Sudden Illness and Workplace Accommodation: Initiating the interactive process after diagnosis.
I'm an honest man,
Work's all I know,
Take that away,
Don't know where to go-
-Tom Petty, Something Good Coming
Most of us don’t like to think about what-ifs when it comes to illness. We think it won’t happen to us. But what if it does? Suppose you’re deeply into your career, having worked to earn the respect and trust of clients and colleagues. You’ve been given increased responsibility and raises to go with it. Your performance reviews have been generally positive (although nobody’s perfect); all things considered, you love your job. One pleasure is the feeling, because you worked so hard to reach this level of accomplishment, that your position is secure in the company where you work.
And then one astonishing day, a physical exam and blood test change everything. You are suddenly a person with cancer, kidney disease, an autoimmune disease such as Type 1 diabetes, rheumatoid arthritis, lupus --or any one of a dozen or more illnesses requiring regular medical care on an indefinite basis. You take time off, but you don’t want to stay gone forever. Work keeps you grounded. Working is your lifeline. The crazy people you work with paradoxically keep you sane.
You know because you’ve heard it enough that an employer can’t discriminate against an employee on account of a disability, but you weren’t really listening then because it wasn’t about you, and now it is. This is your life. In addition to reading everything you can find on the Internet about the illness that has overtaken your body, anxiety about job security becomes unpleasant background chatter: am I less valuable now? Will they try to get rid of me? Can they? What do I need to do to protect myself? It might be a good idea to read widely about your new condition. Buy a notebook and write things down. Ask people you know about their experiences returning to work after an illness. In the meantime, here’s a short introduction to disability accommodations and how to request them.
The Law. We’ve all heard of the Americans with Disabilities Act (ADA). The ADA’s definition of “disability” is different from the medical definition; having a disability under the ADA doesn’t necessarily mean that you are literally disabled from working—although you could be. A person with a disability under the ADA is someone who has a physical or mental impairment that substantially limits one or more major life activity. Disability includes chronic impairments --caused by disease, progressive hearing loss, trauma, illness, etc.-- but probably does not include temporary injuries like sprained ankles or transient illnesses such as the flu. The ADA requires employers with 15 or more employees (in California it’s 5 employees) to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. The ADA prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless to do so would result in undue hardship.
Separating out essential from non-essential job functions. A "qualified individual with a disability” is someone who still can perform the essential functions of the position with (or without) reasonable accommodation. “Essential functions” refers to the heart of your job, the reason you were hired, the parts of your job that could not be delegated to anyone else without changing the job fundamentally. Review of a job description, if one exists, will help to define essential functions, as will assigning a percentage of time actually spent over the last year to each function. Those tasks to which minimal or no time has been given are, arguably, not essential functions.
Example: a teacher who recently developed a condition that makes movement painful requests accommodations relieving her from playground duty. Although her job description includes recess duty on the playground, she has only been asked to report to the playground twice in the last year when someone else was sick. Playground duty is arguably not an essential job function. The accommodation should be granted.
Example: a researcher with anxiety is expected by his supervisor to acknowledge her emails no matter what time of day or night she sends them, including weekends. Her expectations are worsening his mental condition. He requests an accommodation that she either stop sending emails after the close of business, or that she drops the expectation that he will be reading emails between the close of one business day and the beginning of the next. Unless one is working in an emergency room or hospital, reading after-hours emails is generally not an essential job function. The accommodation should be granted.
Example: a delivery driver, after surgery, requests an accommodation of driving no more than eight hours per shift. According to the job description it is a requirement of the position, and it has been his custom, to drive longer than eight hours a day. Overtime is therefore an essential job function. The employer should engage in the interactive process but may decide that business necessity prevents them from granting the accommodation. See 161073P.pdf (uscourts.gov)
The takeaway here is that before asking for an accommodation, it might be a good idea to review your job responsibilities with care. Parse out your essential job functions from the non-essential functions, if you can, with the understanding that the employer probably has the right to final say over what is essential. If modifying or eliminating a non-essential job function would be useful to you, perhaps start with the non-essential aspects of the job when asking for accommodations, as those may be easier for the employer to grant without a great deal of thought.
Accommodations for Performance of Essential Job Functions. There are no hard and fast rules. Possible accommodations could include:
Granting a part-time or modified work schedule. This could include some remote days, others at the office, coming in later as needed and making up the time later in the day, increasing the number of breaks allowed throughout the day, and/or allowing the employee to take breaks as needed;
Modifying job duties or job restructuring. This could include job sharing, moving to a different work group, or reporting to a different supervisor;
Relocating the work area;
Providing privacy for glucose monitoring and insulin injections (diabetes);
Altering policies about food/eating so that the affected employee can eat as needed;
Supplying mechanical or electrical aids such as assistive listening devices, ergonomic keyboards & chairs, etc.;
Making existing facilities accessible;
Buying or modifying equipment; or
Providing leave as an accommodation.
How to Ask for Accommodations: No Magic Words Needed.
An employee does not have to mention the ADA, disability, or the word “accommodation.” A request for accommodation could be as easy as saying (or writing) that you’d like to speak with someone about modifying your schedule or job responsibilities to help you manage a medical condition. I recommend making a request verbally and in writing, so there is no opportunity for confusion on the employer’s part. A one-sentence statement should be sufficient to trigger the employer’s obligation to engage in the good faith interactive process. The request can also come from your health care provider if you have had the chance to discuss with that person what accommodations you would like him or her to request. The employer is entitled to certification from a health care provider that you have a qualifying disability, although the employer is not entitled to know what the disability is. Take a look at these articles for useful tips on how to request accommodations: How To Request Accommodations - Ticket to Work - Social Security (ssa.gov); and Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov). The good faith interactive process can be informal or formal. Employers differ according to size, structure, and culture. The law is clear, however, that the employer must engage in a good faith interactive process to decide if an accommodation can be offered without undue burden to the business. See The ADA: Questions and Answers | U.S. Equal Employment Opportunity Commission (eeoc.gov).
When An Employer Refuses An Accommodation Request.
While there’s no set time that employers have to respond to a request for accommodation, waiting too long can result in a violation of the ADA. Discussions should take place as soon as possible, as often as possible, within reason, to reach a conclusion. If your employer declines the request, they may do so for one of several reasons.They may deny the request because of insufficient proof of a disabling condition. If your employer rejects your request on that basis, it is easy enough to (a) find out what kind of proof the employer seeks, and (b) ask for documentation from your health care provider. The employer may reject the accommodation because they have decided that the function is essential, and an accommodation would pose an undue hardship. If that is the reason given, you could try to persuade the employer that the function is actually not an essential aspect of your job, and/or suggest other options --or ask the employer what accommodation they would be willing to extend. The website “Disability 101” suggests, “If you think that your employer does not have a valid reason to refuse your request, or your employer will not tell you why the request was refused, you can appeal the decision to someone higher up at your workplace, file a grievance with your union if you have one, or file a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), California Department of Justice Office of the Attorney General Civil Rights Section, or the California Fair Employment and Housing Commission (FEHC). Keep in mind that you are not required to appeal the refusal higher up in the company before you file an employment discrimination charge. But if you do choose to take these steps, you must file your discrimination charge within the deadline for EEOC, Attorney General, and the FEHC, even if those steps have not been completed. The deadlines for filing with the EEOC, Attorney General, or the FEHC do not stop while you are following the company procedures.” DB101 California - Job Supports and Accommodations: Frequently Asked Questions.
If you believe your employer wrongfully denied your request for accommodations, please call me at 925-310-5199. The consultation is free.
Note: For more information on accommodations for specific illnesses, see:
Diabetes – Continuous Glucose Monitoring): Apps for Diabetes Management – Workplace Accommodation Strategies (askjan.org); Reasonable Accommodations | ADA (diabetes.org);
Arthritis - Workplace Accommodations for People With Arthritis | Arthritis Society
Psychiatric Illness: Accommodations for Employees with Psychiatric Disabilities | U.S. Department of Labor (dol.gov)
Cancer - Cancer in the Workplace and the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov).