Americans With Disabilities Act TITLE 1 EMPLOYMENT.
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Americans With Disabilities Act
TITLE 1EMPLOYMENT
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
ADA Overview
Title I - Employment
Title II - State & Local Government
Title III - Public Accommodations
Title IV - Telecommunications
Title V - Miscellaneous
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
ADA Amendments Act of 2008
“Substantially limits” – definition
Mitigating measures will not be considered
Exception – eyeglasses and contact lenses
Affected major life activities
Seeing
Performing manual tasks
Speaking
Learning
Walking
Breathing
Hearing
Working
Sleeping
Caring for oneself
Thinking
ADA Amendments Act of 2008
“Major life activities” now includes bodily functions: functions of the immune system, normal
cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Episodic or in Remission
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)
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
Drug and Alcohol Use
Past alcohol use covered
Current alcohol use covered
Discipline, discharge or deny employment when alcohol impairs job performance or conduct
Title I - Employment
Private employers
State and local governments
Employment agencies
Labor Unions
What Employers Are Not Covered?
Those with less than 15 employees
Private clubs (i.e. country clubs)
Federal Government
Native American Tribes
Regulated Employment Practices
Application
Promotion
Testing
Medical exams
Hiring
Layoff/Recall
Assignments
Termination
Evaluation
Compensation
Disciplinary actions
Leave
Training
Benefits
The ADA prohibits discrimination against any qualified individual with a
disability in regard to all terms, conditions, and privileges of
employment.
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
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
Determining if a Task is Essential
Employer’s judgment
Written job description
Amount of time spent performing the task
Reasonable Accommodation
Accessible work environmentModify exams, training materials,
job-restructuringModify work practices and procedures Part-time or modified work schedulesQualified interpreters or readersLeaveReassignment
Not Reasonable Accommodations:
Transfer to a different supervisorReassignment of essential functionsLowering production standardsProvision of personal use itemsProvision of “light duty” positionPromotionNon-adherence to policy and procedure that is consistent with business necessity
Reasonable AccommodationIndividual 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
Interview: Unacceptable QuestionsHow 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?
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?
Reference ChecksMay 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
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
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
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
Medical Records
Information regarding medical exams and inquiries must be kept confidentialmust be kept separate from
personnel files
CDC: Infectious and Communicable Diseases
Campylobacter
Salmonella
E. coli
Calicivirus or Norwalk-like virus
Shigella species
Hepatitis A virus
Staphylococcus aureaus
Food Service Management
Restrict employee if symptoms are present
Exclude employee if diagnosed with illness
If disabled by disease, ADA applies
Company Policies and Practices
Training
Sensitivity training for managers and co-workers
Health insurance
Employee assistance programs
Fitness programs
Employee & family activities
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 EEOC800-669-EEOC or 800-800-3302 (TDD)
Financial AssistanceIRS 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
ResourcesU.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) http://www.jan.wvu.edu/ (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)
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