Presentation on theme: "Americans with Disabilities Act Amendments Act: Focus on Employment"— Presentation transcript:
1 Americans with Disabilities Act Amendments Act: Focus on Employment WELCOMEAmericans with Disabilities Act Amendments Act: Focus on Employment
2 Presenter Suzette Dyer University of Oklahoma Disability Resource Center, DirectorDivision of Student AffairsOU Norman, OUHSC, OU Tulsa(405) phone(405) fax(405) TTYThank you to Robbie Wahnee and Jason Cook of Human ResourcesNot exciting material but gets fairly exciting if you fail to respond or fail to accommodate and a grievance is filed
3 ADA-Five Titles Title I-Employment Title II- Public Services (state and local government including public school districts and public transportation)Title III-Public Accommodations and Services Operated by Private EntitiesTitle IV-TelecommunicationsTitle V-Miscellaneous ProvisionsADA covers all private employers, state and local governments, and educational institutions that employ 15 or more peoplePresident George Bush signed ADA into law July 26, 1990President George W. Bush signed ADAAA into law September 25, 2008Measure (ADAAA) had previously passed by overwhelmingly by a vote of 402 – 17 in the U.S. House of Representatives in June and by a unanimous voice vote in the Senate in September.ADAAA became effective January 1, 2009
4 Purpose & EnforcementUnlawful to discriminate in employment against a qualified individual with a disabilityEnforced by the EEOCRemedies for violation include hiring, promotion, reinstatement, back pay, restored benefits, attorneys fees, accommodationCompensatory and punitive damages may be available for intentional discriminationAmended to carry out ADA’s objective of providing a clear and comprehensive mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection under ADA
5 Employment Practices Covered RecruitmentPayHiringFiringPromotionJob AssignmentsTrainingLeaveLay OffBenefitsAll Other Employment Related Activities
6 ADA Amendments Act of 2008 Key Provisions of ADAAA in four main areas: Definition of DisabilityMajor Life ActivitiesIndividuals regarded as disabledUse of Mitigating MeasuresCongress intended that ADA provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage.While Congress expected the definition of disability under ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, as amended, that expectation was not fulfilled
7 Definition of Disability Not everyone with an impairment is considered disabled under the lawAn individual with a disability is defined as a person who:Has a physical or mental impairment which substantially limits one or more of such person’s major life activities;Has a record of such an impairment; orIs regarded as having such impairmentno real change in definition in the Act but restores the broad scope of coverageThree pronged definitionFirst part of the definition includes two elements:A physical or mental impairment whichsubstantially limits one or more major life activitiesNot really accommodating the disability but the functional limitations of that disabilitydirects EEOC to revise that portion of its regulations defining the term "substantially limits“ because the EEOC regulations define this as “significantly restricted” is inconsistent with congressional intent by expressing too high a standard
8 Definition of Disability Definition remains the same but must be construed in favor of broad coverage under the actImpairments that are episodic or in remission are considered a disability if they would substantially limit a major life activity during times when it is active.DepressionFibromyalgiaMultiple sclerosisThe Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. “Broader definition of disability” will probably mean that more employees and job applicants will be eligible for protection under the ADA. As a result employers will be expected to make more accommodations in the workplace.The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations.Well discuss these Supreme court cases in a few minutesThe effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active-Examples on slide
9 Major Life Activities Standing Caring for oneself Lifting BendingReadingCommunicatingWorkingThinkingConcentratingCaring for oneselfPerforming manual tasksWalkingSeeingHearingSpeakingEatingSleepingMost significantly, the Act:expands the definition of "major life activities" by including two non-exhaustive lists:the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
10 Major Life Activities Expanded to Operation of Major Bodily Functions Immune systemNormal cell growthDigestive functionsBowelBladderNeurologicalBrainRespiratoryCirculatoryEndocrineReproductivethe second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
11 Regarded as DisabledIndividual is regarded as having a disability if he or she has been subjected to discrimination because of an actual or perceived impairment regardless of whether the impairment is perceived to limit a major life activityEmployers do not have to provide reasonable accommodation to employees “regarded as” being disabledHowever, it changes the way that these statutory terms should be interpreted in several ways. provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.Under the ADAAA an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has bee subjected to a prohibited action (such as being fired, denied a job, denied a promotion) because of an actual or perceived physical or mental impairment, regardless whether or not the impairment limits or is perceived to limit a major life activity.
12 Regarded as DisabledImpairments that are transitory and minor are not included in the definition of “regarded as”Transitory impairment is a condition with an actual or expected duration of no more than 6 monthsThe exception is that this shall not apply to impairments that are transitory and minor.
13 Mitigating MeasuresDisability determinations must be made without considering mitigating measuresmedicationlow vision deviceshearing aidesprostheticsRejected the “Sutton Trilogy” case law that narrowed the definition under ADAstates that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;Diabetes, high blood pressure, cochlear implants, etc.Courts are now directed to ignore the beneficial effects of mitigating measures in determining an individual’s disabled status.Under ADA, after four major supreme court decisions, lower courts decisions had rather shocking results including cases around the country where individuals who had severe conditions like MS, cancer, MD, were held to be persons without ADA protection and were not held to be disabled. Congress was shocked at this considering the great personal strides that individuals like this had made to overcome the effects of severe conditions.
14 The Sutton TrilogySutton v. United Air Lines, Inc.(1999)- the Court held that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses.Supreme Court CasesThe main case, the primary case, was Sutton vs. United Airlines and what these cases all had in common was they were looking at the definition of disability. The issue in the cases was whether someone is disabled under the terms of the ADA if their disability could be mitigated by either medication or equipment or even by using their own brain power So that really redefined disability. In other words, if you could mitigate the disability, you were no longer disabled and therefore did not have ADA protection.SUTTONPetitioners were extremely myopic twin sisters who were rejected by the airline for employment as commercial pilots because they failed to meet United’s minimum requirement for uncorrected vision of 20/100 or better .The sisters’ uncorrected vision was 20/200 or worse but with correction it was 20/20. The court found the sisters were not disabled under the ADA definition, because a disability exists only when it “substantially limits” a major life activity, not where it “might” or “could” or “would be substantially limiting if corrective measures were not taken . The Court ruled that they were not covered by the ADA because their condition could be mitigated by the use of glasses.
15 The Sutton TrilogyAlbertson's, Inc. v. Kirkingburg (1999)-individual had amblyopia(weak eye)--an uncorrectable condition that left him with 20/200 vision in his left eye and thus effectively monocular vision. The Court ruled that while monocularity inevitably leads to some loss of horizontal field of vision and depth perception monocularity does not invariably cause a substantial limitation of a major life activityKirkingburg was a truck driver with over a decade of safe drivingHe had “weak eye”--an uncorrectable condition that left him with 20/200 vision in his left eye and thus effectively monocular vision. Somehow his brain had “compensated” for this condition.Albertson’s hired Kirkingburg based on improper certification of his vision.Physician who initially evaluated him and did not find any vision problems.Kirkingburg was injured on the job and took a short medical leave. During his return to work fitness exam it was discovered that he did not meet DOT standards and was not otherwise qualified for the commercial truck driver job. He applied to DOT for a waiver of vision standards under a DOT experimental program. DOT did not grant waiver initially and Albertson’s fired him. DOT later granted the waiver but Albertson’s refused to rehire him based on a reliance of the basic DOT regs.The DOT basic vision standards require corrected visual acuity of at least 20/40 in each eye, but Kirkingburg had a uncorrectable condition that left him with 20/200 vision in his left eye.The Supreme court found Kirkinburg d id meet first prong of definition physical disability- but failed to prove that he was restricted in a major life activity.Court found that employer did not have to accept the waiver since waiver was experimental and not based on factual inquiry. Employer allowed to base qualifications on DOT’s unwaived vision requirements
16 The Sutton TrilogyMurphy v. United Parcel Service, Inc.(1999)-the individual was not qualified because medication was sufficient to control his high blood pressure Murphy as fired from his job as a UPS mechanic, a position that required him to drive commercial vehicles, because UPS believed Murphy’s high blood pressure violated DOT safety requirements.To drive, he had to satisfy certain Department of Transportation (DOT) health certification requirements, including having "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely.“Despite petitioner's high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, UPS fired him on the belief that his blood pressure exceeded the DOT's requirements. He brought suit under Title I of the Americans with Disabilities Act of 1990 (ADA), the District Court granted respondent summary judgment, and the Tenth Circuit affirmed. Citing its decision in Sutton v. United Air Lines, Inc., 130 F. 3d 893, 902, aff'd, ante, p. 471, that an individual claiming a disability under the ADA should be assessed with regard to any mitigating or corrective measures employed, the Court of Appeals held that petitioner's hypertension is not a disability because his doctor testified that when medicated, petitioner functions normally in everyday activities. The court also affirmed the District Court's determination that petitioner is not "regarded as" disabled under the ADA, explaining that respondent did not terminate him on an unsubstantiated fear that he would suffer a heart attack or stroke, but because his blood pressure exceeded the DOT's requirements for commercial vehicle drivers.
17 Toyota Motoring Manufacturing v. Williams The Court found that Williams was not disabled under the ADA because she could do things that were central to one’s individual or normal life.In other words, she could take care of herself, take care of her hygiene, that sort of thing.Ms. Williams-employee on an assembly lineHad bilateral carpel tunnel syndromeCondition worsened & she missed a substantial amount of workToyota discharged her and she sued under ADAThe Court ultimately found that she was not disabled under the ADA because she could do things that were central to one’s individual or normal life. In other words, she could take care of herself, take care of her hygiene, do daily household chores, The Court ruled that if that were the case, you’re not covered under the ADA in that particular situation.ADAAA rejects this decisionCongress said that courts had created an inappropriately high level of limitation necessary to obtain coverage under ADA. Directed EEOC to revise that portion of the current regulation that defines “substantially limits” as significantly restricted.An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
18 Reasonable Accommodation Definition A reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that allows a qualified individual with a disability to perform the essential functions of the job.* Disability Business Technical Assistance Center-NorthwestAlthough we have “generic job descriptions” it is important to have internal descriptions that define what is essential because most the generic description does not do this.We must do this on a case by case basis
19 Qualified IndividualA Qualified Individual with a disability is an individual who:satisfies the skill, experience, education, and other job-related requirements of the positioncan perform the essential functions of the position, with or without accommodation* Disability Business Technical Assistance Center-Northwest
20 Essential FunctionsEssential functions are job duties that are fundamental to the position, as opposed to marginal or occasional duties that may be performed by the worker. F actors for determining essential functions of a job include:that the position exists specifically to perform the essential functionsthe number of other employees available to perform the same job dutiesexpertise or skills required* Disability Business Technical Assistance Center-NorthwestAgain, on a case by case basisConsider the consequences of not performing the function as part of deciding what is essentialExamplesA professor with a back impairment needed modifications to make her work area more accessible. Essential function teaching, research , serviceShe was accommodated with a file carrousel, an adjustable stand/lean stool, an automatic stapler, an adjustable workstation, and an ergonomic chair.A custodial crew works in a building. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. The marginal functions of a second crew member include cleaning the small kitchen in the employee's lounge, which is something the first crew member can perform. The employer can switch the marginal functions performed by these two employees
21 Types of Reasonable Accommodation Modify a jobModify a policyModify a facilityUse a product or equipmentModify or design a productAllowing employee to take paid leaves of absenceObtain a serviceReassign to a vacant positionModify a work scheduleModify tests and training materialsRestructure job to move non-essential functions to another employeeExample: An employer has a policy prohibiting employees from eating or drinking at their workstations. An employee with insulin-dependent diabetes explains to her employer that she may occasionally take too much insulin and, in order to avoid going into insulin shock, she must immediately eat a candy bar or drink fruit juice. The employee requests permission to keep such food at her workstation and to eat or drink when her insulin level necessitates. The employer must modify its policy to grant this request, absent undue hardship. Similarly, an employer might have to modify a policy to allow an employee with a disability to bring in a small refrigerator, or to use the employer's refrigerator, to store medication that must be taken during working hours.An employer is seeking a reassignment for an employee with a disability. There are no vacant positions today, but the employer has just learned that another employee resigned and that that position will become vacant in four weeks. The impending vacancy is equivalent to the position currently held by the employee with a disability. If the employee is qualified for that position, the employer must offer it to him.A computer programmer works with a group of people to develop new software. There are certain tasks that the entire group must perform together, but each person also has individual assignments. It is through habit, not necessity, that they have often worked together first thing in the morning. The programmer, due to her disability, requests an adjustment in her work schedule so that she works from 10:00 a.m. - 7:00 p.m. rather than 9:00 a.m. - 6:00 p.m. In this situation, the employer could grant the adjustment in hours because it would not significantly disrupt the operations of the business. The effect of the reasonable accommodation would be to alter when the group worked together and when they performed their individual assignments.
22 Examples of Accommodations that are NOT reasonable Creating new jobsDisplacing other employeesViolating another employee’s rights (seniority)Lowering production standardsEliminating primary or essential job responsibilitiesProviding personal aides or devicesExcusing a uniformly applied conduct rule that is job-related and consistent with business necessity (e.g. violence, disruptive behavior)Example 12: A blind employee has frequent disputes with her supervisor. She makes personal phone calls on company time, despite being told to stop. She routinely walks away from the job to smoke a cigarette despite warnings that she can do so only on breaks. She taunts the supervisor and disobeys his instructions regarding safe use of equipment. The employee’s actions are unrelated to her disability and the employer may discipline her for insubordination.A telephone company employee’s job requires her to spend 90% of her time on the telephone with coworkers in remote locations, discussing installation of equipment. The company’s code of conduct requires workers to be respectful towards coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions, and uses derogatory nicknames for coworkers when talking with other employees.48 The employer first warns the employee to stop her unacceptable conduct, and when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation. The employee’s antagonistic behavior violated a conduct rule that is job-related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having received a request for reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.
23 Undue HardshipThe only limitation on an employer’s responsibility to provide reasonable accommodation is that no modification is required if it would cause undue hardship to the employerConsider the budget of the organization as a whole not just a departmental budget
24 Undue HardshipUndue Hardship: When an accommodation is difficult, expensive, disruptive, or will fundamentally change the nature of the positionFundamental Alteration: When an accommodation would change the nature of the business or the worker’s job description so much that it would no longer resemble the originalUndue hardship very difficult-they are going to look at the entire university budget not just the budget of a specific department
25 OU Reasonable Accommodation Policy The University of Oklahoma will reasonably accommodate otherwise qualified individuals with a disability unless such accommodation would pose an undue hardship, would result in a fundamental alteration in the nature of the service, program or activity or in undue financial or administrative burdens. The term "reasonable accommodation" is used in its general sense in this policy to apply to employees, students, and visitors.
26 OU Reasonable Accommodation Policy Reasonable accommodation may include, but is not limited to:Making existing facilities readily accessible and usable by individuals with disabilities.Job restructuring.Part-time or modified work schedules.Reassignment to a vacant position if qualified.Acquisition or modification of equipment or devices.Adjustment or modification of examinations, training materials or policies.Providing qualified readers or interpreters.Modifying policies, practices and procedures.
27 OU Reasonable Accommodation Policy The Disability Resource Center, unless otherwise provided, is the central point-of-contact to receive all requests for reasonable accommodation and to receive all documentation required to determine disability status under law. This center will then make a recommendation on accommodation to the appropriate administrative unit. Reasonable accommodation with respect to employment matters should be coordinated with the Office of Human Resources. Reasonable accommodation with respect to academic matters, including but not limited to faculty employment, should be coordinated with the Office of the Provost while all other issues of reasonable accommodation should be coordinated with the Office of the Vice President for Administrative Affairs.
28 Grievance Process Under OU Policy Individuals who have complaints alleging discrimination based upon a disability may file them with the Equal Opportunity Office in accordance with prevailing University discrimination grievance procedures.
29 Steps in the Accommodation Process Getting to the Disability Resource CenterMeeting the eligibility requirementsDeciding on specific accommodationsInteractive dialogue among all partiesAll parties may suggest appropriate accommodationsImplementing the agreed upon accommodationsBe explicitDocument dates, actions, adjustmentsProcess should be ongoingThe term “interactive process” doesn’t appear anyplace in statutory language of ADA, but has become an important statutory requirement. It is the language the courts use to describe the dialogue engaged in between employer and employee. Should be open-ended and on-going. and Sixth circuit issued an opinion affirming summary judgment in favor of Honda in an ADA case. At issue was whether Honda violated ADA by failing to participate in good faith in the interactive process for determining whether a reasonable.accommodation of an employee’s disability was possible. The employee, Kleiber, sustained a serious head injury following a fall and was unable to resume his former production duties. He applied to the Ohio Bureau of Vocational Rehabilitation to work with Honda in trying to locate an alternative position for him. Honda had representatives go out to its production lines in an effort to identify any vacant jobs that Kleiber could perform. They considered him for several positions, but concluded that his limited dexterity and inability to work on uneven surfaces precluded his placement into any of these positions. Kleiber sued Honda, claiming that they acted in bad faith with respect to its duty under ADA to engage in an interactive process for determining reasonable accommodaton because Honda did not provide Rehab with info on the jobs they reviewed. However, noting that Rehab never requested this information, the trial court awarded summary judgment in Honda’s favor and the 6th circuit court of appeals affirmed the decision. The court noted that the burden of proof was on Kleiber to demonstrate that a reasonable accommodation would have been possible in order to establish that Honda had acted in bad faith. Kleiber failed to do this. BOTTOM LINE-GOOD RESULT FOR EMPLOYERS BECAUSE IT DELINEATES THE PARAMETERS OF AN EMPLOYER’S OBLIGATIONS WITH RESPECT TO ADA’S INTERACTIVE PROCESS REQUIREMENT.
30 Why be explicit ? If you don’t specify the goal you cannot reach it. If you don’t know where you want to go, there is no way of knowing when you arrived.If you don’t remember how you did it in the first place, there is no way to do it again.*Disability Business Technical Assistance Center-Northeast
31 Revising the Accommodation Plan Necessary only when changes need to be madeContinue the original accommodations while making adjustmentsSmall adjustments can usually be handled between you and the employeeCommunicate any changes to the plan with the DRC in writing
32 Performance Standards- Scenario #1 A computer programmer with a known disability has missed deadlines for projects, necessitating that other employees finish his work. Further, the employee has not kept abreast of changes in the database package, causing him to misinterpret as system problems changes that he should have known about. The employee is placed on a Performance Improvement Plan, but his performance does not improve and he is terminated. At no time does the employee request a reasonable accommodation (i.e., inform the employer that he requires an adjustment or change as a result of a medical condition).Does this violate the ADA?Scenario from The U.S. Equal Employment Opportunity CommissionThe termination is justified as long as the employer holds the employee to the same performance standards as other programmers. Yes. An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.14 Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.15 However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard. See Yindee v. CCH Inc. 458 F.3d 599, 602 (7th Cir. 2006) (employee with disability terminated because of the reduction in the quantity and quality of her output as well as her failure to demonstrate the problem-solving skills required for her job); see also Leffel v. Valley Fin. Servs., 113 F.3d 787, 789, 795 (7th Cir.), cert. denied 522 U.S. 968 (1997) (employer lawfully terminated employee with multiple sclerosis for several performance problems, including failure to submit reports on a timely basis and failure to return phone calls). Cf. Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1034 (8th Cir. 2007) (affirming summary judgment for employer who terminated a sales and catering manager with multiple sclerosis because she often made mistakes, including failing to request menus in a timely fashion, selling more rooms than available, giving away rooms for free, and not charging the correct amount).
33 Attendance Issues- Scenario #2 A manager’s starting time is 8 a.m., but due to the serious side effects of medication she takes for her disability she can’t get to work until 9 a.m. The manager’s late arrival results in a verbal warning, prompting her to request that she be allowed to arrive at 9 a.m. because of the side effects of medication she takes for her disability. The manager’s modified arrival time would not affect customer service or the ability of other employees to do their jobs, and she has no duties that require her to be at the office before 9 a.m. The supervisor denies this request for reasonable accommodation, saying that as a manager she must set a good example for other employees about the importance of punctualityDoes this violate ADA?Scenario from The U.S. Equal Employment Opportunity CommissionYES Because the manager’s later arrival time would not affect the manager’s performance or the operation of the building denial of this request for reasonable accommodation is a violation of the ADA. 0Compare Conneen, supra note 49, at 329 (employer cannot merely state that punctuality is important where no evidence demonstrates this proposition, such as tardiness affected quality of employee’s performance or bank operations were harmed by her late arrival); with Earl v. Mervyns, Inc. 207 F.3d 1361, 1366 (11th Cir. 2000) (employer’s handbook emphasized the importance of punctuality, it instituted a comprehensive system of warnings and reprimands for violation of the policy, and in this particular case, employee’s job required that she report punctually at a certain time because she prepared the store before the arrival of customers and no other employees were assigned to do those duties).In Eisfelder V. Michigan Dept of Natural Resources, an employee had MS and required time off work for surgery. Instead of granting the request, the employer terminated her. The employer’s motion for summary judgment was denied. The court found that to modify slightly the employee’s work hours and to permit her to take two months of accumulated annual leave for sick time, as the employee requested, would appear to be a reasonable accommodation. This case is a valuable lesson for employers. If minor accommodations had been made, there probably would have not been a law suit.
34 Alcoholism & Use of Illegal Drugs-Scenario # 3 A police officer is involved in an accident on agency property for which he is charged with driving under the influence of alcohol (DUI). Approximately one month later, the employee receives a termination notice stating that his conduct makes it inappropriate for him to continue in his job. The employee states that this incident made him realize he is an alcoholic and that he is obtaining treatment, and he seeks to remain in his jobDoes this termination violate ADA?Scenario from The U.S. Equal Employment Opportunity CommissionThe employer may proceed with the termination. The ADA specifically provides that employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees.84 This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees. 42 U.S.C. § (c)(4) (2000). The ADA definitions of “disability” may include a person who is an alcoholic or recovering alcoholic, as well as a person who: (1) is a recovered drug addict, (2) has ceased engaging in the illegal use of drugs, and (3) is either participating in a supervised rehabilitation program or has been rehabilitated successfully. See 42 U.S.C. §12210(b) (2000). Regardless of coverage under the ADA, an individual’s alcoholism or drug addiction cannot be used to shield the employee from the consequences of poor performance or conduct that result from these conditions.85 Hernandez v. England, EEOC Appeal No. 01A41079 (March 30, 2004); see also Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir. 2000) (upholding termination of physician for treating patients while under the influence of alcohol); Maddox v. Univ. of Tenn., 62 F.3d 843, 848 (6th Cir. 1995) (upholding employee’s termination because although alcoholism may have compelled employee to drink, it did not force him to drive or engage in other inappropriate conduct).
35 Are you still with me?-Scenario # 4 LeeAnn, who has a spinal cord injury, has always been an excellent employee who gets along well with co-workers and supervisors. Recently, she has difficulty getting to work on time and has been missing a significant amount of work due to problems with childcare.Is this an ADA issue?
36 Overview-Supervisor Responsibilities Refer employee to DRC to have disability documented and appropriate accommodations determinedHelp provide reasonable accommodationDiscuss employee-related accommodations with the employeeKeep disability-related information confidentialDemonstrate confidence in employee’s abilities to achieve their potential
37 Overview-DRC Responsibilities Provide information for individuals to access servicesDetermine eligibility based on disability and functional limitationsProvide accommodations in a timely mannerMaintain university standardsKeep disability information confidential, except as allowed by lawSelect among equally effective and appropriate accommodationsAdvocate responsibly for rights of persons with disabilities
38 Important Points to Keep In Mind You are not expected to be an expert on disabilityThe design and implementation of disability-related accommodations is a collaborative process
39 Important Points to Keep In Mind Four main implications for supervisors:Employees must be able to perform essential functions of the jobEmployees have same rights to all programs, services, activities, and facilitiesAre eligible to receive accommodation related to their disabilityRight to confidentiality of disability-related information
40 DRC Philosophy Institutional responsibility At a minimum, two sides to every storyIndividuals with disabilities are the expert of their own abilities and limitations(Harris, 1994)Richard Harris, Director of Disability Services at Ball State, past AHEAD president
41 DRC Philosophy Staff of thousands Ramps are only the beginning Empower rather than rescueBalance employee’s civil rights with institutional standardsTolerate ambiguityUse the race and gender template to determine if an action is discriminatory(Harris, 1994)Richard Harris, Director of Disability Services at Ball State, past AHEAD president
42 Thank you!I appreciate the opportunity to share information on university obligations under federal law with you today. Please contact me if I can provide additional consultation to you on any disability issue pertaining to faculty, staff, or students.