the americans with disabilities act

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.


Understanding the ADA


Americans with Disabilities Act Federal Law

Employment Services rendered by

state and local governments

Places of public accommodation

Transportation Telecommunications

services

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

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.


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.”



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.



Employers may NOT:Make pre-employment inquiries about an applicant’s disability or conduct pre-employment 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.


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.


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.


ADA Key Definitions

7. Breathing8. Seeing9. Working10.Socializing11.Speaking12.Hearing

1. Cognitive functions2. Walking3. Caring for oneself4. Sleeping5. Performing manual

tasks6. Reproduction

What is a Major Life Activity?

BIG DOZEN


Examples of Disabilities

Post traumatic stress disorder (PTSD)

Rheumatoid arthritis Chronic fatigue

syndrome Some allergies Migraine or cluster

headaches

Stress-related mental/emotional disorder

Narcolepsy AIDS Hypertension Extreme varicose veins Obesity Asthma

(IF they substantially limit a Major Life Activity)



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.



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…



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.


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…



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.


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”).


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.


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.


Examples of Reasonable Accommodations

Voice activated computer

Adaptive devices Waiver of “no beard”

policy Transfer or reassign Sign language

interpreter Providing dollies, carts

Time off for treatment, rest, recovery

Extra bathroom breaks Modified testing or

application procedure Flexible work schedule Teleworking Modified work uniform Magnifiers


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.


If an Employee with a Disability

‘Becomes Unable’

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.

The company:


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.


HiringNo 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 & InnovationsIndiana 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 & InnovationsIndiana Vocational Rehabilitation Services

General Info About Employees with Disabilities

U.S. Department of LaborOffice 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”Indiana Vocational Rehabilitation Services

http://www.dol.gov/odep

Responsibilities of a Superior in Relation to

Employees with Disabilities


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.


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.


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?


The Purpose of Essential Job Functions in Relation to

ADAUnder the ADA, an employer must evaluate individuals according to their ability to perform essential job functions, with or without reasonable accommodation.


the americans with disabilities act

Documents

applicants disability

employment agencies

privileges of employment

physical disability

disability community

disabilities actimplications

preemployment inquiries

preemployment medical