College to Career Transition: Leveraging the ADA & Accommodations at Work

1. College to Career Transition: Leveraging the ADA & Accommodations at Work • Tracie DeFreitas, M.S., CLMS • Lead Consultant, ADA Specialist

2. Discussion Topics • Using JAN • ADA 101 • Disability Disclosure • Requesting and Negotiating Reasonable Accommodations • Accommodation Examples

3. Who, What, Where is…JAN • Most comprehensive national resource for job accommodation information and technical assistance on title I of the ADA • U.S. Dept. of Labor,Office of Disability Employment Policy,West Virginia University • NOT a job placement service • Established in 1983 as a national, free consulting service • Expert consultation on: • Job Accommodations • All industries • All job categories • All impairments • Employment Legislation • Americans with Disabilities Act, as amended (ADA) • Rehabilitation Act

4. Contacting JAN • Connect with Consultants • Motor/Mobility • Cognitive/Psychiatric/Neuro • Sensory/Immunology • ADA/Rehab Act • Entrepreneurship • 53,000+ contacts per year • Who contacts JAN? • Employers • Individuals with Disabilities • Legal, Rehabilitation, Medical, Educational Professionals, etc. • Family Members, Friends

5. Ask JANand we… • Meet you where you are • Assist with the interactive process • Offer targeted technical assistance • Provide accommodation solutions • Share comprehensive resources • Maintain confidentiality

6. AskJAN.org Resources • JAN Quarterly E-News • Free Training Modules, Webcast Series • 300+ JAN-authored Publications and Countless Resources • JAN A-Z by Disability, Topic, & Limitation • Legal libraries that include regulations and Equal Employment Opportunity Commission (EEOC) guidance documents

7. Disability and Work • How, if at all, will medical impairment/limitations impact ability to work? • Be knowledgeable about the ADA and the right to request reasonable accommodation at work • Know who and what resources are available to support the process • The ADA • Title I • Non-discrimination • Reasonable Accommodation

8. ADA 101 Applies to: • Private employers of 15 or more employees • State and local governments, regardless of # of employees • Employment agencies and labor unions • Prohibits disability-based discrimination in all employment practices • Discrimination is prohibited against "qualified individuals with disabilities“ • Requires reasonable accommodation for "known" disability of a qualified applicant or employee, barring undue hardship

9. ADA 101 • Duty to provide reasonable accommodation is a statutory requirement • Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities • RA duty is ongoing and there is no limit to the number of requests that must be considered

10. ADA 101 • Reasonable accommodations must be madeavailable to: • qualified applicants with disabilities • qualified employees with disabilities, part- time or full-time, and even "probationary” • qualified employees with a record of a substantially limiting impairment (i.e., schedule change forfollow-up medical appointments due to cancer)

11. ADA 101 • Substantially limited is construed broadly and should not require significant analysis • Ultimately, employer decides who has a disability • JAN’s How to Determine Whether a Person Has a Disability https://askjan.org/corner/vol05iss04.htm • An individual has a disability under the ADA, as amended, if he or she: • has a physical or mental impairment which substantially limits one or more major life activities; • has a record of such an impairment; or • is regarded as having such an impairment

12. Eligibility for Accommodation • To qualify to receive accommodation under ADA, individual must have a disability, or record of a disability • Medical impairment that substantially limits/limited one or more major life activities • Does/did the employee have an impairment? • If yes, does/did the impairment affect a major life activity? • If yes, does/did the impairment substantially limit the major life activity? • Practical guidance: Don’t get bogged-down determining disability • Definition of disability under ADA is to be interpreted broadly • Employers are encouraged to process accommodation requests • Determine reasonable accommodation, or undue hardship

13. ADA 101 • Three categories of reasonable accommodation: • modifications or adjustments needed during the hiringprocess • modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed • modifications or adjustments that enable the enjoyment of equal benefits and privileges of employment

14. Accommodation Examples • Making existing facilities accessible and useable • Modifying policies • Job restructuring • Flexible or modified work schedules • Acquiring or modifying equipment • Providing qualified readers or interpreters • Reassignment to a vacant position • Leave • Working remotely • Service or emotional support animal

15. ADA 101 Employer facts: • Do not have to provide accommodations unless needed because of a qualifying disability • Do not have to provide accommodations that pose an undue hardship; significant difficulty or expense • Can choose among effective accommodations • Do not have to provide personal use items needed in accomplishing daily activities both on and off the job • Do not have to accommodate an individual who is nototherwise qualified for a position • Do not have to remove essential functions, create new jobs, or lower production standards

16. Disability Disclosure andRequesting and Negotiating Reasonable Accommodations

17. Disability Disclosure • Why disclose? • To ask for job accommodations • To receive benefits or privileges of employment • To explain an unusual circumstance • Deciding if, when, and how to disclose medical impairment, limitations/restrictions is a personal decision

18. Disability Disclosure • Not necessary to share everything about the disability and its effects, but might share information about: • How disability impacts the capacity to learn and perform effectively; and • What adjustments, supports, and services will be needed in order to access, participate in, and excel in employment • EEOC’s Job Applicants and the ADA-Fact Sheet http://www.eeoc.gov/facts/jobapplicant.html • JAN’s DOs and DON'TS of Disclosure http://askjan.org/media/eaps/disclosureEAP.doc • JAN’s Disability Disclosure and Employment http://askjan.org/media/eaps/employmentdisclosureEAP.doc

19. Disability Disclosure • Know who to disclose to – HR, recruiter, manager, etc. • Don’t disclose to everyone • Tips • Don’t disclose too soon • Don’t disclose too late – but do disclose before performance suffers • Know how to disclose – need an adjustment or change at work for a reason related to a medical condition

20. Workplace Accommodation • What is an accommodation request? When an applicant or employee requests an adjustment or change at work for a reason related to a medical impairment • Sometimes called workplace adjustments or productivity tools

21. RA for the Hiring Process • May employers ask if reasonable accommodation will be needed for the hiring process? • Yes. Employers may tell all applicants what the hiring process involves and ask whether reasonable accommodation will be needed for the process. EEOC (1995), Pre-employment Disability-related Questions & Medical Examinations

22. Pre-Employment & Disclosure • Are applicants required to disclose their medical impairment at a particular time? • No, with limited exceptions • Generally employers may not require applicants to disclose information about disability or medical impairment prior to an offer of employment • However, may need to disclose disability when accommodation is necessary to: • complete an on-line application • participate in a job interview • take an employment test

23. Voluntary Self-Identification of Disability • May employers ask applicants to voluntarily disclose disability status? • Yes, for affirmative action purposes under federal laws, policies, etc. • Rehabilitation Act, Section 503 Voluntary Self-Identification of Disability Form

24. Voluntary Self-Identification of Disability Disabilities include, but are not limited to: Blindness • Autism • Bipolar disorder • Post-traumatic stress disorder • Deafness • Cerebral palsy • Major depression • Obsessive compulsive disorder • Cancer • HIV/AIDS • Multiple Sclerosis • Impairments requiring the use of a wheelchair • Diabetes • Epilepsy • Schizophrenia • Muscular dystrophy • Missing limbs or partially missing limbs • Intellectual disability Please check one of the boxes below: • Yes, I have a disability (or previously had a disability) • No, I don’t have a disability • I don’t wish to answer

25. Pre-Employment, Pre-Offer • May employers ask applicants if they will need accommodation to perform job functions? • Sometimes • Must have reasonable belief that accommodation will be needed to perform job functions… • Because of an obviousdisability • Because of a hidden disability the applicant has voluntarily disclosed • Because the applicant has voluntarily disclosed the need for accommodation EEOC, Pre-employment Disability-Related Questions and Medical Examinations

26. Post-Offer & Disclosure • If employers ask disability-related questions during the post-offer stage, are individuals required to disclose disability-related information? • Usually – Employers may condition job offers on the satisfactory completion of a medical questionnaire or examination • Can limit type and amount of information shared, but be truthful

27. Employees & Disclosure • When can employers request disability-related information from employeeswho request accommodation? • Is disability disclosure required when accommodation is requested? • To receive accommodation under the ADA, must have a disability – therefore, disclosure will usually be necessary

28. Disability-Related Inquiries • Inquiries/exams of employees must be “job-related and consistent with business necessity” • When employer has reasonable belief based on objective evidence that: • Performance of job functions will be/is impaired by a medical impairment; or • Employee will pose/poses a direct threat • After accommodation request, when disability and/or need for accommodation are not known or obvious

29. Disability-Related Inquiries • Details about the impairment • Specific limitations • Issues affecting performance of job duties/meeting standards/accessing benefits, etc. • Accommodation solutions • What information may be needed to process an accommodation request?

30. Requesting Accommodations • What is a request for accommodation? • An applicant or employee asks for an adjustment or change at work for a reason related to a medical impairment • Do not have to use the words ADA or “reasonableaccommodation” when making a request • Do not have to make request in writing – BUT, written request IS recommended • Can be made through interviewer, supervisor/manager, human resources, disability program manager, or other appropriate personnel

31. Requesting Accommodations • JAN’s How to Request an Accommodation http://AskJAN.org/media/accommrequestltr.html • No specific guidelines or forms for requesting reasonable accommodation • Seek-out internal reasonable accommodation procedure

32. Requesting Accommodations • What to include in a request for accommodation: • Identify as a person with a disability • State requesting accommodations under the ADA because of medical impairment • Identify specific limitations • Identify job tasks affected by limitations • Describe accommodation ideas • Ask employer to offer/explore accommodation solutions • Attach medical documentation *if appropriate • Ask the employer to respond to accommodation request within a reasonable amount of time

33. Negotiating Accommodations • What is meant by “undue hardship?” • Significant difficulty or expense • Always case-by-case • What is meant by “reasonable?” • Feasible or plausible • Employer decides • Must be an effective accommodation • Will not pose undue hardship for employer

34. Negotiating Accommodations • Use JAN! • What if the individual isn’t sure what accommodations are needed? • Share what is known • Impairment, limitations, job-related issues • Explore ideas with employer by engaging in the interactive process

35. Negotiating Accommodations • ADA violation? • Contact EEOC and/or state fair employment practice agency • What if an accommodation request is denied? • Ask for more information about the denial • Provide additional information and offer alternative solutions • Investigate internal complaint options

36. Negotiating Accommodations • Tips • Request accommodation before performance suffers • Submit accommodation request in writing • Follow-up on accommodation request within one week – in writing • If requested, share medical information with employer in a timely manner • Come to the table with accommodation solutions and resources – like JAN • Know ADA rights; be a self-advocate

37. When Interns May Be Employees • If an educational institution provides significant benefits to an unpaid intern for volunteer work with an outside employer, may qualify as an employee of that employer – if intern receives "significant remuneration" in some form • Academic credit, practical experience, and scholarly research deemed not to be significant • If paid intern, weigh all aspects of the intern's relationship with employer, focusing in particular on whether the employer controls the means and manner of the intern's work performance • See Federal EEO Laws: When Interns May Be Employees http://www.eeoc.gov/eeoc/foia/letters/2011/eeo_laws_when_interns_may_be_employees.html

38. Accommodation Examples

39. Accessibility • Providing accessible, designated parking • Making an employee’s workstation accessible (e.g., adjustable desk) • Ensuring restrooms, lunchrooms, etc., are accessible and useable • Providing access to information during training (e.g., interpreter) • Ensuring recruiting sites, electronic applications, interview sites, testing sites, etc., are accessible • Modifying employment tests, training materials • Providing employment-related materials in accessible formats

40. Modifying or Creating Policies • Modifying a dress code • Implementing a policy related to fragrances • Modifying attendance or leave policies • Modifying a “no animals” policy • Implementing a food-related policy • Modifying a policy related to working from home/remotely

41. Job Restructuring • Never have to reallocate essential functions, but can • Reallocating or redistributing marginal job functions • Altering when and/or how a function, essential or marginal, is performed • Providing temporary modified or light duty

42. Modified/Flexible Scheduling • Adjusting arrival or departure times • Allowing a “window of arrival” • Allowing a flexible schedule • Allowing part-time or reduced work schedule • Allowing periodic breaks • Changing a shift • Exclusions from overtime • Allowing an employee to use leave

43. Providing Equipment • Purchasing, modifying, and designing equipment Examples: Screen magnifying/reading software Videophone iPad with aps Desk chair or adjustable workstation Alternative keyboard Stand/lean stool Amplified headset *JAN does not recommend or endorse products.

44. Providing a Service or Support • Sign language interpreter, on-site or video remote • CART captioning service, on-site or remote • Reader, Scribe • Job Coach • Professional Organizer • Support Person (e.g., spouse, advocate, family member, union) • Personal Assistance Services (Section 501)

45. Providing Leave • Allowing use of accrued leave, as-needed • Allowing use of unpaid leave when paid leave exhausts • Allowing intermittent and/or extended leave • Allowing time to be made-up • Modifying attendance policy to allow absences related to medical impairment • Providing ADA leave beyondFMLA leave, or when FMLA does not apply

46. JAN Web Resources • AskJAN.orghttps://askjan.org • A to Z of Disabilities and Accommodationshttps://askjan.org/links/atoz.htm • JAN ENewshttps://askjan.org/ENews/index.htm • ADA Libraryhttps://askjan.org/links/adalinks.htm • JAN for Individualshttps://askjan.org/indiv/index.htm

47. Topic Specific Resources • EEOC’s Job Applicants and the ADA at http://www.eeoc.gov/facts/jobapplicant.html • JAN’s Disability Disclosure and Employment at http://AskJAN.org/media/eaps/employmentdisclosureEAP.doc • The ADA: Your Employment Rights as an Individual With a Disability at http://www.eeoc.gov/facts/ada18.html • JAN’s Employees' Practical Guide to Requesting and Negotiating Reasonable Accommodation Under the ADA at http://askjan.org/Eeguide/index.htm • JAN’s How to Request an Accommodation at http://AskJAN.org/media/accommrequestltr.html

48. Thank You for Attending • Questions?

49. Contact JAN • (800) 526-7234 (V) - (877) 781-9403 (TTY) • AskJAN.org • jan@askjan.org • (304) 216-8189 via Text • janconsultants via Skype • Thank you for attending!