copyright© 2010 wecomply, inc. all rights reserved. 8/29/2015 americans with disabilities act

Copyright© 2010 WeComply, Inc. All rights reserved.

04/21/23

Americans with Disabilities Act

Copyright© 2010 WeComply, Inc. All rights reserved. 3

Overview

• Retaliating against anyone who participates in charge of disability-based discrimination

ADA requires employers to make reasonable accommodation for persons with disabilities

ADA was enacted in 1990 and revised substantially effective January 1, 2009

It prohibits employers from —

•Discriminating against qualified persons with disabilities

•Discriminating against employees who have relationship with disabled person based on relationship


Persons with Disabilities

ADA applies to persons with disabilities who can perform essential functions of job, with or without reasonable accommodation

Person with disability is someone who —

•Has physical or mental impairment that substantially limits one or more major life activities

•Has record of such impairment, or

•Is regarded as having such impairment

Congress: Definition of "disability" is broad, and determination should not "demand extensive analysis"


Persons with Disabilities (cont’d)








Impairments

Impairment is a physical or mental disorder

It does not include —

•Normal physical characteristics

•Conditions that are not the result of a disorder

•Personality traits

•Homosexuality/bisexuality

•Socio-economic disadvantages


Pop Quiz!

True or False: Whether something is considered an impairment under the ADA can depend on its cause.

A.True.

B.False.


Major Life Activities

Individual must have impairment that substantially limits one or more major life activities to be considered disabled

Major life activities include —

•Activities that an average person can perform with little or no difficulty

Neurological/brain activities — e.g., thinking, learning, concentrating, communicating

•Major bodily functions

Determination must be made without considering whether person has aids to lessen impairment's effects


Major Life Activities (cont’d)

Individual must have impairment that substantially limits one or more major life activities to be considered disabled

Major life activities include —

•Activities that an average person can perform with little or no difficulty

Neurological/brain activities — e.g., thinking, learning, concentrating, communicating

•Major bodily functions

Determination must be made without considering whether person has aids to lessen impairment's effects


Records and Perceptions of a Disability

Individuals who do not actually have an impairment may still qualify for ADA protection:

•People on record as having a disability — e.g., someone who has been cured of cancer or is in remission

•People "regarded as" having a disability — e.g., person who is fired because of disfiguring scars

•Employers need not provide reasonable accommodation to people who are only "regarded as" having disability


Essential Job Functions

ADA does not require employers to hire or retain unqualified disabled people

Disabled person must have right educational/professional background and be able to perform essential functions

Whether a function is essential depends on —•How much time must be spent performing the function•Consequences of removing the function•Whether there are limited people available to perform that function

If function is non-essential or incidental, disabled person's inability to perform it cannot be used to disqualify him/her


Pop Quiz!

Pete is a word processor. He, along with a lot of other co-workers, occasionally answers the phone while Lori, the receptionist, is at lunch or out for a smoke. Is answering the phone an essential function of Pete's word processing position?

A.Yes, because the phones must be answered when Lori is out.

B.No, because it is incidental to the position.

C.No, because data entry is the essential function.


Reasonable Accommodation

Some qualified, disabled persons may require reasonable accommodation

Work environment or job must be modified to enable job performance, e.g. —

•Making facilities more accessible

•Reassigning employee to vacant position

•Providing reader or interpreter

•Allowing part-time or modified work schedule

•Job restructuring

•Acquiring or modifying equipment

Need for accommodation may arise any time a person's disability or job changes


Undue Hardship

We must look to abilities/limitations of employee and job requirements to determine appropriate accommodation

Goal is effective, reasonable accommodation that —

•Is related to disability

•Is not primarily for personal use — e.g., eyeglasses

•Would not impose "undue hardship" on business operations

Fact that cost of accommodation is high in comparison to employee's salary is not considered in determination of undue hardship


In the news…


Qualification Standards

ADA does not require us to lower productivity or quality standards for disabled employees

Standards we use must not have discriminatory purpose and must be applied equally to all employees in same job

Standard tending to screen out individuals because of their disabilities must be —

• Job-related

• Consistent with business necessity

• Disabled employees cannot be screened out if they could satisfy the standards with reasonable accommodation


Safety Standards

Company may set employee-qualification standards necessary to protect public and other employees from direct threats to health and safety

Standards must —

•Present specific, current and significant risk of substantial harm

• Allow for reasonable accommodation to reduce risk to acceptable level

• Federal or state regulations may restrict how company implements its standards


The Hiring Process

Employers must provide reasonable accommodations to ensure that everyone has equal opportunity in hiring process

Required accommodations may include —

•Wheelchair-accessible interviewing facilities

•Sign-language interpreter for deaf applicants

•Reader for applicants with dyslexia who are asked to take written test

Hiring process must focus on applicant's abilities — not possible disabilities

Process should address ability of applicant to perform essential job functions, with or without accommodation


Pop Quiz!

Ted is interviewing John for a position that requires heavy lifting. Another person who Ted hired quit after having back problems, and he wants to avoid the same issue with John. Which of the following questions would be acceptable to ask?

A.Have you ever had a back injury?

B.Do you take any pain medication?

C.Are you able to lift 60 pounds?

D.Has your spine even been x-rayed?


The Hiring Process (cont’d)

Limit questions about attendance to —

Previous work-attendance records

Whether applicant feels he/she will be able to meet attendance policy

We may ask applicant to demonstrate how he/she will perform job functions only if —•Everyone applying for job is asked, or•Applicant has known disability that would appear to interfere with/prevent performance of job-related function

If we use tests to determine whether applicant meets job-related qualification standards, we must use them with all applicants


Medical Exams and Questions

We may require prospective employees to undergo medical exams or ask them medical questions only if it is —

•Related to job performance

•Done after conditional job offer is made

•Required for all entering employees in same job class

• Before withdrawing conditional offer, we must determine that there is no reasonable accommodation that would allow the prospective employee to perform essential functions of job efficiently and safely

• Decision to withdraw conditional offer must be job-related and consistent with business necessity


Medical Exams and Questions (cont’d)

We may require prospective employees to undergo medical exams or ask them medical questions only if it is —

•Related to job performance

•Done after conditional job offer is made

•Required for all entering employees in same job class

• Before withdrawing conditional offer, we must determine that there is no reasonable accommodation that would allow the prospective employee to perform essential functions of job efficiently and safely

• Decision to withdraw conditional offer must be job-related and consistent with business necessity


The ADA on the Job

ADA applies to all aspects of the job

Employees must have equal access to —

•Training

•Employer-sponsored social functions

•Break rooms

•Other non-work facilities that company provides


In the news…


Evaluations and Promotions

Employees with disabilities should be held to same performance standards as others in same position

Employees who require accommodation should be evaluated on ability to perform essential job functions with the accommodation

When addressing employee performance issues —

• Focus on facts

• Don't try to diagnose disability that may or may not be cause of performance problems

• Employees with disabilities should receive equal consideration for advancement


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Final Quiz


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Questions?


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Thank you for participating!

This course and the related materials were developed by WeComply, Inc. and the Association of Corporate Counsel.

copyright© 2010 wecomply, inc. all rights reserved. 8/29/2015 americans with disabilities act

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