This week our family buried an intellectually brilliant, fiercely determined, infallibly kind individual who lived a far longer, fuller life than any doctor might have predicted. Diagnosed with a progressive, increasingly degenerative medical condition decades ago, this individual consistently focused on leveraging equipment and technology, and the support of family, kind aides, and friends to lead an “ordinary” life. When manual dexterity in his fingers was no longer sufficient for him to type, he taught himself Morse code to tap on a computer, and when that dexterity failed, he mastered the ability to control a computer by breathing through a straw-like device, and when lung capacity became insufficient for that, he mastered the ability to continue using that computer by moving his eyeballs. And with that computer, he held a job in corporate America as a respected and valued employee for decades. He managed all of his family’s finances through to the last day of his life. He composed lengthy emails to family, friends and others, sharing the wealth of questions and ideas he was considering. The lengths he went to remain an active part of family and community long after his body was failing him are to me a demonstration of heroism.

At his funeral, his son shared that the number one lesson he learned from his father, which echoes the advice that I have similarly provided to my own children over the years, was to never allow disabilities to define him. Not every individual with a disability adheres to that philosophy, but in my experience, many do to a greater or lesser degree. In the workplace, the Americans with Disabilities Act (“ADA”) imposes an expectation that employers work with individuals to identify where, and how, flexibility and supports can enable employees with disabilities to perform the basic requirements (“essential functions”) of their jobs.

Engage in a Cooperative Dialogue

New York City calls the accommodation discussion a “cooperative dialogue” process, and that is indeed how we should think of it, as an opportunity to work with the employee submitting an accommodation request and figure out what is possible and workable for the business and the employee. Yes, the accommodation needs to be reasonable; no, it cannot impose an “undue hardship;” and no, an employer need not fundamentally alter the job to make it work for the individual. Those are the general parameters of the law.

Sometimes, though, from an employee relations perspective or simply to fill otherwise unmet business needs, an employer may go beyond what the law requires. Looking well outside the United States, I am reflecting on a conversation that I had recently about an initiative within the Israel Defense Forces to integrate individuals with physical and mental disabilities into the military.  While historically the IDF had exempted individuals with disabilities from compulsory military service, the Special in Uniform program finds ways to leverage their skills, particularly supporting necessary work in logistics centers. The disability diagnosis does not automatically define the role, skills or attributes of the individual.

Ask the Right Questions

An employer should not ask an employee for the employee’s medical diagnosis.  Rather, questions should focus on the nature and scope of the employee’s limitations and how the employee proposes they be accommodated.

It is helpful if the employer has an ADA-focused job description that specifically identifies the essential functions – the physical and mental tasks required – to perform the job.  These include things like standing or movement, lifting, manual dexterity, computer usage, the number of computer screens or phone lines to be monitored, the need to supervise other individuals or to be present in the workplace for other reasons, and similar factors.  Working from this ADA-focused job description, an employer can more effectively frame the discussion on what functions the job requires and where a particular employee may need supports or adjustments to perform one or more of those functions.

Questions for the employer to consider include:

• For which essential functions are you requesting an accommodation?
• What type of accommodation has your healthcare provider recommended?
• How will that accommodation enable you to perform that essential function?

When evaluating the employee’s responses, the employer can leverage government resources.  These include Reasonable Accommodation guides that the Equal Employment Opportunity Commission has developed, which offer options for employers to provide accommodations in a range of situations. They also include the Job Accommodation Network (“JAN”) which will assist employers, free of charge, in identifying appropriate accommodations for a requesting employee.

It’s All a Process

There usually is more than one way in which an employer can address a request for accommodation.  Studies have shown that often the accommodation involves little or no cost.  Sometimes, depending on the size and nature of the employer, tax credits or vocational rehabilitation funding may be available to offset the cost.

The first step, though, is to move beyond the fact that an individual has a disability, approach an accommodation request with an open mind, and explore possible options.  Following that process can enable an employer access to tremendously talented individuals who might otherwise have been overlooked for certain types of work.  For me, the legacy of our departed family member is a lesson in the incredible talent that can be tapped through a combination of technology, individual determination, and a collaborative approach.

By Tracey I. Levy