Lincoln Absence Advisor

Q&A: The ADA Link, part 1

July 16, 2020 Lincoln Financial Group Season 1 Episode 19
Lincoln Absence Advisor
Q&A: The ADA Link, part 1
Chapters
00:00:53
Recent webinar thoughts
00:02:39
General COVID-19 questions and ADA
00:10:33
Underlying health condition questions
00:19:00
Questions since the webinar?
Lincoln Absence Advisor
Q&A: The ADA Link, part 1
Jul 16, 2020 Season 1 Episode 19
Lincoln Financial Group

During our last webinar, the ADA Link, we received many questions from our audience—from general process questions to how COVID-19 interacts with the Americans with Disabilities Act (ADA). In part I of our two-part episode, we answer specific questions about the ADA in the current environment. Our guests Annie Jantz, Product Lead for Accommodation Services, and Melissa Michuda, Return-to-work Specialist, discuss questions like:

  • Does ADA apply to return-to-workplace anxiety?
  • Has COVID-19 created a new view of underlying health conditions?            
  • And, simply, how does COVID-19 impact ADA?


Resources mentioned in this episode:


LCN-3159506-071320 
© 2020 Lincoln National Corporation. All rights reserved.

Show Notes Transcript Chapter Markers

During our last webinar, the ADA Link, we received many questions from our audience—from general process questions to how COVID-19 interacts with the Americans with Disabilities Act (ADA). In part I of our two-part episode, we answer specific questions about the ADA in the current environment. Our guests Annie Jantz, Product Lead for Accommodation Services, and Melissa Michuda, Return-to-work Specialist, discuss questions like:

  • Does ADA apply to return-to-workplace anxiety?
  • Has COVID-19 created a new view of underlying health conditions?            
  • And, simply, how does COVID-19 impact ADA?


Resources mentioned in this episode:


LCN-3159506-071320 
© 2020 Lincoln National Corporation. All rights reserved.

Karen Batson:

Hi again, everyone. This is Karen Batson, marketing manager for leave and disability at Lincoln Financial Group. Every quarter, we host a webinar for Lincoln's customers and partners. Our webinar in June entitled the ADA link , covered many aspects of the Americans with disabilities act, including its impact with the current environment. And with many of our webinars, we get great questions from our audience. So we figured what better way to provide answers then talk about it on the Lincoln Absence Advisor podcast. In part one of two, I am joined by Annie Jantz product lead for our accommodation services product and Melissa Michuda at return to work specialist. And we dive into the questions we received specifically on COVID-19. Welcome ladies. Thanks for joining me today.

Melissa Michuda:

Thank you.

Annie Jantz:

Happy to be here.

Melissa Michuda:

Yes, thanks for having us back.

Karen Batson:

You guys have been here a few times so I'm excited for us to jump into our next convo. We recently held our second webinar of the year where you both were our speakers, our Lincoln representatives to talk through the ADA topic. And I think we covered a lot in that webinar, so many things. And of course, that spurred a lot of questions from our attendees. Um, you know, I think we got over a hundred questions , um, on various aspects of the topic. So what better way to have a podcast episode answering those questions and getting a little deep dive now as our speakers, how did you feel like seeing that many questions come in off our content?

Annie Jantz:

Initially? I was a little surprised it was a lot of questions, but I was also really happy to see that. Um, so clearly it was something that was needed and I'm glad that we were able to put that together and then to respond to all of the questions. So it just recognizing that there's a need for information.

Melissa Michuda:

I agree. And I think just because I do this work daily, I received so many questions from employers, just in regards to these topics. We take it for granted because it's our job, it's what we do. But there's , there's so many unknowns and lots of gray areas. So people really do need a better understanding and a bit more guidance when it comes to this topic.

Karen Batson:

Absolutely. Now I think there was kind of clear sets of questions that we received. You know , there were questions on kind of the basics of ADA process of ADA. And then there was a really good set of questions specifically around COVID-19 and the kind of the current environment that we're in. So I was thinking like this part one episode, let's dive into those questions first. Okay. Because it's a hot topic.

Annie Jantz:

Yes. For sure.

Karen Batson:

Let's start with a high level question. How does COVID-19 impact ADA?

Annie Jantz:

Melissa? Do you want to take that one first?

Melissa Michuda:

Sure. Um, there's definitely issues with COVID that impact the ADA, especially if you have an individual that has an underlying health condition that the COVID and exposure would pose a threat to that individual. If they were to be exposed to it and due to the fact that they have that underlying condition, it is actually something that, that could be covered under the ADA. So there is that link there. And I think for employers, it's important for them to have those conversations with that individual and get as much information as they need.

Annie Jantz:

Yeah, I completely agree. And the only other thing I would say is that the employers need to just keep in mind that even though we're in this really unusual time, you know, that nobody's been through before ADA still applies, like all of those rules are still there. They still need to look at it, consider it. So it doesn't, it doesn't really change that part of it. Um, it might be changing a little bit about how you think about it because there might be different reasons or different types of accommodations, but it's , it's still all applies.

Karen Batson:

So ultimately, you know, an employer would still have to offer a reasonable accommodation. Am I correct? In that understanding based on the definition under ADA?

Annie Jantz:

Yes. For sure.

Melissa Michuda:

Yeah. They meet those guidelines.

Speaker 1:

Can we defer our listeners just define what a reasonable accommodation is, and probably just talk a little bit about undue hardship , um, and defining that just to kind of level set?

Melissa Michuda:

Sure. An accommodation really is, is an adjustment to the way a job is performed. So it could be the actual job tasks , uh, the physical workplace , uh , there might be adjustments that need to be made to the workplace or the location where work is done. Um , but truly it's to allow that employee to perform those essential functions of their job with changes that will allow them to do that. And that could be several types of things such as adaptive or assistive equipment. Uh, like for example, a sit stand desk or an ergonomic keyboard, visual or auditory aids, voice activated software, it could include job restructuring, breaks, or even a leave of absence when all other forms of leave are exhausted. So it could be quite a few things.

Karen Batson:

Annie, did you want to add to that?

Annie Jantz:

The only thing. No. I mean, I think absolutely I completely agree. And the only thing I would say like on the undue hardship piece of it is the employer is responsible to prove that if they are not able to accommodate, because it creates a hardship on the business, which might be the expense or, you know , lowering some kind of a standard for that job. So they need to be really cautious about that. Really exploring all accommodations before they would get to that point. And then they have to prove that there's an undue hardship. And I think that can be kind of difficult when you get to that situation. So it's one of those things you really have to explore everything and look for those solutions.

Karen Batson:

Now we saw different angles on this next question, which is how does this come into play if returning to the workplace? And that return is causing anxiety and impacting the work for the employee. Does ADA apply in this type of situation?

Annie Jantz:

Yeah, I think Melissa I'll start, but I definitely would like to have you weigh in on this one as well, because it can apply, but this is where it gets a little tricky because again, the ADA, you know, you have to meet that definition of disability for sure. So it's not that just because you maybe don't want to go back to work, but you really don't have an underlying health condition, or maybe you just have some fear about going back, which is reasonable right now. A lot of people have that, some anxiety going on, but that may not alone fall under ADA. So an employer again, has to really engage that employee to find out what the issue is. And then I think the most important thing in the environment we're in today is that there's a lot of clear communication on how employers are keeping employees safe, what they're doing to help them feel comfortable coming back into the workplace, that there's something in place to help them protect themselves and protect their coworkers. But having that fear and anxiety does not necessarily alone mean that they'll have to make some type of accommodation. But Melissa, I definitely like to hear your take on this too.

Melissa Michuda:

So the ADA it does apply, but it really is situation dependent. There is naturally going to be fear and anxiety coming back into a workplace, just due to the situation in COVID. But under the ADA, there does have to be some sort of condition or diagnosis. That really is the answer to that request. Um, someone with mental health issues. Yes. It may be covered if they're really having a hard time. Um , but again, it does go back to having that conversation with that individual and finding out what's going on. And if there's anything else that can be done to make sure that that person feels safe coming back.

Karen Batson:

Right? Yep . So it can be another one of those gray areas, but the conversation really needs to take?

Melissa Michuda:

Yeah, that conversation is just so important. And I know we talked, we talked about it all of the time and the webinar , but truly it is, that is that's the meat,

Karen Batson:

That's a cornerstone. So how do, how do we address an employee that is not satisfied by the accommodation that was maybe previously agreed upon by both the employee and the employer?

Melissa Michuda:

I think it comes from back to the interactive process. I mean the process itself, the accommodation, it is a series of different steps and it truly is something that is in constant motion and should be revisited. It's not okay. We're going to give you this sit stand desk and now we're done and we're never going to talk about it again. We really need to make sure that it's the appropriate option for that individual and it will continue to make them successful.

Annie Jantz:

Yeah, I agree. And you know, the employers should find out why, you know, cause there there's probably something behind it now it could be completely unreasonable, but for the postmark, probably not. It's probably something that they just need to explore and ask, you know , what is it, has something changed? Is something not working. You just never know. And so you have to have that dialogue and be open to listening and communicating back and forth. I mean, that's really, really important.

Karen Batson:

So it's the cycle now it, you know, I don't think we addressed this in the webinar, but with that cycle must be really important given accommodations that are even in this current environment, because this environment's going to change in the future. Right. So if they're having this communication cycle, it's not one and done, they should circle back. Right?

Annie Jantz:

Yeah.

Melissa Michuda:

Yeah, absolutely.

Annie Jantz:

And things change. I mean, I think that's the other thing to keep in mind. We're all human beings. We're all people who change and things, you know, might work. Maybe even somebody with a condition, their condition may even change a little bit or things treatment that they're going through. So you have to continue to check in something you put in place initially may not work the entire time or it may only, you know, it doesn't work initially and you need to change to something else. So it's just that remembering that things just don't stay exactly the same, always. You know, that is true here too.

Karen Batson:

So let's see if I can recap the general aspect of COVID-19 and ADA. So if an employer is following the same process that they've always followed when it comes to ADA, the only difference may be just some additional needs for the accommodation given the current environment. Am I right in that thought?

Melissa Michuda:

Yes, I believe so. I mean the , the ADA hasn't changed , um , it's just taking a different perspective on it, especially with COVID right now. Yeah .

Annie Jantz:

Yeah. I agree.

Karen Batson:

So let's get to some of the specific questions kind of about what you brought up a little earlier, Melissa, that underlying health condition element . So what is considered an underlying health condition that may place an employer? Um , excuse me, an employee at greater risk, if they are infected with COVID-19,

Melissa Michuda:

Some of the examples would be like a pulmonary condition, a heart condition, even an immune immune suppressive condition. Um , if they are taking , uh , let's say they're even taking medications that will cause their immune system to suppress itself. Those are things that are probably at the height of concern these days. Um, especially when we're talking about possible exposure to COVID-19.

Annie Jantz:

Right. And the CDC has a great , um , website that outlines a lot of that and they will even detail , um , the conditions that may pose a risk for the employees . So, I mean, that's a great resource for employers to use that or the EEOC . And I know we , we outlined some of those in the webinar as well, but they're really great resources for this.

Karen Batson:

We'll add that links, those links to the description for people to access if they're listening to our episode. So what are some best practices for employees that have an underlying health condition and request an accommodation when returning to the workplace?

Annie Jantz:

Yeah. So I guess, you know, this really will depend on the employee and what they need. I think that the most important thing that somebody can do is if they have concerns, is that they raise it with their employer and then find out what you can do. So it doesn't necessarily mean that you can't go back into the workplace, you might have to take extra precautions. Um , there might be things you have to do, or you might have to ask the employer to do for you to , to, you know, to get you back into work safely. And so I think it's important that the employee one understand their condition, maybe even talk to their doctor about, you know, what is my risk and what, what can I do to get back to work. And , um , for the most part, I think, you know , physicians, they , they want to help you get there. You're either a patient, so they can maybe provide some guidance for you as well, and then have that conversation with the employer. Um, you know, and it might result in just some extra precautions that the employer takes in the workplace. It could result in, you know, needing to stay out of work for a bit longer. I think it will depend employee to employee. Um , but the most important thing is to actually say something, ask those questions and , and really find out for yourself, what's a way to protect yourself so you can help your employer to understand what's needed.

Karen Batson:

Right.

Melissa Michuda:

Yeah. I agree. I also think communication from , from the employer side , uh , you know, everyone has an obligation now to make sure that their employees are in a safe environment. So communications on what you as an employer are doing for your employees, that that's important. Um, letting them know, you know, we are taking precautions, we are taking this seriously because sometimes maybe there wouldn't be a need for anything other than what your employer is currently putting in place. So the communication on both sides is really important.

Annie Jantz:

Yeah, that's a great point.

Karen Batson:

So this next question is when I find interesting, what is the difference between a request and a general fear of returning to the workplace when it comes to ADA?

Annie Jantz:

Yeah, that's, that's a good question. I think I'll try to tackle some of those and Melissa , um , you'll probably want to weigh in here too, but I think the difference might be at least, you know, the way that I'm looking at it and from everything that I've read and, and just even my own experiences with , um, individuals that in my own family who have underlying health conditions, I think it's and fear of returning to work or what's going on. I think it's the difference between actually having a condition that really puts you at risk and might already fall under ADA. Anyway, like you may have this health condition that if you needed an accommodation, you would meet that requirement because you have something. And then just general fear, which I think a good majority of the population has anyway about what do I do? How do I move safely? You know, where's it okay to go? How do I get back to work? And what is my employer going to do? I think there's a big difference there. Um not that fear is not, you know, we , we need to recognize that I think employers need to recognize it, but it doesn't, it doesn't necessarily rise to the level of saying, well, you have a condition that is going to put you at risk. I mean, you could still get very sick from it who knows, but it's not a known problem or a node condition that places you in that category. But I think it's important to recognize that that's still out there. And that, that is where, like what Melissa had said, employers communicating what they're doing, how they're going to help keep people safe. And then really looking to those guidelines from the CDC that are outlining precautions, I think is really important.

Melissa Michuda:

You summed it up perfectly, Annie. You really did. For the, for ADA, there truly, that goes back to the roots of 80. There needs to be a , a diagnosis or condition , um, that would put that employee at risk. So that is definitely something that has to happen in order for a true ADA accommodation to occur. But that fear, that fear is out there. It's in everybody. I mean, we've never had something like this and these are unprecedented times. Everybody keeps saying that. Um, so as an employer, you would want your employees to feel safe, coming back. You would want them to know you're doing everything in your power to make sure that they're safe. So again, that communication is key.

Karen Batson:

I know that in the webinar we talked a lot about mental health in particular, under the ADA and in this current environment, you know, have you guys have many thoughts about this fear turning to , or impacting a mental health component? And at that point, would it be covered by the ADA?

Melissa Michuda:

Absolutely. I think depending, yeah, depending upon what's happening with the individual, I mean, they could have had a long history of, you know , a mental impairment or because of all the stress and uncertainty, maybe this is a new diagnosis for them. So it is something that definitely could fall under an ADA Accommodation. It's just again, getting the information you need to determine does it fall under the requirement of the ADA?

Annie Jantz:

Yeah, I agree. And especially looking at some of the surveys that have been done and the number of people that are suffering from some anxiety or depression right now, we, you know, we already had seen a lot of that with mental health over the last several years. Right. A lot of focus, but then we've seen an increase in the number of people that are suffering with COVID. And so, you know, I'd be surprised if that just didn't highlight or bring out more, maybe people that had a condition that just either was never recognized or treated, or they just, maybe they were able to manage. And now they're not as well.

Karen Batson:

One the last question under this kind of category, what if an employee's family member has a serious health condition and they may adversely be affected by it? What happens in that situation?

Annie Jantz:

Well, employees are the only one covered under ADA. So the family member that is coverage that applies. So basically the employee may have concerns, and this is a valid concern as well. And one that we did here in some of the questions that came in from the webinar, but you can't really ask for that accommodation because you're concerned about a family member. So I think, again, it comes back to that own employee's responsibility and kind of on their own, trying to understand what the employer is doing to keep employees safe. I think, again, it goes back to that message, but there isn't anything under ADA that applies in that situation.

Karen Batson:

Now, is it safe to say though, even that it doesn't apply for ADA and accommodation, if the employee is concerned, they definitely should still talk to their employer.

Annie Jantz:

Yes.

Karen Batson:

There might be other options protecting them or policies in place.

Annie Jantz:

Yeah. I would definitely say it's worth having the conversation, especially now with, you know, again, we're in this really diff different time where we've never been through this. And so I think raising those concerns so that you can understand what the employer's doing and you understand, you know, what you're going to be experiencing in the workplace is important. So yeah, I think it's worth raising it. It just doesn't fall to the level of a raise to the level of ADA.

Karen Batson:

So since our webinar , um , have any other questions come across your desk , um , about ADA and COVID that our listeners might find interesting?

Melissa Michuda:

Oh, that's, I think that's a daily thing is what I see on the accommodation services side at there, there are a lot of requests , uh , that have to do , uh , probably more on the mental health side. Um, a lot of questions in regards to the fear and anxiety portion. So is just going through and finding out what truly is going on with that individual. Is there that disabling component , um, or is it more of a natural fear that can hopefully be resolved by more communication with that employee and the employer, but that's a lot of what we've been seeing on that side.

Annie Jantz:

Yeah. Yeah. I would agree.

Karen Batson:

So any parting words on ADA in the current environment?

Annie Jantz:

I guess what I would say is just remember that it still applies. So we need to address employees concerns. And, and my biggest advice is always right now is that we just all need to be patient and really , um , understand that this is an unusual time for both employees and employers. And so there's just a lot to consider. Everybody needs to be open to have those conversations in ADA. Those same rules apply, nothing has changed. So it's important that the employee raise the concern and the employer have that discussion with them to kind of walk through what needs to happen.

Melissa Michuda:

Absolutely. And I would just remind employers just to treat every request as its own individual request. Um, we definitely are seeing an increase in requests, but just reminding everyone that, you know , these are individual requests, they have to be looked at on an individual basis and then engaging in The interactive process. So very important.

Annie Jantz:

Right.

Karen Batson:

Well, thank you both for joining me for part one of this conversation. Um , Look forward to conquering part two.

Annie Jantz:

Me too.

Melissa Michuda:

Yeah.

Annie Jantz:

Thanks Karen.

Karen Batson:

To everyone listening, thank you for joining us. We will continue to cover topics that help employers and their employees navigate through this new environment. So be sure to subscribe to Lincoln Absence Advisor on Apple, Spotify, or wherever you get your podcasts.

Disclosures:

Please remember that our content is advisory. Only the information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource. Professional Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates, the Lincoln National Life Insurance Company, Fort Wayne, Indiana Lincoln Life and Annuity Company of New York, Syracuse, New York and Lincoln Life Assurance, Company of Boston Dover, New Hampshire, the Lincoln national life insurance company does not solicit business in New York, nor is it licensed to do so. Affiliates are separately responsible for their own financial and contractual obligations.

Recent webinar thoughts
General COVID-19 questions and ADA
Underlying health condition questions
Questions since the webinar?