked remote work as one of the most important job factors. And more than three out of five said they prefer a hybrid environment to help new graduates and early job seekers better evaluate their remote work options. Flexjobs has shared the top 10 career categories for entry-level remote roles, and this was based on data as recent as January to April 30 of 2023. The following categories are ordered from highest to lowest according to the number of remote entry-level positions available to job seekers. Susan, why don’t you just start with a few?
Sure. Number one, customer service.
Number two is accounting and finance.
And number three does surprise me a little bit. Medical and health. But maybe it’s with virtual health or maybe doing the behind the scenes paperwork, insurance claims, perhaps?
Yes, you know, I did look into that a little bit deeper myself because I was surprised. I think when we hear medical and health we think nurses and doctors, but it did include a lot of, like, medical records positions or transcription from doctor’s notes, as well, plus some, you know, just maybe some at-home nurses or therapists that might work out of their home. They’re still seeing patients, but they’re not going to an office every day.
That makes sense. Thank you.
Number four was administrative roles.
Number five is bilingual care navigator.
Yeah, that one was a very specific one. Um, number six, which I think we hear and see about a lot, is computer and IT functions.
Number seven makes sense – bookkeeping.
Right. Number eight, sales. Once again, they might be out and about, but many times they don’t report into an office.
And number nine is marketing.
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