Americans with Disabilities Act

Americans with Disabilities Act Developing a Successful Reasonable Accommodation Process Southwest ADA Center Webinar – Part I January 19, 2011 2:00 – 3:30 p.m. Central Time Julie Ballinger Disability Rights and Issues Consultant StarReach Enterprises 505.797.8612 julieb4@flash.net The information herein is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. Julie Ballinger, StarReach Enterprises Presenter

The Leading Resource On ADA & ADAAA Other disability related laws such as IDEA Making information technology accessible Services a wide range of audiencesincluding employers businesses government agencies WIA Workforce System schools people with disabilities Expert staff are available to provide training, publicationsand respond to your inquiries. Hot Line:1-800-949-4232 Web Site:www.southwestADA.org Podcast:www.DisabilityLawLowdown.com The ADA Resource! Julie Ballinger, StarReach Enterprises Presenter

Developing a Successful Reasonable Accommodation ProcessSouthwest ADA Center WebinarPart I We will be covering: • Covered Entities - Public vs. private employer requirements • Brief overview of who is covered now (ADAAA) • A sociological perspective on reasonable accommodations • Getting to the workplace accommodations process – determining if an ADA reasonable accommodations issue exists • Enacting the reasonable accommodations process • What satisfies the reasonable accommodations requirements? • Direct threat and reasonable accommodations • What is unreasonable? • Undue hardship • Part II webcast preview Julie Ballinger, StarReach Enterprises Presenter

The ADA “This Act is powerful in its simplicity. It will ensure that people with disabilities are given the basic guarantees for which they have worked so hard: independence, freedom of choice, control of their lives, and the opportunity to blend fully and equally into the rich mosaic of the American mainstream.” President George Bush at the Signing of the American with Disabilities Act of 1990 Julie Ballinger, StarReach Enterprises Presenter

Public vs. Private Employer • Private Employers = ADA Title I • 15 or more employees (also check your state/city law) • Government Employers = ADA & Rehab Act Sec. 504 • Covered regardless of number of employees • Obligations under 504 are essentially the same as the ADA but: • require formalized documentation of compliance efforts • appointment of a 504/ADA Coordinator • establishment of grievance procedures to address disability-related complaints, including those of employees • Widely publicize the grievance procedures throughout the institution • Also covered • Employment agencies • labor organizations • joint labor management committees Julie Ballinger, StarReach Enterprises Presenter

Coverage Exceptions • Religious entities can give employment preference to people of their own religion. • US Government is not covered by the ADA but by Section 501 of the Rehabilitation Act. • American Indian Tribal Governments Julie Ballinger, StarReach Enterprises Presenter

What Does the ADA Amendments Act Have to Do With It? The ADAAA retains without amendment the existing definition of the term “disability” but clarifies the key words and phrases in the definition. The term “disability” means, with respect to an individual • who has a physical or mental impairment that substantially limits one or more major life activities; or • has a record of such an impairment; or • is regarded as having such an impairment-even if he or she does not, in fact, have such an impairment. • (discrimination through association) Julie Ballinger, StarReach Enterprises Presenter

GENERAL caring for oneself performing manual tasks seeing hearing eating sleeping walking standing lifting bending speaking breathing learning reading concentrating thinking communicating working MAJOR BODILY FUNCTIONS immune system normal cell growth digestive bowel bladder neurological brain respiratory circulatory endocrine reproductive functions ADAAA – Major Life Activitiesinclude but not limited to: Julie Ballinger, StarReach Enterprises Presenter

Substantial LimitationAs of Jan. 1 2009 to be reinterpreted by Federal Agencies with regulatory authority in keeping with the ADAAA • An individual is substantially limited in a major life activity • If the individual is substantially limited (consistent with the ADAAA)as to the condition, manner, or duration in performing a particular major life activity • As compared to the condition or manner under which the average person in the general population can perform that same major life activity. • Intent of Congress = courts to focus on if covered entities have complied with their obligations (not on intensive analysis of disability) Julie Ballinger, StarReach Enterprises Presenter

ADAAA - Who is protected? • The definition of disability = broader coverage only those individuals who are qualified and can prove discrimination are entitled to relief. • “Substantially limits” to be interpreted consistently with the ADAAA (rejects “prevent or severely restrict” = too demanding) • Substantially limits = only one major life activity has to be limited • Episodic or in-remission impairment covered if substantially limits a major life activity when active • Eliminates ‘mitigating measures’ test • Only mitigating measures that can be considered = ordinary eyeglasses or contact lenses = fully correct visual acuity or refractive error • No discrimination on the basis of uncorrected vision in determining qualification standards/selection criteria -- unless job related & consistent with business necessity. • Transitory and minor impairments not included Julie Ballinger, StarReach Enterprises Presenter

Record of Disability • The ADAAA amendments makes no specific changes to the second prong • NPRM notes EEOC’s long-held position that accommodation available for “record of” if still needed • EEOC investigators, in determining whether an individual has a record of (was substantially limited in a major life activity in the past or was misclassified as substantially limited) • must apply the expanded definition of Major life activities and • all the new standards for interpreting the term “substantially limits.” Julie Ballinger, StarReach Enterprises Presenter

“Regarded As” • An individual meets this requirement if discriminated against because of an actual or perceived physical or mental impairment • Whether or not the impairment limits or is perceived to limit a major life activity • ADAAA intent = discrimination on the basis of disability • Don’t have to provide reasonable accommodations to individuals who are considered “regarded as” • Individuals not subject to functional test. • Individual must prove adverse action taken because of an actual or perceived impairment. • Does not include transitory and minor impairments. • Covered entities not required to make reasonable accommodations or modifications. Julie Ballinger, StarReach Enterprises Presenter

Transitory And Minor Impairments • Impairments that are not usually disabilities • Temporary, non-chronic impairments of short duration with little or no residual effects (such as the common cold, seasonal or common influenza, a sprained joint) usually will not substantially limit a major life activity. • “Regarded As”does not apply if: • The impairment is both transitory AND minor. • lasting or expected to last for six months or less rule – only applies to Regarded As • NOTE:Actual Disability • An impairment may substantially limit a major life activity even if it lasts, or is expected to last for fewer then six months • Example: Employee have 2 broken arms from a car accident that are expected to heal within 4 to 6 months. Julie Ballinger, StarReach Enterprises Presenter

The ADA Excludes Conditions of: • transvestitism • transsexualism • pedophilia • exhibitionism • voyeurism • gender identity disorders not resulting from physical impairments • other sexual behavior disorders • current illegal drug addiction • compulsive gambling • kleptomania • pyromania • psychoactive substance use disorders resulting from current illegal use of drug Julie Ballinger, StarReach Enterprises Presenter

Sociological Perspective of Access • Categorization/labeling of some people as “disabled” and others as “non-disabled” depends upon society’s relative ideas: • what activities people shouldbe able to do and • how they should be able to do it Just imagine……what if……… Julie Ballinger, StarReach Enterprises Presenter

Getting to the Workplace Accommodation • Before even considering reasonable Accommodation • first ask “Is this an ADA issue?” • Even if it isn’t, you might still want to provide the accommodation to encourage high work productivity. • Know the difference between your ADA obligations and what you want to do voluntarily. Julie Ballinger, StarReach Enterprises Presenter

Determining If You Have an ADA Issue Relevant portions of the ADA require: • an employer; • to provide reasonable accommodation; • to qualified individuals; • with disabilities; • who are employees or applicants for • employment; • unless to do so would cause undue hardship. Julie Ballinger, StarReach Enterprises Presenter

For Each EmployeeGo Back to the Basics! • Does the individual have a Disability? • Is the individual Qualified? • Is the accommodation needed Reasonable? • Does the accommodation Remove application or employment barriers? • Is the accommodation made being monitored to make sure it Remains Effective? Julie Ballinger, StarReach Enterprises Presenter

The ADA requires reasonable accommodation in three aspects of employment 1. To ensure equal opportunity in theapplicationprocess, 2. To enable a qualified individual with a disability to perform the essential functions of a job, 3. To enable an employee with a disability to enjoy equal benefits and privileges of employment. Julie Ballinger, StarReach Enterprises Presenter

Disability? • Is there an impairment? • How do you know? • Disability Inquiries: • Applicants vs. employees • 3 stages of employment & inquiries • Pre-offer • Post-offer-pre-employment • Employment • Does your RA Policies &Procedures address each of these 3 stages? Julie Ballinger, StarReach Enterprises Presenter

Is the Individual “Otherwise Qualified” • Only “qualified” employees with disabilities are covered by the ADA. • Ask: • What are all the job-related qualifications? • Are they all listed on the job description? • Review job descriptions • What steps were taken to ensure that each qualification is actually job-related? • What are the screening tools to disqualify on a non-disability-related basis? ( ie: criminal history and drug tests). Julie Ballinger, StarReach Enterprises Presenter

Process • RA Policies &Procedures • Make sure to include a process to monitor how accommodations are working and how leave as an RA interacts with FMLA • Individual must let employer know that an adjustment or change is needed for a medical condition. • Employer is not required to assume disability • Not obligated to observe an employee for any behavior that may be disability related, and then decide the employee is disabled. • The Request (No Magic Words) is the First Step in the interactive process between the individual and employer • Can be made by others (family member, friend) or by employer or other employee observation. • Does not need to be in writing Julie Ballinger, StarReach Enterprises Presenter

What Satisfies Accommodation Requirements? • Don’t have to give accommodation requested by employee but the…. • Accommodation must be EFFECTIVE • must enable the employee to perform the essential functions of the job; • must enable applicant with a disability to have an equal opportunity to participate in the application process; and • must enable employee to enjoy privileges and benefits of employment. Julie Ballinger, StarReach Enterprises Presenter

Direct Threat and Reasonable Accommodations • If an individual poses a Direct Threat • significant risk of substantial harm to the health and safety of the individual or others • the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce the risk to where substantial harm no longer exists. Julie Ballinger, StarReach Enterprises Presenter

“UN”Reasonable Accommodations • Eliminating essential functions of the job • Lowering production standards • Personal use items (i.e.: prosthetic limb, eyeglasses, hearing aids, wheelchair) • Creating a job • Bumping an employee from his/her job • Placing a disabled applicant in job for which he/she did not specifically apply • Placing a disabled individual into a job if doing so would create a direct threat to the health or safety of the individual or others (risk cannot be lowered to acceptable level with reasonable accommodation) • Maintaining the salary of an employee reassigned from a higher-paying job to a lower-paying one if the employer does not do so for non-disabled. Julie Ballinger, StarReach Enterprises Presenter

Undue Hardship The responsibility of an employer to provide reasonable accommodation is limited to those situations that would not cause an undue hardship. • Limitations • costly • unduly extensive • substantial • disruptive • those that would fundamentally alter the nature or operation of the business Julie Ballinger, StarReach Enterprises Presenter

Determining Undue Hardship • The employer is the one who is required to show that an accommodation is an undue hardship. • must consider whether there is an alternative accommodation that would not impose such hardship. • Employers must determine undue hardship on a case by case basis • consider the undue hardship in relation to the size of the employer, • the resources available, and • the nature of the operation. • The employer should also factor in the effect of tax incentives on the cost of an accommodation before making an undue hardship determination. • Assessment of undue hardship is an ongoing process as resources and situations change. Julie Ballinger, StarReach Enterprises Presenter

PART II“Developing a Successful Reasonable Accommodation Process” • Part II of this webinar series will be presented on January 26, 2011 at 2:00 p.m. Central Time. • Preview: • Successful reasonable accommodations process tips • Reasonable accommodations policy and procedure models • Small business • Government • Types of accommodations • including the not so obvious • Reasonable accommodations resources Julie Ballinger, StarReach Enterprises Presenter

Job Accommodation Network 800-526-7234 (V/TTY) A free consulting service designed to increase the employability of people with disabilities by: 1) providing individualized worksite accommodations solutions, 2) providing technical assistance regarding the ADA and other disability related legislation, and 3) educating callers about self-employment options. Julie Ballinger, StarReach Enterprises Presenter

The Leading Resource On ADA & ADAAA Other disability related laws such as IDEA Making information technology accessible Services a wide range of audiencesincluding employers businesses government agencies WIA Workforce System schools people with disabilities Expert staff are available to provide training, publicationsand respond to your inquiries. Hot Line:1-800-949-4232 Web Site:www.southwestADA.org Podcast:www.DisabilityLawLowdown.com The ADA Resource! Julie Ballinger, StarReach Enterprises Presenter

Questions And Discussion Hope you will join us for Part II of this webinar series on January 26, 2011 at 2:00 p.m. Central Time Julie Ballinger, StarReach Enterprises Presenter

Tell us what you think! Fill out an Evaluation: https://vovici.com/wsb.dll/s/12291g48ca2 Julie Ballinger, StarReach Enterprises Presenter

Americans with Disabilities Act