Virginia Department of Rehabilitative Services August 2009

1. ADA Basics Virginia Department of Rehabilitative Services August 2009

2. Americans with Disabilities Act (ADA) Overview • ADA • Signed into Law 1990 • Covers employment, state and local government services, private businesses, telecommunication • Prohibits discrimination based on disability

3. ADA Amendments Act 2008 (ADAAA) Overview • ADAAA • Signed into law 2008 • Restores the intent and protections of the ADA • Provides a non-exclusive list of disabling conditions covered by ADA • Primarily addresses definition of disability and employment • EEOC has not yet issued regulations to support ADAAA

4. Who is Considered Disabled Under the ADA? A person is considered disabled if they meet any of the following criteria: • Someone with a physical or mental impairment that substantially limits one or more major life activities …or • Someone with a record or history of…or • Someone who is regarded as having such an impairment

5. Learning Sitting Standing Lifting Reading Thinking Interacting with Others Concentrating Major Bodily Functions (ADAAA) Major Life Activities • Caring for Oneself • Performing Manual Tasks • Walking • Seeing • Hearing • Speaking • Breathing • Reproduction • Working • Sleeping

6. Record or History of Substantial Limitation Person with a record or history of an impairment might include: • Cancer Survivor • Person with history of heart attack • Brain Injury Survivor • Person with history of mental illness, drug/alcohol addiction

7. Regarded as Having a Disability A person is regarded as having a disability if he/she: • Has a visible birthmark/scar • Is rumored to have a disability • Has an impairment that doesn’t limit substantially, but others regard him/her as limited • ADAAA: employer’s actions not thinking assessed

8. Quiz • A woman has limited vision and cannot read anything in writing smaller than size 36 font (average documents are in size 10 or 12). Is she disabled? • A man has epilepsy but controls his seizures with medication. He hasn’t had a seizure in 5 years. Is he considered disabled? • A senior citizen can’t read registration forms because he dropped out of school in the third grade. Is he disabled?

9. Answers • Probably so, because the “average person” can read 10-12 size font (if glasses correct the vision problem, then probably not disabled) • Yes. If a job refuses to hire him because he has a history of seizures, then yes under second prong. If no different treatment, still can be covered under ADAAA neurological condition. • No! A person is only disabled if their limitation is caused by a physical or mental impairment. Dropping out of school is not an impairment.

10. Who is NOT covered by the ADA • People currently using illegal drugs are NOT protected • Gay, Lesbian and Transgender individuals are not considered disabled. • People who compulsively gamble, set fires or steal are not considered disabled.

11. ADA Organization • The ADA is set up in Titles: • Title I: Employment • Title II: State and Local Services • Title III: Public Accommodations • Title IV: Telecommunication • Title V: Miscellaneous • We’ll address employment last, in detail

12. Title II:State and Local Government • Four broad areas of requirements: • General Nondiscrimination • Program Accessibility • Equally Effective Communication • Employment

13. Government Programs and Services Covered by the ADA • Courthouse • Library • Recreation Center and Senior Center • Social Services (foster care, food stamps) • Mental Health (including emergency and hotlines) • Schools • Polling Places • Information (website, phones, newsletters) • Vocational Rehabilitation Services • General Assembly/Legislature

14. Title IIGeneralRequirements State and local government must provide full program accessto people with disabilities. One of each type of program must be accessible but not at every location Agencies that receive government contracts must comply as well.

15. Providing Program Access Program access can be provided by: • Modifying policies and procedures • Moving services to accessible locations • Providing auxiliary aids and alternative formats • Removing physical barriers

16. State and Local Government Action Steps • Designate a responsible employee • Provide notice of ADA requirements • Establish a grievance procedure • Conduct a self-evaluation • Develop a transition plan if locality employs more than 50 and structural barriers exist.

17. Restaurants/Bars Clothing Stores Movie Theaters Grocery Stores Arcades Bowling Alleys Ball Parks and Stadiums Apartment Leasing Offices Concert Halls Skating Rinks Hotels and Motels Campgrounds Convenience Stores Car Dealerships Doctor and Dentist Offices, Hospitals Amusement Parks Museums Malls Title III Public AccommodationsBusinesses covered:

18. Public Accommodations Public Accommodations cannot: • Exclude people with disabilities based solely on their disability • Screen out people with disabilities with eligibility criteria • Require people with disabilities to participate in separate programs or accept accommodations they do not want Separate and unequal

19. Policy Barriers Businesses must modify policies that prevent access Policy Barriers could include: • Requiring a driver’s license to get a membership card • Requiring people with mobility aids to have a companion with them • Requiring people with disabilities to use separate programs or come at special times • No dogs allowed rules extending to service animals

20. Readily Achievable Barrier Removal Public Accommodations must conduct Readily Achievable Barrier Removal • Readily Achievable Barrier Removal means getting rid of barriers that are cheap and easy to remove • “Cheap and Easy” is a relative term • Barrier removal is an ongoing process • Tax incentives are available to help pay for access

21. Architectural Barriers and Solutions Barriers • Stairs • High counters • Narrow doorways • Lack of accessible parking • Round doorknobs Solutions • Ramps • Drop down shelf/table • Offset hinges • Restripe parking lot, signage • Hardware that can be used with a closed fist

22. ADA Accessibility Guidelines (The Standards)

23. Title IV Telecommunication • Each state provides relay services so that individuals with communication disabilities can communicate with hearing individuals. • Operators relay calls between TTY user and telephone user.

24. Telecommunication • Closed captioning must be provided for federally funded programs • With the Telecommunication Act of 1996, requires emergency broadcasts to be accessible for people with disabilities (example: weather emergencies; 9/11/01) • Closed captioning and emergency information cannot be obscured by “crawlers” on screen.

25. Filing Complaints • Title II State and Local Government: • Filed with the Department of Justice (DOJ) or Designated Agency • Title III Public Accommodations: • Filed with DOJ • Title IV Telecommunication: • Complaints are filed with the Federal Communications Commission (FCC)

26. Title IEmployment and the ADA • Employers covered: • All state and local government employers • Private employers with 15 or more employees • Employers not covered: • Churches/Synagogues/ • Mosques • Indian Tribes

27. Title I Employment Provisions Ensure that qualified individuals with disabilities: • Have comparable access to the employment process • Are afforded an interactive process to determine reasonable accommodation • Are provided access to all benefits of employment including access to related services (e.g., gym, transportation)

28. Title I: Employment • ADA is NOT affirmative action • An applicant must be able to perform the ESSENTIAL FUNCTIONS of the job with or without REASONABLE ACCOMMODATIONS to be considered qualified

29. Key Terms Essential Functions and Reasonable Accommodation • Essential Functions: • The core parts of the job that if taken away would fundamentally alter the position • Reasonable Accommodation: • Any change in the work environment or way things are done that enables a person with a disability to enjoy equal employment opportunity

30. Determining Essential Functions Consider: • History of others in job • Consequence if task not done • Ability of others to do task • Specialized skills required of job • Job description When is driving an essential function?

31. 3 Types of Reasonable Accommodations 1) Modifications to application process to ensure access 2) Modifications to work environment or to manner or circumstances of how work is done to allow qualified employee to do the job 3) Modifications to enable worker to enjoy benefits and privileges of employment

32. Reasonable Accommodation Examples • Making existing facilities readily accessible and useable by employees with disabilities • Job restructuring • Part-time or modified work schedules • Reassignment to vacant positions • Adjustment or modifications of examinations (even medical exams and drug testing), training materials, or policies • Providing qualified readers or interpreters

33. Reasonable Accommodation Requests -Timing • May be made at the beginning of the hiring process to enable the applicant to participate fully • May be made after the job is officially offered to the applicant • May be made after the employee is on the job as employment conditions or the person’s disability changes

34. Reasonable Accommodations Average Cost of Accommodations: • 46% NO COST • 45% One time cost • Average $500.00 Source: Job Accommodation Network Workplace Accommodations Low Cost, High Impact, 2009

35. Undue Hardship • Significant Difficulty or Expense The employer must provide an accommodation unless it would constitute a significant difficulty or expense. • What might constitute a valid undue hardship?

36. Activity:Accommodation Needs Disability Person with: • Visual Impairment • Epilepsy • Diabetes • Intellectual Disability • Hearing Impairment • Mental Illness • Wheelchair user Job Working as a: • Secretary • Waiter • Receptionist • Teacher • Nurse • Stock clerk • Telemarketer

37. Accessibility Throughout the Employment Process

38. Job Postings and Applications • Job Posting needs to be accessible • Make sure online job postings and applications can be read by screen readers, are available in larger fonts, etc. • And/Or • Provide an alternative way to find job postings/apply for jobs • Provide alternative format for applications

39. Job Postings and Applications • Applications should not have questions asking: • History of hospitalizations • Medical or physical impairment • Workman’s compensation history • Current medications Because all answers may tend to disclose a disability

40. The Interview • Job seeker is responsible for requesting accommodations Accommodations might include: • Accessible location • Interpreter • Accommodations in testing • Other • Employer is responsible for paying any costs related to accommodation

41. Disability Related Inquiries:Pre-Offer Stage • Before a job is offered, the employer may only discuss the person’s ability to perform specific tasks.

42. Disability Related Inquiries Interviewer MAY Ask Questions About: • An applicant’s ability to perform job-related duties • An applicant’s previous job experience • Skills required to perform the job • Educational background

43. Disability Related Inquiries Interviewer MAY NOT Ask About: The nature or extent of the applicant’s disability If the applicant or anyone in his/her family has a disability The applicant’s health If the applicant has a history of emotional illness

44. Disability Related Inquiries (cont’d) Interviewer MAY NOT Ask: If the applicant has ever had an injury or disease If the applicant has ever seen a psychiatrist If the applicant has ever had a drug or drinking problem

45. Pre-offer Inquiries • NO questions about health or disability before offering a position to that applicant. • No medical exams before job offer • Drug tests are permitted if required of all applicants.

46. Exception • If the applicant has an obvious visible disability, or the employee has disclosed the disability and the disability appears to limit his/her ability to do the job, the employer may ask the applicant to describe or demonstrate how he/she would do the job

47. Pre Employment Screening and Testing Must be job related and consistent with the business needs Must be given with reasonable accommodation unless the specific skill requiring accommodation is being tested -Examples

48. Medical Examinations An employer CANNOT require a medical exam or make medical inquiries BEFORE a job offer is made Post Job Offer medical screening • Must happen after the candidate has met all other prerequisites • Must be conducted on all candidates • Only disqualifications related to the job are allowed

49. To Disclose or Not to Disclose • An individual does not need to disclose about his or her disability unless requesting an accommodation. • Disclosure must be kept confidential.

50. Reasonable Documentation • Documentation from an appropriate professional concerning the individual’s disability and functional limitations to verify the existence of a disability and the need for an accommodation Confidentiality • Employers must keep all information concerning the medical condition or history of its applicants or employees confidential. • This includes medical information that an individual voluntarily tells his/her employer.