Accommodation Conversation: Strategies for Effective ADA Reasonable Accommodation Dialogue

The Accommodation Conversation

Strategies for Effective ADA Reasonable Accommodation Dialogue

Barry WhaleyEmployment Outreach Coordinator,

Southeast ADA Center

Gary CowanDirector of Compliance, America's Job Exchange

Presenter

• Barry Whaley is the Employer Outreach Coordinator for the Southeast ADA Center based in Atlanta, GA. He provides training and guidance on ADA Title I for employers throughout the southeast United States.

• The Southeast ADA Center is a project of the Burton Blatt Institute at Syracuse University. The mission of the Southeast ADA Center is to facilitate voluntary compliance with the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act as Amended (ADAAA)

• Our mission is to eliminate barriers to employment and economic self-sufficiency and to increase the civic and social participation of Americans with disabilities

Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or

responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.

ADA Center is funded by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR)

Disclaimer

Americans with Disabilities Act (ADA) Overview

The Americans with Disabilities Act is the landmark civil rights law

that guarantees equal treatment for peoplewith all disabilities or have an association or

relationship with someone who has a disability. Passed 1990

Amended 2008

Americans with Disabilities Act (ADA) Overview

Title I Employment Protections

Title II Public Entities and Transportation (State and Local Governments)

Title III Public Accommodation and Commercial Facilities (Private Business)

Title IV Telecommunications

Title V Technical Provisions

ADA Title I

Employers cannot discriminate against people who have disabilities in regard to any employment practices or terms, conditions, or privileges of employment.

This prohibition convers all aspects of the employment process.

ADA Title I

An employer cannot discriminate against qualified applicants and employees on the basis of disability.

A qualified applicant is an individual who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.

Essential Job Functions

The reason the job exists is to perform that function. Example: An essential function of a pilot is to fly planes.

Only a few employees can perform the function.

The function is so highly specialized that the employer hires people into the position specifically because of their expertise in performing that function.

Qualification Standards

Should an employer screen out individuals or classes of individuals they must demonstrate:

The screening must be related to the position in question;

Is consistent with business necessity.

Reasonable Accommodation

Reasonable accommodation is a critical component of the ADA.

Reasonable accommodation is any change in the work environment or how things are usually done that results in equal employment opportunity for an individual with a disability.

An employer must make a reasonable accommodation to the knownphysical or mental limitations of a person with a disability unless you can show that the accommodation would cause an undue hardship on the operation of the business.

Reasonable Accommodation

The presence of a disability does not result in a presumptive reasonable accommodation.

The employee has a responsibility is to disclose a need for an accommodation.

Reasonable accommodations are time-limited.

Employers may ask for reasonable documentation of a continuing disability.

Disclosure vs. Self-Identification

Self-identificationInvitation from an employer to voluntarily, and anonymously, “check a box” that indicates that the individual has a disability; typically used for data collection purposes or Section 503 utilization goals.

DisclosureThe employee voluntarily shares information about a disability. Disclosure is protected under ADA

Disclosure

Disclosure is not required under the ADA. One exception – requesting reasonable accommodations.

Disclosure can occur at any time during the employment relationship.

The ADA prohibits an employer from retaliating against an applicant or employee for asserting his/her rights under the ADA.

The Art of Disclosure

Good disclosure:

Is positive

Focuses on needs

Provides suggestions for reasonable accommodations

Is specific rather than general (how my disability affects my ability to perform essential job functions)

The Art of Disclosure

Good disclosure:

Focuses on job qualifications, not the disability

Avoids medical terms and labels

Discusses work barriers, not diagnoses

Focuses on the “here and now,” not past negative experiences

Disability Inquiry

A question or series of questions likely to solicit information about a person’s disability or related medical condition

A disability inquiry must be: Job related Consistent with Business Necessity

Phases of the Employment Process and Disability Inquiries

Employment Phase Disability Inquiry

Pre-Employment Before an offer of employment is made No disability inquiries are allowed

Pre-Employment After an offer of employment is made

Disability inquiries are allowed only if the same inquiry is made of all candidates for the job category

Employment A disability inquiry can only be made if it is jobrelated and of a business necessity

What Can Employers Ask in Disability Inquiry?

Questions about:

A person’s general well-being A non disability-related impairment Whether a person can perform the job functions (Essential Functions) Whether a person has been drinking Current illegal use of drugs Pregnancy info like due date and well-being Emergency contact information

What Employers Can Not Ask in Disability Inquiry

Questions about:

Whether a person currently has or has ever had a disability Medical documentation of a condition Genetic information Prior workers’ compensation history Current or past prescription medication usage

Requesting Accommodation

There is no standard in the ADA for asking for accommodation.

Requests can be made: Verbally Written E-mail Someone else can make the request on an employee’s behalf

Employer Responsibilities

Recognize a request for accommodation has been made

Begin an interactive process with the employee

Confirm the existence of a disability

Determine the essential functions and marginal functions of the job

Investigate potential accommodation solutions

Implement the accommodation

Document the accommodation

Employer Rights

Employers are not required to honor requests that:

Create an undue hardship for the business

If the modifications are extensive, disruptive, too costly, or fundamentally changes the essential function of the job

Is dangerous or illegal

Direct Threat

An employer may refuse to hire someone or fire someone if:

There is significant risk of substantial harm to the health or safety of that employee or others;

The risk cannot be eliminated or reduced by a reasonable accommodation.

Direct Threat

Four Factors in Assessing Direct Threat:

Duration ofthe risk

Nature and severity of the potential harm

How likely it is that the potential harm will occur

How imminent the potential

harm is

ADA National Network

Ten regional centers funded by the Administration on Community Living, NIDILRR

The ADA National Network provides information, guidance and training on the Americans with Disabilities Act (ADA), tailored to meet the needs of business, government and individuals at local, regional and national levels.

Contact information Toll free hot line - 800-949-4232 (voice/TTY) Web site - www.adata.org

Questions for Barry?

America’s Job Exchange has been a pioneer in online recruitment and compliance from the very beginning, having evolved from America’s Job Bank which was

founded by the Department of Labor in 1995. We keep true to the original mission of America’s Job Bank assisting Federal Contractors meet OFCCP regulations for

online job postings and distribution.

OUR MISSIONWe believe that a diverse workforce is beneficial to every company and its

employees. Our mission is to provide the best tools, resources and information to connect employers and diverse job seekers

About America’s Job Exchange

Why AJE?

Complete SolutionReceive unparalleled value when you bundle our products and services for recruitment advertising and compliance.

Competitive PricingThe AJE solution is customizable and priced based on your business needs with variables such as size, hiring forecast and budget.

Breadth of Distribution NetworkBroad network of partners and affiliates including recruitment media agencies, technology providers, associations and states.

Tools and SupportAJE’s tools allow you to stay on top of your outreach efforts and our teamis here to support you every step of the way.

REPUTATION

TRACK RECORD

CLIENTELE

Our Webinars Have Gone Monthly

It is the responsibility of Federal Contractors and Subcontractors to have a current and compliant AAP – and the supporting documentation to prove it.

OFCCP Audits – 5 Reasons They Fail

Grace M. ContiDirector, Affirmative Action CompliancePortnoy, Messinger, Pearl & Associates

Presenter Tune into our next webinar to find out how Compliance Reviews are selected and what’s at risk because of Non-Compliance.

September 20, 2016 1:00-2:00pm ET

Barry WhaleyEmployer Outreach Coordinator

Southeast ADA Center A Project of Burton Blatt Institute at Syracuse University

[email protected]

Funded by the National Institute on Disability, Independent Living, and Rehabilitation Research

(NIDILRR) - Grant #90DP0019-01-00

Contact Information

Gary CowanDirector of Compliance, America's Job Exchange

[email protected](o) 978-946-7928(c) 617-997-6477www.americasjobexchange.com

Contact Information

Web – www.americasjobexchange.com

Facebook – www.facebook.com/AmericasJobExchange

LinkedIn – www.linkedin.com/company/230717

Twitter – www.twitter.com/ajejobs

Thank You!

Final Questions?