Published on February 7th, 2012 by Alan L Sklover
“If disabled people were really heard,
an explosion of knowledge of the human body and psyche
would take place.”
- Susan Wendell
ACTUAL CASE HISTORY*: Richard, 39, very much enjoyed his career as the Nursing Supervisor of an Emergency Department of a well-known hospital. After college and three years of military service, he had returned to community college to get his RN. As often happens to people who enjoy their work, Richard did well, and was rewarded with added responsibilities, which led to promotions. He even started a small side business helping employers design procedures for dealing with employee medical emergencies.
Every now and then – and then with increasing frequency – Richard felt himself becoming annoyed with people who mumbled when they spoke. At work, it made his job quite difficult, as his Emergency Department duties often required rushed, yet detailed, communications regarding medical emergencies. Even at home, though, his wife and children seemed to mumble or slur their words. Richard’s usual response was, “I’m sorry, could you please repeat that?” It was his wife who first suggested that he have his hearing checked out. Sure enough, Richard had suffered a moderate hearing loss, and the prognosis was that the condition would likely continue to worsen. And, over time, it did.
At first, Richard thought he could simply compensate for the condition by listening more intently, and even by getting closer to people when they spoke. While he did eventually start using a hearing aid, his particular hearing disorder was not fully addressed by it. It was not only exasperating to Richard, but it began causing difficulties for his colleagues at work, too.
Fortunately for Richard, his wife did some research, and found that the Americans with Disabilities Act, a federal law, permitted him to request accommodations to his hearing disability. After consulting with an audiologist, Richard submitted to his employer a written request for specific, reasonable accommodations to his limited hearing.
The accommodations Richard requested were: (i) an electronic connection to his work telephone that printed on a screen what people said, called a “text telephone,” (ii) moving his office to a quieter part of the hospital because loud ambulance sirens drowned out so much of what people said to him, and (iii) installation of lights to alert Richard when his phone would ring, or fire alarms would sound. Within two months, all three accommodations were provided.
With these accommodations, Richard was better able to perform his daily job responsibilities, he was able to continue to enjoy the many benefits his job provided him, and of course to support his family.
LESSON TO LEARN: Title I of the Americans with Disabilities Act of 1990 (often called the “ADA”) requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would require an undue hardship to the employer.
The basic idea of the law is this: no one should be denied a job because they suffer from a disability. It is a grand, noble and practical law, because it allows so many people of great abilities, experience and attitude to remain productive employees, who might otherwise unnecessarily be without a livelihood, to the detriment of our entire society.
[Incidentally, besides requiring reasonable accommodations to disabled persons, the ADA also prohibits discrimination against disabled persons in all employment practices, including job applications, hiring, firing, advancement, compensation, training and other terms, conditions, and privileges of employment.]
Even though you may not be disabled in any way, one day you may be. And, too, someone you care about will likely one day become disabled in some way. It is for these reasons that you would be “work wise” to understand how to successfully request an accommodation at work under the Americans with Disabilities Act.
WHAT YOU CAN DO: Here is what you can do to help yourself, or a loved one, if faced with the need for an accommodation to a disability:
A. FIRST, YOU MUST UNDERSTAND THE SIX BASICS OF THE ADA LAW. The ADA provides that if you are (1) a “protected employee” with (2) a “disability,” (3) who is “qualified” for the position, (4) and the disability is “known” to your employer, then by the ADA you’re entitled to a (5) “reasonable accommodation” (6) unless it will cause your employer an “undue hardship.” So, let’s see, by reviewing each of these six “tests,” if you are entitled to an accommodation from your employer under the ADA:
1. Are you a “protected employee” under the ADA? – Both employees and applicants for employment are covered by the ADA. Your employer or prospective employer – which includes private employers, state and local governments, employment agencies, and labor unions – must have 15 or more employees in order to be covered by the ADA law.
2. Do you have a “disability?” – A “disability” is defined as a “physical or mental impairment that substantially limits one or more major life activities,” such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. A “record” of having a disability would cover, for examples, a person who has recovered from cancer or mental illness, or who has a severe facial disfigurement because an employer feared the possible negative reactions of customers or co-workers. A minor non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.
3. Are you a “qualified” individual? – In order to be protected by the ADA, you need to be “qualified” for the job, which means a person who meets legitimate skill, experience, education, or other requirements of the position, and who can perform the essential functions of the position with or without a reasonable accommodation. For example, it would not seem that a blind person would be “qualified” to drive a bus with or without an accommodation.
4. Is your disability “known” to your employer? – Only “known” disabilities must be accommodated. The “known” requirement will generally be satisfied by a request from an employee for an accommodation, provided of course that the employee describes the disability in his or her request. However, if an employer “is aware” that an employee has a disability which impairs the employee’s ability to request an accommodation, or communicate the need for one, then the “known” requirement is deemed met.
5. What is a “reasonable accommodation?” – A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified job applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodations also include adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to employees without disabilities. Accommodations must be made on an individual basis, because the nature and extent of a particular disabling condition and the requirements of a particular job will vary in each case.
6. However, an employer does not have to provide an accommodation if it would pose an “undue hardship” on it. – Even if you’ve met all of the other five eligibility requirements noted above, your employer does not have to provide an accommodation to your disability if to do so would impose an “undue hardship.” “Undue hardship” is defined as “an action requiring significant difficulty or expense” when considered in light of a number of factors, including (a) the nature and cost of the requested accommodation, (b) the size, resources, nature and structure of the employer’s operation, and (c) is determined on a case-by-case basis. If a particular accommodation would cause an “undue hardship,” then the employer is obligated to suggest an alternative, and to provide the employee the opportunity to pay a portion of the cost.
For example, if you work for an employer who is one person, and has no staff, and your employer has a total gross revenue of $100,000, if your requested accommodation is for your employer to build an elevator in the office building where you work, and to do so would cost your employer $500,000, that undoubtedly would be considered an “undue hardship,” and your employer would not have to provide it.
B. NOW, HERE’S HOW TO REQUEST AN ACCOMMODATION FOR A DISABILITY. The ADA does not require that employers provide an accommodation to a disability until and unless it knows of that disability. That is the reason for submitting a written request, so that you can establish (i) what you made known to your employer, (ii) when you made it known, and (iii) to whom you made it known. While the law does not require that requests for accommodations be in writing, simple common sense and caution do require that a written request be submitted.
7. Before preparing your Request, review your employer’s Employee Handbook. – Many employers have put into place policies and procedures – and even required Request Forms – for employees to request an accommodation to a disability. For this reason, the first place to start is your employer’s Employee Handbook, or company policy manual or website. You may also wish to simply drop an email to your Human Resources representative to ask “What are our policies and procedures for requesting accommodation to a disability, and is a certain form required?” That said, some people might caution against doing so, because until you submit your own written request, you have few legal protections from, for example, your suddenly being chosen for “downsizing.” You can always submit the employer’s required form after you submit your own written Request.
8. Before submitting your Request, also check your state’s laws on the subject. – While the ADA provides considerable support for disabled employees seeking accommodations, some states go further. Consider spending a few minutes to do a simple online search: simply put the name of your state and “request for disability accommodation” into a search engine, and review a few of the results that come up. You may have more state-law-based rights than the federal ADA provides.
9. For several reasons, your Request for an Accommodation must be in writing. – Anything of importance that needs to be communicated to your employer should always be put into writing. This way, what you expressed can’t be forgotten, it’s less likely to be ignored, no one can claim you expressed it either in a loud tone or with “an attitude,” it makes it easier for your recipient to be certain of what was expressed, and it can easily be forwarded to another person. Additionally, placing such communications in writing allows you to make a permanent record of your respectfulness, professionalism, flexibility and reasonability.
10. Likewise, your Request should be sent by email, FedEx, UPS or two of them. – It’s always important to transmit important documents or communications in ways that allow you to verify that it was received. Email and recognized overnight couriers are the best. Some people use two, just to make sure. If your employer requires your request be submitted online, we suggest you send a second copy by email.
11. Your Request should be transmitted to both your supervisor and a Human Resources representative. – If your employer’s policies or procedures do not require otherwise, we suggest you transmit your Request for an accommodation to two people: your immediate supervisor and your Human Resources representative. This way, even if one is on vacation, or loses your email, the odds are miniscule that the other will, too.
12. Your Request should address each of the Six Basics of the ADA law described above. – After briefly introducing yourself and your reason for writing, you should briefly follow points 1 through 6 above, of course including relevant details about yourself, your job, your disability and your requested accommodation, that is: (i) you are a protected person under the ADA; (ii) you have a disability; (iii) you are qualified for your job; (iv) you are now (or have previously) making your disability known to your employer; (v) describe your requested accommodation; and (vi) give reasons why you believe your requested accommodation is not an “undue hardship.”
13. Consider attaching medical documentation if appropriate. – If you believe it would be appropriate, we suggest you attach to your Request documentation regarding your disability, which might take the form of (a) letters from doctors or therapists, (b) laboratory reports or diagnostic findings, and (c) articles from journals about your disability and how it may be accommodated.
14. Conclude your Request letter with four “Smaller Requests.” – There are four “smaller requests” that we usually recommend be incorporated into the conclusion of your Request letter: (i) that your personal and medical information be kept as strictly confidential as possible, (ii) that you not be retaliated in any way for submitting this Request, (iii) that any questions, comments or suggestions be forwarded to you by email, and (iv) your Request letter be responded to within a reasonable period of time, perhaps suggesting two weeks, but in all events not setting any “deadline.”
For your use and convenience, we offer a Model Letter Requesting an Accommodation for a Disability that you can adapt to your own facts and circumstances. If you would like to obtain a copy to use as a model, simply [click here].
No one’s body and mind are entirely free of limitations. For those who, by heredity, accident, disease or other reason have a significant limitation on the functioning of their bodies, maintaining employment may require extra efforts. It is simply wonderful that our U.S. Congress has risen to the occasion – in effect, elevating us all – by passing an important law that enables the disabled to be productive at their workplaces. These rights are precious, and like all that is precious, deserve to be “handled with care.” We hope these pointers, hints, and guidelines both encourage and enable you to do just that, for yourself and for your loved ones.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and avoid risks at every point in your career. Knowing ways to lower and eliminate risks gives you a distinct advantage in navigating workplace life. Knowing ways to avoid and resolve disputes is even more advantageous. Learning the “in’s and out’s” of doing so is what we are here for. Now it’s up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
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© 2012, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.