Understanding the Americans with Disabilities Act: Employment Rights and Responsibilities

1. Americans With Disabilities Act TITLE 1 EMPLOYMENT

2. NOD-Harris Poll - 2004 • 35% with a disability work full-time or part-time • 78% without disability work full-time or part-time • 22% report encountering job discrimination Source: National Organization on Disability, 2004

3. ADA Overview • Title I - Employment • Title II - State & Local Government • Title III - Public Accommodations • Title IV - Telecommunications • Title V - Miscellaneous

4. Definition of a Disability : • A physical or mental impairment that substantially limits one or more major life activities; • A record of such an impairment; • Is regarded as having such an impairment

5. Seeing Performing manual tasks Speaking Learning Walking Breathing Hearing Working Sleeping Caring for oneself Affected major life activities

6. NOT covered by the ADA • Current illegal drug users • Sexual behavior disorders • Compulsive gambling • Kleptomania • Pyromania • Psychoactive substance use disorders (from use of illegal drugs)

7. Drug and Alcohol Use • Past illegal drug use covered • Current illegal drug use not covered • Employer may prohibit use of illegal drugs and alcohol in workplace • Drug tests are not illegal

8. Drug and Alcohol Use • Past alcohol use covered • Current alcohol use covered • Discipline, discharge or deny employment when alcohol impairs job performance or conduct

9. Title I - Employment • Private employers • State and local governments • Employment agencies • Labor Unions

10. What Employers Are Not Covered? • Those with less than 15 employees • Private clubs (i.e. country clubs) • Federal Government • Native American Tribes

11. Application Promotion Testing Medical exams Hiring Layoff/Recall Assignments Termination Evaluation Compensation Disciplinary actions Leave Training Benefits Regulated Employment Practices

12. The ADA prohibits discrimination against any qualified individual with a disability in regard to all terms, conditions, and privileges of employment.

13. What is a Qualified Individual? • Individual must have the education, experience and skills required • Must be able to perform the essential functions of the job with or without a reasonable accommodation

14. What makes a Job Task Essential? • The position exists to perform the function • There is a limited number of employees who can perform the task • The function is highly specialized, requiring specific expertise or skill

15. Determining if a Task is Essential • Employer’s judgment • Written job description • Amount of time spent performing the task

16. Reasonable Accommodation • Accessible work environment • Modify exams, training materials, job-restructuring • Modify work practices and procedures • Part-time or modified work schedules • Qualified interpreters or readers • Leave • Reassignment

17. Not Reasonable Accommodations: • Transfer to a different supervisor • Reassignment of essential functions • Lowering production standards • Provision of personal use items • Provision of “light duty” position • Promotion • Non-adherence to policy and procedure that is consistent with business necessity

18. Reasonable Accommodation • Individual must request an accommodation • Individual may refuse an accommodation • Defenses • Undue hardship • Significant expense or difficulty • Fundamental alteration of business • Direct threat • ...to health and safety of others • Significant risk that can not be eliminated by reasonable accommodation

19. Interview: Unacceptable Questions • How much alcohol do you drink? • What medications are you taking? • Have you ever been hospitalized? • Have you ever taken AZT? • Have you ever filed or received worker’s compensation?

20. Interview: Acceptable Questions • Are you capable of standing for 3 hours? • Would you be able to arrive to work by 8 am everyday? • Can you perform the essential functions of the job with or without a reasonable accommodation? • Can you move 50 lbs from point A to point B? • Can you sit for 2 hours at a time? • Can you read a video display terminal?

21. Reference Checks • May ask about: • job functions & tasks • quality & quantity of work • how job functions were performed • attendance record • other job-related issues that do not relate to disability • Cannot ask about: • Disability • Illness • Workers compensation history

22. Medical Inquiry: Pre-Employment • No questions which could elicit medical information • No medical exams permissible • Agility/aptitude testing permissible if consistent with business necessity • All other applicants are subject to same

23. Medical Inquiry: Post Offer • Permissible if all applicants or individuals in similar positions subject to same inquiry and exam • Additional inquiry allowed to follow-up on information found in initial inquiry • Withdrawal of offer must be based on direct threat

24. Medical Inquiry: Post-Hire • No medical inquiry unless consistent with business necessity • Participation in wellness or other health promotion activities sponsored by employer must be voluntary

25. Medical Records • Information regarding medical exams and inquiries • must be kept confidential • must be kept separate from personnel files

26. CDC: Infectious & Communicable Diseases • Campylobacter • Salmonella • E. coli • Calcivirus or Norwalk-like virus • Shigella species • Hepatitis A virus • Staphylococcus aureaus

27. Food Service Management • Restrict employee if symptoms are present • Exclude employee if diagnosed with illness • If disabled by disease, ADA applies

28. Company Policies and Practices • Training • Sensitivity training for managers and co-workers • Health insurance • Employee assistance programs • Fitness programs • Employee & family activities

29. Posting Notices • An employer must post notices concerning the provisions of the ADA • Must be accessible to persons with visual or other reading disabilities • Posters can be obtained from the EEOC • 800-669-EEOC • or 800-800-3302 (TDD)

30. Financial Assistance • IRS Code 44 (Tax Credit) • 30 employees or less OR annual gross receipts less than $1M • Up to $5000/year • 50% of expenditures between $250 - $10,250 • IRS Code 190 (Tax Deduction) • Up to $15,000/year • Architectural or Transportation • Targeted Jobs Tax Credit • For hiring people with disabilities

31. U.S. Department of Justice www.usdoj.gov/crt (800) 514-0301 Equal Employment Opportunity Commission www.eeoc.gov (800) 669-4000 U.S. Access Board www.access-board.gov (800) 872-2253 Job Accommodation Network (JAN) (800) 526-7234 Great Lakes ADA Center www.gldbtac.org (800) 949-4232 National Center on Accessibility www.ncaonline.org (812) 856-4422 (voice) (812) 856-4421 (tty) Resources