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Now let's get back to the podcast.
Welcome to the bringing the human Back To Human Resources
podcast. I'm Tracy turn off.
And I've spent my entire professional career in h.r.,
each week, we'll explore the delicate balance between people
and business with the aim to reconnect the two and create
meaningful outcomes. Listen in.
As I share my own experiences challenge, the status quo and
chat with guests from various Industries about our mission, to
bring the human Back To Human Resources, welcome back to the
podcast. Everyone, thank you so much for
being here for another week. I'm really glad that we have had
so many amazing guests episodes and that I now can join as
myself by myself, on this episode, to talk to you about
the Ada and accommodations and leaves and things like that.
Because one of the more recent episodes that I shared with you,
I think it was episode 114. So about a month ago, came out
that was with Alex Gilbert and we talked about ADHD, dyslexia
and specifically that she was diagnosed with these things with
these learning disabilities and, you know, basically what that
meant for her being in the workforce and what she's had to
navigate and how companies can be more supportive.
Or t''v. What does Ada mean, what does
EEOC mean? I think I've clarified these a
few times but in case you're new here I'm going to do so.
Again the Ada is the Americans with Disabilities Act and the
EEOC is the equal employment opportunity commission believe
it's commission that one I'm not reading and basically the EEOC
in the Ada kind of work, hand-in-hand.
The Ada is what tells us and specifies who is part of a
protected class which, you know, of course, we always hear race
gender. Creed nationalities sexual
orientation, Etc. Right, we always hear those
things but we don't always talk about disability.
And we don't necessarily always talk about like even military
status, right? So those things are and those
qualifications or qualifiers are do fall under the Ada.
The EEOC basically says that to be an equal opportunity.
Employer, we have to be able to provide reasonable
accommodations for those protected class.
Is of course, we have to provide equal opportunity as well, but
specifically to the Ada process and the accommodation process
there. When we say accommodations, they
have to be reasonable accommodations and businesses
can make decisions to deny accommodation requests if they
cause undue hardship on the business.
So I know I've kind of shared a lot, top level there.
I'm going to break this down when it comes to someone saying
Saying hey HR person business leader, I need an accommodation,
it's our responsibility to ask numerous questions, right?
And to understand what they're asking for, what the request is.
If there's any understanding as to what is requiring or causing
the accommodation request, but I want to preface by saying that
at no point. Can we or should we be asking?
What were you diagnosed with? Do you need an accommodation?
We have to be much more mindful than asking questions like that
because it could violate someone's privacy rights.
It could violate laws. So you have to be really really
careful and considerate of what a person's right to their
privacy looks like so at no point should you ask someone
what their again with their diagnosis or if it if we are
talking about a disability for example, or if they even need a
medical procedure, like if someone is providing a Has note.
It shouldn't even say what they are experiencing or what they're
dealing with. It should just say information
or share provide information about how long they need to be
out if there are any accommodations required or
requested. So just keep that in mind.
Now if an employee comes to you and says that they need an
accommodation, your first question is to ask what the
accommodation is that. They are requesting and you have
to engage in. What's called an Active process
and I'll make sure that there are tons and tons of links in
the show notes for you, so that you can access these later.
But basically, the interactive process is a process where
you're asking, kind of a series of questions you go through a
checklist most companies kind of Drive their own but there are
some available resources online and templates and things like
that. Sometimes they have pay barriers
but your company might have one already.
And if not try and check out some of those resources in the
show notes to, you know, do your due diligence to ensure that you
are proceeding with an interactive process and the way
that should be done. So at a high level, the
interactive process again, is a series of questions.
It's ensuring that there is a doctor's note provided in the
event. That there is a medical
necessity here. In most cases, accommodations do
come from a medical need Right. Like when we think about
pregnancy, if we think about ADHD or dyslexia there could be
accommodations for that. If someone is going through a
surgery or they broke their ankle.
Right. Like there are so many examples
of where medical issues come with a need for accommodation.
I'm trying to think if there's ever a moment where someone
needs accommodation outside of a medical need and There's nothing
coming to my mind right now actually, if someone is on a
military leave or they're called to active duty, for example,
that could be where there's, you know, you go from like an
accommodation instead to a leave of absence, right?
So this is where like accommodations and leaves kind
of go hand-in-hand, not everything is going to require
an accommodation, not everything is going to require a leave but
it's going to be through your not only your discretion but
also your your questions asked through the Process that will
enable you to understand what, you know next steps look like
for this employee and for the business.
So let's just take a simple example of if someone is
pregnant, and they are now put on light duty because of you
know, because they're pregnant or whatever.
Right. The doctor is not going to tell
you the medical provider is not going to tell you that.
The employee might not even tell you specifically, why they need
this accommodation again. We should not be asking.
So in the event that an employee says, hey I'm pregnant.
I'm on light duty. I need to sit every 15 minutes
or I need to sit every 30 minutes and I have to take two
lunch breaks, let's just say, right?
That's when again, you're going to engage in the interactive
process and you're going to understand specifically what the
accommodation requests are. So again, sitting, maybe it's
potentially a reduction in what they can lift.
Getting more meals, whatever. That is right.
Then you have to understand if there is supported supporting
documentation. So, this is where a doctor's
note comes in. One of the misconceptions I
would say about accommodations though is that this that only
doctors can provide medical notes, which is not necessarily
the case, what the Ada tells us. And I believe what the EEOC
tells us is that doctors notes or I should say Medical
provider, notes, healthcare, provider notes can be from
nurses, Nurse Practitioners therapists psychologists, right?
Like depending on the situation, I think it specifically says
that the that businesses can ask for a medical note from an
individual or from a healthcare provider that X, that is an
expert in or specializes in the situation at hand now.
Easily, that could get a little gray because we're not asking
specifically what the situation is.
But if you as a, as a business are trying to ensure that, the
medical note is sufficient, you could say, hey does this come
from someone who specializes in what you are seeking, you know
medical attention for you don't have to provide me any
information about what you're looking for, but I just want to
make sure that this note is coming from someone that knows
you and is seeing you because I think that's Also, in the
language that I actually have it right here, that essentially
Health Care Professionals who do have an understanding of the
person's background and potential impairment or
functional limitations either with direct knowledge within
those within the employees specific impairment or
limitations or who has expertise in the medical condition.
That is where the medical no. Will suffice coming from
potentially anyone, right? So, as an example, if this
employee gives you a note from a pharmacist, you add because it
says CVS, Pharmacy or something. At the top.
You could say, hey, I'm happy to continue to engage in the
interactive process to ensure that we accommodate you.
However we can but I will need an updated Note coming from
someone who's either treating you or who has expertise in your
specific medical condition. Again I'm not asking what that.
Is I would tread lightly. I don't know that I've ever had
to push back on a note that I've received and you should also
know that you can't call the healthcare provider and ask them
questions. You know, just stay away from
that territory. Just, this is a moment where
we're trusting what the employees providing us, right,
so again with this example, let's say the employee is
pregnant and they are sharing, you know that they have
accommodation request. You're going through the
interactive process. You have a note from them and it
certifies that they have this light duty restriction.
They can't lift more than five pounds.
They have to sit every 15 or 30 minutes and they have to take an
extra lunch in the event that their job can.
Absolutely not accommodate this. Let's say they are, I don't know
work in the municipality and they are, you know, they pick up
recycling cans. Azure the garbage from each home
or residents in the town, right? That could potentially be or
cause undue hardship on the organization because there's no
reasonable way to accommodate the restrictions.
That the medical or healthcare provider is saying this person,
is restricted with in the event that you work in retail for
example and this is totally reasonable and maybe A little
bit of a causes a little bit of difficulty, because of the
sitting, maybe they're like a salesperson, and it's hard for
them to sit. This is where you would have to
figure out what is a reasonable accommodation to ensure that we
can meet these requests where possible, right?
And in my experience, what we did was we would move someone to
be a cashier or guest service representative because sitting
in those sections of the business or in those areas of
the business was much easier. And much more, much more simple
to accommodate than if someone worked in logistics and
unloaded, you know, a truck with shipment, for example.
So, I'm trying to give like context here so we can think in
real life, what, that's what this looks like.
But in essence, like when you are thinking through reasonable
accommodations, you do have to make every effort to make it
work again without causing undue hardship on the business in
Cases. There will be employees, who are
reasonably accommodated, right? So let's say this employee is
moved from a salesperson to cashier and that's a reasonable,
accommodation for them. But then they go and they get
more restrictions from their healthcare provider.
There might not be a way to accommodate them.
So that's when that accommodation potentially moves
into a leave of absence. And again, it's through the art
of questions and the Art of questioning that will Allow you
to understand when this kind of moves into that Arena if this
employee says, hey my my doctor said I'm still not taking it
easy enough and now I can't be on my feet at all.
I'm on bed rest and you know, I want to work.
I don't know what I can do in in the event that the business does
not enable remote work or even a fully seated, you know.
Transfer this employee, then you might have to, you might have to
ask that, like, is there any flexibility in the accommodation
request? Which again, I mean if there's a
doctor's note saying or a medical note saying, the
opposite that they are fully on bedrest, there's likely going to
be some sort of information about when when they can return
to work. Like, in most situations, like
that people are probably and most often given a note to be
relieved of their there. Immediate job functions and to
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So you might not have to figure that out, it probably will be
spelled out for you again in most situations where, you know,
this is a medical necessity. So, in that case, you know what?
Especially when dealing with pregnancy or any type of
Parental leave, like, you do have to think about how this
impacts their FMLA, if they are eligible and how that impacts
all of their leaves. And and what that looks like for
the duration of their experience being out for their medical
condition, when it comes to pregnancy, I think most people
are probably, you know, pretty much forward-facing about this
because you at some point can't hide.
Hide it. And so people tend to be pretty
open. But, in other cases where you're
dealing with a medical condition, where someone's
placed out, you could be left in the dark, right?
Again, you're not going to ask what someone is dealing with,
but let's say that they're dealing with anxiety or
depression and their or stress-related, you know,
situations and their doctor or their health care.
Provider removes them from work for a period of time.
At as a as an organization. You might have leave of absence
Opera. Guns for people outside of
medical conditions, where maybe you have an unpaid personal
leave or a personal leave in general where PTO can be
applied. But in most cases again, when
it's a medical condition, if someone is eligible for FMLA,
then they can be eligible for that time whether it's
intermittent or concurrent. And so when I say intermittent
that means you know you could take like three days here, five
days there, it's not all within 12 weeks back to back and I
realized that this This is super us focused.
But I do think that across the board from what I know in
Canada. From what I know in India, there
are very similar approaches to these situations and I think
it's always good to have a best practice in mind that when
someone needs accommodation, that we're asking those
questions that were certifying through a medical note, from a
healthcare provider and that we're ensuring that we're doing
our due diligence to provide a reasonable accommodation.
So let's take a situation like ADHD or dyslexia, and as Alex
said, you don't. And as I've said, already a
million times on this episode, you don't have to disclose what
you have or what you're experiencing, but you can
certainly ask for support, right?
So if someone comes to you saying that they require closed
captioning on meetings, because of lack of hearing, because of
Dyslexia, because of, you know, Saying maybe it is ADHD, right?
Like something that they are experiencing again, they might
not share this with you. You then have to be able to
discern. Is this an accommodation request
or is this something culturally as an organization that we can
just turn on for everyone, right?
So, in the event that it's not something organizationally or
culturally that we're going to turn on for everyone and this,
you know, transcription or closed captioning is only
enabled. For one person you do have to
use this as a almost like a lightbulb moment.
Let me go through the interactive process to make sure
that I'm doing my due diligence, to ensure that I'm, you know,
understanding of the full request.
Now, if someone is like, I don't want to make it a big deal, it's
not a big deal. I just, you know, I learn
differently. I think differently.
Like, they might say something along those lines, then you can
take it upon yourself, to kind of ease their mind.
That this is not something that's going to negatively
impact them. And that, you know, as an
employer equal employment opportunity is Paramount and
that we are have to ensure that we are providing reasonable
accommodations. If something like this, comes up
and you can also ensure and reiterate that, that person
understands that at no point, do you need to understand any
condition that they might have. But you just need to understand
what their requests might be in some of these circumstances.
You Might not even ask for a medical note.
Of course it's a best practice to do so if there is some
considerable medical condition like any of these that we've
talked about, but sometimes employers will use discretion
and say, okay, you know what this is, this is not something
that we wouldn't do for others. Lets, you know, let's just full
steam ahead, provide this for everyone or provide this for
this person. If someone else asks, we can
provide it for them as well. Now when we think about that,
providing for others. And we think about, you know,
setting precedents, I do want to be clear that people have
different experiences, people have different opportunities,
different challenges, different medical needs just because you
provide one accommodation, for one person with one medical
condition. Doesn't mean you're going to
provide the same accommodations for another person with the same
medical condition. Their request could be two,
totally different request, the point in A precedent is making
sure that if someone presents the same thing as another person
that they are, then treated equally the, the president is
set, right? So, those who have the same
medical condition in the same request as another person with a
medical condition in the same request that they have the same
access to those accommodations that you've already set.
It's not to say that everyone's going to be completely the same
or that every accommodation is going to be completely the same.
But rather that if you accommodate one person by
sitting every 15 minutes, giving them to lunches and taking them
off of, you know, off of their feet or off of the sales floor
and putting them as a cashier that if someone else with the
same presenting requests can have access to that
accommodation as well. So I hope that that is clear and
that that made sense because I realize I'm kind of like going
through a few of these examples at one time but this is the
reality of age. Are like things could be
happening at all at once and million, things could be
happening all at once and they could all be urgent and
important and we have to figure out what precedent has been set.
How is this different if if at all from a prior situation or
the precedent that was already set?
And if this is something new, what precedent are, we willing
to set in the event, that something else occurs.
So I want to give another example here if someone requests
to go out for a I'll leave because their child is getting
married and they want to take five weeks off because they're
getting married in about another country.
That is not a job protected, leave?
Right in a personal leave and unpaid personal leave, and
unpaid leave. Sometimes, you know if it's if
it's not attributed to a job protected, leave those are
totally at the employees risk and a and, you know, there it's
their prerogative, right? So, if someone is requesting
this five-week, Leave and you approve it someone else, whether
it's two months, five years year, later, if they present the
same request and they say, I want to take five weeks off or
even four weeks off for my child's wedding or for, you
know, to travel to another country.
For a family member, who needs me, you have to be able to
reasonably, like, mitigate any risk there to ensure that people
Are being treated equitably and that there is equal opportunity
to these accommodations. Now, I know some of you might be
thinking, well there it's not a job protected leave.
We don't have to accommodate them at all.
And you're right if a company says, we're not making any
exceptions to. This were not allowing personal
leaves for any, you know, travel-related anything.
Like, it has to be a job protected.
Leave, or it has to be PTO, you totally can do that.
There are companies out there that don't choose to do that.
Allow personal leaves, but have some policies around it.
That's a, you know, no more than four weeks or no more than three
weeks and you have to use your PTO to on top of that, which
then actually would be job protected because they're being
paid for that time. But you know, and that's that is
totally and ultimately up to the company's discretion.
But I do, you know, want to be clear that when it comes to
accommodations even though that is not necessarily an
accommodation that it does. Does result in setting a
precedent. So whether it's an accommodation
for someone who has a learning disability or a physical
disability, doesn't it you know those the the access to
accommodation and reasonable accommodation is the right of
that employee and Our obligation as Leaders to ensure that they
have access to those things just as much as someone who is asking
to be placed on a nun job protection on job protected,
leave We can either choose to accommodate and, you know,
enable this leave for them or time off for them, or we can
choose not to accommodate. But again, there isn't that same
requirement to accommodate because it's not necessarily a
medical condition, right? So hopefully you can see the
differences there. The other thing that I want to
point out is that sometimes people are not necessarily going
to come to you with a request for, An accommodation.
They might even go to their leaders and say, oh, I need to
like take an extra hour in the day to do X Y, or Z.
Because, you know, I have to sit down like, my feet are starting
to swell up, right? Whatever that might be, or my I
get headaches after looking at the computer for two hours
straight. So I need to take breaks in, in
our world that might trigger immediately for us to start
having a conversation about, you know, what is beyond this and
There needs to be an interactive discussion, but it's also our
responsibility to ensure that all Business Leaders are clear
on like what should trigger a light bulb moment in their minds
to partner with HR. So I would encourage all of you
at some point if you are responsible for training or if
you are a you know working with other leaders within the
organization directly that there is some sort of created
awareness around this, in my experience, most of the time
there isn't a whole lot of Awareness, unless there is that
training from The Business Leaders, from other Business
Leaders outside of HR because it's, it's not their specialty,
right? So a leader might say, oh, yeah,
you know, they've been they've been taking breaks every two
hours because of their headaches, it's no problem.
But for you, as an HR leader, your light bulb is going off.
You're like well actually that's not it's probably not a problem
but we have a process that we have to go to in the future.
Make sure you partner with me if at Point someone's job is being
altered or limited or the work that they can do it has
limitations because that triggers a potential need to go
through an interactive process for accommodations and that is
like most of the time. I feel like the training happens
on the job when something comes up and there's a learning
moment. So just keep that in mind that
not everyone is going to know these things and so we have to
again do our due diligence to level set expectations.
Nations and ensure that all leaders especially people
leaders are familiar with or where of processes like this so
that they can at least immediately partner with you.
I always kind of say that, you know, if at any point someone's
job changes or like what they can do within their job changes.
If they ever expressed that they need to work differently or
have, you know, I don't want to use the word accommodations but
have some sort of accommodation made by you with The team that
they have to immediately partner with HR because not only is this
an obligation for us to that employee.
But also we want to make sure that the that you as leader are
not setting a precedent that we can't maintain and that is kind
of where you also start to build better relationships, right?
If you are clued into and have a pulse on what's going on, within
the organization and you're available to these leaders for
supportive moments like this, This I find that those are
hugely impactful on building relationships as well.
So hopefully now that you've heard hopefully that you've
listened to episode 114 with Alex and we're thinking about
actively how we can ensure that we are providing a safe and
accommodating work for some or I should say workplace for people
with learning disabilities, physical disabilities, mental
disabilities, whatever right, emotional disabilities.
And, you know, Etc, I should say that you now are equipped or
better equipped hopefully with the tools that you need to
ensure that you are providing reasonable accommodation and
that you do feel confident. If for whatever reason, the
accommodation would cause undue hardship on the business that
you are confident in what that looks like as well.
And I just want to close with saying that, if you do not have
someone, that is a legal Entity and Eternity in an attorney or
someone that can support you in these decisions based on their
experience, or their skill set, or their expertise that you, I
strongly encourage that you take partner before you make any of
these decisions. So whether it's an attorney, or
a more experienced HR leader, you should make sure that you
are clear on your your obligations and what you are
providing. It's not to say that every time
you approve an accommodation Going to talk to your attorney,
you shouldn't be doing that. It's very expensive, don't do
that. But if you are about to deny an
accommodation request, or if you are concerned about an
accommodation request, I would strongly encourage that.
You take an attorney as partner. And then anything in between
taking another HR experienced, HR leader as a partner as
helpful as well. Inclusive of those moments where
you might be reaching out to an attorney as well.
So with that, I think that concludes all of the HR stuff
that people usually find boring. And so I hope I was able to
provide some energy to this subject because I do think it's
really important that were clear on again on our obligations and
on what the employees rights are.
So and these are at the end of the day, you're an employee to.
So you should know your rights also.
But thank you all so much for being here for another week.
You know what to do, I'm going to see you next.
Week. I don't think there's a guest
episode next week, but regardless, I'll see you there,
please, you know, if you have any additional questions on
this, please feel free to contact me via email at contact.
HR Tracy.com or through my DMs on Instagram or on LinkedIn and
I'll see you next week. Take care.
Hey just before you go don't forget to subscribe to the show
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