Lincoln Absence Advisor

Q&A: The ADA link, part 2

July 23, 2020 Lincoln Financial Group Season 1 Episode 20
Lincoln Absence Advisor
Q&A: The ADA link, part 2
Chapters
00:00:54
ADA is 30 years old
00:04:05
General ADA questions
00:09:51
Accommodation questions
00:18:21
The interactive process
00:23:04
Additional resources
Lincoln Absence Advisor
Q&A: The ADA link, part 2
Jul 23, 2020 Season 1 Episode 20
Lincoln Financial Group

This week we continue our conversation from our webinar, the ADA Link. In Part 2 of answering your questions on the Americans with Disabilities Act (ADA), Annie Jantz, product lead for accommodation services, and Melissa Michuda, return-to-work specialist, discuss some need-to-know topics, such as:

  • What to consider in your return-to-work policy
  • What it means to review accommodation requests on a case-by-case basis
  • And how the interactive process is at the center of it all

Resources mentioned in this episode:



LCN-3168844-072020 
© 2020 Lincoln National Corporation. All rights reserved.

Show Notes Transcript Chapter Markers

This week we continue our conversation from our webinar, the ADA Link. In Part 2 of answering your questions on the Americans with Disabilities Act (ADA), Annie Jantz, product lead for accommodation services, and Melissa Michuda, return-to-work specialist, discuss some need-to-know topics, such as:

  • What to consider in your return-to-work policy
  • What it means to review accommodation requests on a case-by-case basis
  • And how the interactive process is at the center of it all

Resources mentioned in this episode:



LCN-3168844-072020 
© 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. We are back with part two of our ADA Q&A. Last time, we answered your questions about how ADA interacts with COVID-19. For part two, we cover everything else, ADA from general questions to more specific ones on things like accommodation options and the interactive process. I'm joined once again by Annie Jantz product lead for accommodation services and Melissa Machuda returned to work specialist. And we chat about these aspects of the ADA many of you are asking about.

Karen Batson:

Part two welcome back. So we conquered a lot of conversations about how ADA is impacted by the current environment, but we got a ton of questions about the basics of ADA and all sorts of aspects of it. Um, but before we jump in, I was thinking we should recognize that July is the 30 year anniversary of ADA. Could we explain to our listeners a little bit about why ADA came to be 30 years ago?

Annie Jantz:

Sure. I don't. Melissa, do you want to take that or do you want me to start?

Melissa Michuda:

I can start. Definitely. Um, there had been some civil rights laws out there, um, in regards to discrimination, but really the ADA is the first law enacted to really ban the discrimination of people with disabilities, especially in the areas of like employment, public, accommodation, public service, uh, I think even telecommunications and transportation. So it was, it was a big law that really allowed for accessibility inequality for people with disabilities.

Annie Jantz:

Yeah, absolutely. I think it was a pretty big deal and 30 years it's hard to believe it's been 30 years. I am. So, you know, I'm glad that we have this law in place. I think it's so important and it's just brought a lot of awareness to people with disabilities. So, um, it's, it's a great thing. And it's, there's been a couple of amendments, like the 80 AAA that have come about to clarify, you know, what this really means, but yeah, so it's, it's really there to protect people.

Karen Batson:

Honestly, we've done a lot of work around ADA and I love the conversations that we end up having because they just feel so important and so impactful for employees. So in commemoration of ADA, what aspect of it do you each find the most interesting?

Annie Jantz:

So I guess for me, it's, it's really just one how they've clarified the definition of disability, which I think was a good thing. Kind of taking away some of the proving that you have this disability because disabilities come in so many different forms, right? And sometimes they're invisible, a lot of people have something and you don't even know it. And, and so I think it's important that we just always keep that in mind. And just knowing some individuals who have struggled with disabilities, you know, I think that having this protection, allowing them to have the means to say, Hey, can I get something that accommodates to let me keep working? Because the, you know, equally qualified, I can do the job just as well as anyone else it's like taking away some of those maybe preconceived notions that people have about somebody with a disability. So that's, I mean, I think this is a really, to me it's a very important law. It's, it's really, um, something that I'm passionate about for people with disability. I mean, it's just, I find it really important.

Melissa Michuda:

Yeah. I agree. I came from a social service background way back when, um, but I've always focused on that area of employment. So for me, yes, the especially title one that has to deal with employment and accessibility, that that's very important. And, and I feel that sometimes it's just not always recognized. And again, because of the hidden disabilities and conditions, people aren't as aware and they're, they're not understanding a simple request could be just that. It could be very simple, but it could enable someone to perform at their best on a job, which is definitely what, you know, an employer would want out of their employees.

Karen Batson:

Right. All right. So let's jump into the questions that we received then, and we'll start with some general questions first. So what is the ADA criteria for an employer to be subject to the law?

Annie Jantz:

So an employer, if they have 15 or more employees working for them, then they're subject to the law. Um, so it's definitely a pretty low threshold as in terms of how many people that can be working there. And this applies to federal and state employers as well. So it's kind of across the board.

Karen Batson:

And next question, how does a return to work policy effect ADA or vice versa?

Annie Jantz:

This is a really important question because an employer, if they are developing a return to work policy, and it's a good idea to have one in place, um, how detailed it is, may depend on, you know, what your capabilities are, you know, what you're able to do for employees in the workspace, but it's important to have a return to work policy that helps employees to understand what that is. So if they were out on leave, you know, for whatever reason, what does it mean to come back to work? You know, what do they have to do? What kind of process is there? Is there a way that they requested accommodation? How do they request a leave even? And I think it's very important that they have a return to work policy in place. And then they also have to look at their policy and make sure it lines up with ADA and in everything else that they're looking at. So employers do have a lot on their plate in terms of dealing with regulations because they have FMLA and they have ADA and they update leaves there's a lot and they need to make sure that their policies are aligning with everything that's happening. So it's really taking into consideration the ADA and then your return to work policy. You don't want to have something in the policy that would prohibit somebody from coming back. Um, one example and probably one of the best examples is if an employer has a policy where you have to be 100 healed or without restrictions to come back to work, that really goes against the ADA. And so it's not really a good idea to have that in your return to work policy. You want to have something that allows for some form of an accommodation to take place and then make sure that your employees know how to request that.

Melissa Michuda:

Yeah, I agree. I think actually having a good return to work policy can support the actual administration of the ADA. Um, cause it does, it will keep in line, uh, with a certain requirements and it will also be beneficial just for your company as a whole, um, that way you've got that consistency with your processes and, you know, all employees will be getting the same consideration.

Annie Jantz:

Great point on consistency. Absolutely.

Karen Batson:

So I kind of have a chicken and egg question. So can you have a return to work policy without considering ADA? Or can you be ADA compliant without having a return to work policy?

Annie Jantz:

Well, yeah, so I'll, I'll tackle this first Melissa I'd like to hear, um, from your perspective too. So if you have a return to work policy, you really should be considering the ADA because you don't want to get yourself into a situation where you're violating the ADA. That would be a problem. So I suppose you could, but you might get yourself into trouble. Um, but on the flip side, can you be ADA compliant without having a formal return to work policy? Yeah, you can. I mean, you you'd have to be sure that you are one complying with all of the regulations that fall under ADA and then also that you're handling things consistently so that you're not getting yourself into a situation of violating something or having an issue pop up. And that's why it's best to have them in place and have it kind of coordinated. Um, but you know, you could have one and not the other, it's just, you run some risk with that.

Melissa Michuda:

I agree. I absolutely a hundred percent agree with that. I'm sure you could definitely follow the rules of the ADA without a return to work policy. However, that consistency piece is so important for several reasons, even, even in regards to a future litigation and things like that, you want to make sure that your policies and practices are consistent across the board for all employees. Um, and even that documentation piece, how you're handling each situation, that that's very important and it's a protective measure on both sides for the employee and the employer.

Annie Jantz:

Yeah, absolutely.

Karen Batson:

So one question we got that I thought was interesting. It's a little more in the details. Can the employer suggest an older employee retire if obvious health condition is impacting work and violate ADA.

Melissa Michuda:

This is very tricky. This is one of those gray areas, very murky water. Um, but again, it kind of going back to that interactive process, this is definitely an example of having a conversation with that employee. What is going on with that individual? Just because they're older doesn't mean that they can't do the job. Um, now if the employer notices that possibly they are struggling with something Or they're having difficulty completing a task, having that conversation and just initiating a very general, uh, you know, I see you're having difficulty with X, Y, Z. Is there something that you'd like to talk about, put in place? Um, but yet just due to age alone is probably not the best practice to say, Oh, you've reached this age. So now, you know, you should retire.

Karen Batson:

There's a lot more to it to your point.

Annie Jantz:

There is and, you know, the employer definitely should engage with their legal counsel, right? Like anytime that they're even considering it, because they also want to make sure they would not be violating any other laws trimming outside of ADA.

Karen Batson:

So another area of questions we got was around accommodations specifically. In fact, we got so many questions around this that we probably could do a whole episode, but we'll try and tackle some of them. And maybe through higher level ones answer a lot more, but let's start with defining a reasonable accommodation for our listeners. Cause we've got a few questions on that.

Melissa Michuda:

Absolutely. And I think we, we did that again in the, in the first session too. Um, it truly, it is that adjustment to the way a job is performed. So the workplace, location, how the job has done, um, any change that allows that individual to perform those essential functions of their job.

Karen Batson:

So how does an employer determine if an accommodation is reasonable and document that decision?

Annie Jantz:

So this goes back to one, the interactive process again, and having that discussion with the employee, finding out what the accommodation is that they need. And then the employer can look at their own organization and it's employer to employer and determine if there's an undue hardship. So they have to look at what's being asked, is it a significant expense? Are they being asked to lower some kind of a standard for this employee to perform their job? You know, things like that and there might be other considerations as well. And the most important thing, again, in determining if it's reasonable is if that one doesn't work that initial accommodation or that request, it's just too difficult to put into place, then you have to look for something else. So I think, again, it just goes back to having that ongoing conversation and for the most part and Melissa, you know, I'd like to hear if you feel differently or if you have other thoughts on this, but for the most part, I think accommodations don't get that technical and that difficult to implement. For sure there are probably times that they can rise to that level. But I think that there's always something to explore. There's so many options out there and an employer should really be looking for those solutions with the employee.

:

No, I agree, Annie. Most accommodations are, are very simple. Um, some don't cost anything at all. So it really, it, it does depend upon the request. And again, if you have someone who has a very complex condition, then that's going to be handled differently. As far as like the documenting of that decision. It is important for employers to have someone, whether it's a disability coordinator or their internal ADA specialist, um, to be in charge of tracking that portion of an individual's request. I mean, this isn't information that goes in someone's personnel file. This is it, this is different. There, there are definite ramifications that can happen if that information should get into the wrong hands and be used against that individual. So anything that is involved with accommodations and ADA should be handled separately in all documentation should be kept separate from a personnel file and hopefully be coordinated by someone who, who has some background in that, that area.

Karen Batson:

Now you both mentioned in your answers that accommodations can be really simple. Is there a connotation that accommodations are complicated and difficult out there?

Annie Jantz:

I think so. I think that that can be maybe part of the concern or worry is that an employee might ask for you to redesign somehow, you know, the work area, the entire work area, and there's going to be a lot of expense involved or there's going to be a lot of disruption of the workplace. And I think that not everyone, but you know, clearly there's a lot of employers who are make accommodations all the time, but I think there still is some of that that's out there. So I think it's a good point to always make that for the most part. I think they're relatively low cost and I think people try to be reasonable about what they need.

Melissa Michuda:

I agree.

Karen Batson:

So when we say review each employee's request for an accommodation on a case by case basis, what do we mean?

Melissa Michuda:

I feel that just because you as an employer maybe have had a similar request in the past for a different employee with a similar condition, it doesn't mean that the same accommodations always gonna work for all situations. So really taking into consideration that individual and their feedback, they know themselves the best. They may already know what will help them. So having those conversations and taking their feedback goes a long way.

Karen Batson:

So how do we prevent all employees for asking for an accommodation for unique equipment or schedule changes or any other aspects? Like how, how, what are some best practices there or thoughts?

Annie Jantz:

That's a good question too, because I think that can probably happen, right? Like when you start to see that in the workplace, somebody, all of a sudden has this new keyboard or this new desk or whatever it is, and everybody wants that. Um, and I that's probably can be challenging for an employer because one, you can't disclose information for somebody that's, that's just not something you can do. I think it comes back to that employee can request something, but they have to meet the guidelines under the ADA. And so, you know, I think, again, it goes back to having processes outlined, um, you know, explaining in your, you know, whatever policy you have, your procedures, how that's laid out for employees. Here's what if you want to have, or you need a special equipment or some kind of adjustment. Here's what you need to do. Here's, what's going to be asked of you. I think that helps to explain it to the employee, but you definitely could see it. And it just may have to be addressed employee to employee as they start to ask for it.

Melissa Michuda:

And it's on the, on the accommodation services side, we, we have actually seen that where we'll get a referral for like a new ergonomic desk or a new office chair, and in conversation they're like, well, my coworker got one. It looks really nice, really comfy. It's that it is that education piece. Just making it clear that, you know, you do have to meet the guidelines for disability under ADA. I mean, trust me, I like that chair too. It's really nice, but you don't get one just because you want one.

Karen Batson:

This leads me to a question we, of course talked about, you know, documenting a return to work process, ADA process and policy. Is there a level of what in our policy should be communicated to the employees or made available to them to understand where the company may stand?

Melissa Michuda:

Great question. I have no answer for that one.

Karen Batson:

I've never really thought about it. You know, we were talking about documenting a policy to really, um, you know, battle being compliant and dealing with compliance risk. But when we talk about this question about an employee, understanding what they have available to them based on the situations that they're going through and then some who, you know, don't have those situations, but want it, um, does it become an opportunity to provide some sort of high level view of what your policy is and making sure it's clear with the employee? It's just an aspect I hadn't really thought about.

Annie Jantz:

I mean, and I, I think that is important. I think, you know, the employers process they'll want to get, and again, having their legal counsel internally, look at what they're putting out there, but I think they'd want to get as detailed as they can for that employee. So they understand what they have to do to go through the process. Like, how do I start this? And then what conversations am I expected to engage in? What type of information will my employer asked me to provide? If the employer has a process where every time somebody goes out, they have to complete some form or they're asking for a doctor's note or something like that. The employer needs to have that outlined it, it helps for consistency, one. So all employees understand that everybody is going to have the same thing asked of them. And then I think it can also help to avoid, or, you know, maybe you don't avoid all the conversations from employees who want the same thing that their coworker has, but at least helps to explain it to say, you know, I can't you about what we did for her because that's her business and not anybody else's, but here's our policy.

Annie Jantz:

And here's what you have to do if you need that. Yes, we'll talk to you about it, but these are the requirements. And you know, this is maybe even saying what doesn't necessarily meet it, but we'll still have these conversations. So I think as detailed as you can be, and sometimes you can't outline absolutely everything, you know, that's not reasonable, but I do think having it clear and having employees, the access to that information is pretty important.

Karen Batson:

So we spent a lot of time in the webinar, but quite honestly, in a lot of our answers in part one and part two, talking about the interactive process. And of course we got questions on that as well throughout the webinar. Um, so can we explain to our listeners what the key components are of the ADA interactive process?

Melissa Michuda:

Sure. Kind of at the starting point is, is really having employers recognize the request for an accommodation. And that, that can be tricky in itself because an individual can use just plain english. They don't have to write a formal statement. They don't have to say it in very legal language. Um, it could be as simple as I'm having trouble getting to work on time because I have therapy appointments. And for that, the supervisor or HR designee to really recognize that as, Oh, you know what? This is, this is an ask. This is, this is a request for assistance. So I need to begin the interactive process that's important. And in that interactive process, then, then there's a bit more information gathering on both sides, actually. Um, the employee, you may have to provide the documentation that backs up their request. So they may have to provide information about the condition and how it affects their ability to perform their job.

Melissa Michuda:

And then it goes into exploring options. So once, once we know the request and we've got the information to back it up, what are those options that might be possible for this individual to continue performing their job and then choosing that option and then implementing that goes hand in hand. Um, but with that again, as we've talked about the whole entire time, it's not a one hit wonder it there are going to be times where maybe that option that was chosen needs to be reevaluated because it's not meeting that individual's needs. Um, so that, that monitoring pieces is very important. So yes, it's really not a onetime thing. It's a continuous cycle. Um, especially that monitoring piece, touching back with that employee, finding out is it working? And then as we've talked about previously, I know Annie had said, we're all human conditions change. So if the individual has a condition that might get better in the future, well then that need may not be there. If it's someone who has a debilitating condition and they're declining, well, then, then there might be something else that we need to look out in the future.

Karen Batson:

So, I mean, we talked a lot about the interactive process being really important, but is it required by the ADA?

Annie Jantz:

Yes, it is. Yeah, it's absolutely required. And I would say probably one of the most important pieces, you can't really get to everything else without going through those steps, which is why I think they have it outlined in so much detail and stress, the importance of that interactive process, those conversations have to happen.

Karen Batson:

So, and you know, one of the questions we actually got was specific about mental illness and is the interactive process required. And those elements when that's affecting a daily work.

Melissa Michuda:

Absolutely it's required really at all times, regardless of the disability or condition. But yes, as soon as there is something that is noticed or requested that it's time for that conversation.

Annie Jantz:

Yeah. I think it's important too, to remember like mental health. It is such a big topic and I think it's an important topic and it should be treated like any other medical condition somebody comes and they are having a challenge at work and it needs to be addressed just the same as any physical condition.

Karen Batson:

So how does the interactive process work if like the employees out on short term disability?

Annie Jantz:

Because somebody is out on claim does not mean the employer should not engage that employee. Now they may not know, you know, if you've gone out on short term disability, they may not necessarily know that you feel that you can come back to work or you need an accommodation. And I think it's important that, you know, you again, have some type of a process in place where maybe you're checking in with the employee just to see how they're doing and find out, do you have a return to work date or work with your carrier. You know, whoever is having that conversation. And then if the employee says, you know, I think I can come back to work maybe in a couple of weeks, but I might need, you know, some type of an accommodation. I mean, you to do something for me, the employer should not hesitate to start that conversation just because they're out on short term disability or some other type of leave doesn't mean you don't go through that process. You absolutely should. You should start having the conversation. And if they can come back to work, they've been, you know, their doctor says, yes, they are able, but they need this restriction. Then go through the process, start working on that accommodation to help that employee get back to work. So it should not stop anything from happening. Um, it just may be coordinating with other people. If you have somebody who's managing the leave for you working with them and working with the employee.

Karen Batson:

So I think that my last question is an important one. What resources do we recommend for our listeners to learn more about all of this?

Annie Jantz:

So I think the best resources are the EEOC, for sure. There's a lot of documentation out there on the ADA and they, you know, they're the ones who are governing the law. So it's a great place to go. And there are a lot of resource documents out there that they provide. The other one that I would suggest is JAN, the job accommodation network, that is a great resource. There's a wealth of information for employers and employees that can go out and they can read about the law. They put it in very simple terms. So it's easy to understand. There's examples of other employers returned to work policies and forms, and there's just a lot of information out there. So that's a great resource.

Melissa Michuda:

Yeah. I like that one as well, because it really outlines the responsibilities of the employer and the employee. And then yes, like you said, Annie, it gives different types of forms. Um, even like an accommodation request form, what information is going to be needed for that request to run smoothly.

Annie Jantz:

Right? Yeah, absolutely.

Karen Batson:

I'd also tell, um, you guys being great resources and the webinar that we did. So, um, for our listeners, you know, Lincoln has a lot of content out there including a recording of the webinar, if you missed it. So feel free to reach out to your Lincoln benefits professional. If you want to get some of our resources and info, 'cause they are pretty stellar to toot our own horn. Well, thank you both for joining. I really appreciate it until next time 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.

ADA is 30 years old
General ADA questions
Accommodation questions
The interactive process
Additional resources