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Jacquie Brennan: Welcome to the Disability Law Lowdown. I’m your host, Jacquie Brennan.

Today’s podcast is called “Reasonable Accommodation Basics”. Jana Copeland will be chatting with Linda Batiste with the Job Accommodation Network, JAN, about the ADA employment provisions related to reasonable accommodation.

Topics covered include: strategies for the interactive accommodation process, documentation of disability and need for accommodation, costs and benefits associated with accommodation, other hot topics and resources for accommodation needs.

Linda Carter Batiste has her law degree from West Virginia’s College of Law and she a disability law specialist for the Job Accommodation Network, JAN. She has in-depth training in the Americans with Disabilities Act and employment law as well as accommodations related to mobility impairments, emergency evacuation and substance abuse.

With that, Jana, I will turn it over to you.

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Jana Copeland: Hello and welcome to the Disability Law Lowdown podcast. This is Jana Copeland with the Rocky Mountain DBTAC ADA Center and I’m here today with Linda Batiste of the Job Accommodation Network. Welcome, Linda, and thanks for joining me today.

Linda Batiste: Thanks, Jana. It’s good to be here.

Jana: Could you tell out listeners a little bit about yourself before we get started?

Linda: I’m a JAN consultant and I’ve been with JAN for sixteen years now. I specialize in accommodations for people with mobility impairment and the Americans with Disabilities Act.

Jana: Perfect. Would you mind telling us a little bit about the Job Accommodation Network before we get down to it?

Linda: Sure. JAN is a free service of the U.S. Department of Labor’s Office of Disability Employment Policy. We are free. Our calls are free. We have toll-free lines. People can contact us via email. They can go on our website and send in questions with a tool that we have online called JAN On Demand. Basically we talk to anybody who calls us about anything related to job accommodations and Title One of the ADA.

Jana: Perfect. Well today we’re actually going to be talking a little bit about reasonable accommodation basics, Linda, and as a way to kick off, I was wondering if you could tell us a little bit about what a reasonable accommodation is.

Linda: The term “reasonable accommodation” is a legal term, so of course there’s a complicated legal definition that, honestly, most people don’t find very useful.

Very basically, an accommodation is any change in the work environment or in the way things are usually done. The reasonable part, in the words of the U.S. Supreme Court, means that an accommodation appears to be feasible or plausible. So basically it’s any change an employer makes for an employee with a disability.

Jana: Under the Americans with Disability Act, Linda, when are accommodations required?

Linda: There are three main times when employers must consider an accommodation. The first is for the job application process. The second is when employees with disabilities need accommodations to perform their job duties. The third is when employees with disabilities need accommodations to enjoy benefits and privileges of employment that other employees get and that includes things like parking, going to social events, or attending conferences.

The other piece to this is that employers aren’t required to provide any accommodations at any time if they can show that the accommodations impose an undue hardship. Undue hardship is another one of those complicated legal terms, but basically it means that the accommodation would be too disruptive or expensive or complicated to provide.

Jana: Who determines if an accommodation is an undue hardship for the employer?

Linda: Well, initially that is something that the employer would decide. If the employer makes that determination and an employee disagrees with that decision, then the employee can file a complaint with an enforcing agency like the Equal Opportunity Employment Commission. Then that would be a legal determination that EOEC or a court would make.

Jana: Is there a formula, Linda, that helps employers decide if something is an undue hardship or is it determined on a case by case basis?

Linda: I wish there were a formula; it would make our lives a lot easier. But it is a case by case determination that an employer has to make based on the employers knowledge of what the undue hardship definition is, but basically it’s just a judgment call that the employer makes.

Jana: Okay, that does make sense, for better or worse. For an employee who needs to request accommodation from their employer, how should that process be initiated? Are there any tips that you have for employees with disabilities? And also for employers to help them recognize accommodation requests?

Linda: One of the main things that we talk to employees about is that it is the employees obligation, in most situations, to initiate the accommodation process. Employers aren’t supposed to be guessing who might need an accommodation or making assumptions about the employees with disabilities, so the employee really needs to start that process by letting the employer know that something is needed because of a medical condition.

As far as how employees do that, there is no requirement that it be done any certain way. In general, the employee can go talk to a supervisor or HR or anybody in management and simply tell that person what is needed and why. But in a lot of cases it is useful to make the process a little more formal and by that I mean to put something in writing.

What we found in talking to a lot of people with disabilities is that sometimes they get into these meetings with employers and they think they’re all prepared to make their request and a lot of times there’s more than one person representing the employer and those meetings kind of turn out a little differently than they had planned. So if they put their request in writing, they get a little better chance to say exactly what they want to say to the employer and provide the information that they want to provide.

The other good thing about putting it in writing is there’s a paper trail to verify that the request was made. In our experience, people, including employers, tend to pay more attention to something if it’s in writing. So, a lot of times the written format is a good way for employees to initiate an accommodation request.

As far as how employers can recognize an accommodation request, basically any time job applicants or employees tell an employer that they need something because of a medical condition and what they are asking for isn’t something that is typically provided to employees in general, the employer should consider whether the request is an accommodation request under the ADA.

I’ll give you an example that I hear about all the time. An employee is on medical leave and is just about to use up all the leave time allowed under company policy, but the employee’s return to work date is still a month off. Because the employee let the employer know that more leave was needed for a medical condition, this is an accommodation request, even if that employee didn’t specifically ask for an accommodation under the ADA.

Jana: Does the employee have to use any magic words or special terminology or can it just be as generic as “I might need some additional leave because of a health condition”?

Linda: It can be as generic as you just mentioned. The employee just basically needs to let the employer know that something is needed, like leave time, because of a medical condition. But a lot of times, when we talk to employees, they’ve already done that and the employer didn’t recognize it. So from a practical standpoint, if that happens, it might be useful to use the so-called “magical terms” just to get things moving, to be more specific so the employer understands, but it’s not required.

Jana: How quickly should employers respond to a request for accommodation?

Linda: We get this question a lot. There really isn’t any specific timeframe for responding to an accommodation under the ADA.

Jana: So, Linda, once an accommodation request comes in, how much information can an employer request from an employee about that individual’s disability and need for accommodation?

Linda: That’s a good question and it’s one that we get all the time. There’s still a lot of confusion about what an employer can ask when an employee requests and accommodation. Basically employers can ask for as much information as they need to establish that an employee has a disability, and that generally means information about the medical condition and how it affects the employee, and for information to show that the employee really needs the accommodation that was requested, why it’s needed, and whether other accommodations might work.

To help employers sort all this out, I usually suggest that they ask themselves this simple question before asking an employee for any medical information. That question is: why do I need this information? If the answer is to determine whether the ADA applies or to help determine effective accommodation, then the request for information is probably okay.

Jana: Perfect. You mentioned leave time as a potential accommodation, what are some other examples of common workplace accommodations?

Linda: Some of the more common examples include hiring interpreters for employees who are deaf, providing access to the work site for employees who use wheelchairs, modifying equipment such as computers for employees who have problems using their hands, the leave time for medical treatment for employees with conditions, one of the ones we hear about a lot is cancer, modifying schedules for employees who have medical needs that require certain schedules like they can’t do overtime or they need to work a day shift, and a big one is reassigning employees with progressive conditions when they can no longer perform their current jobs.

Jana: I’ve heard something about reassignment being sort of the accommodation of last resort. Can you explain that a little bit?

Linda: Definitely. If an employee wants to try to remain in his or her current position the employer has to explore that option before reassigning the employee. If, on the other hand, the employee wants a reassignment and the employer’s agreeable to that, they can skip right to that option.

Jana: Of all of the accommodation examples that you just offered, it seems to just run the gamut in terms of intensity and complexity, what are some of the average costs associated with reasonable accommodations in the workplace?

Linda: Well, as you probably know, JAN conducted a study between January 2004 and December 2006 in which we actually asked employers, in fact 1,182 of them, a series of questions about their experience processing and implementing accommodations and one of the questions we asked was “How much did the accommodation cost?” What we found in our study was almost half of the accommodations, forty-nine percent, we made at no cost at all. And when there was a cost, over three-fourths, seventy-eight percent, cost five hundred dollars or less. And of the forty percent who experienced a one-time cost to make an accommodation, the typical cost of accommodating the employee was five hundred dollars. So, as you can see, accommodations really don’t cost that much and a lot of times they are cost free.

Jana: Sure. I know that’s one of the greatest push backs that we hear from a lot of employers is that fear of excessive costs for accommodations. If employers do need to invest money in their employees and their employees’ accommodations, what benefits can employees and employers realize from the provision of reasonable accommodations in the workplace?

Linda: That’s another question that we ask in our study. We asked employers whether they saw any benefit from providing accommodations and what we found was that employers reported a lot of benefits. The most frequently mentioned benefits were the accommodation allowed the company to keep a valuable employee, the accommodation increased the employee’s productivity, the accommodation eliminated the cost of training a new employee, and providing the accommodation actually improved interactions with coworkers and increased overall company morale. So it turns out accommodations aren’t just a pesky legal obligation, they actually benefit everyone in the workplace.

Jana: Those are amazing results. Are there any hot topics that you guys are seeing over at the Job Accommodation in the area of accommodations in the workplace under the ADA?

Linda: Oh, definitely. We seem to be getting more and more questions about service animals in the workplace, especially related to the growing use of service animals for medical conditions that you wouldn’t think of such as depression, high blood pressure, epilepsy and diabetes. We’re also getting questions about animals other than service dogs such as miniature horses and monkeys.

Another hot topic, and this has been a hot topic for a long time and continues to be, is substance abuse in the workplace. Some of the issues employers struggle with are just trying to figure out when the ADA applies and when it doesn’t apply, what rules and policies they can have, when they can test for drugs and alcohol, and what accommodations they have to provide for employees with substance abuse.

The other major hot topic I want to mention is that we’re seeing a lot of questions related to all the new gadgets and communication devices that are coming out now. For example, we get questions about cell phones, Blackberries, PDAs, on-line job applications, e-training, internets, and even podcasts such as this one. All this new technology makes its way into the workplace and we start getting more and more questions about how to make it all accessible to people with disabilities. It’s a very challenging area, but luckily we like a good challenge.

Jana: Absolutely! Another emerging trend that we’re seeing at the ADA Center involves the aging worker or individuals who are acquiring disabilities as they get older and are working with employers. Is that something that you’re also seeing on the JAN hotline as well?

Linda: It’s definitely something we’re seeing. In fact, it’s something that we’re seeing here in our own office as we’re all getting older and older, but definitely in our calls. There’s a lot of cross-over between disabilities and the aging process.

Jana: Do you guys have any good resources to help employers deal with this kind of situation?

Linda: People can always call us here at JAN. We are free, as I mentioned earlier, and people can call us on our toll-free line. For voice that’s 1-800-526-7234. For TTY it’s 877-781-9403. They can also email us at jan@jan.wvu.edu or they can use our new online tool called JAN On Demand by going to our website at www.jan.wvu.edu. And, of course, we always refer people to you all at the DBTAC. It’s a great resource for information about any aspect of the ADA.

Jana: Well, thank you, Linda. We do appreciate those referrals and, of course, send folks to you guys all the time.

Thank you for joining me today. I do appreciate your time. I hope everyone enjoyed this interview with Linda Batiste of the Job Accommodation Network.

If you have any questions or would like more information on this topic you can contact the Job Accommodation Network at 800-526-7234 or you can contact your regional DBTAC ADA Center at 800-949-4232. Don’t forget to visit our website at dll.ada-podcast.com where you can find a transcript of this show and also an archive or our past episodes and their transcripts.

Thank you guys and have a great day.

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Jacquie: I hope you enjoyed this podcast on reasonable accommodation basics and that you’ll tune in again to the Disability Law Lowdown which is hosted by the ADA Centers, a national network of ten Disability Business Technical Assistance Centers offering training, materials, and technical assistance on the Americans with Disabilities Act and other related related disability laws.

We can be reached by calling 1-800-949-4232. The ADA Centers are funded by a grant from NDRR. Go to our webcast at dll.ada-podcast.com to listen to our archived podcasts and to get transcripts of the podcasts.

Subscribe for free to the DIsability Law Lowdown on the website or through iTunes to make sure you never miss an episode.

Thanks again for tuning in and have a dazzling day.





The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.