Download - Reasonable accommodations oct 2011 edits

Americans with Disabilities Act Amendments Act of 2008

andReasonable Accommodations

in the Workplace

Americans with Disabilities Act Amendments Act of 2008

andReasonable Accommodations

in the Workplace----------------------------------------

GUAM LEGAL SERVICES CORPORATION – DISABILITY LAW CENTER“The Protection and Advocacy System for Guam.”

October 2011

GUAM LEGAL SERVICES CORPORATION – DISABILITY LAW CENTER“The Protection and Advocacy System for Guam.”

October 2011

About GLSC-DLCGuam Legal Services Corporation –

Disability Law Center

Chartered and began servicing the low income community of Guam in 1979

Currently provides legal representation to individuals with low income, individuals with disabilities in cases related to their disabilities, and victims of family violence.

About the ADAAmericans with Disabilities Act

A Federal Law passed in 1990 that requires that public and private entities have accessible facilities and that these organizations do not discriminate against people on the basis of disability.

Title I of the ADAApplies to…

Employers with 15 or more employees, including private employers, and state and local government employers, working at least 20 calendar weeks a year;

Employment agencies; and

Labor organizations.

ADA Amendments Act of 2008

Signed into law by President George W. Bush on September 25, 2008

Went into effect on January 1, 2009EEOC issued final regulations effective as of May 24,

2011.Also applies to discrimination under Rehabilitation Act

(employment by federal agencies and those that receive federal funds)

Purpose of the ADA Amendments Act of 2008 (ADAAA)Congress originally intended the ADA to “provide broad

coverage.” Whether an individual’s impairment is a disability under

the ADA “should not demand extensive analysis.”The Supreme Court’s ruling that the definition of

disability under the ADA is a “demanding standard” and that an impairment must “significantly restrict” an individual from doing activities of “central importance to most people’s daily lives” is rejected.

Definition of “Disability” under the ADA and ADAAAA person has:A physical or mental impairment that substantially limits

one or more major life activities of such individual;A record of such an impairment; orBeing regarded as having such an impairment

Major Life Activities

caring for oneselfperforming manual

tasksseeinghearingeatingsleepingwalking

standingliftingbendingspeakingbreathinglearningreadingconcentrating

Definition for “major life activities” added. Major life activities include, but are not limited to:

• thinking• communicating• working

Major Life ActivityAlso includes the operation of a “major bodily function,” including, but not limited to:functions of the immune

system (HIV/AIDS)normal cell growth

(cancer)digestivebowel bladder (kidney disease)

neurological (multiple sclerosis, epilepsy)

brainrespiratory (asthma)circulatory (heart disease)endocrine (diabetes)reproductive functions

“Substantially Limits”Should be construed in favor of broad coverage. Not

meant to be a demanding standard.The impairment of a person with a disability that

substantially limits a major life activity should be compared to “most people in the general population.”

The impairment need not prevent, or significantly or severely restrict a person from performing a major life activity.

The inquiry should not demand extensive analysis or require scientific, medical, or statistical analysis.

Mitigating MeasuresThe determination of whether an impairment substantially

limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (such as medication, assistive technology, hearing aids—not eyeglasses or contact lenses).

If the mitigating measure itself causes limitations (e.g. medication side effects), those effects will be considered.

An impairment that is episodic or in remission is considered when it is active.

“Substantially Limits”The impairment need only substantially limit one major

life activity.

Some impairments should easily be concluded to substantially limit a major life activity. E.g. deafness, blindness, intellectual disability, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, schizophrenia.

“Substantially Limits”In determining whether an impairment substantially limits

a major life activity, may look at the condition, manner, or duration, such as the difficulty, effort, or time required to perform the activity, or the pain experienced.

Focus is on how the major life activity is substantially limited, not “what outcomes an individual can achieve.” e.g. Somebody with a learning disability who has achieved high academic success may still be covered because of the additional time she spent studying.

“Being Regarded As Having a Disability”A person who meets the “being regarded as” prong of the

definition of disability does not need to show she was regarded as “substantially limited in a major life activity” to bring a claim of unlawful discrimination based on disability.

Reasonable Accommodations

• A covered entity must provide reasonable accommodations to the known physical or mental limitations of an applicant or employee unless it would impose an undue hardship on the employer’s operations.

Individuals who only meet the “regarded as” definition of disability are not entitled to receive reasonable accommodations.

“Qualified Individual”The individual with the disability must be able to perform

the essential functions of the job with or without reasonable accommodation.

Must have the objective skills, education, and experience required.

Examples of Reasonable AccommodationsMaking existing facilities accessibleJob restructuringModifying work schedules, such as part-timeRe-assignment to a different jobProviding qualified readers and interpretersAcquiring or modifying work equipment and devicesAppropriate adjustment or modifications of examinations,

training materials, or policies

Reasonable Accommodations: Limitations

Employers do not have to provide:Adjustment or modifications that are primarily for the

personal benefit of the employeePersonal use items needed to accomplish daily activities

both on and off the job

Reasonable Accommodations: Limitations: An employer does not have to:Excuse a violation of a uniformly applied conduct rule

that is legitimate and non-discriminatoryEliminate essential functions of the jobCreate a new position or move somebody from a positionLowering legitimate quality and quantity requirements.Provide an accommodation that would cause an undue

hardship on or a direct threat to the business, such as fundamentally alter the business, or tolerate violent or abusive behaviors.

The Interactive ProcessOnce reasonable accommodation is made an issue, the

employer should “initiate an informal interactive process with the individual with a disability.”

Both the employer and employee should participate in good faith

An employer’s failure to engage in the interactive process is not in itself against the law, but it is relevant when it results in a failure to identify a reasonable accommodation which exists.

The Interactive Process: Employee’s ResponsibilitiesThe employee should:Make the request for a reasonable accommodation. Should be in writing and include:

The nature of the disabilityReason for the requestRequest accommodationIf necessary, include a doctor’s note

The Interactive Process: Employer’s ResponsibilitiesAfter the request, the employer should “initiate the

interactive process” including the employee, her supervisor, and any other relevant people (e.g. doctor, human resources, AT specialist). See 29 C.F.R § 1630.2(o)(3).

Employer is allowed to request more in-depth information if needed relating to the nature, severity, and duration of the impairment, the activities that are limited, how the impairment relates to the accommodation, and how the reasonable accommodation will help the person do the job.

Reasonable Accommodations Employer DefensesUndue Hardship:An action requiring “significant difficulty or expense” by

the employer, employment agency, or labor organization when considering five general factors.

Also looks at more than financial difficulty; refers to unduly costly, extensive, substantial, disruptive, or would fundamentally alter the nature of the business.

Undue Hardship Factors:1. The nature and net cost of the accommodation (looks at

the employer as a whole), considering tax credits, etc.

2. The overall financial resources of the facility, the effect on expenses and resources, and the number of person’s employed there.

3. The overall financial resources of the employer, the overall size with respect to its number of employees, the number, type, and location of its facilities.

4. The type of operation

5. The impact of the accommodation on the facility

Reasonable Accommodations Employer DefensesDirect Threat:

“A significant risk of substantial harm to the health or safety of the individual or others than cannot be eliminated or reduced by reasonable accommodation.”

Employers must investigate whether a direct threat can be eliminated or reduced by a reasonable accommodation.

Application/Interview


during the Application /

Interview Phase

Disclosure of Disability

An employee or applicant is not required to mention that they have a disability unless or until they need a reasonable accommodation.

If an application needs an accommodation during the application phase, then the individual will need to mention the disability.

A person is never required to disclose a disability generally.

Application/InterviewReasonable accommodations at the Application/Interview

Phase include…Providing a person to read or interpret application

materials;Demonstrating what the job requires;Modifying tests, training materials, testing time, and/or

policy manuals;Replacing a written test with a more extensive interview

which allows the individual to demonstrate their knowledge/skills at the work site; and

Allowing a support person during the interview.

Application/InterviewAn employer may:Ask the question, “Are you able to do the essential

functions of the job with or without a reasonable accommodation?”

State the physical requirements of a job and ask if an applicant can satisfy these (with or without reasonable accommodations).

Ask someone to describe or demonstrate how they would do the job

Adjusting / Modifying


by restructuring the job, making modifications to schedules, policies, processes, and so on.

Job RestructuringYes is reasonable accommodation:

Shift/switch non-essential job functions (e.g. prosthetic leg, can’t sweep stairs, but can clean lower kitchen)

Change manner of tasksModifying job requirements (no need to lower quality/quantity standards)

vacant position

Modified Work ScheduleYes is reasonable accommodation:

Allowing schedule flexibility (e.g. arrival/departure times, sensitive to light)

More frequent breaks (e.g. for meds)

Allowing time off or Part Time (e.g. emphysema, requests 10 weeks surgery, or 7 if part time)

Changing policy that requires scheduling vacation in advance (e.g. if needed for med problems)

Providing more leave, unless undue hardship

Equipment and DevicesYes is reasonable accommodation:

Acquiring/modifying equipment and devicesTape-recording instructionsLarge button telephoneAll-day accessible video to demonstrate tasksUse of color to mark filesSimplified machinery instructions using diagramsSoftware or hardware

Learning & Doing the JobYes is reasonable accommodation:

Providing Auxiliary Aids or Services (e.g. personal amplifiers, hearing aid-compatible phones, interpreters, note takers)

Breaking job tasks into sequential stepsProviding information in alternative formats (e.g. large print)

Using visual (pictures/charts/colors/demonstrations) and verbal promptingAllowing job coach (need not provide throughout, but must consider while

learning)

Internal Supports (e.g. assigning staff as 1:1)

Modifying policies (e.g. allowing non-employee in restricted area)

Modifying training (e.g. contract w/ trainer, blind request Braille, employer cannot refuse becs ADA Title I, trainer cannot refuse becs ADA Title III, neither eliminates duty of other)

Modified SupervisionYes is reasonable accommodation:

Reviewing tasks to be completed on a daily basisMore frequent feedback

Assigning a new supervisor is NOT a reasonable accommodation (“presumed unreasonable” according to Kvorjak v. Maine, 259 F.3d 48 (1st Circuit 2001))

Modified Policies/Procedures Yes is reasonable accommodation:

Allowing service animalsAllowing to bring someone for support during meetingsModifying Emergency Evacuation Procedures.Modifying conduct rules not job-related (can still discipline for

violence/threats/stealing/destruction, but if accommodation will further conduct rule compliance, must provide it)

Job Accommodation Process

Steps for making Job Accommodations

Job Accommodation ProcessBegins with a Qualified Person (meets skill/experience/education requirements and

can perform essential job functions w/ or w/o reasonable accommodations)

Steps:1. Worker Assessment

2. Worksite Analysis

3. Accommodate Worker

4. Follow Up

Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections

Step 1: Worker AssessmentCharacterize Worker’s Limitations:

Difficulty interpreting information/lifting/reaching/sittingLimitation of sight/hearing/speechSusceptibility to fainting/dizziness/seizuresCoordination, stamina, balancePsycho-social/psychiatric/med factors


Step 2: Worksite Analysis

WHAT does employee do?HOW/WHY/HOW OFTEN/FOR

HOW LONG is it done?


Step 2: Worksite AnalysisOverall job description of skill/physical/mental

requirements and time related tasks and required settings


Step 2: Worksite AnalysisIn conducting interviews:

Describe tasks, workplace, see if applicant respects supervisors and fully understands process and terminology

Take photos/videoUse only necessary words with 1 connotation


Step 2: Worksite Analysis

Consider Environmental FactorsHeat, humidity, ventilation, noise, lighting, glare


Step 3: Accommodate WorkerShifting schedules/non-essential functionsAdding auxiliary aids/devicesIs team oriented, so include input from VR counselor,

OT, PT


Step 3: Accommodate WorkerKeep Design Simple

Use Universal Design (accessible to able-bodied and disabled)e.g. curb ramps needed for wheelchairs, but used by alle.g. cabinets with pull-out shelvesE.g. counters at several heights to accommodate different

tasks and posturesE.g. lever instead of round doorknobs


Step 4: Follow Up

need ongoing support from VR counselor/job coachSupervisors must know of

accommodations/services/devices


Step 4: Placement/Follow Up

Consumer Duties:Know accommodations and skillsDisclose disability only as neededUpdate resumeBe computer literate and organized


Step 4: Placement/Follow Up

Reassess:Is job being performed to expectations?Are accommodations working? (do they interfere with

other operations?)Have emergency procedures been tested?


Thank you!

Guam Legal Services Corporation –Disability Law Center

113 Bradley Place, Hagatna, GU 96910Phone: (671) 477-9811

Fax: (671) 477-1320Email: [email protected]

Web: www.lawhelp.org/gu

Download - Reasonable accommodations oct 2011 edits

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