What is the employer’s role in the interactive process when an employee may not be able to fully understand everything that is involved in the process? Just what is involved? And what is meant by a cognitive impairment?
Let us start out by describing what cognition is. Cognition is the act of knowing and/or thinking. It includes the ability to understand, remember, and use information. It also includes the ability to pay attention and concentrate, process and understand information, remember, communicate, plan and organize, reason, problem solve, and make decisions and judgments. Many different medical conditions and disabilities can cause cognitive impairments and they will vary greatly from person to person. Disabilities that might cause or contribute to cognitive impairments include, but are not limited to, intellectual and learning disabilities, autism spectrum disorders, attention-deficit/hyperactivity disorder, sleep disorders, brain injuries, stroke, epilepsy, mental health impairments, multiple sclerosis, and cerebral palsy. The side effects of medication taken for disabilities and medical conditions may contribute to the difficulty individuals may have in their cognitive functioning as well.
So now, let us consider the accommodation process and how that might look when working with an employee who has cognitive impairment.
Step 1: The accommodation request
The first step of the process requires the employer to recognize an employee’s request. What if the employee with cognitive impairments isn’t able to understand the ADA and make a request? The employee may not know about the ADA, or how it applies to him. He may not understand the official language that is often used, words and terms such as accommodations, medical documentation, limitations, and essential functions, and how these terms apply to him and his job. He may not know that he isn’t fully completing his job tasks because he may have a limited ability to understand the entire scope of the job. He may understand that he is having a problem, but he may not know what to do about it.
Generally speaking, it is up to the employee to disclose the disability and ask for accommodations when he feels there may be performance or conduct issues that are tied to the disability. See how the Equal Employment Opportunity Commission (EEOC) addresses the issue in its guidance The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities:
- Ideally, employees will request reasonable accommodation before performance or conduct problems arise, or at least before they become too serious. Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance or by misconduct.
We often advise employers to bring up performance and conduct issues, but in no way imply or ask if a disability is involved. We also advise them to ask the employee if he/she needs assistance to meet the performance or conduct standard, but to be careful not to use the word accommodation. Employers want to be careful not to assume or imply that the employee has a disability, but rather bring the performance or conduct issues to the employee’s attention and give the employee the opportunity to disclose a disability at that time. We also advise that if the employee doesn’t disclose a disability and link it to the performance or conduct issues, then the employer can agree to offer assistance, but can certainly move ahead in the disciplinary process. When a disability is involved and the employee links it to the inability to reach performance or conduct standards, the employer never has to excuse the issues that have occurred in the past, but would certainly want to be cautious in moving ahead. For more from the EEOC:
- It is generally preferable that the employee initiate any discussion on the role of the disability. Ideally, employers should discuss problems before they become too serious in order to give the employee an opportunity as soon as possible to address the employer’s concerns. An employee who is on notice about a performance or conduct problem and who believes the disability is contributing to the problem should evaluate whether a reasonable accommodation would be helpful. An employee should not assume that an employer knows about a disability based on certain behaviors or symptoms. Nor should an employee expect an employer to raise the issue of the possible need for reasonable accommodation, even when a disability is known or obvious.
So this last statement made in reference to employees expecting an employer to raise the issue of the possible need for reasonable accommodation, even when a disability is known or obvious, cannot be taken as a blanket statement. An employee, particularly one with a cognitive impairment, who has been notified about a performance or conduct problem, may or may not be able to realize or determine that the disability is contributing to the problem, nor be able to evaluate whether a reasonable accommodation would be helpful.
In a different EEOC guidance entitled Questions & Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act (ADA), see how the same situation takes on a different solution:
- Are there circumstances when an employer must ask whether a reasonable accommodation is needed when a person with an intellectual disability has not requested one?Yes. An employer has a legal obligation to initiate a discussion about the need for a reasonable accommodation and to provide an accommodation if one is available, if the employer: (1) knows that the employee has a disability; (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability; and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
Also, federal contractors have a greater duty to ask if an employee needs an accommodation under Section 503 of the Rehabilitation Act. The following is from section 503 regulations:
- As a matter of affirmative action, if an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability. If the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.
To get a better picture of what this might look like on the job, see the following examples:
Derek, an employee with Down syndrome, was not performing the full scope of his position. He was a mail clerk who had difficulty remembering to go for his second mail collection run when he was involved in other tasks. As he went on his mail runs every morning, he was stopping to have coffee and chitchat with the various departments, and taking so much time that his morning runs ran into his afternoon runs. This wasn’t an issue for Derek, as he didn’t seem to realize the full extent of the tasks he was leaving undone.
Derek’s manager went with him on his runs one day to see what the issues might be, and that is when it was discovered how much time Derek was spending socializing. The manager immediately remedied the situation and offered assistance in the form of accommodations, because he felt that not only was Derek unable to grasp the totality of his position, he was also unable to determine what he needed to perform his full job. Derek was provided with a watch that vibrated to alert him when it was time to start both of his mail runs. Derek also used the watch to help him gauge if he was working quickly enough. The manager determined where in the run he should be at the halfway mark and had a timer set for that interval for both runs. This helped Derek speed up if he hadn’t yet reached the indicated department.
Millie was a fast food employee who worked very diligently sweeping and cleaning tables, but was often unsure of what she needed to do at times, so she frequently stood around doing nothing. Her crew manager realized what was happening and asked Millie if a schedule of tasks she needed to do would be helpful as a reminder, and Millie was all for it. Her manager prioritized the list in picture form so Millie was able to see what needed to be done next. This accommodation kept Millie busily completing her tasks and her manager happy with her performance.
Step 2: Medical documentation
When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which he/she needs a reasonable accommodation. If an employee with a cognitive impairment needs help in obtaining the medical documentation, the employer has several options in which to help.
In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation.
As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information. Clarity in the request for medical documentation should also include using basic terms to help the employee understand. Terms such as functional limitations, essential functions, major life activities, and even accommodation may be foreign to the employee and need some explanation.
The employee could be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional or to speak to them on the phone as a way to relieve the employee from having to go through the steps to obtain the needed documentation. Is there other documentation that could be accepted as sufficient? Has the employee been a client of vocational rehabilitation? Does the employee still have an Individualized Education Plan (IEP) from school that would suffice? Is there a parent, guardian, or support person that the employer could contact for assistance?
Loretta is an employee with depression and anxiety who had great difficulty understanding what information the employer was trying to obtain from the ADA paperwork, a required step in the accommodation process. The questions on the forms for the employee and her doctor did not contain user-friendly terms, and because of her mental state, Loretta found them impossible to navigate. When a consultant at the Job Accommodation Network (JAN) explained what the forms were asking for and was able to put the wording into terms Loretta was able to understand, she was relieved and said she would get them on to her medical provider to continue the process. Since no special wording is required when asking for medical documentation as a result of an accommodation request under the ADA, wouldn’t it make far more sense for the forms to be simpler and easier for all to understand? The ADA does not dictate wording on forms – the employer does.
Step 3: Explore accommodation options
The employer has a multitude of resources to help find accommodation ideas for the particular employee in the specific job currently held. First and foremost would be to ask the employee what he might need to be more successful. Many individuals have ideas for effective accommodations based on what may have worked in the past for them. Did they have successful accommodations in school that would transfer over to the workplace easily and effectively? If they have the IEP mentioned in Step 2, it will contain not only present levels of performance that will help the employer understand the employee’s skills and abilities, but also where he/she encounters difficulty. The IEP will contain the modifications used in the classroom that could also help the employee to be successful on the job. Has the employee ever been a client of vocational rehabilitation? If so, the counselor could be an important resource for accommodation ideas.
Securing a job coach or a mentor-like coworker who knows the employee’s job well can be further sources of accommodation ideas. By shadowing the employee, the coworker or job coach may be able to see clearly what the employee is doing well, what is causing difficulty, and what accommodations may be needed. A parent, guardian, or support person may be a wealth of knowledge about the employee’s on-the-job needs. And last, but certainly not least, JAN is a valued, free consultation service that can help employers determine appropriate and effective accommodations.
An example of utilizing a mentor happened with Toby, a country club employee who was having difficulty with motivation in the mornings, and was unable to initiate the tasks he was responsible to complete. Extended training on how to do the tasks, along with a task list in writing and picture form, were proving to be unsuccessful motivators. When asked what he thought would help, Toby was unable to verbalize what he needed. The employer noticed that a friendship had developed between Toby and a pro shop employee. The pro shop employee described the relationship as a grandfatherly one. He began to mentor Toby by doing periodic “checks” on him during the mornings. The response was very positive, and Toby worked successfully, seemingly eager to please his new friend.
Step 4: Choose the accommodation
The employer can choose any accommodation from among those that are effective, but would want to consider giving priority to the employee’s preference, especially if it were something that had worked well in the past. Maybe a modification from school or a previous job was effective and may just be the answer now. And remember, accommodations can always be provided on a temporary or trial basis to give the approved or recommended accommodation the chance to be successful. If the accommodation is not successful, the employer is not caught up in providing an ineffective accommodation for the long-term. One employer I recently spoke to stated twice in the consultation, “I can’t think of a single reason not to at least try it!” Wise words.
Jimbo was a product demonstrator in a local grocery store. His tasks included setting up his cart for the demonstrations he was to do each day. He had a list of things he needed to place on his cart that varied, depending on the demonstration. Sometimes it was as simple as retrieving a knife, paper cups, and napkins, along with the product. For instance, he frequently cut energy bars into bite-sized pieces and placed them in the cups for customers to sample. Jimbo had 15 minutes after clocking in to get his cart set up and onto the floor, but struggled to get what he needed from the shelves.
Accommodation ideas included allowing him extra time by clocking in early, labeling the shelves where the items were stored and training him on where everything he normally needed was located, highlighting his instruction sheet to allow him easier recognition of what he needed, and allowing a coworker to help him set up his cart. The employer determined from what they had seen so far that it would be best to try to consistently limit the demonstrations Jimbo did to the simplest ones; those requiring fewer steps and items. They also decided to highlight on his list the items he needed from the shelves, and to label the shelves with both words and pictures.
Step 5: Implement
Once the employer has determined the accommodations needed, it is time to implement the accommodation. This step is very important to the success of an accommodation, especially for employees with cognitive impairments. If equipment is involved, then it needs to be properly installed and the employee needs to be thoroughly trained in its proper use. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Someone may need to shadow the employee to make sure the accommodation is working. This may be a good time for a job coach or a workplace mentor to assist the employee in the initiation period when the accommodations are new.
Rose was an office worker at an elementary school who was responsible for receiving copy orders and providing the completed copies to teachers within two days. She was unable to complete the copy orders on time using the electronic organizer her employer provided as an accommodation. In addition, she found it difficult to read the teachers’ writing on notes just jotted down on scraps of paper or sticky notes.
When the school secretary saw what was happening, she stepped in and brought the principal up to date on the situation. With input from Rose, the secretary provided a typed form that required the teachers to supply a uniform amount/type of information. She also set up daily-labeled baskets that the teachers placed their orders and materials in. The baskets allowed Rose to see which orders needed to be done first, allowing the copy orders to be completed in the two-day timeframe.
Step 6: Monitor
Monitoring an accommodation is a very important step in the interactive process, particularly for an employee with a cognitive impairment who may not be able to judge for its effectiveness himself. With the changes that can occur in the workplace due to the job, equipment, or the disability itself, regular monitoring of accommodations is essential. Open communication with the employee is by far the best way to accomplish this. Check in with him frequently. Help the employee understand his need to let someone know if or when something changes with the job or the accommodations, positive or negative. If change is expected or something goes amiss, bringing the job coach back or engaging the mentor may be a necessary step. Monitoring the accommodation may go hand-in-hand with the monitoring that already occurs when evaluating the employee’s performance.
Lee was a new employee who had passed the probationary period with flying colors, but was now experiencing the gradual withdrawal of the job coach who had been instrumental in his success. Through monitoring Lee’s performance, his supervisor was seeing a few issues resurface. The employer recruited a coworker who had formed a positive relationship with Lee to function as a natural support or mentor to him, providing the same type of support once the job coach was gone.
As you can see from these examples, an employer may need to help the interactive process along when attending to employees with cognitive impairments who need accommodation, in order for them to successfully perform the essential functions of their positions and meet performance and conduct standards, but are unable to realize the need. Even though there appears to be a dichotomy in guidance regarding whether to rely on an employee himself to ask for accommodations or if the employer has the responsibility to ask, maybe the best way to look at it is in a more practical sense of job improvement that will be a win-win for everyone. If the goal of job counseling is to improve the conduct or performance of the employee, then it behooves the employer to realize that any step taken toward helping an employee with a cognitive impairment is a step taken toward the improvement that will benefit not only the employee, but also other employees and the employer in general. That should make it a much easier decision and a more productive process.