Reasonable Accommodation for Neurodiversity: Legal, Organizational and Managerial Considerations

Current Topics in Health Care Law

ABSTRACTMultidisciplinary teams are responsible for identifying reasonable accommodations that mediate the impact of a disability and level the playing field between those with and without disabilities on high-stakes mathematics assessments. However, minimal guidance is provided to teams selecting accommodations. This article provides a decision framework for selecting accommodations to be used during mathematics assessments. The framework includes legal and practical considerations guided by evidence from case law and empirical research to aid in the selection of reasonable accommodations. To conclude, we discuss remaining unanswered questions.

<h3>Statement of Purpose</h3> In 2019, the Substance Abuse and Mental Health Services Administration estimated that there were 21.2 million persons aged 18 or older who considered themselves to be in recovery from a substance use disorder (SUD). As employment is an important predictor of positive outcomes for maintaining long-term recovery from SUD, a recovery-friendly workplace workgroup (RFWW) was formed to develop a recovery-friendly workplace toolkit (RFWT) targeted at small businesses that may not have sufficient human resources capacity to establish policies and regulations for hiring and retaining employees in recovery (EIR). <h3>Methods/Approach</h3> To inform the development of the RFWT for small businesses, a semi-structured interview guide was created and vetted through the RFWW and administered to 25 small businesses to assess workforce capacity and experience in hiring EIR and to gauge interest in the usefulness of an RFWT. <h3>Results</h3> Industries represented in the interviews were the services, manufacturing, and construction industries. Resources identified as useful for inclusion in the RFWT were: 1) a flowchart of recovery-friendly hiring processes; 2) legal considerations when hiring EIR; 3) policy templates on attendance, time off, Family and Medical Leave Act, work standards, and reasonable accommodations; 4) a list of local recovery supports to share with EIR, such as links to local SUD treatment and recovery support organizations, etc.; and 5) a list of workplaces that currently hire EIR. <h3>Conclusion</h3> Multiple RFWTs exist for large businesses, but there is a gap in the current availability of RFWT resources for small businesses. Our interview results show that small employers are extremely interested in affordable and practical guided policy and program RFWT resources. <h3>Significance</h3> Targeted RFWTs will provide small businesses with integral policy and program resources to enable them to confidently hire and retain EIR, expanding their workforce capacity and thereby promoting and sustaining long-term recovery from SUD.

On Sept. 7, 2021, the Equal Employment Opportunity Commission filed a lawsuit against ISS Facility Services, Inc., headquartered in San Antonio, alleging the firm violated the American with Disabilities Act of 1990 by denying an employee's request for remote work as an accommodation, and by later firing her for her request (Civil Action No. 1:21‐CV‐3708‐SCJ‐RDC). The ISS employee has a pulmonary illness that makes it difficult for her to breathe and places her at high risk from developing severe illness from COVID‐19. This lawsuit is the first of its kind that the EEOC brought for denied accommodation related to COVID‐19. The EEOC argues that a medical condition making an employee “high risk” qualifies for ADA disability, that remote work is a reasonable accommodation, and that on‐site attendance is not always an essential function.