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JANMonthly Webcast – Ask the JAN Motor Team – (Adobe)

Beth LoyDecember 12, 2017

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>> Hello, everyone. And welcome to the Job Accommodation Network monthly webcast series. Today's monthly webcast is ask the JAN Motor Team. It'll feature Lisa Mathess and Matt McCord. Before we get started, we need to go over a few house-keeping items. First, if any of you experience technical difficulties during the webcast, please call us at 800-526-7234 for voice. Hit button 5. For TTY call 877-741-9403. We want to answer as many questions as we can during the webcast, but send in questions at any time. You can use our e-mail account at askJan.org or use our question and answer pod at the bottom of the screen. To use the pod, type in your question and submit the question and it'll go in our queue.

On the bottom of your screen, you'll see a file share pod. It's called webcast downloads. If you have files you'd like to download, click on the button that says download file after you highlight the file name.

At the end of the webcast, an evaluation form will automatically pop-up on your screen in another window. This will occur if you don't have your pop-ups blocked. If you do have your pop-ups blocked, we can get to it when we send out the archive of the event. We appreciate your feedback, please stay logged on and fill out the evaluation form.

Now let's get started. Lisa, we'll start with you today, right?

>> Sounds good.

>> Are you ready? >> Are we going to start with questions? >> Well, looking at the slide, first of all, we're talking

about emergency evacuation, me and Matthew probably take emergency evac calls pretty frequently, if not daily. Probably the first question we get right out of the gate, does ADA require that we have a set plan in place? The short answer is no, ADA doesn't require employers to have evacuation plans. All the ADA says about this situation is if you do have an evacuation plan for all employees, you have to include people with disabilities in that plan. It's probably going to fall under benefit of employment. Equal opportunity, you want to include people with disabilities in the evac plan.

>> We have several resources up here, these are good resources for our audience today. The first is a publication we put out.

>> Absolutely, the first bullet, you'll see two major resources, the first bullet is JAN's publication. It gives a great run down on how to develop these plans and accommodations for evacuations for various disabilities. And then, the second bullet is EEOC Pub regarding medical evaluation for evac's procedures. You don't want to disclose everyone's medical condition, but there may be limited cases that an employer could share that medical information with first aid and EEOC guidance.

>> That leads into one of our first questions that we have from the audience. Does the ADA require employers to provide accommodations for emergency evacuation? When the employer doesn't have an emergency evacuation plan for all employees?

>> Okay, so, ADA doesn't typically require an employer to maintain evacuation plans, but it makes sense to have a plan for everyone, just in case.

It is, it does make little difference whenever an employee with a disability requests emergency evacuation procedures as a reasonable accommodation. Regardless of whether there's a company evac plan or not. So... emergency evacuations, it could fall under the category of access to the work site and escaping the work site. Therefore, it must be addressed as an

accommodation issue, if an employee with a disability requests that, regardless whether having a set policy for everyone else or not.

>> What types of questions do you typically get? Related to evac?

>> Besides having the policy, whether they have to have one or not? I think it's our obligation to provide equipment for evacuation.

>> There is evacuation devices for individuals to have mobility limitations.

>> Right... we see it a lot with wheelchair users, you know... of course, in certain emergencies, you're not going to want to take the elevator and say there's a fire on the first floor. A wheelchair user could have this evacuation device at the top of a stairwell and some of them, you can use by yourself. Some of them, you need a buddy to help you get into them, but can go down the stairwell quickly. And get out to safety. Until emergency personnel arrive.

>> Some of those get back up the steps too, if you're in the basement.

>> Exactly. If there is exiting above you, some can go back up the stairwell.

>> Some are powered, some are manual? >> Right, there's all types of devices and different price

points and things. I think addressing those calls to see what would be best-suited for a company, what their office layout is and what they're looking at for evacuations. It's a good starting point.

>> Some individuals, they want to stay in place.

>> Yes. And we get this a lot. Can we permit someone to stay in place. I think... you know, with the interactive process, of course, it should be a two-way street that the employee has an opinion on what they want to do in an emergency. Employers voice their concerns, but working together with any accommodation solution is going to be critical.

And... but... a designated area of safety could be considered, and practically speaking, it doesn't mean someone could hunker down in their office. It could be that they're

willing and able to get to their safety clause, more in the lobby or at the top of the stairwell so emergency personnel can find them quicker. If they are able to get there. So... in some situations, it could be hunkering down in their own office, as long as certain people are educated of where to look for people in this case of emergency and some cases, that designated safety spot might be out in the open. It's different for each company and employee.

>> In the sample plan of action, it could be an important piece in evacuation.

>> This is how we work out the nitty gritty details of informing first responders of who to look for, how to look for them and when to call 911. To get someone out with a disability every time, a loft people with disabilities can get out of the building if need be, unassisted, just like the rest of us. They don't need any special help. But... in those rare cases, if someone needs help, they have to have plan of action to get everyone on the same page.

>> Should emergency personnel be involved in the evacuation plan? My gut tells me yes. That sample plan of action is something you can sit down with your emergency department and can work out the bugs and the kinks before something happens.

>> Right, exactly. So... I think it is case by case. But... a lot of times, you know... 911 answers you. Just for the safety of everybody. So...

>> Well, you know... if, say a company has a fire drill and someone can't participate due to a specific medical condition. I've had these questions before where someone has a mental health impairment, has PTSD and the drills are difficult for those individuals. The question is, the company has quarterly fire drills, due to a medical condition, what options do you have?

>> Right. I think, you know, I feel like I'm redundant in saying this, but as with everything, many things with ADA, there's a case by case determination. If a person with a disability can show you or explain to you how they plan on escaping in the event of a real emergency, I think that's what's important. Can you have them explain or describe their evacuation plan? Do they feel confident in executing that plan? In the case of a real emergency. I think, as long as the employer and employee are on the same page, you know, could benefit those employees with disabilities. Oftentimes those

drills could be exacerbating motor conditions, psychiatric impairments, all kinds of things. Organize the company policy, quarterly drills. I think that's most important.

>> We have a question here, related to service animals. What's your take on service animals? Particularly service dogs being involved in the evacuation process?

>> I think those two should be included in evacuation plans. Service animals under the ADA are often an extension of an employee with a disability. So... you know, we want to care for them like we do our staff and employees. So... having a plan for them, you know, nine times out of ten, they'll stick with the employee with disabilities, and so, just educating staff that employee A and a service dog might be in this designated safety spot or coming out with us. Just working out those details beforehand, but at the end of the day, I think the service animal is an extension of themselves. Grouping them with the employees.

>> I've always said I'm following the service animal out the door. I'm not following you guys. That's probably the safest bet. I'm following the service animal.[laughter]

>> Okay, let's see, we have another question in here. Give me a second to pull it up. Okay... although our building is ADA compliant there, are doors that are difficult to maneuver. They are required -- they require multiple push button entries. Is this a reasonable accommodation to have all doors push button entry? Why aren't push button entries required for all doors as part of ADA.

>> I'm not sure why push button entry isn't the baseline of accessibility. If a person with a disability can't exit or enter the building without those push button, but... as far as what's not required for every building to have the push button.

>> Push buttons might not work in an emergency situation.

>> Right, if there's a fire, those are electrical, that could be an issue, I'd think.

>> So... need to look at it on a case by case basis. See how your doors are set up. Make sure they're not too heavy for people to use. Make sure they're ways they can be operated if the electricity is shut off, something like that.

>> Right.

>> Beyond ADA, local fire departments do this day in and day out. They'll help buildings and companies ensure that everyone can get out safely. Give your local fire department a call.

>> And they've helped us when we've done drills.

>> Exactly. Okay... so our next topic for today is 100% healed policies. We get information saying this employee can't come back until they're 100% healed. Matt, you want to give feedback on that?

>> Sure, the most common way that this question or this topic comes up is when an employer asks us if they have to review accommodations when they have of a policy that's states they won't allow an individual to return to work if they happen to have more of a medical restriction. The short answer is that even if you have a policy that states that you won't allow this person to come back, you still need to review accommodations to see if they'd be able to perform the essential functions of their job with those accommodations or even without them. If you neglect to review the accommodations, and just stick by your policy, stating that you know... we're not going to let you come back because you have restrictions, that could be a violation of the ADA, because you're neglecting to review that accommodation and that's a key part of the process.

So... that's a common topic that we talk about all the time.

>> To say you have an, an employee has a heart attack and that individual has, said, hey, you know... I need to have some restriction, I'm not able to do heavy-lifting. Can an employer say you're not 100%, you're not coming back.

>> I think that would be a very poor thing to jump to that conclusion automatically. There's plenty of accommodations that can be reviewed that might help that person perform that lifting or make it so they can't do that lifting themselves. Various forms of lifting devices exist and it's entirely possible that lifting might not be an essential function of the job. It might be a marginal function of the job. If it's marginal, maybe we can look at seeing if there are other employees that can do that lifting for the individual. Swapping functions to the individual with the disabilities to keep the workloads even. Things like this are why we suggest reviewing the accommodation, because... they're the vast majority of time, something that can easily be worked through.

>> We have a couple questions from our audience today. One; what if their restrictions are temporary, are we required to accommodate temporary conditions if they're expected to fully recover from the illness or injury?

>> Yes... one thing to keep in mind, whenever we're talking about this sort of topic of temporary condition, remember that the amendments act of the ADA, that came out in 2008, changed things. Whenever we're looking at temporary conditions that are slated to last for less than six months. Before, the amendments act, it got confusing and people thought that applied to everything. The intention of it was that should only come into play whenever the individual is regarded as being disabled. Not actually having a disability and not actually having a history of one, but people are perceiving them to have a disability. That's the only time the temporary exemption should be brought into the picture. So... if you have someone that you know has a disability right now, and they have limitations because of that disability, then you need to review the accommodations regardless of the length of time they're slated to be disabled.

>> So, if an individual has a temporary impairment and that temporary impairment meets of definition of disability under the ADA, an employer is required to accommodate that temporary condition.

>> Yep... unless it'll be an undue hardship, of course, that'll be later down the process anyway.

>> So... here's another question we have, what if we can't accommodate the restrictions that allow them to stay off work and receive, I guess it'd be short-term disability payments.

>> Well, like with any other accommodation request, it'll be subject to undue hardship. So... if there are legitimately, no way to accommodate this person to return to work in their present job or in another job, and it's going to be an undue hardship to bring them back in any capacity, then leave is going to be a form of reasonable accommodations you need to explore at that time. If that means they'd be able to get payments through short-term and long-term disability, that's great for the individual. But... simply because that safety net is there, doesn't mean that you don't have the obligation to review and to bring them back in a better capacity, in their present job or reassignment.

>> Okay... so... let's say you're getting ready to hire somebody and that individual says hey, I need some accommodations temporarily for this position.

>> Okay.

>> Can you go on and not hire the employees because they're not 100%?

>> That'd be a situation that I would suggest against doing that. If you're reviewing the situation of someone having a disability and restriction and you know... this job is, say a highly physical job and they have lifting restrictions, once again, you have to review those accommodations to see if they can perform the essential functions of the job. If they can't perform it either with or without an accommodation, you need to move forward like any other individual. If it's a situation where it would be an undue hardship, then that's an undue hardship analysis. Not an analysis of, they have restrictions so we can't hire them.

>> If an employee has a fractured leg or the flu, without complications, one may perceive them as disabled? We would need to look for an accommodation.

>> Well, remember, they have to meet the definition of disability. So... if someone has a cold, it's unlikely they'd meet that definition. I suppose, possible. I wouldn't say I've ever seen such a case occurring, but it could happen. Not every condition under the sun will meet that definition. You'd have to review whether or not they meet that definition of disability and generally speaking, that means you're going to review the medical documentation and all that good stuff. If they do meet the definition of disability, regardless of what the condition is, if that condition meets the definition of disability, then yes, you need to review accommodations for them.

>> Right... and a fractured leg certainly could, you'll be substantially limited in the major life activity of walking.

>> Standing, potentially lifting. All sorts of things. I always suggest focus on the limitations and whether or not that meets the definition of disability rather than getting hung up on what the actual condition is.

>> So... this employer says, what if we bring an employee back with limitations that they refuse to give medical updates, what are the limitations?

>> In that situation, I'd usual direct you to what sort of information do you already have? If this is a situation where the condition is going to be chronic or permanent or ongoing, it's unlikely the situation is going to improve at all, then you might not need to get that additional information.

But if it's a situation where you know there's a timeframe on it, say you received medical documentation that says they're going to be reviewed in two months and they're expected to make a full recovery in that time, in that situation, you very well could be eligible to get that documentation because you have a reason to believe it's going to be different. I'd direct you towards what you already have and what that information tells you about the condition. Not every condition needs to have constant updates on the medical.

>> We have a question related to long-term disability and short-term disability. A person receiving long-term disability or short-term disability insurance being determined by the insurance carrier. Answer to that is yes.

>> Absolutely. That's something that's going to be completely separate from ADA and the accommodation process. If you have any questions about the criteria that the short-term or long-term disability insurance plan has, we'd direct you to that insurance count. But... simply because they meet that definition for the short-term or long-term doesn't mean that you shouldn't also review accommodations that can help the person.

>> The main thing is try to keep the person in the workplace.

>> Right.

>> Keep them working. So... here's a question, either with chronic conditions, the medical status changes, advanced in medicine may change the need for accommodations, correct?

>> Certainly can. Some medications have side effects and some side effects can warrant an accommodation. But at the same time, the employee also knows whenever they're going to have a change in medicine. They also likely know their side effects of that medication much more than anyone else does. After all, they're going to be the ones experiencing them. Simply because there's the potentiality for things to change might not be enough information to gather that updated medical. I would usually suggest you wait until the individual comes to you, stating that

their needs have changed. Because... they're the ones that are going to be, honestly needing the accommodation anyway.

They're going to be getting a change in medication, then they're afraid that maybe they're going to have problems waking up in the morning because of a sedative side effect, maybe we need to review accommodations for that. There's no reason to jump the gun and assume the entire plan will need changed because of a change of medication.

>> Would an employer violate the ADA if the employer didn't allow an employee to return to work because of being a possible safety risk?

>> Whenever we're talking about safety risks, we're always going to have to direct you towards a directorate analysis. Under the ADA, if the employer can't show that the employee with restrictions meets that direct set, then it's very possible that the employer might violate the ADA by doing this. In a nutshell, a direct analysis is a significant risk of substantial harm, either to the individual or others that can't be reduced to a manageable level, via some form of reasonable accommodation. If you meet those things and have objective evidence to show that direct threat exists, in that situation, it might not violate the ADA to not allow the return to work. But... that direct threat is intended to be a high bar. A significant risk of substantial harm is what I'd suggest you focus on. Simply because there's potentially the risk that a person might fall. That might not be a direct threat, but it might be something you need to review accommodations to limit so that way, the person doesn't get hurt on the job.

>> We didn't get -- we can get a lot of this information from the EEOC website, right?

>> Yeah, I recommend the one first-linked on this slide. I also wanted to add in on this slide, the fact that policy modifications are a form of reasonable accommodations. We linked that EEOC pub as well. Simply because sometimes you need to review modifying a policy whenever we're talking about 100% policies. It's usually a good idea to review modifying these things. To avoid complications down the line.

>> Next up, we're going to talk about parking. I thought we'd be done talking about parking now.

>> That'd be nice. It's a constant topic, but that's okay. Everyone learns at their own pace. Not everyone's introduced to this in 1990.

>> I'm not even sure, were you born? >> I was born in 86, I was born, but I wasn't researching

the ADA back then.

>> Unreal. [laughter]

>> Okay, I'll try to shake that off and get back to parking here. It was a broad overview, what parking questions you get?

>> Probably megawatt common one we get is going to fall into the realm of if we, do we have to provide parking as an accommodation when we do not provide parking to other employees? That's probably our most common one. I mean, if you think about the, from a vast amount of employers out there in the world, they don't really have the luxury of having a parking lot of their own. You know? They have to deal with a parking lot that they get through say, a shopping mall and they're actually situated in that shopping mall, in that situation, they don't own that parking lot.

The more distinct answer we can give to that question is a resounding "maybe." There are two schools of thought on that. On one hand, some employees with disabilities may not be able to access the work site without a parking accommodation. That would equate providing parking as an accommodation to provide an equal employment opportunity. Without it, they couldn't access the work site. However... there's also the argument that employers only have to provide accommodations that eliminate barriers in the work environment, and if they don't own the parking lot, that'd be outside of the scope of what would be the work environment.

Both sides of that argument certainly have merits and we can't say which one is correct. But... it should be stated that if the employer wishes to go above and beyond, and provide that parking anyway... the ADA and the EEOC certainly wouldn't stop them from doing so and we'd be happy to hear about that.

>> So... parking-related accommodations.

>> Remember, the standards and qualifications that are met to get a state-issued parking placard are going to be different

than how the ADA defines its definition of disability. Simply because someone has a placard doesn't mean they'd automatically be entitled to parking-related accommodations. If they do meet the definition of disability, then accommodations should be reviewed for them as you would any other request.

As most employer lots don't have an abundance of accessible blue-painted spaces, it should also be important that I mention that reserved parking spaces are a form of accommodation. So... because of this, even if there is no blue spaces available, since they're all used up, you can take a normal painted space that's close enough to the building for the individual's needs and reserve it for them for their use as an accommodation.

>> So... for anyone that comes to you and says "I have a limitation" and that limitation meets the definition of disability, do you have to give that person the closest parking spot that you have available?

>> Not necessarily the closest. Close enough to where they'll be able to access the work site is what you need to meet the metric of. What we'd usually suggest at this point is go back to the medical documentation. How much of a walk can this person handle before they need to take a break or until they can't walk anymore? You need to ensure they have a parking space that would meet that distance requirement. Of course, not every doctor will provide you a distance, but in that situation, we'd suggest talking to the individual and say, how much of a distance do you think you could walk without it being a hindrance because of your disability? And try to shoot for something in that range.

>> How many accessible spaces does the ADA require us to have?

>> That's a question best answered by the United States Access Board. They enforce ADA accessibility guidelines that govern this particular topic. The reason I can't just give a blanket answer to that is because it'll be based on a lot of factors. One of which being the number of spaces in the lots. The size of the lot means that you'll have to have more of the accessible spaces to counterbalance that. If anyone in the audience today would like to contact the access board to get an answer to that question, contact them via phone at 1-800-872-2253 for voice or 1-800-993-2233 for TTY. You can provide reserves spaces rather than relying on blue accessible spaces to meet the need. Review accommodations when such situations arise.

>> Providing parking as an accommodation if they provide parking for other employees?

>> That's pretty much the end all be all of this discussion, yes. If the employer provides parking as a benefit of employment and it's not going to amount to an undue hardship to provide that parking, then it needs to be provided to allow that equal opportunity to access the benefit of parking. This is employment, this is important because employers may not be required to provide accommodations that allow access to benefits that employees wouldn't normally have access to. That's why we always talk, first, about, do they actually have a benefit of parking here? Do you control the lot? There's all sorts of questions that we can get into here. The end all, be all, if you control the lot as an employer, it's a benefit of employment.

>> What if there's not a parking space within the doctor's restriction?

>> You might need to look into other accommodations. If it's a situation where the individual can't get a parking lot. You know... there's a reason why this is an ongoing topic. Parking is constantly a problem. Especially in the bigger cities, where parking is a huge commodity, there's not always going to be an infinite number of spaces to fulfill every need. In that situation, you might need to settle on providing a parking space that's closer and provide another accommodation to help that person get into the building or you could provide other accommodations like say, telework or working from another location that had better parking or other things along those lines. Simply because one option isn't going to work, doesn't mean it fills your need. You need to review other ways of accommodating.

>>> If we approve closer parking as an accommodation, not being able to walk a specific distance, do we have to excuse tardiness?

>> That's a situation where I'd suggest reviewing the schedule and what causes the tardiness. Say this person uses public transportation in order to get to work, and their schedule is very much set around that public transportation schedule. In that situation, you know... say they would have to, you know... they might be at the whim of that transportation or it might take them longer to get into the building, a similar situation, which is why I bring it. Just like in that situation, it'd be helpful to review the schedule and see if you can provide some

flexibility. Now... that doesn't mean that you have to omit them from tardiness requirements. They still have a schedule to follow and the employer still controls that schedule, but... providing some flexibility in that start time and maybe arranging for the individual to make it up at the end of the day, could be a good arrangement. That way the person can have the extra time they need in the morning to go from their car and get into the work site every day.

>> Okay... so just this kind of like off chute of parking. What do we hear when it comes to the commute mess?

>> The first thing we usually talk about is the fact that commutes are something that you have to actually review accommodations for. And it's kind of confusing when you look at it from a cursory glance. You do have to review accommodations for commutes, but... you don't have to review providing transportation for the individual. Unless you already do that for other employees as a benefit of employment.

If you're an employer that happens to have a shuttle that you allow employees to use to get to work every day... you have to make certain that's accessible for individuals can disabilities to use that. Outside of a situation like that, you wouldn't need to arrange a transportation service to bring someone in and take them home every day. You don't need to review that, unless you want to.

What we suggest you focus on is other forms of accommodation that might be helpful, like... for example, modifying the schedule or allowing work from home. There's only specific things the employer controls in the situation. For the things the employer controls, they can provide accommodations around those things to make it easier for them.

>> What if the employer doesn't have a telework policy? >> That's a question we get all the time. The short answer

to that is if you don't have a telework policy, then you need to review creating one. Because you don't have a policy, doesn't mean it won't be a reasonable accommodation. Like with every other accommodation, you don't have to provide something that will rise to that level of undue hardship. What I'd suggest in this situation is to, are any of the employees eligible for telework? Would it be possible to expand on that policy? Maybe it'd be possible to allow it because of the fact that this is a job that legitimately can be done from home. Can this job be done from home? And number two, is it something where you can,

in fact, set up that procedure without it being an undue hardship. Simply because you don't have a policy that applies, that means you might need to create one.

>> You have a policy for telework, but only managers and supervisors and those in upper level positions can telework.

>> I'd highlight the difference between benefit of employment and reasonable accommodations. The managers and upper level employees are able to telework because that's a benefit they have within their status of the company. One thing to keep in mind, whenever you're providing a reasonable accommodation for telework in this situation, even if it's for an individual that normally wouldn't have it, that doesn't mean you automatically have to allow everyone in the company to telework.

That's not what we mean by modifying the policy. For people that need it as an accommodation and those that can do the job from home, you would need to allow them to do it whenever it's needed as an accommodation.

So... you're not actually taking away any benefit from those managers and those upper level employees. You're just making it so, because of the fact that you already have a framework available and you already have the ability to do this, you're making it so people with disabilities are able to work too, just with an arrangement similar to that benefit for those upper level employees.

>> Okay, thanks, Matt. All right, Lisa, now you're back in the hot seat.

>> Good.

>> We're talking about hot seats. Ergonomic hot seats. Talk about ergonomic chair requests. Give us an overview what it's like, and the types of questions we get.

>> We're talking about ergonomic chairs all the time. The list can go on. It boils down to ergonomic chairs could be a reasonable accommodation to enable someone to do their job, where, if they didn't have an ergonomic chair, they might be in so much pain and so distracted that they're not going to be a productive employee. So... from a business perspective, it could make sense to provide someone an ergonomic chair so they do their work and benefit the employer.

>> Ergonomic means what fits the specific individual.

>> Right. Yeah... exactly. So... what's considered -- I know ergonomic is a buzz word, what's considered ergonomic could be subjective and not all ergonomic chairs are created equal. Really, what one person needs in an ergonomic chair could differ from another person. Not everyone will have the same diagnosis as the same ergonomic chair.

>> That fits straight into our first question under this category. The person says, what if we already have an ergonomic chair, but the employee wants a specific type of ergonomic chair?

>> Yeah... that's a call we get every day. So... you want to find out what characteristics is this person specifically requesting in an ergonomic chair? It could be supported lumbar, head rest, arm rest, a separate cushion or seat panel that's wider. It could be so many different things. Really finding out, what is it about our chair that isn't effective and what are you looking for in a chair? It could be attaching equipment to the existing ergonomic chair. You could look at different cushions and different supports or looking at a completely new piece of equipment on the ergonomic chair.

>> Are there chairs safe to support weights greater than 500 pounds?

>> There are, it is linked on the slide. That's what we'd consider a large weighted chair. But yeah, with weight ranges of 300 to 500 to 700 pounds. Those are considered large rated. We're continually adding to and updating that can withstand those poundages.

>> What are zero gravity chairs? >> Like working in a reclined position. It gets your back in

a neutral position. You're not being pulled down by gravity, but working in a natural 180-degree horizontal position.

>> So... if an employee asks for an ergonomic chair, can the employer ask for medical documentation?

>> A lot of times they can. If the disability and the need for accommodation aren't obvious, an employer could ask for limited medical documentation. If you let all employees pick out an ergonomic chair, then we probably shouldn't make this an ADA issue if every new hire gets a new chair anyways. Just because John says he bought the new chair because of his back condition, we shouldn't be asking for medical documentation if everyone else that was hired alongside John isn't required to turn in medical

documentation to get that new chair. The new chair is the benefit of employment, don't make this an ADA issue. Even if you know something about that condition, let's just ignore that little tidbit of information, say, hey, John, we were going to get you a new chair regardless. So pick out what you want, buddy.

>> You don't make somebody with a disability get a new chair.

>> Getting the medical documentation, it depends, policy and procedure, based on the company.

>> Okay... let's talk about these ball chairs. Do we have to provide a stability ball, instead of a chair? We have to take concerns of the stability balls. Another participant says we sometimes get requests for ball chairs.

>> Yes.

>> Do you have suggestions for that? Can you imagine you or me using a ball chair?

>> We'd be terrible at the ball chair.

>> You and I would be.

>> But one of our colleagues has a ball chair and has had it four years with no issue. Whenever I get this call, I say realistically, you need to look at what's the chance of something happening. Looking at a direct threat, ADA says you don't have to let a person with a disability that will impose a direct threat to themselves or others. It's a safety hazard to themselves or others.

>> Because the ball chairs have gotten so popular and trending, they now have those, essentially a cage with a back arrest on it. You put the ball in and get the benefit of core strengthening. It's not rolling all over the floor. It's maintained within that person's work stage.

>> You're on a ball in a cage.

>> The ball is in a cage so it can't role out from under you. Basically.

>> What was the second question? >> The same question, basically.

>> You have to identify that safety threat. It can't be speculative or remote. You have to be able to identify, and if you can't identify a threat, you need to consider, can we lessen it with an accommodation? That could be the newer type of ball chair.

>> What about your thoughts on standing desks?

>> JAN obviously loves them. Everyone in this office has one. It can be an alternative to providing an ergonomic chair. If someone is an employer against providing ergonomic chairs for whatever reason, I think the stand-up could be beneficial to let people alternate between sitting and standing throughout their day. It keeps people working, otherwise... they might have to you know... take a break from their work. Take a lap around the building. Loosen up that. Could last 15 minutes.

>> This person says, we're getting quite a few requests for standing desks and ask for medical documentation. I think it's fine if you do it for everyone.

>> Right... having a policy if the disability and the need for the accommodation aren't obvious, that's within your right. Oftentimes, if an influx of requests comes in. I think requiring medical documentation, uniformly across the board, if it's not obvious would filter out a bunch of those requests.

>> You need to do it or not do it.

>> Right, exactly.

>> And make up your mind which way to go.

>> Say you have a teleworker and teleworker asks for an ergonomic chair or sit down work station. What do you do in that case?

>> This is tricky. It's not spelled out anywhere in the ADA so... what I'm going to say is basically practical guidance. For one thing, it'll depend. If someone is teleworking as an accommodation, as opposed to a benefit of employment, then... it may make sense to get them the chair. They're teleworking at home. They can't come in because of commute issues or environmental issues in the office. They're working at home as an accommodation. It makes sense to get them that chair. If they were in the office, we'd get them in that chair. We're out the same amount of money, they are getting the same equipment as their colleagues and it's kind of an even trade. It gets hairy

whenever someone is telling working as a benefit to employment. They have the capability to come to work, they just choose not to. Then the argument is weaker that employer would have to provide an ergonomic chair. If they wanted it utilize an ergonomic chair, they could come to the office and utilize one in the work stations.

>> What if it's obvious the employee has a disability, can the employer still ask for information related to how the desk should be used and why it's most appropriate for alleviate the issues they're experiencing.

>> The piece that determination ADA definition eligibility and the piece, is the accommodation needed? If the disability is obvious, we don't want to ask questions about the disability, but I think an employer is within their right to ask questions about how that accommodation would benefit the employ at the work site, how to properly use the chair or desk or whatever the case may be. And shed like on whether the accommodation would be beneficial.

>> If it's a standing desk, what if they say they have pain in the lower back and standing desk would be beneficial?

>> It's going to boil down to the definition of disability. To get a reasonable accommodation, you have to be a person with a disability. Back pain, a doctor would have to be able to show this person has a physical impairment. That's as far as the ADA goes. Good faith effort, provide the equipment. Happy employees are more productive employees.

>> If a physician states it's not a disability, that doesn't take the employer off the hook. Not every doctor's position is familiar with the ADA as MVP us. Absolutely, putting the ball completely in the doctor's court to determine, make these employment decisions. That should be the employer's job to make employment decisions. The doctor is there to shed light on the situation. The employer should be the final call and decide whether this person has a disability and whether they need an accommodation.

>> Okay... this workplace has a limited amount of standing, sit/stand work stations. They use a lottery system. Thank goodness we don't use that. There would be people fighting for these.

>> It'd be game of thrones.[laughter]

>> When someone requests one for medical reasons: We ask for medical to support the need?

>> Yeah... I think so. If the disability isn't obvious or the need for it isn't obvious.

>> If that's how it works and how you want it to work...

>> Right, they're going to jump to the head of the line, it's not a benefit of their employment. The lottery system might need to be modified. Yeah... that can get hairy real quick. If someone needs that as a reasonable accommodation, you can follow the ADA guidelines.

>> If they don't hit the lotto -- you have to go through an accommodation process.

>> Okay... what about paying for internet service as an accommodation? If a person's teleworking?

>> There's no hard/fast answer. ADA doesn't really address this. I mean, most have phones in this day and age have internet. It's not unique to the workplace anymore. I think it'll be a case by case determination when telework as an accommodation or benefit of employment.

>> Right.

>> So... we have enough time left to talk about some resources and if we get anymore questions in, I'll try to put those across.

>> Yeah... me and Matt wanted to include this catch all last slide to educate employers on what's available out there. Sometimes we get questions like who can help pay for some of these accommodations? We did links to federal accommodation programs. That's for the Department of Defense and contractors. They'll provide equipment to enable someone to do their job.

>> Then you have the target center that can help alleviate the financial burden to accommodate someone. What employers don't think about a lot, which is more an individual service, I tell employers to do Vocational Rehab. Some states may have extra funds that they can provide a piece of equipment to keep someone working. Vocational Rehab is all about training for

education and employability. If they do have the funds within their realm, they'll often provide that equipment, if someone is already on the job to keep them working.

So... checking the local VR as another funding option.

Next, we have like state-assisted technology project. Each state has an organization available. They'll see if that's what they need before making the investment. They have used equipment available in the cost savings for the end user. They provide demonstrations so people can become familiar with different products. AT will provide financial assist for AT-related services.

Okay... let's see... we have a comment here that says my understanding is that cap doesn't include accommodations for contractors. It's probably just for federal employees, I think.

>> Ever since money has dried up, unfortunately, that's the way it goes.

>> There are some restrictions on what they provide. Still a wonderful resource for assistive technology.

>> Right. But thanks for letting us know.

>> How do you address this, an accommodation provided, not effective in removing the workplace barriers?

>> Talking to the individual, me and Matt still take individual calls. I think educating individuals with disabilities, if something's not working, you're in the best situation to alert someone. No one else, we all, just have to be our own advocates many times. If something's not working, we tell callers, bring it up to the employer's attention as soon as possible. They don't have to lower production standards. If they're going to discipline you for poor production and you've been working like this for a month because of a failed accommodation, that's on you that you didn't bring it to their attention that it was ineffective. Just being able to explain, this is no longer working, it used to work, now it's now, or it never worked, let's go back to the drawing board and look at accommodation B. We also train employers of monitoring accommodations. Just doing a little informal, let us know something's not working. Is everything working? How is that new software that we installed last month? How's that working out for you?

>> So... I think you want to do your homework, talk with the

individual, contact JAN and use your other resources that you all talked about.

>> Yeah!

>> And I think with that, that probably sums up our webcast for today. You two have anything you'd like to add?

>> I don't think so.

>> Nope.

>> We had a good audience turnout today, we certainly appreciate that. If you have any questions related to motor issues, you know how to find Lisa and Matt. Tell them Beth sent you. They'll put you right through, right? [laughter]

>> So, that is all the time we have. We do appreciate everyone attending today. Thanks also to Alternative Communication Services for captioning. Please stay on for a second and fill out the evaluation form for us so we know how we're doing. And... that is it and... I guess, this is our last one before the holidays. We'll see you after the holidays. This concludes today's webcast.

[Call concluded at 2:58 p.m. ET].

"This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings."