Implications for Employers - Indiana Institute on Disability and

Report
The Americans with
Disabilities Act
Implications for Employers
Indiana Vocational Rehabilitation Services
Universal Impact
 1 in 5 Americans have disabilities.
 The disability community is becoming a
powerful business force (labor &
customers).
 There is a civil rights movement of
people with disabilities (think about
universal design & access).
 Most of us have a family member,
friend or colleague with a disability.
Indiana Vocational Rehabilitation Services
Understanding the ADA
Indiana Vocational Rehabilitation Services
Americans with Disabilities Act
Federal Law
The purpose of the law
is to extend to people
with disabilities civil
rights similar to those
now available on the
basis of race, color,
national origin, sex and
religion through the Civil
Rights Act of 1964.
Indiana Vocational Rehabilitation Services
 Employment
 Services rendered by
state and local
governments
 Places of public
accommodation
 Transportation
 Telecommunications
services
ADA Employment Provision
“No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to:
 Job application procedures;
 The hiring, advancement, or discharge of
employees;
 Employee compensation;
 Job training;
 And other terms, conditions, and privileges of
employment.”
Indiana Vocational Rehabilitation Services
ADA Major Employment
Provisions
1. Requires equal opportunity in
selection, testing, and hiring of
qualified applicants with disabilities.
2. Requires equal treatment in
promotion and benefits.
3. Prohibits discrimination against
workers with disabilities;
4. Applies to all employers with 15 or
more employees.
Indiana Vocational Rehabilitation Services
ADA Major Employment
Provisions, cont.
5. Applies to private employers, state
and local governments, employment
agencies, labor organizations, and
joint labor-management committees.
6. Requires reasonable
accommodations for applicants and
workers with disabilities when such
accommodations would not impose
“undue hardship.”
Indiana Vocational Rehabilitation Services
ADA Major Employment
Provisions, cont.
Employers may:
1. Require that an individual not pose a
direct threat to the health and safety
of the individual or others.
2. Conduct tests for the illegal use of
drugs and may prohibit illegal use of
drugs and alcohol in the workplace.
Indiana Vocational Rehabilitation Services
ADA Major Employment
Provisions, cont.
Employers may NOT:
Make pre-employment inquiries about
an applicant’s disability or conduct preemployment medical exams.
They may ask if applicants can perform
specific (essential) job functions and may
condition a job offer on results of a medical
exam, but only if the exam is required for all
entering employees in similar jobs.
Indiana Vocational Rehabilitation Services
ADA Key Definitions
What is a Disability?
 A physical or mental impairment that
substantially limits one or more of the
major life activities;
 A record of such an impairment;
 Being regarded as having such an
impairment even when no limitations
exist.
Indiana Vocational Rehabilitation Services
ADA Key Definitions, cont.
What is a Disability?
 “…any physical disability, infirmity,
malformation or disfigurement which is
caused by bodily injury, birth defect or
illness…”
 Definition is intentionally broad and
encompasses many conditions that are not
necessarily totally disabling;
 Under law, a condition may be a disability
even though it is NOT under the ADA.
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ADA Key Definitions
What is a Major Life Activity?
BIG DOZEN
1. Cognitive functions
7. Breathing
2. Walking
8. Seeing
3. Caring for oneself
9. Working
4. Sleeping
10. Socializing
5. Performing manual tasks
11. Speaking
6. Reproduction
12. Hearing
Indiana Vocational Rehabilitation Services
Examples of Disabilities
(IF they substantially limit a Major Life Activity)
 Stress-related
mental/emotional disorder
 Post traumatic stress
disorder (PTSD)
 Narcolepsy
 Rheumatoid arthritis
 AIDS
 Hypertension
 Chronic fatigue
syndrome
 Extreme varicose veins
 Some allergies
 Obesity
 Migraine or cluster
headaches
 Asthma
Indiana Vocational Rehabilitation Services
ADA Key Definitions, cont.
What is a Qualified Individual with a
Disability?
An individual with a disability who, with
or without reasonable accommodation,
can perform the essential functions of
the employment position that such
individual holds or desires.
Indiana Vocational Rehabilitation Services
ADA Key Definitions, cont.
What is a Reasonable Accommodation?
May include:
 Making existing facilities readily accessible
to and usable by individuals with
disabilities;
 Job restructuring, part-time or modified
work schedules, reassignment to a vacant
position;
 Acquisition or modification of equipment
or devices; continued…
Indiana Vocational Rehabilitation Services
ADA Key Definitions, cont.
What is a Reasonable Accommodation?
May include:
 Appropriate adjustment or modifications
of examinations, training materials or
policies;
 The provision of qualified readers or
interpreters;
 Other similar accommodations.
Indiana Vocational Rehabilitation Services
ADA Key Definitions, cont.
What is Undue Hardship?
An action requiring significant difficulty or
expense.
Factors to be considered in determining
whether an accommodation would cause
an undue hardship include:
 The nature and cost of the
accommodation;
 The resources and size of the business;
continued…
Indiana Vocational Rehabilitation Services
ADA Key Definitions, cont.
What is Undue Hardship?
Factors to be considered…
 The type of business operation;
 The impact that the accommodation
would have on the facility;
 A larger employer will be expected to
make accommodations requiring greater
effort or expense than a smaller employer.
Indiana Vocational Rehabilitation Services
Categories of Persons Protected
by ADA
1. Have a disability now.
2. Had a disability in the past but not
now (cured/recovered).
3. Have a disability because they are
regarded and treated as such
(“perceived disability”).
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Reasonable Accommodation
 Not one-sized fits all.
 Determined on a case-by-case basis.
 Employer has a continuing duty to
accommodate.
 Each new request for accommodation
must be reviewed on a “reasonable
basis.
Indiana Vocational Rehabilitation Services
Reasonable Accommodation
Principles
Employer does not have to change:
 The essential functions of a job, or
 Uniformly applied performance standards in
order to accommodate,
But may have to change:
 The method, or
 Manner, or
 The time for performing the function.
Indiana Vocational Rehabilitation Services
Examples of Reasonable
Accommodations
 Time off for treatment,
rest, recovery
 Extra bathroom breaks
 Modified testing or
application procedure
 Flexible work schedule
 Teleworking
 Modified work uniform
 Magnifiers
Indiana Vocational Rehabilitation Services
 Voice activated
computer
 Adaptive devices
 Waiver of “no beard”
policy
 Transfer or reassign
 Sign language
interpreter
 Providing dollies, carts
Reasonable Accommodation
Principles: Confidentiality
 Disclosure is up to the employee
 Disclosure to a small circle of
management may be required in order for
the employee to be entitled to a
reasonable accommodation.
 ADA violations often come from lower
levels of management. What may seem
obvious to an ADA designee is not
necessarily obvious to every manager.
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If an Employee with a Disability
‘Becomes Unable’
The company:
 Must transfer or reassign the employee to
another job that s/he is able to do.
 Must cooperate and assist the employee in
securing a transfer (with Human Resources).
 If the employee can identify a position for which
s/he is qualified, must transfer or explain why
such transfer may not be possible.
 Large employers will be presumed to be
capable of transferring the employee.
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Verification of Disability
 Employee is responsible for verifying a
disability and any limitations or
accommodations required.
 Employee provides a note from his
physician outlining disability and the
accommodations that the employer
must provide in order that the
employee can continue to perform job.
 Employer may have to do this if
employee cannot.
Indiana Vocational Rehabilitation Services
Hiring
No matter how obvious the disability
might be:
 NO pre-offer questions about disability
are allowed.
 NONE allowed on application.
 NONE allowed during interview.
 No questions allowed about Worker’s
Compensation claims.
Employment Services & Innovations
Indiana Vocational Rehabilitation Services
Hiring, cont.
AFTER offer has been made and
accepted:
 Employer may inquire into existence of
a disability and any accommodation
required.
 If employee says he needs no
accommodation at time of hire, he
may ask for an accommodation later.
Employment Services & Innovations
Indiana Vocational Rehabilitation Services
General Info About Employees
with Disabilities
U.S. Department of Labor
Office of Disability Employment Policy
(www.dol.gov/odep)
Publications and Fact Sheets






“Accommodations Get the Job Done”
“Communicating with and About People with Disabilities”
“Disability Friendly Strategies for the Workplace”
“Facilitating Return-to-Work for Ill or Injured Employees”
“Job Accommodations Com in Groups of One”
“On the Job: Employers and Employees in Their Own Words”
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Responsibilities of a
Superior in Relation to
Employees with
Disabilities
Indiana Vocational Rehabilitation Services
Responsibilities of a Superior
Responsibilities are basically the same as
they are with any other employee:
 Assign and monitor work.
 Evaluate performance.
 Develop skills.
It is vital that you define the job functions
that are central to the position
according to essential job functions.
Indiana Vocational Rehabilitation Services
ADA Key Definitions
What are Essential Job Functions?
1. They are central to the position.
2. They occupy a significant amount
of the employee’s time.
3. If removed, they would
substantially change the job.
Indiana Vocational Rehabilitation Services
Is a Function Essential?
Questions to ask when determining if a
function is essential:
1. Does the position exist to perform this
function? If this function was removed
would it still be the same job?
2. How many other employees are
available to perform this function or
among whom the performance of this
function can be distributed?
Continued…
Indiana Vocational Rehabilitation Services
Is a Function Essential?, cont.
Questions to ask when determining if a
function is essential:
3. What is the degree of expertise or skill
required to perform this function?
4. Do current employees actually
perform this function? Have past
employees?
5. How much time is spent performing
this function?
Indiana Vocational Rehabilitation Services
The Purpose of Essential Job
Functions in Relation to ADA
Under the ADA, an employer must evaluate
individuals according to their ability to
perform essential job functions, with or
without reasonable accommodation.
Indiana Vocational Rehabilitation Services

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