Disability Accommodation for W-2 Agencies

1. Disability Accommodationfor W-2 Agencies Bob Gregg and tess o’brien-heinzen May 29, 2019

2. Agenda Legal PrimeR When are obligations triggered in the w-2 process? Providing reasonable accommodations Disability in employment Common compliance issues 2

3. Legal Primer What are the laws? • Americans with Disabilities Act • Section 504 of the Rehabilitation Act • Wisconsin Public Accommodations Law • Wisconsin Fair Employment Act When do these laws apply? • Application process • Development of EP • Assignments • Responding to failure to participate *These laws apply throughout the whole process 3

4. Americans with Disabilities Act (ADA) • ADA- Title I • No covered entity shall discriminate against a qualified individual on the basis of disability 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. • Title I applies to employers with 15 or more employees. 4

5. Americans with Disabilities Act (ADA) • ADA -Title II • [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. • Title II applies to state and local government entities including W-2 entities 5

6. Rehabilitation Act of 1973 (“Section 504”)(20 U.S.C. §794; 34 CFR 104) • No otherwise qualified individual with a disability in the United States ... shall solely by reason of his or her disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . . • Title II makes Section 504 applicable to governmental entities regardless of federal funding. 6

7. Rehabilitation Act of 1973 (“Section 504”)(20 U.S.C. §794; 34 CFR 104) • “Otherwise qualified” means an individual who is able to meet essential eligibility requirements for receipt of services or benefits with or without reasonable modifications to rules, practices, or policies.

8. Disability Definition Of Disability Under Section 504 and ADA • Physical or mental impairment which substantially limits one or more major life activities (“actual impairment”); • Has a record of such impairment; or • Is regarded as having such impairment.

9. Actual Impairment An qualified individual who has a physical or mental impairment that substantially limits a major life activity. (1) Physical or mental impairment (2) Impairment affects a major life activity (3) Substantially limits

10. Actual Impairment – Three Steps • (1) Does the student have a “physical or mental impairment?” • Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs, respiratory (including speech organs); cardiovascular; reproductive; digestive; genitor-urinary; hemic and lymphatic; skin; and endocrine; or • Any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

11. Actual Impairment – Three Steps • Physical or mental impairment, cont’d… • Physical or mental impairment includes, but is not limited to, contagious and noncontagious diseases such as the following: orthopedic, visual, speech, and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. • Physical or mental impairment does not include homosexuality or bisexuality.

12. Actual Impairment – Three Steps • (2) Does the impairment affect a “major life activity”? • (a) caring for oneself, performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; reaching; sitting; lifting; bending; speaking; learning; concentrating; communicating; breathing; reading; thinking; writing; interacting with others; working; or, • (b) The operation of a major bodily function, such as functions of the immune system; special sense organs and skin; normal cell growth; digestive; bowel; bladder; neurological; brain; respiratory; circulatory; cardiovascular; hemic; endocrine; lymphatic; musculoskeletal; and reproductive functions.

13. Actual Impairment – Three Steps • “Major Life Activity” cont’d… • Whether an activity is a major life activity is not determined by reference to whether it is of central importance to daily life. 28 CFR s. 35.108. • Some examples of disabilities causing impairment of a “major life activity:” cancer (affects normal cell growth); ulcerative colitis, Crohn’s Disease, celiac disease, irritable bowel syndrome (affects function of the bowel) HIV/AIDs (affects function of the immune system epilepsy (affects neurological and brain function) diabetes (affects endocrine system) asthma (affects respiratory system) • Remember “learning” is only ONE of the many major life activities listed.

14. Three Steps to Eligibility • (3) Does the impairment “substantially limit” the major life activity? • “Substantially limits” is to be construed broadly in favor of expansive coverage. • Consider the conditions under which the individual performs the major life activity; the manner in which the individual performs the major life activity; or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity. • An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. • Comparison of individual to others in general population usually does not require scientific, medical or statistical evidence. But it is not prohibited. • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures except ordinary eyeglasses or contact lenses.

15. ADA Regulations • Definition of “Physical or mental impairment” expanded to include dyslexia and other specific learning disabilities and Attention Deficit Hyperactivity Disorder • Definition of “Major life activity” expanded to include writing and interacting with others. • Definition of “Major bodily function” expanded to include special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal. 15

16. ADA Regulations • NOTABLE RULES OF CONSTRUCTION. • Regulations state that primary focus should be on whether institutions are meeting their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. • “Major” should not be interpreted to create a demanding standard. • “Major life activity” is not determined by reference to whether it is of central importance to daily life. • The effects of an impairment lasting or expected to last less than six months can be substantially limiting within the meaning of this section for establishing an actual disability or a record of a disability. 16

17. ADA Regulations • PREDICTABLE ASSESSMENTS. Some impairments will, in virtually all cases, result in a determination of coverage: • deafness, blindness, intellectual disability, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy and multiple sclerosis, HIV, and major depressive disorder, bipolar disorder, PTSD, TBI, OCD, and schizophrenia. 17

18. Record of Impairment • An individual has a record of such an impairment if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. • An individual with a record of a substantially limiting impairment may be entitled to a reasonable modification if needed and related to the past disability.

19. Regarded as Having an Impairment • An individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the public entity asserts, or may or does ultimately establish, a defense to the action prohibited by the ADA. • An individual is not “regarded as having such an impairment” if the public entity demonstrates that the impairment is, objectively, both “transitory” and “minor” (6 months or less).

20. Exclusions The term “disability” does not include— • (1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; • (2) Compulsive gambling, kleptomania, or pyromania; or • (3) Psychoactive substance use disorders resulting from current illegal use of drugs.

21. Hidden Disabilities • Mental Health • Cognitive Disabilities • Allergies

22. What is a “Mental Impairment”Under the ADA? The ADA defines “mental impairment” to include “[a]ny mental or psychological disorder, such as . . . emotional or mental illness. Examples of “emotional or mental illness[es]” include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia.

23. Mental Impairments IncludeCognitive/Learning Conditions

24. Mental Impairments • About one of every five adults in the U.S. – 43.8 million (18.5 percent) – experiences mental illness in a given year. • In 2015, 18.1 percent of U.S. adults experienced an anxiety disorder, 16 million Americans had at least one major depressive episode and one in every 25 adults reported a mental illness that substantially interfered with life activities 24

25. Mental Health Treatment • Success rate is higher (60-80%) than for other illnesses such as heart disease (45-50%) • Treatment depends on severity and personal situation • Work can play a therapeutic role

26. Not Every Emotional Condition is Legally a Disability • ADA exempted (pyromania, kleptomania, compulsive gambling, current drug use, sexual disorders) • Personality disorders • Substance abuse is not technically a disability, but may have a psychological component (“dependency” may be a disability) • Situational impairment (but may be FMLA)

27. Not Every Emotional Condition is Legally a Disability Traits, symptoms or behaviors are not of themselves disabilities, but if due to a mental disability they do require reasonable accommodation (they may be how the condition came to our attention) • Poor judgment • Chronic lateness • Irritability • Inability to get along with others 27

28. Most Difficult Areas of the ADA • Not obvious (hidden disabilities) • Denial and cover-ups • Stereotypes and labeling • Others’ frustration and lack of empathy • Be careful of labeling difficult people. • Turns into “perceived as” disabled.

29. Red Flag Words Which Lead to Litigation “Mental” “Sicko” “Wacko” “Going to go postal” “Code red” “Paranoid SOB” “Half bubble off level”

30. Cognitive Disabilities • Learning Disabilities • Dyslexia • Dysgraphia • Dyscalculia • Traumatic Brain Injury • ADHD/ADD • Autism

31. Allergies • Food Allergies • Most common: peanut, tree nut, fish, shellfish, dairy, wheat, egg, and soy • Allergies or sensitivities to scents

32. Obligations under ADA/Section 504 • Individuals with disabilities cannot be: • Excluded from participation in; • Be denied the benefits of the services, programs, or activities of a public entity; or • Be subjected to discrimination by any such entity. • Agencies have to modify policies, practices, and procedures and provide accommodations if necessary for an individual to access the services and programs of the agency.

33. Wisconsin’s Public Accommodation Law • Wis. Stat. § 106.52 • State law generally prohibits discrimination in places of public accommodation and amusement because of disability. • Wisconsin law considers public accommodations to include places of business or recreation, lodging establishments, credit/financial services, restaurants, taverns, nursing homes, clinics, hospitals, and any other place where accommodations, amusement, goods, or services are available to the general public. 33

34. Disability in Employment – Wisconsin Fair Employment Act • Wisconsin’s definition of disability was interpreted more broadly than the definition under the pre-amendment ADA definition: • A physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; • Someone who has a record of such an impairment; or • Someone who is perceived as having such an impairment. 34

35. When are Obligations Triggered in the W-2 Process? • Wisconsin Works Manual, https://dcf.wisconsin.gov/manuals/w-2-manual/Production/pdf/W2ManualRelease1904.pdf • April 1, 2019

36. Obligations of W-2 Agencies • W-2 agencies must: • Ensure participants have the necessary services, reasonable modifications, and accommodations to successfully engage in assigned W-2 activities; and • Work with employers to put needed accommodations into place for participants who are making the transition to unsubsidized employment.

37. Obligations of W-2 Agencies • The W-2 agency is responsible for: • Identifying the need for the accommodation; • Identifying the accommodation itself; and • Making sure that the accommodation is provided. This includes ensuring that the accommodation is provided at all assigned activities such as a basic education lab or a work experience site.

38. Informal Assessments • Informal assessment is an ongoing case management practice, which starts during the W-2 application period and continues until the individual no longer receives W-2 services. • A comprehensive informal assessment must be completed and submitted prior to initial W-2 placement and at each placement change. • Used to determine, among other things, existence of disabilities.

39. Conducting Informal Assessment • Paper and pencil tools designed by the W-2 agency; • Automated screening and assessment tools available within the W-2 agency; • Information gathered through face-to-face case management meetings; • Worksite performance evaluations; • Goal setting exercises/tools (e.g., where do you want to be in six months? Two years?, etc.); and • Experience with following through on job search and other assigned activities.

40. Participant Barrier Questions • The WWP Informal Assessment Driver Flow includes a Participant Barriers page with questions to collect information about the applicant or participant’s health and personal life that may affect the individual’s ability to obtain and maintain employment. The WWP Informal Assessment - Participant Barriers page consists of five sections: • Physical Health • Mental Health • Alcohol and Other Drug Abuse (AODA) • Cognitive and Learning Needs • Domestic Abuse Screen

41. Referring for a Formal Assessment • If the applicant or participant presents medical or other information, including the applicant’s or participant’s own statements that indicate he or she may have a disability or other barrier to participation in the W-2 program or employment. • When W-2 agency staff or contractors observe behavior that indicates the need for a formal assessment.

42. Formal Assessments • Formal assessments must be completed by one or more qualified assessing agencies or individuals. A professional qualified to perform a formal assessment may include: a medical or mental health professional, social worker, psychologist, neuro-psychologist, Division of Vocational Rehabilitation counselor or similar qualified assessing agency or individual.

43. Formal Assessment • The extent and severity of any disabilities or other conditions (e.g., domestic violence, learning needs, need to care for disabled child) that may interfere with normal functioning in an employment setting or with a persons’ ability to meet W2 program requirements; • The effect of a disability or other potential Barrier on the person’s capacity to obtain and maintain Unsubsidized Employment, participate in employment related activities (e.g., work training activities or education) or otherwise meet W2 program requirements; • The need for supportive services, accommodations, auxiliary aids or communication assistance; • The conditions under which the person is capable of employment or employment related activities; • The need to make reasonable modifications to policies, practices and procedures when necessary to ensure equal opportunity for people with disabilities; and • The appropriateness of specific assignments in the W-2 program. The formal assessment process may include gathering information about the participant from one or more qualified assessment agencies or individuals.

44. Critical Information from Assessment • Diagnosis • Functional abilities • Functional limitations • Aptitude/cognitive level • Areas of deficit • Range or reasonable modifications and accommodations

45. Assessment • Cognitive or learning disability • Mental health • Other medical conditions • Need to care for disabled family member

46. Providing Accommodations

47. What is Required by the ADA/Section 504? • ADA and Section 504 require modifications to policies, practices, and procedures necessary to ensure equal access to the program or benefit. • ADA and Section 504 require reasonable accommodations that are necessary to ameliorate the disability’s effects of preventing meaningful access to the program or benefit. • ADA and Section 504 require auxiliary aids and services necessary for an individual to access the program or benefit.

48. “Reasonable” Accommodations • The hallmark of a “reasonable” accommodation is effectiveness. • The question to ask is what is necessary to ameliorate the effects of the disability so the individual has equal access. • Decisions must be made on a case-by-case basis.

49. What Is Not Required by the ADA/Section 504 • Modifications/accommodations that would impose undue and financial administrative burdens. • Modifications/accommodations that would fundamentally alter the nature of the service, program or activity. • Does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing. • An entity does not have to provide every accommodation an individual requests or the accommodation of his or her choice (this may be different with respect to effective communication).

50. Accommodations in W-2 Programs • Provide participant written description of services, modifications or accommodations needed on appropriate form. • Advise W-2 education, training or work site providers of any needed reasonable modifications or accommodations and monitor participant’s performance to ensure they are provided.