You Asked, We Answered: 17 Employment Questions with Disability Rights Texas Supervising Attorney Lucia Romano
As October wraps up, we know the work doesn't stop when National Disability Employment Awareness Month ends. People living with chronic illness and disability have to advocate for themselves year round, proving time and time again that they ARE capable and that valuable work doesn't look one particular way. We know that when this month ends chronically ill and disabled people will still be searching for a job that is accommodating and inclusive. So we asked you which part of the employment process is difficult and what questions you have about your rights, and took those questions to an employment rights attorney. We spoke with Lucia Romano, a supervising attorney of the Employment Voting and Access Team (EVA), Client Assistance Program, and a team focused on employment at Disability Rights Texas. Lucia outlined helpful strategies for both chronically ill and disabled professionals as well as employers to make the workplace inviting and accessible. See part 1 of this 2 part interview paraphrased below!
Q #1: So what do you think is important for disabled and chronically ill people to know about their rights?
A: They should know that as someone with a disability, if they are entering or looking to enter the workforce, they have rights under federal and state law, protecting them from discrimination in the workplace. And that's just very basic. Another thing I always advise clients, is to keep records of their communications at work, or what happens at work, even if they keep their own notes and journal it with dates and names of people. Because even though we don't want to think the worst, or that discrimination exists, it does. And it's always good to protect yourself by documenting the facts.
Q #2: What are some barriers you see disabled people facing in employment?
A: One barrier I think is the belief in our society and community that people with disabilities have limited capabilities to work. And that just isn't true. Another barrier is that people have a one size fits all perception of working and how a person has to work. Which is not true. The is 2020. We have lots of technology and knowledge that we can implement to make the workplace better for people with disabilities, and for all of us really. We as a society are very set in our ways, and we just have to learn to be a little bit more open minded. So I think the barrier to employment for people with disabilities really is more systemic. There is systemic discrimination, you could call it, of people with disabilities from the beginning. From the moment they start grammar school, until college, and in college/junior college or technical school, there is a struggle to get accommodations. If you look at the numbers of students with disabilities who enter a post secondary education program, compared to those who successfully finish, the numbers drop dramatically. We have to close that gap.
In terms of the physical barriers, some cases or things we hear at Disability Rights Texas are problems with reasonable accommodations such as not getting them, or a supervisor changing them. A fact pattern that we see often is when a person with a disability has been working very successfully for quite some time in a position within a company and everything's going wonderfully, until they get a new supervisor. Problems start to arise with the new supervisor because they aren't following what was previously agreed upon with the field supervisor. Then, another issue we're seeing a lot, is employers misunderstanding and even fearing mental illness in the workplace.
Q#3: What would you say to employers who have stigma or misconception around mental illness in the workplace?
A:I would say that if you look at the statistics, people with diagnosed mental health disabilities are not the large portion of people committing aggressive violent type behaviors or crimes. And really, if an individual has a mental health disability, there are accommodations that you can work on, so that that person can work successfully in that environment.
Q#4: So in terms of disclosure, do you have to disclose your disability in order to receive accommodations?
A: Generally you do. Usually if you have a disability, you don’t need to disclose your disability to your employer unless you are requesting an accommodation. If you're requesting a reasonable accommodation, you have to let your boss or Human Resources know that you have this disability and because of it you need this particular reasonable accommodation because it will help you do the essential functions of your position.
Q#5: What is the best way to request accommodations? Are there any general rules about who to contact and how?
A: There is no specific rule or law that says you have to do it a particular way. But, even though it doesn't have to be, it’s best to do it in writing. And then there are a lot of companies and employers that have their own forms or guidelines for requesting accommodations in the employee handbook. So if your employer has something like that, it’s best to follow the guidance of your employer.
Q#6: So like you said, there are no set guidelines for requesting accommodations in employment. Are there any standards for required documentation?
A: Generally speaking, no. I will say that the employer can request documentation from a treating physician or counselor, or whoever could document your disability and your need for the accommodation. Now, if the employer is requesting your entire medical file, that would be inappropriate and unnecessary. Additionally, if medical documentation is requested, the employer should be following the privacy laws around maintaining that health information private. It should be kept in a separate file and held as private health information. However, the employer also might not ask for documentation, it may depend on whether or not your disability is visible.
Q#7: So once you’ve disclosed your disability and you want to request accommodations, are there any accommodations you’ve seen be helpful or effective for chronically ill people?
A: Some examples I’ve seen are extra time or leave for medical appointments. Clients I’ve had who have had to see a physician regularly and frequently, worked out accommodations where the appointment was towards the end of the day, and maybe they could make up the time later that week.
We've also had cases around leave time where the person has used up their FMLA, and are not ready to come back to work. So there is some guidance around that but that's been a hot topic with the ADA. Basically, unlimited, or unspecific leave time is generally not viewed as a reasonable accommodation. So if you are a person with a chronic illness, and you need additional leave time, because of your disability, it's best to get a note from your doctor saying for example: “Miss Smith needs an additional three weeks leave”. The doctor's note should be specific. Doctors who leave it open ended, give the employer no guidance for when they can expect the work to come back.
Then there’s telecommuting. Of course now with COVID-19, the workforce has changed. Before, a lot of employers were hesitant to allow telecommuting as a reasonable accommodation, and now all of a sudden, we're in a pandemic, and everybody's being allowed to work from home. So employers are now seeing that people can actually work from home and be productive.
Q#8: What is the best way to respond to, or work with an employer who is challenging requested reasonable accommodations?
A: So the process of obtaining reasonable accommodations has been defined by case law as a flexible interactive process between the employee and the employer. This means that it takes two to communicate and discuss accommodations. Given that, the best thing an employee can do is to show that they are engaged and open to interacting with their employer about accommodations. Employers don’t have to automatically agree to whatever you're requesting and they might have other suggestions or something else they want you to try first. Both parties need to be flexible enough to find a solution that will work for the employee with the disability as well as the business.
I always tell my clients that you don’t want to give your employers any reason to say that you didn't engage in this flexible interactive process. You want to show you did everything you could, followed their procedures, set up meetings, and were open to their ideas. If you end up having to bring a case or make a complaint, showing you did your part as an employee makes the case stronger. If an employer says no to an accommodation you suggested, a way to keep the communication open is to then ask if the employer has any other suggestions for accommodations or best course of action so that you can continue working for this great company. Try and engage them in that kind of discussion.
Q#9: How would you navigate a situation where an employer says they cannot accommodate because it would be “undue hardship” on the business?
A: An accommodation being unreasonable because it poses undue hardship is a valid defense that an employer can have. What that means is that the accommodation would be very very difficult to provide or too expensive for that company. But it would be the company's burden to show that the accommodation was an undue hardship if a case was brought. They would have to show that it’s way too expensive for their company. For example that they have x profits, and the accommodation cost is x amount, and that it’s unaffordable. Or they would have to show that it's very difficult, meaning the accommodation would require x amount of resources.
If you're an employee and your employer says your accommodation is too difficult, engage with them and ask them to explain what makes it hard. If they give some reasons you think are valid, maybe there's an alternative you can think of that's slightly less costly, or resource intensive? It's all part of that interactive process.
Q#10: So do you know of any resources to help companies best accommodate their employees?
A: The Job Accommodations Network (Ask Jan) is helpful. They have a helpful tool where you can put in a particular disability and it gives you suggestions of accommodations. Workplace Fairness also has good advice. One resource for employees, is vocational rehabilitation programs, which can provide services to help people with disabilities maintain their employment if they're struggling with an employer.
Q#11: How can people navigate situations where employers might say they can’t hire you because you can’t perform the “essential functions of the job” and the ADA says that the person with a disability must be able to perform the essential functions of the job with or without, an accommodation?
A: I think the question at that point is if there is an accommodation that would help that person and then to determine what makes that particular activity essential, which depends on the job. A lot of people or employers will say whatever is on a job description is an essential function. However, that's not necessarily true. An essential function is something that is at the core of that job position and cannot be waived or given to somebody else to do. That's the core of what needs to be done for that position that you are applying for and doing.
Q#12: How do you know if you're being discriminated against in the hiring or firing process? And what can you do about it?
A: So during hiring, there are certain things that cannot happen. For example, you cannot be asked if you have a disability, for medical information, or for you to go through a medical exam on either an application or in an interview. You can however be asked about job duties. For example an employer can say the requirement of the job is that you must be able to type 50 words and can ask you to show them how you would do that. So generally, if an employer is asking you about your disability, that is a red flag.
If you need an accommodation for the job interview itself or on the application, the employer can ask for very basic information about the disability and why that particular accommodation would be needed. But that is something that you as the person with the disability initiates, not the employer.
In the firing process it's very hard to say if you’re being discriminated against because there's a whole host a things that can happen that could potentially be discrimination. So it could be blatant discrimination like “we don't want people in wheelchairs working here”. However it could also be less blatant such as they're not accommodating you, they’re not promoting you because of your disability, or they're not giving you pay raises because of your disability.
Q#13: In the instances of more covert discrimination such as being passed up for a promotion or fired without reason, are there any signs that you could point to to prove you’re being discriminated against?
A: I think it's a feeling that something just doesn't seem right. You might be thinking I've been with a company for years and I see people around me that seem to be moving up or being given opportunities, and I'm not, what seems off. So again, I think it's just more of your experiences in the workplace. I would again suggest that people document everything. So if you feel you're being passed up for promotions, talk to your supervisor and say, “I'm actually really interested in this position, what do I need to do to apply?” If your supervisor replies that they don’t want people like you in that position, then email them back with something along the lines of “ I wanted to follow up on our meeting that we had regarding that opportunity for a promotion, I just want to clarify that you don’t think it's a good idea for me or people like me to apply for that position?”
Q#14: What are some steps employers could take to create more accessible work environments, remove barriers and avoid these types of conflicts?
A: Employers should also know their obligations and rights as much as disabled employees do. They should also know that they have an obligation to consider reasonable accommodations. Really considering the reasonable accommodation means looking into if they could make it work, if it is possible for their company, and if there would actually be benefits to accommodating.
Q#15: So besides engaging in that communication between employee and employer , are there other ways you see conflicts resolved without legal action? Or are there any specific types of communication strategies, either on the employers end or on the employees, that are effective?
A: Diversity workplace trainings covering how to be an inclusive work environment should really be mandatory for companies at this point. The training should include not only supervisors and managers, but the whole company or business, including people with disabilities.
Q#16: In lieu of the times we’re in, in what ways, for good or for bad, have you seen COVID affect accessibility in the workplace?
A: Right now there are a lot of unanswered questions of law and cases regarding COVID-19 are just now hitting the courts. I'm sure this really affects your population of chronically ill individuals, because they may be at higher risk. So there’s been a shift of issues. Now it seems there's a big push in a lot of sectors to return to work. Before, people were being furloughed and sent home.. Now employers are demanding that their employees return to the workplace. And so we're getting a lot of concerns about returning to work from people with chronic respiratory conditions, cancer, diabetes, and different disabilities that make people higher risk for COVID-19. People have questions about whether they can continue telecommuting as an accommodation, or what to do if their employer isn't allowing telecommuting anymore.
Q#17: Is the precedent that was set at the beginning of COVID-19 for accommodating all employees by allowing telecommuting and such going to be helpful in accommodating disabled people moving forward?
A: It just depends on the job. If you are an employee and you have been working from home successfully for the past several months because of COVID-19, and now your employer wants you to go back to work, you're going to have to show your employer that you did all the essential functions of your job from home. And then you can ask your employer why you have to go back now, to which they may come up with some new reason. If you're asking for an accommodation to continue working from home, you'll have to show how you can do all the essential functions of your job and that perhaps there aren't other accommodations that would work. If the employer is requiring the employee to return to work in the office but they can show they've taken measures to make the workplace safe, such as providing or requiring N 95 masks for their employees, socially distancing their offices, providing sanitizing stations, then it'll be a harder case to prove that this person should still work from home. Additionally it’s a harder case to prove a person should work from home if they say they can’t work in the office because theyre a high risk but they are also going out on Friday nights to restaurants, or going to the grocery store etc.
Right now we're getting a lot of cases from teachers who are being required to teach in the school building even though the kids are not back and a large majority of students are still taking online classes.
In conclusion, we hope this interview provides helpful tools for both job seekers and employers to improve accessibility and inclusivity and to use the COVID-19 experience as an example of all that is possible with remote, flexible and accessible work!
Disclaimer: The content in this article is for informational purposes only and is not legal advice. Please seek legal counsel for any legal questions or concerns.
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