The Americans with Disabilities Act

1. Implications for Employers The Americans with Disabilities Act Indiana Vocational Rehabilitation Services

2. 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. Indiana Vocational Rehabilitation Services

3. Understanding the ADA Indiana Vocational Rehabilitation Services

4. Americans with Disabilities Act Federal Law 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. • Employment • Services rendered by state and local governments • Places of public accommodation • Transportation • Telecommunications services Indiana Vocational Rehabilitation Services

5. 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

6. ADA Major Employment Provisions • Requires equal opportunity in selection, testing, and hiring of qualified applicants with disabilities. • Requires equal treatment in promotion and benefits. • Prohibits discrimination against workers with disabilities; • Applies to all employers with 15 or more employees. Indiana Vocational Rehabilitation Services

7. ADA Major Employment Provisions, cont. • Applies to private employers, state and local governments, employment agencies, labor organizations, and joint labor-management committees. • Requires reasonable accommodations for applicants and workers with disabilities when such accommodations would not impose “undue hardship.” Indiana Vocational Rehabilitation Services

8. ADA Major Employment Provisions, cont. Employers may: • Require that an individual not pose a direct threat to the health and safety of the individual or others. • Conduct tests for the illegal use of drugs and may prohibit illegal use of drugs and alcohol in the workplace. Indiana Vocational Rehabilitation Services

9. ADA Major Employment Provisions, cont. 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. Indiana Vocational Rehabilitation Services

10. 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. Indiana Vocational Rehabilitation Services

11. 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. Indiana Vocational Rehabilitation Services

12. ADA Key Definitions • Cognitive functions • Walking • Caring for oneself • Sleeping • Performing manual tasks • Reproduction • Breathing • Seeing • Working • Socializing • Speaking • Hearing What is a Major Life Activity? BIG DOZEN Indiana Vocational Rehabilitation Services

13. Examples of Disabilities • Stress-related mental/emotional disorder • Narcolepsy • AIDS • Hypertension • Extreme varicose veins • Obesity • Asthma • Post traumatic stress disorder (PTSD) • Rheumatoid arthritis • Chronic fatigue syndrome • Some allergies • Migraine or cluster headaches (IF they substantially limit a Major Life Activity) Indiana Vocational Rehabilitation Services

14. ADA Key Definitions, cont. 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. Indiana Vocational Rehabilitation Services

15. ADA Key Definitions, cont. 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… Indiana Vocational Rehabilitation Services

16. ADA Key Definitions, cont. 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. Indiana Vocational Rehabilitation Services

17. 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… Indiana Vocational Rehabilitation Services

18. ADA Key Definitions, cont. 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. Indiana Vocational Rehabilitation Services

19. Categories of Persons Protected by ADA • Have a disability now. • Had a disability in the past but not now (cured/recovered). • Have a disability because they are regarded and treated as such (“perceived disability”). Indiana Vocational Rehabilitation Services

20. 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. Indiana Vocational Rehabilitation Services

21. 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. Indiana Vocational Rehabilitation Services

22. Examples of Reasonable Accommodations • Time off for treatment, rest, recovery • Extra bathroom breaks • Modified testing or application procedure • Flexible work schedule • Teleworking • Modified work uniform • Magnifiers • Voice activated computer • Adaptive devices • Waiver of “no beard” policy • Transfer or reassign • Sign language interpreter • Providing dollies, carts Indiana Vocational Rehabilitation Services

23. 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. Indiana Vocational Rehabilitation Services

24. 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: Indiana Vocational Rehabilitation Services

25. 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. Indiana Vocational Rehabilitation Services

26. Hiring No 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 & Innovations Indiana Vocational Rehabilitation Services

27. 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 & Innovations Indiana Vocational Rehabilitation Services

28. General Info About Employees with Disabilities U.S. Department of Labor Office 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

29. Responsibilities of a Superior in Relation to Employees with Disabilities Indiana Vocational Rehabilitation Services

30. 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. Indiana Vocational Rehabilitation Services

31. ADA Key Definitions What are Essential Job Functions? • They are central to the position. • They occupy a significant amount of the employee’s time. • If removed, they would substantially change the job. Indiana Vocational Rehabilitation Services

32. Is a Function Essential? Questions to ask when determining if a function is essential: • Does the position exist to perform this function? If this function was removed would it still be the same job? • 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

33. Is a Function Essential?, cont. Questions to ask when determining if a function is essential: • What is the degree of expertise or skill required to perform this function? • Do current employees actually perform this function? Have past employees? • How much time is spent performing this function? Indiana Vocational Rehabilitation Services

34. The Purpose of Essential Job Functions in Relation to ADA Under the ADA, an employer must evaluate individuals according to their ability to perform essential job functions, with or without reasonable accommodation. Indiana Vocational Rehabilitation Services