Reasonable Accommodation Issues and Techniques for State
Operator: Ladies and gentlemen, thank you for standing by and welcome to the Illinois Employees with Disabilities Conference Call. At this time all participants will be in a listen only mode. Later we will conduct a question and answer session. At that time, if you would like to ask a question, you may do so by pressing the 1 on your touch tone phone. As a reminder, this conference is being recorded today, June 28th, I'd now like to turn the conference over to Ms. Robin Jones. Please go ahead, ma'am.
Robin Jones: Well, good morning, everybody or afternoon, I guess it is at this point. I'm confused! We have people who are connecting in multiple modes today, so I just want to clarify for everybody how we're going to work this session today.
I have individuals who are on the telephone which I'm talking on as well right now, and I also have individuals who are connecting through the internet in a listening through the internet system and then we also have individuals who are connecting using the real-time captioning which is also provided over the internet.
So, we'll need to be patient in the time period where we do question and answer to make sure that everybody gets an equal opportunity to be able to participate in the question and answer period.
I'm going to go ahead and kick it off because of the way, and the method and mode that we're using today, I'm going to kind of do my own introduction and go from there. Hopefully you've gotten the information that has been provided to you by e-mail, the outline of what I'm going to be covering today.
For those of you that do not know me, my name is Robin Jones and I'm the Director of the Great Lakes ADA and Accessible IT Center. We're located at the University of Illinois at Chicago. We are one of ten regional technical assistance centers on the Americans with Disabilities Act. We provide information, technical assistance, consultation and training on the various aspects of the ADA. Our mission and our goal is to promote voluntary compliance under the ADA and increase and enhance understanding of the ADA's requirements and the rights of individuals with disabilities who are protected under the law.
I'm bringing this session to you today from the Great Lakes ADA Center, we are sponsoring the session today and we are pleased to be joining all of you and I'm glad that many of you are able to join us today and hopefully the information will be beneficial to you.
It's always difficult for me to crunch my information into a short period of time. Those of you who know me know that I'm kind of like an energizer bunny and I can keep going and going and going. I'll try not to do that today so that we do allow some time for some questions. The topic that we're focusing on today is reasonable accommodations and what does it mean.
We are 16 years pass past the passage of the ADA and we'll be celebrating the anniversary on July 26th this year and I know that here in Illinois we have celebrations taking place at different times and different places across the state in recognition of the ADA. But we still continue to struggle with many of the individual components of the ADA. And probably largely because of the fact that it is so individualized, especially when we look at the issues of reasonable accommodation.
With many other civil rights laws that we have in this country when we look at some of the protections and such, they don't necessarily always require the same kind of individualized case-by-case application. With the ADA, because of what we're dealing within regards to disability and who is a person with a disability, that would be covered under the law, it does require much more individualized assessment of one, who is a person with a disability and do they meet the definitions of disability and this would be whether or not they meet the definition of either the state law in the case of State of Illinois Civil Rights Act, or whether they meet the definition of disability under the ADA, which is the federal law, and for those of you that are, you all I guess are state and government employees there also would be the over layoff of Section 504 of the Rehabilitation Act which was passed in 1973. So there's many complexities to the issue of, you know, who is covered under the law.
Also, I think that the issues are what is an accommodation versus what we might refer to or we often refer to as a workplace adjustment and I'm going to talk a little bit about that because if you really think about it and you strip away laws like the ADA or the Illinois Hearing Rights Law, and such, you're still left with a situation that as an employer or as an employee, you may be experiencing as an employee difficulties in the workplace that interfere with your ability to be fully productive in the job that you do, or as an employer you may have an employee who is experiencing some difficulties in the workplace to be able to accomplish the job for which they do or that they need to do and you're caught up in this quagmire of you know, gee, what law really applies and is this person covered and you get caught up in the whole legal mumbo jumbo when the bottom line is that I really want this person to be able to perform their job. I want them to be able to do their job. And I want them to be productive because I have a job that needs to get done and I'm responsible as a supervisor and manager for getting that done and I need everyone possible to assist in doing that.
So, we get to this issue of the fact that is it all just about does the person have a disability or as an employer, am I also in the general context, just concerned about the fact that I have employees who may be experiencing workplace problems that might not rise to the level of a disability as would be define the under state or federal law, but they still may need some kind of adjustments in the workplace. The ones that often come to mind that I receive a lot of contact in, in the work that I do are things like individuals who may have some kind of wrist pain or are experiencing some kind of wrist or lower arm elbow pain. Maybe they do a lot of keyboarding or maybe they do a lot of repetitive motion with the type of work that they're doing, assembly or something of that nature or could be working in one of the state institutions and doing a lot of laundry or other kinds of repetitive motion-type of activities.
And that person is experiencing some pain and discomfort that might be slowing them down, might be causing them to have to take more frequent breaks or something of that nature but when we really sit down and analyze, is this person with a person who meets the definition of disability under state or federal law, typically being looking at the issue of is that person an individual with a significant impairment of one or more major life activities, you know, they may not rise to that issue but we still have someone experiencing difficulties and problems.
So, do we as a workplace support the issue or the ideas of individuals still being supporters of the workplace through accommodations or through workplace adjustments? So providing somebody with a wrist rest, you know, at their computer, that may not necessarily constitute an accommodation under the ADA because a person may not meet the definition and the impairment may not be substantial but if that wrist rest is going to make that person more productive and alleviate some of the difficulties and discomforts that person has, why wouldn't I as a manager or supervisor want to consider that type of an adjustment?
You know, not necessarily calling it a reasonable accommodation. I want to be very careful I don't get caught in the quagmire of regarding somebody as having a disability because I've treated them as if they did have a disability or not, but we need to kind of think about the workplace and if we really think about what's happening in the workplace today as we have older workers and we have workers who are going to probably stay in their positions longer as our retirement laws change and such, that we have more prevalence of disability just because of the aging process itself taking place.
We have to open our minds and open our thoughts to the fact that there is a difference here, that there is a difference between disability and reasonable accommodation and what we might be doing as far as workplace adjustments that may appear at times to be similar to other accommodations that I might provide a person with a disability but I'm doing it for other reasons or other purposes.
Just as we know that as we deal with someone who has a workplace injury where we're responding to them differently than we are to somebody who may come to us with a non-work related injury and we're responding to them as a person who may have a disability as defined under the ADA.
Probably one of the most common things that questions that come to us is this whole issue of, you know, workers comp versus the ADA. And what often happens and I see this very frequently happen is that there's a jump for an automatic correlation between somebody being injured on the job and somebody being a person with a disability. When we look at these two separate pieces of legislation and workers comp is a state law, there's no federal worker's comp law, it's state by state so Indiana is different than Illinois is, but it really is a protection for the worker in regards to lost wages associated with an injury that they may have occurred on the job. And as an employer, I have certain obligations under the State Workers Comp Laws and regulations of how I treat that particular worker.
But that person is not automatically a person with a disability just because they have incurred an injury. We go back to the issue of how we define disability in that context and we look at the fact that disability is defined under the ADA as being a disability or an impairment, substantial impairment of one or more major life activities that is long term or chronic in nature. So, the individual who may have had a workplace injury, let's say one of the most common ones we hear about is some kind offer a back impairment or soft tissue injury in their back, that individual is undergoing some medical treatment and it's expected that that person is going to have a recovery period of 12-18 months because of the type of injury that the person has.
I don't automatically jump and say well, you know 12-18 month, that's a long term chronic condition. It really is not at that point, because what we're looking at is what is the normal course of recovery for that particular issue? And so, someone would have a 12 month or 18 month recovery process normally expected or anticipated for that kind of impairment that they have, and that person is not going to automatically be a person with a disability. We would go through that normal course of recovery process and at the point where we've reached that, what would be expected normal course of recovery for that type of injury for that individual, now we would start to be looking at okay, does this person continue to have impairments? Are they substantial impairments? And is it expect that these impairments are now going to be long term, chronic, and beyond, what would be expected for normal recovery of this kind of injury or this kind of situation?
And so now, that is a point where we would start to look at and analyze and define whether or not this person meets the definition of disability as it would relate to the ADA's definition of disability.
We know that we have individuals who have intermittent factors and we have pregnancy, short-term impairments such as broken legs and things of that nature which also come into play. And again, those individuals are not going to be defined as persons with disabilities under the ADA and even under the state law. Again that's short-term nature of the impairment is not going to meet that threshold that's required to substantiate that the person is a person with a disability. That doesn't mean as an employer I'm not making adjustments for the employee who may be pregnant and has fatigue issues that we may consider some altered work schedule issue for that person, we may make some workplace adjustments for that individual that's outside of the realm of what would be required as an accommodation under the ADA but we would not necessarily dismiss and say that we don't want to do it or don't have to do it. We really have to look at other factors and other things that are in play, what will we be doing for any employee who is experiencing issues?
We make adjustments in the workplace all the time for people who may be experiencing some short-term situations where we may give them some flexibility in their scheduling or things of that nature. I think that what we're trying to look at and really reinforce and need to understand is that the workplace is changing and sometimes how we respond and do things changes, as it needs to change as well to make sure that we continue to have qualified individuals and that we continue to meet the needs in the workplace at the same time and don't arbitrarily or otherwise discriminate against individuals accordingly.
So when you really look at accommodations in its broadest context, we use the terminology reasonable accommodation pretty loosely. It seems almost to be referred to almost everything that we do in the workplace anymore, but we do want to caution and we would want as employers and supervisors, managers as well as individuals with disabilities to be aware of the fact that there are different kind of adjustments that may be in the workplace and reasonable accommodation is a term that is traditionally tied to accommodations associated with someone who has a disability and meets the definition under federal law and even state law in the case of the Illinois Human Rights Laws. And that other types of changes or adjustments in the workplace are just that. They're workplace adjustments and they may not specifically be tied to a disability but may be tied to some kind of an impairment that we may still be responding to in the workplace in order to insure that we maximize the opportunities and the abilities of our employees.
Key to the reasonable accommodation issues under the ADA is this notion of the interactive process, and I can't stress enough how important that interactive process is and how much that has been reinforced time and time again by looking at some of the case law where employers have failed to engage in the interactive process with employees and while the decision may have been legitimate or a defensible position, their failure to engage in that interactive process may be where they slip up and where they end up with a difficulty or ruling that may be actually against them.
For example, I worked with an employer down in southern Illinois, a private employer, who had an employee who was off on leave for a disability-related issue, and the individual had exceeded all of their available leave time that they had accrued and through company policy. And the employer, the individual came back to the employer and indicated that they were not able to return to work and the employer automatically dismissed the individual based on the fact that they were only really looking at their policy that they had for leave as a reasonable accommodation or leave as general leave policy for their company without ever really engaging with the individual and the interactive process of what are you really talking about in the fact that you can't come back to work? Does that mean you can't come back 100% or does that mean that you could come back in a step-in fashion? Or does that mean you need one week additional or do you need ten days additional? What does that actually mean?
But by making the respond, by making the immediate assumption that the person had used all available sick time or leave time, the individual had and looking at the company's policy without engaging in any kind of additional information gathering, the company actually found themselves in a situation where they had violated the ADA and while in the end, the decision was that the person's additional leave was not reasonable based on their job and the needs of the company, the employer actually lost in that case because the employer never engaged in that process and made an automatic decision.
And this is what we want to make sure and we caution you against is supervisors and managers as well as making sure the people with disabilities understand the fact that the interactive process is very much central and core to the reasonable accommodation process under the ADA and that individuals with disabilities and employers, managers, supervisors should be engaged in an interactive discussion back and fourth, sharing of information, and checking back and fourth with each other during the entire consideration and the process of looking at whether or not a reasonable accommodation is just that, reasonable and what the scope or the magnitude of the various types of accommodations that might be available might be.
An individual with a disability has the responsibility for requesting the accommodation. It is not your responsibility as an individual, manager, or supervisor to second guess someone's needs for an accommodation. It is the individual with the disabilities responsibility to request the accommodation; however, the State of Illinois, our departments, our agencies and such all have an affirmative responsibility to make sure that our employees with disabilities or all of our employees are aware of the fact that there is a reasonable accommodation process, what that process is, and how they go about that process and make that process accessible to them.
When I mean accessible to them, I mean that it's readily known that the information about the process is readily available but there's someone able to answer my questions related to that process and that I have a speedy and an efficient response to any questions I have related to reasonable accommodations. It needs to be an open process. It's not something that oh, gosh darn, we're required to do this by law, let's not really tell anybody about it. Let's kind of downplay and whatever, and then maybe we won't have anybody ask for it and then we can avoid it.
That's not the right approach. The right approach is to make sure that all of our employees whether you think that person has a disability or not, that everyone has equal access to that information related to the fact that there is a reasonable accommodation process and what that process is.
Individuals with disabilities also have responsibilities to make sure they are actively engaging in the problem solving regarding accommodations. I may have a preferred accommodation or I may have an accommodation that I believe I need and I'm making a request for the accommodation but I also have to be willing to engage in some discussion and problem solving with the employer, related to what the actual limitations are that I'm experiencing and explain what potential options there might be for that.
I may have a particular type of accommodation in mind that would meet my needs, maybe for example, I believe that I would benefit or that I need some type of a software program that might assist me with meeting my productivity standards for typing. Let's say a software package like Drag and Dictate or something of that nature, which is a software program. Maybe I believe that I would benefit from using that and I have made a request for reasonable accommodation. Well I have to understand that it's the employers rights to be able to engage with me around what might be the options and first identify well exactly what are the limitations that you are experiencing and what might be the array of options that might address that particular issue? Yes, you've identified maybe using software like Drag and Dictate, but maybe there are some other options and maybe we can look at your responsibilities for keyboard and typing all together and maybe we can reassign those responsibilities to somebody else. Maybe it really is an essential function of your job to do that or maybe we can look at different means or ways that we gather that information from you, maybe we, you know, use a different system, maybe a dictating system or something versus you actually typing it.
Again, there might be a whole array of options or maybe different software other than Drag and Dictate, maybe there's another software package that we have that we know is available that we believe might work well. We may introduce that. As an individual with a disability you need to be open to discussion with those options and open to trying those various options. The responsibilities are on both sides.
It is the responsibility of the employer and the employee when it comes to reasonable accommodation. It's not all just the employer. I need to actively engage in the process. I need to be part of the discussions and be willing to explore those various options. I also have the responsibility to make sure that I have appropriate documentation as may be necessary related to reasonable accommodations so if I'm asked by my employer, supervisor, manager, to provide documentation from my medical professional or my occupational therapist or whoever I might be working with, my vocational counselor, etc, to substantiate the limitations that I might have and how they affect my job functions, it is my responsibility to provide that documentation.
That may require that I have to go back to a physician or to a professional that I've been working with and get that documentation from them, and it may incur at an appointment to be able to do that. This still, they need to understand that it is my obligation and my responsibility to do that and to do so in a timely manner. If there are some guidelines set forth through policy with the employer about having to respond to certain requests for information within a certain period of time, I need to, try and make every attempt to meet those time frames and those obligations.
Now, if there's something that's an intervening fact for that may interfere with my ability to meet those timeliness, it would be my responsibility to let the supervisor or manager know that, so that they can consider that in the overall kind of maybe I need a reasonable accommodation for that or maybe I need some additional time that may be a reasonable accommodation related issue to getting that documentation. But the obligation is mine to do. I have a responsibility to be able to substantiate my disability and my need for accommodations, just because I am a person with a disability does not necessarily mean I'm automatically going to get a reasonable accommodation. The need for reasonable accommodation has to be linked back to the job duties and the limitations that I have related to those job duties.
So for example, if I, yes, I have a disability, I want an altered work schedule but maybe my reason for an altered work schedule is because I want to be able to pick up and drop off my kids from daycare and we live 20 miles or 25 miles away or whatever from the daycare center, just because I have a disability does not mean I'm automatically going to get that accommodation.
The request for a reasonable accommodation needs to be related to the job itself, the job duties of that person, and the accommodation needs must also be related to a limitation created by the disability as it relates to that job task. So just having a disability itself does not automatically get me a reasonable accommodation. There's gotta be those links.
From the employer side of things, the employer has a responsibility to respond in a timely manner to request for reasonable accommodations, the state of Illinois has a procedure in process in place. Different agencies also have their individual tweaks to that or different pieces of that, and they need to make sure that they are abiding by that, but needs to respond in a timely manner and needs to make sure that they are engaging in a problem solving process and the interactive process with that employee.
To ignore the employee requests, to not communicate clear with the employee if there's delays in the processing of a request, maybe the person in the decision-making process is out of the office this week and you need to confer with somebody, maybe you need to get some more information , but by just ignoring or not communicating those things or those delays or the reasons for those delays to the employee only has the potential for creating more tension between the employee and the employer on these issues.
And we all know, put yourself in the same position. Lack of information or being kept from information often increases anxiety, increases tension, and increases dissatisfaction and things of that nature, so the more that we can engage and involve our employees in this process, keeping them informed of the steps that we're taking, where we are in the process, what we are exploring, what we're looking at, and keep those lines of communication open, the more successful we're going to be in the overall reasonable accommodation process.
Also, make sure that we are open to exploring options that might be available that were not having a knee jerk reaction to someone's request. And on its face value, we're automatically, no, we couldn't do that! I would hope that it's never in your vocabulary to say no, we can't do that. Without first going through the process, that there's never an automatic reaction that nothing is an absolute no. It's hard for me to come up with any examples of what might be an absolute no as a reasonable accommodation. It goes back to that context of the fact that each individual, each individual's limitations, each individual's jobs and positions, requires a case-by-case analysis of what is a reasonable accommodation and what might work for that individual.
So, while it may be no in one agency for administrative reasons, we aren't able to accommodate a flexible work schedule because of the fact that we have very few staff in general and every staff person has an assignment or a responsibility and any kind of altering in the work schedule would have a negative impact on the overall outcomes that we need to achieve in the organization, well that doesn't mean that that's an automatic no in the next agency or the next department. Each request of each situation should be looked at case-by-case and explore the options and reconsider each request on its face value, taking into consideration the circumstances today, not last week, when you looked at it for somebody else but what are the circumstances today? Maybe something has changed. Again, being able to defend whatever decision you make, and fully being able to define or defend that you've looked at the available options.
Making also sure that we know who our resources are for reasonable accommodations so that we don't waste time and spend a lot of time factoring those things after the fact. If we've got a request for someone who needs a sign language interpreter, hopefully we have a process within our agency or our department by which we know who we contact for a sign language interpreter and we know what the time frames for that and what's going to be needed for scheduling that sign language interpreter for that individual so that we can make sure that we're able to respond in a timely manner. To waste a lot of time having to do that kind of resourcing after the fact only delays the initiation of the reasonable accommodation and these are things that we have a pro-active responsibility to do. It may not be us ourselves but we at least need to know as supervisors and managers dealing with these issues where we might go to get that information and assistance, who are our resources within the state, who might be our resources within the communities that we're in.
Given that this session today is state wide, I know that there are people from all different factures of the state, so not everything is in Chicago. Not everything is in Springfield. So do I know if I'm in Carbondale, who are my resources for various things or if I'm over in Quincy or if I am in Marion, wherever I may be, do I know who might be a source of the information regarding equipment or types of accommodations like sign language interpreters and things in the geographic area where my agency is located or I'm located or my employees are located.
Making sure that we also understand that reasonable accommodation is an ongoing obligation. It is something that does not stop once we have accommodated somebody the first time that a reasonable accommodation is something that is continuous throughout the time frame that someone might work for me. But it may be different accommodations at different points in the process, someone may need a particular type of accommodation during the application process. Maybe they need more time on filling out the application or more time to take whatever reading or typing or comprehension test or whatever that we might have as part of the hiring process. That doesn't automatically mean that that person is going to need those same kind of accommodations in doing the job because the type of things they may be accommodated for taking that test may never actually reoccur in the job itself.
So when I think of it from the fact of someone requesting a reasonable accommodation in the application process and in my mind, as a supervisor or manager, I'm automatically jumping to the fact that well this person would never be able to do this job because we could not always provide this type of an accommodation for them, so they are not qualified, that would be the wrong analysis and the wrong place to go. The accommodation and the application process is just that. It's an accommodation for whatever the task or the issue is related to that application process. It does not automatically mean that that same type of accommodation is necessary going to be applicable in the job setting because it is dependent upon what the job duties are for that person and the circumstances that that person may experience in doing or carrying out those job duties. So keep in mind the fact that accommodations are something that is fluid. It's something that's different for people at different stages in the employment process and one is not necessarily an indicator for another.
But we do have obligations to make sure that we do accommodate people in the application process, making sure we have effective communication, making sure that we might have accessible settings for those interviews and things to take place, that we have information in alternative formats, but the more and more that we are going to what we call, you know, EHR or Electronic Human Resource management practices where we're, you know, doing online applications, online testing, online orientation, all of those things as the state moves more and more in different agencies move more and more to some of the processes and procedures, we'll have to recognize that the types of accommodations we provide may also need to be different because we're changing the practices.
The good old paper-and-pencil application may give way to electronic application process but recognizing for some people with disabilities, they may still need to have that paper-and-pencil because the barrier presented by the electronic may be such that they need that different type of a sponsor different kind of an accommodation. Does that automatically mean well if the person that needs it can't do an online application, then how could they ever do this job because the job requires that they have access to the internet or the job requires that they are able to use a computer or whatever? You would not want to make that assumption. All you're really dealing with is the fact that that person may have difficulties as it relates to the application process which may not necessarily mean automatically transferable to other job tasks and remember, when we're doing the application process we're not yet at the point of making a determination of whether we have a qualified individual. The application process is just that. It's an application.
Once we go through the process of looking at and examining the person's qualifications and what they bring to the table is when we start getting into the fact of, do we have a qualified applicant or not, so they are two separate things.
I'm also required to provide an accommodation in the job itself. This includes the opportunities for individuals to pursue advancement and promotion. I'm never required to provide an accommodation that sets someone up for advancement or promotion, so for example, someone wants a particular type of software and they have identified, you know, the particular software that they want because it has some specific bells and whistles on it, that they believe would better position them for other kinds of positions that they may want to seek in the future if they get experience working with this particular type of software.
But to do the job they're currently holding they really don't need those bells and whistles, so as an employer I'm not obligated to provide them those accommodations that have those additional bells and whistles on them. I'm only required to accommodate them in the job that they currently hold, not for those other issues of advancement or promotion, that they may want to gain some experience or some additional exposure to that type of a software or equipment for.
However, I still must need to keep in mind the fact that well what do I do for employees across the board to take out of the mix that the person may have a disability or not? What do we do to enhance the quality and skills of our employees in general to help them advance and position themselves for promotion and such? What is the basic tenet of the organization or the agency? Do we try to give employees opportunities to try to learn or try to do different things so that they might gain some additional skills that might make them more competitive in a promotion or an advancement opportunity within the agency?
Well, if we're doing that with employees without disabilities we may have to consider how does that impact the employees with disabilities and what might we need to do to make sure that everyone is getting an equal opportunity and equal chance in that context? We also have to recognize the fact that people's jobs change, peoplesí abilities change and that accommodation may need to be revisited because of that.
You know, nobody's job stays the same. I don't know anybody or I really don't think have met anybody who can tell me that they started this job in 1980 and they're doing the exact same thing in the year 2006 that they did in 1980. I mean, times have changed, technology changed, how we do things, doing more with less, downsizing, up sizing, reorganizing which the State of Illinois is famous for in their agencies and things, so everyone's job is changing, so while I may have an employee who I've accommodated in their existing position, it's recognized the fact that that position is likely to change. There's likely to be a change that takes place for that person in the future of what they're doing with that job. So I need to recognize the fact that that person's accommodations may also need to change as their job tasks change.
I also may need to recognize the fact that as an individual with a disability while I maybe able to do my job as it currently stands with the accommodations I'm receiving, but as the job changes there may be a point where I'm no longer able to do the job which I currently hold, even with reasonable accommodations, because the types of job changes that have been made, there may not be an accommodation available that allow me to do those things. Maybe there have been reassignment of some job tasks under my category of a position which I wasn't previously able to do and I was able to, they were able to reassign those to other people in the job process but now maybe we have cut back, we have fewer employees and so now all employers are required to do a certain degree of a particular task for which I, myself am not able to do even with a reasonable accommodation.
That may mean I'm no longer qualified for that particular position. Because I have a disability and I have been accommodated does not mean that my job is protected. An employer cannot change my job and the employer cannot make adjustments to the tasks of the position that I currently hold. The employer controls that and the employer has a right to look at what is necessary for business necessity. So as an individual I need to understand that nothing is always necessarily going to stay the same, but as a supervisor, manager, I also have to recognize that it's my responsibility to reexamine and look at reasonable accommodation through the process and that it is ongoing and it's fluid. It could change. Just as my abilities could change. I may have a progressive disease, all of us as we're aging with or without disabilities are experiencing different things in life as what we are able to do or not do, and sometimes that's magnified with a disability.
And so it may be that there are, there's going to be a point where certain things that I've been able to do up to this point, it's the same job and same task but because of impact of my disability and maybe some exacerbations or deterioration of my functioning, I'm not able to do those job tasks anymore. I may no longer be qualified for that job, so it's really important that we kind of keep an open mind about what and when reasonable accommodation is an issue and understand that it can happen any time throughout the job process.
Also understanding that this includes access to benefits and privileges of employment. Some examples that I just used in my outline but I think there are many others are things like access to education and training. I eluded to it already about things that we might be making available to our employees to position them for advancement or to learn new job tasks so that they can take on new responsibilities in their agency or in their department.
People with disabilities should be given the same opportunity to do that as well, even if it requires additional reasonable accommodations to do so. So even if I have an employee who may need some additional travel assistance to be able to attend a training that might be in Chicago but they are based down in Springfield, if that is a job requirement or if itís a benefit or privilege of the job for me to be able to attend those kinds of programs, then as an employer I'm going to need to consider those things as reasonable accommodations for that person and not say well, you know what, we're not going to send you to that because it's up in Chicago and you know, we aren't going to provide you the accommodations you need to attend. If something like that comes available in this area where you don't have to travel, we'll consider you attending. Well that's not providing the same opportunities and the same chances that everybody else is.
Of course as managers and supervisors, we make decisions on judiciary responsibility in regards to, do we have travel dollars, do we have training dollars and things, all that the ADA says is give people with disabilities the same opportunity and equal access to those things as you would any of your other employees.
And as you look at promotional opportunities in the organization, if you look at new positions opening up or opportunities for people to take on supervisory or managerial functions in the position that they currently hold, the people with disabilities are given the same consideration for those things as people without disabilities. I've seen it and Iíve heard it in dialogue and conversations with them. Some supervisors and managers that there's time reluctance to consider somebody with a disability for a promotion or an advancement because they may be concerned about the fact, well, you know, over the last year I've really seen Sally having more and more difficulty with her mobility and things of that nature and that if she gets into this position, I'm not sure she's going to be able to do it.
Well you've made a judgment or an assignment that that person couldn't potentially do that job, without even really giving that person the opportunity to do and look at that. You're making an assumption about their future physical capacity and I just always remind people that everyone of us is a what-if. Every one of us tomorrow could acquire a disability. Every one of us tomorrow could be diagnosed with a disease or have a car accident or something of that nature, so nothing is a guarantee for anybody and I think that everyone should still be given the same opportunity to demonstrate that they are qualified for the position and not have someone else make an assumption about their qualifications based on what they think they know, and often times not necessarily based on fact. So that I think is ongoing problem that we have and we all just need to kind of think about it and remind us about those things.
Reasonable accommodations are very complex issue. It's not easy and it never should be made out to be easy, but at the same time, I don't want to overcomplicate it or make it sound like it is overcomplicated. For many of you here, you either have been recipients of reasonable accommodations or you have been involved in the reasonable accommodation process, and you know that there are some that are easier than others.
Reasonable accommodation really comes down to common sense. What is common sense you know? In regards to whether or not something is reasonable or not reasonable? And not an overall over analysis of it and not 1,000 reasons why we can't do it, or the pros and cons of it do come into play obviously in our decision-making process but really kind of thinking about things in a matter that's really more of a common sense application and the fact that okay, what is the limitation? What does the person need to do and what are the potential answers and, you know, ask myself why not? Why can't I accommodate this particular issue? Challenge myself as to say what are the real barriers? Is it an attitude or is it just because we're doing it differently and we don't want to adjust and we donít want to change? I mean if those are number one problems and the number one things that we often hear.
There are times and there are plenty of types that we probably could identify and everyone here on the line where we've come across situations where we can't accommodate. The impact of the accommodation is administrative and we aren't able to make that adjustment because now we know we don't have anybody doing that task or there is a cost constraint of some type although that's much more difficult to make an argument within state government. Yes, my agency maybe experiencing some cost problems but we have to look at the overall resources of the entire state, not just one particular agency or one subset division of that agency.
But you know, there are things that are just not practical from the way we do business. It has a negative or a direct negative impact on the operations of the organization. Those are legitimate as long as we take into consideration all of the potential options and all of the potential things that could come into play.
So before I'm going to take questions in a second here, I just want to wrap up and first, my disclaimer that there's no way intended that we're going to cover or be able to talk about everything possible in reasonable accommodation in an hour period of time today. I've touched on some of the areas that we get most frequent questions on or that most frequently we see come up in some of the case law or complaints and things that are filed but there are many more obviously complexities to the reasonable accommodation process on both sides. People with disabilities who may need to be accommodated in their jobs and those of you that may be supervisors or managers who are dealing with those requests with your employees on a day-to-day basis.
So, with that said, I'm going to go ahead and engage in some question and answer with people on the line today. Again, I just want to remind you we've got people that are accessing the system from a variety of different ways, so we're going to take questions from all of those, so those of you that are using the online system, you can, if you have a microphone, just go ahead and press your control key when you want to speak and I will be able to see that and I'll call on you when you're ready and then you can ask your question and I will repeat it to those on the phone because they won't be able to hear you, and then you'll be able to hear my response to that question.
Those of you on the telephone, the operator is going to give you instructions on how you can go about getting into the queue for asking a question. And those of you using the real-time captioning, you can submit a question and the Captioner will be able to voice your question for you.
So, I think that takes care of those instructions. I'll go ahead and turn it over to the operator and again, anyone who wants to ask a question, use those modes that I just identified available to you.
Operator: Thank you. Ladies and gentlemen, we will now begin the question and answer session. If you do have a question, we ask that you please press the 1 on your touch tone phone. If your question has been answered and you wish to withdraw your request, you may do so by pressing the pound key. Questions will be answered in the order they are received. One moment please, for the first question.
Robin Jones: Any questions?
Operator: Once again, Ladies and gentlemen, to register for a question, please press the 1 on your touch tone phone.
Robin Jones: I have a question from an individual online, so I'll go ahead, if you want to go ahead and give me your question and I'll repeat it? Go ahead again. Can you repeat that again, because I unfortunately had it locked and I had to unlock it. Go ahead.
Okay, the question is, for those of you that are on the phone, weíre trying to blend the technologies here, is the individual has asked, you know, he has a list of state agencies that he can ask or go to for information related to reasonable accommodations and his question was: Can he go outside of state agencies in relationship to reasonable accommodation questions and inquiries and things, and I hope that I've paraphrased that correctly. You can correct me in a minute here whether I was correct in my paraphrasing of that.
But the answer should be yes. A supervisor, manager needs to look at, you know, you always go to your policies and procedures internally and is there any kind of mandatory must go through step A, step B, step C, etc. But there should be no prohibition to someone seeking information about or inquiry or additional assistance on reasonable accommodations issues. Now, of course there's going to be policies and procedures internally for how we purchase services or things of that nature, so I may have to get appropriate approval so for example, if I want to go outside and seek a third opinion or something from a outside expert and that expert may have a fee attached to it, I may not automatically be able to obligate to doing that, because I may not have the authority to obligate funds and such from the state for that purpose, but I should definitely be able to seek guidance and information outside the state that should not be prohibition to that. But again I would need to make sure I'm adhering to all of the policies, practices and procedures the state has in place as well. Does that answer your question? I'm not hearing from the individual, so I'm going to go ahead and see if there are any telephone questions? Go ahead.
Operator: We do have a question. Please proceed with your question.
Robin Jones: Okay, go ahead.
Caller: Well, what we want to know is why can't we have voice activated equipment?
Robin Jones: Okay. I have a question from somebody on the phone who is saying why can't we have voice activated equipment? My first response that is going to be, that I'm not sure that it's an issue that you can't have voice activated equipment. I think it's an issue of the fact that the analysis needs to take place in regards to, one if you are a person with disabilities have you made the a request for that as a reasonable accommodation, have you gone through the process, and then what analysis has taken place through the management side of things in regards to what is the limitation, how does that affect one's job and are there other options?
You may prefer voice activated equipment, but the issue is that there may be an alternative or a different option to address whatever your limitation or your need is. So, really what I can say there is, you know, that you definitely want to go through the reasonable accommodation process and then your supervisor and manager, it would be their responsibility to engage with you on looking at what the are your needs, what are the issues, and whether or not that voice activated software is really what you need or is there an alternative to assist you in being able to do your job? Just because you want something doesn't necessarily mean that you're going to get it. Again as I said earlier, it has to go through that evaluation process.
I have a question also online here. I have a question from listening to me, I'm just reading it: I should talk to my supervisor about the accommodation to help me with the keyboarding or voice activation, and the response to that is yes. I don't want, let me retract that. It depends. Go to your departments or your agencies reasonable accommodation policy to see what is the process, for which one would make a reasonable accommodation request.
Supervisors and managers are usually the starting point, however, there may be something different in your own agency and I would really refer you to that, to who you would do that with. It doesn't preclude me from talking to my supervisor about my needs and things because they may be able to help me be an advocate for those particular accommodations because obviously my direct supervisor manager is going to know my job and is going to know my position better and what my needs are and what my abilities are better than others. So hopefully they're involved in the process as well. But you definitely would want to look at what is the practice or the procedure in your department so ask the question of your supervisor, manager or your personnel office, as to what is that process or procedure is and go through that and if you believe that, that's an accommodation that you need, then you may be asked to provide some kind of documentation to document that and may also need to demonstrate well what is the limitation that that would be addressing and there may be other options as well, so you would need to go through that process as well.
I also have an online question, requesting me to address impairment of a life activity. That's a very good question. What we look at as the definition of disability under the ADA is, one must have a physical or mental impairment that substantially limits them in one or more major life activities. So first we look at the impairment. What is the impairment? I may have a diagnosis. I may have a diagnosis of diabetes, I may have a diagnosis of MS, I may have a diagnosis of seizure disorder. That's a diagnosis. It's a medical determination and an assignment of a diagnosis. That does not necessarily mean that I'm automatically a person with a disability. I really need to look at what are my impairments and what are the limitations that I have? Am I, do I have a limitation in major life activities such as breathing, seeing, hearing, learning, being able to walk, to bend, stoop, to be able to do manual manipulation tasks? I mean here are many different things that might be major life activities, work is a major life activity.
So when I look at the issue of whether I'm a person with a disability under the ADA, I look at do I have a significant impairment of one or more major life activities, and so what is my impairment and how does that affect my major life activities. And then I still have to make the link in regards to reasonable accommodation, is how does that impairment affect my job? How does that impairment affect my ability to carry out my job tasks? So I may have a mobility as one of my impairments I'm unable to walk, I may use a wheelchair, crutch, or cane, how does that inability to walk link back to doing my job? If I'm in a sedentary position where I'm sitting at my desk all day, there may not be an automatic link between my disability and my job or position, and so it may not even be a need for a reasonable accommodation. Yes, I'm a person with a disability but in order to be eligible for reasonable accommodation I must be able to demonstrate that there is a limitation that affects my ability to do any of my job tasks, and that that limitation is directly related to my disability so I'm going to have to go through that particular analysis.
Why don't we see if there's any other questions from our telephone callers?
Operator: We have a question. Please proceed.
Robin Jones: Go ahead.
Caller: Um, at a correctional facility, would a level of security affect somebody being able to work in the facility, like let's say with a breathing disorder? With chronic lung disease and the fact that they would have to walk several feet maybe to their assignment within the facility, would that have any affect on pre-screening employment?
Robin Jones: Well, first of all, I have to look at from a very much broader perspective because the issue is when you say they have to walk someplace for their assignment, I really want to look at well what is the assignment and what is the job duties. Often times getting from point A to B is not automatically part of the job task. So if someone may be able to use a mobility devise to get from point A to B to address the fatigue or something associated with their breathing difficulties that may be something to consider.
Now, I want to go through the process of looking at what are the actual job duties and how does the limitations that that person may have affect that person's ability to do the job itself? So, in your example where you use breathing limitations where I have difficulty breathing, now let me also first clarify and make sure we're still talking about substantial limitation of major life activity and the reason I clarify that is I'm a person with allergies and there's certain times of year where my allergies act up and I have more difficulty with respiration and such than other times. But that doesn't necessary mean that I'm a person with a disability under the ADA because while I may have some impairments and limitations, it doesn't mean they're substantial.
And so you still would have to make that determination for that individual, but what I would say is that, you know, you don't screen somebody out automatically in that situation in the example you gave me. I still want to go back to look at what are the job duties that that person has and how does that potential limitation impact or affect that person's ability to do the job tasks itself, not just getting from point A to point B, unless getting point A to point B is part of the job.
If I'm your mail carrier getting from point A to B is part of the essential functions of the job but do I have to walk it? Can I use a mobility devise? How does process impact my outcome? Sometimes we look too much in our job situations at only process. But really, when we look at it, is it really the process that I'm looking at or is it the outcome? Is the outcome to get from point A to B and how I do that is not really critical? Or is how I get from A to B part of the outcome as well because of the nature of the job? Those would really have to be part of your considerations.
Robin Jones: Next question, please?
Operator: And we have a question. Please proceed with your question.
Caller: Thank you, this is a little complicated, but a series of questions. Is a latex allergy considered a disability? If so, how would you apply reasonable accommodation and finally, is banning balloons from an agency considered a reasonable accommodation? Thank you.
Robin Jones: Okay, let me see if I can repeat this question for those that are online. The question is: Is a latex allergy a disability under the ADA and how would you accommodate, if so, how would you accommodate such an impairment, and the third question was: Would banning balloons from an agency or a department be considered reasonable accommodations? So let me see if I can tackle those three issues.
And I should have known that that site would have these kind of questions. That's just a side note. Let's start with the latex allergy. Is latex allergy a disability under the ADA? I'm going to give the very famous federal answer of "it depends". Because, I have to go to and back because there is no automatic list of disabilities under the ADA. There is no automatic list that I would turn to. I don't go to the DSM IV which is the dictionary of medical diagnosis and look at can I find that in there. There is no such thing, so I'm always going to have to go back to that issue of what is the impairment and is it a substantial impairment of what major life activity?
So, if I have somebody who has a latex allergy and again just like most disabilities, thereís a gamut of what you see in someone's response. You could have someone who may just break out with some kind of a skin rash to someone who has a full anaphylactic response where breathing and everything is severely restricted. So, I really have to go back and look at what are the impairments that that person has and what is the evidence that that person has to present that they have that impairment? Has this person been diagnosed? Has this person undergone any kind of treatment? Is this somebody that just is saying to me I was, you know, around a balloon or around, you know, this and I had this reaction but has never really, you know, been diagnosed or had any medical treatment, so there's really no evidence to really substantial that other than that person is reporting.
Not that I would dismiss the persons reporting but again it all goes into factor on how do I, what kind of evidence do I have of those things occurring? So that would be the first thing, so there's no automatic that it's not and also no automatic that it is. It's individualized case-by-case.
So once I have, letís say I have determined that I have somebody that has a latex allergy and if that person meets that definition of substantial limitation that they are exposed to it even in the air, the dust from a latex glove or whatever may cause that person to go into a full respiratory-type distress situation where there is difficulty breathing, and it's substantially compromised, not just a little bit compromised but substantially compromised, and substantial limitation is defined as that which is greater than what is found in the general population. So if that person has got that kind of a reaction to that latex, then that person is in most likelihood going to meet that definition of substantial impairment of the ADA so that person will be defined as a person with a disability.
Now I have to go to the accommodation side and look at okay, how now does this limitation relate back to doing the job? Am I working in one of the medical health facilities where I need to be wearing gloves? Am I working in food service where I'm wearing gloves? Am I working in custodial situation where I'm wearing gloves? Or required to wear gloves or where I'm exposed to latex on a regular basis that might be in the environment not directly in my job duties but itís in the environment, and what's the likelihood of my exposure to that?
All of those things would have to be connected and looked at, and then you would look at what might be the array of accommodations. Is it possible for us to become a totally latex free environment? What is the situation and what are the options? I mean there are latex-free gloves, there are latex-free tubing, there is latex-free products. They are sometimes difficult to find. They are sometimes more expensive but that doesn't mean they are not there as a potential option for reasonable accommodation. Is there maybe I'm not able to accommodate that person because of the nature of the job is such that they're in constant exposure and itís really we canít control necessarily the environment to the degree that we can assure that the person will never be exposed to latex and the significant of their impairment and the exposure could also create some kind of a direct threat argument?
There's many different considerations that would have to go into play here. At the point where I may find that that person can't be accommodated in their current position, I would still have an obligation under the ADA to look at reassignment to a vacant position. Now, we do see and we are in the Seventh Circuit and we do look at the fact that there are some different opinions in the Seventh Circuit under the ADA as to what constitutes reassignment and my obligations for reassignment. But in the pure sense of the ADA, reassignment is a reasonable accommodation that I would have to consider and that would include looking at whether there were positions available that were equivalent positions in stature, in responsibility and pay, etc, for which that person is qualified for, that we may be able to reassign them to that may not have that same exposure to latex or would not put that person in the same kind of a direct threat to self or others.
The third question, the third part of that question was the issue of whether or not it was reasonable to ban balloons from a workplace. I'm going to generalize that to the overall issue of this comes into chemical sensitivity for perfumes and scents and things of that nature as well. An employer has a responsibility to address reasonable accommodation for those things for which they do have control over.
So things that are part of the environment that the employer controls that environment, things like people bringing in stuff like balloons, bringing in fresh flowers that somebody may have a significant allergy to. Again, talking about somebody who meets the definition, not just somebody like myself who I sneeze at pollen and such, or someone with chemical sensitivities to certain scents, perfumes or things. And it is considered reasonable to the employer try within their ability to control the environment for which they can control.
So having a policy by which no peanuts are brought in or things that are cooked with peanuts are brought into the office as much as possible, to the extent that that's reasonable, does that mean that the employer has an obligation to screen everybody's food they are bringing in for lunch to make sure it doesn't have peanuts in it? No, but what can the employer do? Can the employer warn and ask employees to refrain from doing those things and can the employer provide an area for somebody to store their food who may have these kind of allergies separate from other people so they wouldn't have direct exposure potential those things, what can I do? Can I change out my chemicals that I'm using in the toilet to clean or what my cleaning crew is using? Can I have policies in place that say no fresh flowers or if you receive fresh flowers for your birthday, you need to take them home and we'll put them in an area during the day and you take them at the end of the day so that they are not exposed to people.
But this will depend case-by-case because there are some things we can't control. For example, if you're the Secretary of States Office where people are coming in and out all the time for getting their driver's license or other kind of activities, and you have a kid who just went to the street fair and came in with a balloon with his mom and dad, that's not necessarily something you can control. That's the different kind of environment, thatís an environment that doesn't have the same controls able to be applied to it as an environment where it's only the employees who would potentially be in the majority of the situations and I can control necessarily what my employees do or what they bring into the environment, so it is a case-by-case response.
I can't give you a blanket that it is or it isn't. All of those things would need to be taken into consideration and it's much broader than just like the example of peanut allergies, I've used the example of chemical sensitivities to scent and perfumes and things of that nature and also include the latex as well.
We are unfortunately after the hour, and I know that there are probably many, many more questions and I wish that we could handle them and maybe there's other opportunities that we can do that. I do offer the option of contacting our office directly. I can give you our number now which is 800-949-4232 and our office staff are available to answer technical assistance calls from 8:00 a.m. to 5:00 p.m. Our website also has an online request form that you can submit a question online. Our website is www.adagreatlakes.org. And you can also e-mail our office and we can respond directly to e-mail questions as well, the e-mail would come to me directly. Our office e-mail comes to me directly and that is GLDBTAC@uic.edu and we would be more than happy to answer your questions.
And again, I know the situations there's always more questions usually generated than we can give answers in this time frame, but hopefully you were able to get something out of the session today and that this information was useful to you. I thank you one and all for your time and effort today, and I hope everyone has a good rest of their day and a great Fourth of July holiday. Thank you very much!
Operator: Ladies and gentlemen, that does conclude your conference call for today. We thank you for participating and ask that you please disconnect your lines.