reasonable accommodations oct 2011 edits

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  • 1. Americans with Disabilities Act Amendments Act of 2008 and Reasonable Accommodations in the Workplace ---------- ---------- GUAM LEGAL SERVICES CORPORATION DISABILITY LAW CENTER The Protection and Advocacy System for Guam. October 2011

2. About GLSC-DLC

  • Guam 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.

3. About the ADA

  • Americans 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.

4. Title I of the ADA

  • Applies 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.

5. ADA Amendments Act of 2008

  • Signed into law by President George W. Bush on September 25, 2008
  • Went into effect on January 1, 2009
  • EEOC 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)

6. Purpose of the ADA Amendments Act of 2008 (ADAAA)

  • Congress originally intended the ADA to provide broad coverage.
  • Whether an individuals impairment is a disability under the ADA should not demand extensive analysis.
  • The Supreme Courts 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 peoples daily lives is rejected.

7. Definition of Disability under the ADA and ADAAA

  • A 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; or
  • Being regarded as having such an impairment

8. Major Life Activities

  • caring for oneself
  • performing manual tasks
  • seeing
  • hearing
  • eating
  • sleeping
  • walking
  • standing
  • lifting
  • bending
  • speaking
  • breathing
  • learning
  • reading
  • concentrating

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

  • thinking
  • communicating
  • working

9. Major Life Activity Also includes the operation of a major bodily function, including, but not limited to:

  • functions of the immune system (HIV/AIDS)
  • normal cell growth (cancer)
  • digestive
  • bowel
  • bladder (kidney disease)
  • neurological (multiple sclerosis, epilepsy)
  • brain
  • respiratory (asthma)
  • circulatory (heart disease)
  • endocrine (diabetes)
  • reproductive functions

10. 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.

11. Mitigating Measures

  • The determination of whether an impairment substantially limits a major life activity shall be madewithout regardto the ameliorative effects of mitigating measures (such as medication, assistive technology, hearing aidsnot 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 isactive.

12. 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.

13. Substantially Limits

  • In determining whether an impairment substantially limits a major life activity, may look at thecondition, 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.

14. 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.

15. 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 employers operations.
  • Individuals who only meet the regarded as definition of disability are not entitled to receive reasonable accommodations.

16. 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.

17. Examples of Reasonable Accommodations

  • Making existing facilities accessible
  • Job restructuring
  • Modifying work schedules, such as part-time
  • Re-assignment to a different job
  • Providing qualified readers and interpreters
  • Acquiring or modifying work equipment and devices
  • Appropriate adjustment or modifications of examinations, training materials, or policies

18. Reasonable Accommodations:Limitations

  • Employers do not have to provide:
  • Adjustment or modifications that are primarily for the personal benefit of the employee
  • Personal use items needed to accomplish daily activities both on and off the job

19. Reasonable Accommodations:Limitations:

  • An employer does not have to:
  • Excuse a violation of a uniformly applied conduct rule that is legitimate and non-discriminatory
  • Eliminate essential functions of the job
  • Create a new position or move somebody from a position
  • Lowering 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.

20. The Interactive Process

  • Once 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 employers 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.

21. The Interactive Process:Employees Responsibilities

  • The employee should:
  • Make the request for a reasonable accommodation.
  • Should be in writing and include:
    • The nature of the disability
    • Reason for the request
    • Request accommodation
    • If necessary, include a doctors note

22. The Interactive Process:Employers Responsibilities

  • After the request, the employer should initiate the interactive process includingthe 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 t

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