Title I of the ADA A Basic Overview

1. Title I of the ADAA Basic Overview

2. Hello! I am Julie Brinkhoff I am with the Great Plains ADA Center www.gpadacenter.org You can find me at: brinkhoffj@missouri.edu

3. What is the ADA? Civil rights legislation signed into law July 26, 1990 Designed to provide full inclusion of people with disabilities into American This session will also cover the ADA Amendments Acts and how it affects Title I of the ADA.

4. The ADA Amendments Act was passed in 2008.Restored the ADA to its original intent.Expanded/clarified the definition of a disability. What is the ADA-AA?

5. Employment Provisions Cover: • All private employers with 15 or more employees. Note: religious entities too! • All state and local governments regardless of size. • Some states have different different standards under state law. • Exceptions: • The United States or a corporation owned by the U.S. • A Native American tribe • A bona fide private membership club that is exempt for • taxation under the 1986 IRS code.

6. Title I of the ADA protectsqualified individuals with disabilities who can perform the essential functions of the job with or without reasonable accommodations.

7. In Other Words: • Must meet the criteria to be considered a person with a disability under the definition of a disability established by the ADA Amendments Act. • Must meet the qualifications for the position. • Must be able to perform the essential functions of the job with reasonable accommodations. • Or be able to perform the essential functions of the job without reasonable accommodations. Note: Does not HAVE to use reasonable accommodations to be protected by Title I regulations.

8. The ADA-AA Definition of a Disability • Any impairment that substantially limits one or more major life activities and/or functions • A record of such an impairment, or • Regarded as having such an impairment

9. Major Life Activities/Functions ACTIVITIES Basic activities that most people can perform with little or no difficulty. FUNCTIONS Operation of major body functions such as immune system, normal cell growth, digestive, brain, circulatory functions.

10. KeyConcept There is no exhaustive list of conditions provided in the ADA! Criteria is based on the impact of the condition/impairment on major life activities/functioning rather than just the condition itself.

11. The ADA-AA Definition of a Disability • The ADA makes no distinction between types of disability. • Individuals who meet the definition of a disability ALL have the same rights under the ADA. • Many invisible disabilities may effect major life activities MORE than a visible disability.

12. Episodic Impairment/Remission Conditions that are in remission or are episodic meet the definition of a disability if they substantially limit a major life activity when active. Examples of Episodic Impairments -MS -Mood Disorder -Asthma -Epilepsy Example of Remission -Cancer

13. Nature and Severity Permanent or long term impact, or expected. How long the disability will last or is expected to last. Substantially Limited -Main Factors to Consider

14. Key Concept A common sense assessment should be used to decide if a condition/impairment is substantial. Based on comparing an individual’s ability to perform a specific major life activity or function with that of most people in the general population. Substantially Limited

15. Scenario-Same diagnosis but different severity and impact on life activities. One man uses an inhaler occasionally and his asthma is generally mild. The other man uses his inhaler occasionally, but flare-ups are severe and could be life threatening. One woman has a severe migraine headache two to three times a year causing her to miss up to three days of work annually. Two men have the diagnosis of asthma. Two women are diagnosed with migraines. Another woman has moderate to severe migraine headaches 3-4 time a month causing her to miss up to four days of work each month.

16. Mitigating Measure Eliminates or reduces the symptoms or impact of an impairment.

17. KeyConcept Mitigating measures should not be a factor when determining whether an impairment substantially limits a major life activity. Mitigating Measure

18. Bill is a diabetic and insulin is his “mitigating measure”. He functions “normally” when he uses insulin. He is still considered a person with a disability.

19. ADAAA Definition Also Includes: Past History Record of a physical or mental impairment that substantially limited a major life activity. Example: Past history of substance abuse or mental illness. Perceived Impairment Employer discrimination based on an actual or perceived impairment. Example: Employer notices an employee has a facial tic and demotes employee.

20. Episodic Impairment/Remission Conditions that are in remission or are episodic meet the definition of a disability if they substantially limit a major life activity when active. Examples of Episodic Impairments -MS -Mood Disorder -Asthma -Epilepsy Example of Remission -Cancer

21. Exclusions A person who currently uses drugs illegally is not protected by the ADA. Individuals who have gone through treatment and successful rehabilitation may be protected • Other Exclusions: • Transvestism, pedophilia, exhibitionism, voyeurism, homosexuality, compulsive gambling, kleptomania, pyromania, transsexualism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, psychoactive substance use disorders resulting from current illegal use of drugs

22. Scenarios

23. Remember Definition Protects “Qualified Individuals” with Disabilities from Discrimination in the Workplace

24. Qualified Individual • Has the required training, education, and experience • Can perform the essential functions of the job with or without reasonable accommodations.

25. Essential Functions • Basic job duties that an employee must be able to perform, with or without reasonable accommodation.

26. Questions to determine if a duty is an essential function. • Would the job exist or be fundamentally changed if the duty were removed? • How frequently is the duty performed? • If the duty is not performed frequently—is it still critical to the position?

27. Hiring Process Recruitment Interviews Tests/Assessments Medical Documentation Medical Tests/Physicals

28. Recruitment--Accessible Recruit using accessible outlets. Remove barriers to applying.

29. Recruitment: Non-Discriminatory • Examples of Discriminatory Information/Questions • Do you have a disability or medical condition? • Have you ever filed for worker’s compensation? • Have you ever been injured on the job? • Do you use any assistive devices such as a back brace, hearing aids or cane? • Will you require any reasonable accommodations to do this job?

30. Recruitment: Non-Discriminatory • Employers have the right to ask questions about: • Physical capabilities • Attendance • Qualifications • Experience • Hours and days available for work • Personal characteristics

31. Recruitment: Non-Discriminatory How many days were you sick last year? How many days did you miss work in the past year? Do you have any physical, cognitive, or psychiatric conditions that could keep you from performing this job? Will you be able to perform the essential functions that are listed for this job with or without reasonable accommodations? Do you have a driver’s license and dependable transportation? Do you have transportation needed to arrive at different work locations? Can you bend, lift and walk while holding 20-30 lb boxes to unload delivery trucks? Will you be able to unload 20-30 lb boxes from delivery trucks with or without reasonable accommodations?

32. Title I Prohibits Medically Related Questions • Are you currently taking prescription drugs? • Have you had a major illness in the last five years? • Have you seen a therapist or counselor for mental health issues? • Have you been treated for alcohol or drug addiction?

33. Employers are Advised to: • Make sure the applicant has a way to contact you to ask for accommodations or let you know about accessibility problems • Include a nondiscrimination statement on the application. • Focus the process on the ABILITIES needed for the job.

34. Goal is to Not Screen Out Qualified Applicants Based on Disability. People with disabilities want the right to compete based on their qualifications, experience and interview like everyone else. Want to avoid “funneling out” people with disabilities early in the job process.

35. Interviews Requirements are very similar to application requirements. • Make sure the applicant has a way to contact you to ask for accommodations or let you know about accessibility problems • Focus the process on the ABILITIES needed for the job. • Questions should be focused on the essential functions of the job.

36. Testing: Assessments/Questionnaires • Testing of applicants is allowed IF: • It is relevant to the skills and/or characteristics needed for the job. • It is required of everyone applying for a specific position.

37. Medical Examinations • But must be able to show that the reasons are job related and necessary to perform the job. • AND • Must be able to show that there was no reasonable accommodation that could be used for the person to perform the job. An employer may condition the job offer on the results of the medical examination.

38. Medical Examinations Information from medical examinations must be kept confidential, and Maintained in separate locked medical files.

39. Scenarios

40. Reasonable Accommodations

41. Reasonable Accommodation Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

42. Recruitment Application Interview Reasonable Accommodation Perform the essential functions of the job Benefits of Employment

43. Types of Reasonable Accommodation

44. Assistive Technology • Assistive Software • Screen Reader • Voice Amplifier on Phone

45. Adaptive/Modified Equipment

46. Physical Access to the Workplace

47. Changes in Supervisory & Work Procedures Changes in Policy Allowing a Service Animal Food at Desk Dress Code Changes in Supervision Written Instructions Checklists

48. Changes in Work Schedule/Telecommuting • Change in work schedule. • Telecommuting • Longer day with more frequent breaks. • Shorter days 6 or 7 days a week.

49. Effective Communication

50. Actions NOT Considered Accommodations. • Personal devices such as wheelchairs or hearing aids. • Exemption from conduct standards. • Lowered performance standards. • Eliminate essential job functions. • Change in supervisors.