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Understanding the Americans with Disabilities Act

By Sarah M. Ryzewski, Esq.

Sarah M. Ryzewski

A request for time off comes across your desk from an employee. The employee is requesting additional time off to accommodate a disability she has. The additional time requested is needed to be able to attend all of her appointments, necessary for her to complete her treatment.

How an employer goes about identifying an accommodation request, and either approving or denying the request, is important in staying compliant with the Americans with Disabilities Act (ADA) and other federal and state laws. Satisfying the obligations required by employers under such laws is necessary to prevent unlawful actions and prevent disability discrimination.

Under the ADA, it is unlawful for certain employers to discriminate against individuals with disabilities; the law further requires employers to provide reasonable accommodations to individuals with a qualified disability. A disability is an impairment that substantially limits one or more life activities. A qualified disabled individual is a person who is capable of performing the essential functions of the particular job or would be capable of performing the essential functions with a reasonable accommodation.

The ADA applies only to employers who have 15 or more employers, labor unions, and state and federal government.

Employers need to be able to recognize when a request for an accommodation for a qualified disability is being made. Employees seeking accommodations under the ADA are making the request to be able to perform the essential functions of the job which they have. When making a request for an accommodation, employees are not required to use specific words such as ‘accommodation’ or ‘disability,’ but, rather, only need to explain why a change or adjustment is needed because of a medical condition.

“Under the ADA, it is unlawful for certain employers to discriminate against individuals with disabilities; the law further requires employers to provide reasonable accommodations to individuals with a qualified disability.”

This medical condition can be either mental or physical. Since key words or phrases are not required under the ADA to make accommodation requests, employers need to educate themselves on how to spot a variety of different ccommodation requests, how requests are being made, and the words being used. Take, for instance, the employee cited above, requesting time off for her appointments. She would be successful in submitting her request for an accommodation by explaining to her employer she needs additional days off during the next few months to be able to complete her chemotherapy. She would not be required to say she needs an accommodation for her disability.

Once the accommodation request has been made, employers will need to determine whether or not the accommodation is reasonable and will need to enter into an interactive discussion. A reasonable accommodation is a change to a job that will allow an individual with a qualified disability to perform essential functions of a job. The accommodation must be related to the job the employee making the request has — otherwise, it is not reasonable. Moreover, employers are not required to approve a request for an accommodation if the request made would cause the employer an undue hardship.

Undue hardships occur when it would require an employer to undertake an unreasonable expense or it would cause significant difficulty to allow the request. Reasonable accommodations usually include modified work schedules, making workplaces easily accessible, leave, and modifying work equipment, among others.

An unreasonable accommodation request would include personal items such as paying for special eyewear or hearing aids. Whether or not an employer ultimately approves or denies an accommodation request, the employer should seek out alternative accommodations to present and negotiate to the employee making the request. Employers are strongly encouraged to fulfill their duty to be compliant by researching the accommodation request and providing alternative accommodations before flat-out denying the request. Determinative on whether an accommodation decision can be reached or not, employers can provide temporary accommodations until a final accommodation has been determined.

To complicate the obligations under the ADA, additional federal and state laws may be intertwined, forcing employers to stay informed. These laws can obligate employers to adhere to additional requirements or may prevent employers from being able to approve certain accommodations.

Frequent laws which come into play with the ADA include the Family Medical Leave Act (FMLA) and state-specific medical leave acts. Medical leave acts allow employees to take a specified amount of time off for medical or family-related reasons. Employers should inform employees whether or not the leave for a disability is within an existing leave policy with the employer, or whether it will be treated as an accommodation request, and should provide information as to whether the leave will be paid or not and the amount of time an employee is allowed to take.

Employers can request documentation for a leave request before approving it as an accommodation request. Employers should provide information on how the ADA’s reasonable-accommodation requirement could be affected by other federal and state laws. Based upon the example from above, the employer would need to explain how the employee’s request for leave as an accommodation would either be within the employer’s existing leave policy or treated as an accommodation request for her disability.

Furthermore, the employer would need to provide additional information to the employee on whether or not the leave, if approved, would be paid or unpaid, and the amount of time she could take.

Although the ADA has many complex components, it is crucial to be well-educated on obligations owed by employers. Employers who fail to adhere to the requirements risk possible claims of non-compliance and potential claims of disability discrimination.

Providing information to employees on the ADA is crucial. Employers should provide employees with the procedures on how to request accommodations, provide contact information for individuals who handle accommodation requests, and document every accommodation request. Having information relating to the ADA within an employee handbook, signage, and training and orientation material is essential. Finally, employers should have a procedure in place for how to successfully oblige the law.

For more information on the ADA and employer obligations, seek clarification from an attorney.

Sarah M. Ryzewski, Esq. is an associate attorney at Royal, P.C.; (413) 586-2288; [email protected]

Health Care

A Widening Problem

Steve Conca says it can be difficult for people to ask for help losing weight and getting fit, especially if they’re discouraged by all the attempts that didn’t work.

Steve Conca says it can be difficult for people to ask for help losing weight and getting fit, especially if they’re discouraged by all the attempts that didn’t work.

It’s gratifying, Steve Conca said, when people ask for help managing their weight — especially if nothing has worked before.

“When people come to us, they have a laundry list, and sometimes we’ll even write it on the whiteboard — ‘tell me all the stuff you’ve tried that didn’t work,’” said Conca, who owns Conca Sport and Fitness in West Springfield.

“They go on and on about different things, whether it’s a training method or a diet — you name it, they’ve tried it, and it didn’t work. And we draw the line and say, ‘we don’t to be the next thing on that list of 15 things that didn’t work. It stops right here.’”

But that’s easier said than done, he told BusinessWest, because weight loss is more than a numbers game — even when the numbers seem so overwhelming.

“It’s a lifestyle change. It’s mindset, it’s accountability, it’s exercising the right way. It’s eating healthy again and not just counting points. You’ve got to take it one step at a time and get your mind right.”

“It’s a lifestyle change. It’s mindset, it’s accountability, it’s exercising the right way. It’s eating healthy again and not just counting points,” he said. “You’ve got to take it one step at a time and get your mind right — and make sure the effort and exercise you’re going to put in are designed for you specifically, and will work for your body and your metabolism.”

Even people who lose weight, whether through traditional diet and exercise or surgery, often have trouble in the months and years following their initial success, said Dr. Yannis Raftopoulos, director of the Weight Management Program at Holyoke Medical Center.

“The challenge is, how do they maintain this weight in the long run?” he said. “Most practices today aren’t looking to change the person. That’s what we do here, and we have a higher success rate and a better chance to maintain the weight loss. But that’s hard to do. We have seen great successes, but it’s labor-intensive, time-consuming, and a lot of resources are needed.”

And it starts with a decision to take that first step, Conca noted.

“When someone calls and says they need help, that’s a vunerable position they put themselves in. When they come in and sit down, that’s one more big step that can also be another vulnerable spot,” he said. “We take that very seriously that you’re looking to trust us with your health, fitness, and well-being. That’s a huge responsibility, and we take it seriously.”

Wrong Direction

It’s an important responsibility, too, in a country that’s been going in the wrong direction, fitness-wise.

“There’s something that’s dramatically not right,” Conca said. “As a people, we’re getting less active, and we’re eating a much poorer grade of food than we did 20 or 30 years ago.”

Those trends are starting at an early age. According to the latest data from the National Health and Nutrition Examination Survey, produced by the Centers for Disease Control and Prevention (CDC), the percentage of children ages 2 to 19 who are obese increased from 14% in 1999 to 18.5% in 2015 and 1016. In the Pioneer Valley, 25% of children are considered obese.

Dr. Yannis Raftopoulos says treatments for obesity are myriad, and crafted on a patient-by-patient basis.

Dr. Yannis Raftopoulos says treatments for obesity are myriad, and crafted on a patient-by-patient basis.

“That means they have a body-mass index that puts them at increased risk as they enter adulthood for diabetes, high cholesterol, heart disease, gallbladder disease, asthma, and bone and joint problems. Already, we are seeing more and more youngsters developing type II diabetes, which is commonly developed by overweight adults,” said Dr. Chrystal Wittcopp, medical director of Baystate General Pediatrics, who oversees the Pediatric Weight Management Program at Baystate Children’s Hospital.

“The growing rate of childhood obesity in our country is alarming. Being overweight poses a serious threat to the health of America’s children, and as a society, we must make a concerted effort to decrease its prevalence not only in the Springfield area, but across the country,” she added, noting that obesity carries psychosocial consequences that can also hinder these children academically and socially.

Of even greater concern, there was a large increase in obesity — up to 14% from 9% — in the youngest population of those 2 to 5 years of age.

“My philosophy is, I try to change the patient’s lifestyle. If you want any chance to be successful, you have to change the logistics, how they operate every day.”

Conca sees it, too. “Overall, kids are moving not as efficiently as they were years ago. When we were growing up, kids were outside crawling, jumping, running around, and their bodies developed much differently than the kids now if they’re not forced into a structured activity. Instead, many of them are glued to a phone or a tablet. It’s a generational thing, and we’re seeing it not only on the activity level but the nutrition level as well. Kids don’t appreciate their bodies as much as they should because things like exercise and sleep and nutrition aren’t talked about.”

He recalled talking to an older woman whose infant grandchild’s first word was ‘Dunkin’ Donuts’ — which isn’t as odd as it sounds because the child’s parents were always making fast-food runs.

“She’s distraight about it because it’s not the way she wants her grandkids to be raised, but it’s something that, culturally, a lot of kids are embedded in. And they’re so impressionable at that age.”

When parents choose to eat right and be physically active, Wittcopp added, children are more likely to take note and make those same healthy choices. She said families could encourage each other by walking around the neighborhood together, going on a bike ride, or playing basketball at the park, while limiting time spent in front of the TV and video games, and cooking healthy meals with fresh vegetables, fruits, and whole grains.

“The severe consequences of obesity underscore the critical importance of children and teens to participate in physical activity and to engage in healthy eating habits,” she noted. “Childhood obesity is entirely preventable, and it is up to adults to encourage these healthy habits.”

Plenty of Options

For individuals who are well past those foundational years and frustrated by an inability to get fit, there are plenty of treatment options, Raftopoulos said.

“There are different levels of obesity, and different methods are available based on that,” he told BusinessWest. “For someone mild obesity, surgical options are usually not recommended, though there are some exceptions to that.”

Less drastic options range from classic diet and exercise to medications that restrict appetite, although Raftopoulos isn’t personally keen on those, as they can be expensive, come with side effects, and are not a long-term solution.

“My philosophy is, I try to change the patient’s lifestyle. If you want any chance to be successful, you have to change the logistics, how they operate every day.”

A more dramatic, yet still non-surgical, option is a gastric balloon that is swallowed, inflates, and suppresses the appetite until it’s removed after a few months. Holyoke Medical Center is currently involved in a clinical trial of a more advanced balloon that needs no endoscopic removal, but rather passes into the stool after it deflates.

Then there are the surgical options, specifically gastric bypass and sleeve gastrectomy, both of which drastically reduce the size of the stomach. But, no matter how effective a treatment is, whether surgical or non-surgical, patients face the same challenges afterward.

“Surgery will reduce the portion of the stomach and how much you can eat, but you can gain weight even with a small stomach,” Raftopoulos said. “If surgeons don’t provide the support to change the fundamentals of the patient — if they don’t help you change how you live your life — nothing will be very effective, and you can gain the weight back.”

For people who have struggled with obesity, he noted, there’s a psychological component to maintaining a healthy weight, and one that can be frayed by the stresses of everyday life, from work schedules to parenting obligations to caring for sick parents. That’s why his team works with patients on managing their entire lifestyle — through education and support services — to stay on the right path.

“The problem with how medicine is done today is not seeing the patients holistically,” he said. “Everybody is focused on one thing — ‘oh, your ear hurts? Let’s fix the ear.’ But the ear is connected to something else. And that fragmented mentality affects the patient’s results.”

But when something clicks, Raftopoulis gets excited — not just for that one patient, but for others who may be inspired by their example.

“The more practices do this the right way, and the better results they have, the more people will believe we can help them,” he said. “We need to have more practices do the right thing because there’s a great need.”

Reaping the Rewards

Conca understands the frustration of trying to make a change, and, after a few weeks of poor results, becoming discouraged.

“What they’re doing isn’t working, and after a few weeks, they’re tired and frustrated, and they quit again. Rightly so — if you’re doing something and not getting results, you’re going to stop doing it,” he said.

That’s why he touts his practice’s ‘Fit in 42’ program, an immersive, six-week experience that aims to change not just the number on a scale, but a mindset, through both serious exercise and an emphasis on accountability through activities like daily journaling and connecting with other members, both at the gym and on a private Facebook page.

“That sense of community and connection is so powerful — it’s more powerful than anything we could throw at them exercise-wise,” he went on. “So we have the community component, plus training that works, plus nutrition — there’s no diet, you’re just going to eat good, healthy foods for your body type — and then you see results. We have to show them results.”

It’s a great feeling, he said, when someone trusts him to make a change when nothing has worked before.

“When someone comes in, they have to have a why. From a business perspective, we try to preach that as well. Why are we doing what we’re doing?” he said, before answering his own question.

“People come in, and they’re down in the dumps and just throwing in the towel, saying, ‘I just want to play catch and not hurt, or just roll around on the ground with my kids.’ And it’s really cool to give somebody that. It’s really rewarding.”

Joseph Bednar can be reached at [email protected]

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