1 employment basics: a primer: ada - title i david scherer

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Employment Basics:A Primer: ADA - Title I

David Scherer

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Disclaimer

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.

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Who’s Covered by the ADA?

Definition of Disability

ADA vs. FMLA vs. Worker’s Comp

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Definition of Disability

Mental or physical condition that substantially limits one or more of life’s major functions

Record of impairment which substantially limits…

Regarded by others as having…

Note: Diagnosis of an impairment does NOT necessarily mean a “disability”

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Substantially Limiting

Factors to consider Nature and severity of the impairment Duration or expected duration Permanent or long-term impact Mitigating Measures (medications, auxiliary

aids, etc.)

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Is your employee covered?

A physical or mental impairment? What is the impairment? Long-term or permanent? Does it impact a major life activity? If yes, what activity? Is it a substantial limitation?

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Coverage Comparison

ADA: Mental or physical impairment substantially limiting 1 or more major life activity

FMLA: Serious injury or illness that involves inpatient care or ongoing treatment

Worker’s Comp: Only work-related illnesses or injuries

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Overview of Title I

Which employers have responsibilities under

Title I?

What are the basic provisions of

Title I?

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Which Employers Must Comply?

Private employers with 15 or more employees All state and local government entities Employment agencies Labor unions Joint labor-management committees

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General Employment Rule

Job application process Hiring Promotion Discharge

Compensation Benefits Training All aspects of

employment!

Unlawful to discriminate against a qualified individual with a disability with regards to:

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It’s All About Equality!

Hire, fire, and promote the most

qualified, deserving individual!

Qualified Employee

To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified.

The regulations define a qualified individual with a disability as a person with a disability who:

"satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position."

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Qualified Employee Determination

There are two basic steps in determining whether an individual is "qualified" under the ADA:

1. Determine if the individual meets necessary prerequisites for the job.

2. Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation.

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Meeting the Necessary Pre-Requisites

Pre-Requisites for employment might include: Education Work Experience Training Skills Licenses Certificates other job-related requirements, such as good

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Performing Essential Functions

This second step, a key aspect of non-discrimination under the ADA, has two parts:

1. Identifying "essential functions of the job“

2. Considering whether the person with a disability can perform these functions, unaided or with a "reasonable accommodation."

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Essential Job Functions

What is the purpose of a position and how can I identify a position’s essential

functions?

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Essential Functions

Fundamental job duties of the employment position

Does not include marginal or peripheral functions

Specifies what needs to be done, not how

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Identifying Essential Functions

The position is actually required to perform the function

Position exists to perform function

Fundamental change to position if removed

Limited number of other employees available to perform

Function highly specialized- person hired for special expertise or ability

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Evidence of Essential

Employer’s judgment

Written job description

Amount of time performing function

If infrequently performed, serious consequences if not performed when needed

Terms of collective bargaining agreement

Other employees in same position

Nature of the work operation or organizational structure

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The Reasonable Accommodation Process

What is a reasonable accommodation?

What are the employer’s responsibilities in the accommodation process?

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Reasonable Accommodations

Modifications or adjustments to a job, employment practice, or work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity

Equal employment opportunity: opportunity to attain same level of performance or to enjoy equal benefits and privileges of employment

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When Accommodations are Required

Application process Performance of the essential functions of the

position Enjoyment of equal benefits and privileges of

employment

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Accommodation Basics

Must be an effective accommodation Need not be best accommodation, just

effective Must only reduce employment-related

barriers Personal devices not required Employer not prevented from providing extra

accommodations

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Employee Responsibilities

Process must be initiated by the employee with a disability- disclosure required

Provide documentation of need for accommodation if requested

Be involved in the process of identifying effective accommodation

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The Employer/ Employee Interactive Process

Look at particular job and determine essential functions

Consult with employee about abilities and limitations

Consult with employee, identify potential accommodations, and assess effectiveness

Consider the preference of the employee

Select the accommodation that best addresses needs of the employee and the employer

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Employer Strategies for the Accommodation Process Develop strategies for recognizing RA requests

Consider developing accommodation request forms

Don’t be afraid to ask for documentation of need for accommodation

Consult with the employee

Know your accommodation resources

Designate an organization/workplace resource coordinator

Consider implementing a centralized funding mechanism

Monitor implementation of the accommodation

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Accommodation Factoids

Over 70% of employees with disabilities never request an accommodation

Cost effectiveness: 50% cost $50 or less

$50 return in productivity and saved costs for every $1 spent on ADA-related accommodations

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Undue Hardship

Action that requires significant difficulty or expense- unduly costly, extensive, substantial, disruptive, fundamentally alters nature or operation of business

In relation to size of the employer, resources available, nature of the operation

Must be determined on a case-by-case basis

IMPORTANT: Consider alternate accommodations that do not create undue hardship

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Tax Incentives Available

Disabled Access Tax Credit

50% TAX CREDIT of eligible expenditures over $250 up to $10,500 a year. So your tax bill can be reduced by up to $5,000. for Small Business ($1 million gross income OR less than 30 employees)

Barrier Removal Deduction Any private business may claim up to $15,000 per tax year for

making its premises or public transportation vehicles more accessible to persons with disabilities or the elderly. Eligible expenditures may include installing ramps, widening doorways, modifying restrooms, or equipping a shuttle van with a lift.

Work Opportunity Tax Credit Designed to encourage employers to add hard-to-employ individuals

to their payroll, the credit is generally equal to 40% (only 25% if the employee doesn’t reach a minimum employment level) of the first $6,000 of wages paid to each qualified employee on your payroll. There are minimum employment qualifications so be sure to check for additional information through the IRS

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Employment Resources

It’s not about knowing all the answers. It’s about knowing where to find the answers!

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Key Publications

Title I Technical Assistance Manual Cornell Series Job Accommodation Network’s Fact Sheet

Series EEOC Guidance Documents Employer Responsibilities Under the ADA

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Resource Connections

Disability & Business Technical Assistance Center DBTAC 800/949-4232 (V, TTY) www.adainformation.org

Job Accommodation Network 800/526-7234 (V, TTY) www.jan.wvu.edu

EEOC 800/669-4000 www.eeoc.gov

DOL’s Office of Disability Employment Policy www.dol.gov/odep/pubs/publicat.htm