1 The Illinois ADA Project at Equip for Equality Presents REQUESTING AN ACCOMMODATION AT WORK AND COLLEGE
2 Equip For Equality: Protection and Advocacy Mission: To advance the human and civil rights of people with physical & mental disabilities Most Services are Free and Confidential Equip For Equality Services Include: Self-Advocacy Assistance Information & Referral Public Policy Advocacy Training & Education Abuse/Neglect Investigations Latino Outreach Traumatic Brain Injury Project Legal Advocacy Special Education Issues Guardianship Reform Assistive Technology Project Illinois ADA Project
3 The Illinois ADA Project at Equip For Equality Your Resource for Information on The ADA Goal: To educate, enrich, and enlighten the people, businesses, and organizations of Illinois regarding the ADA. Project Funding: The Illinois ADA Project is funded by The Great Lakes ADA and Accessible IT Center. The Illinois ADA Project Steering Committee: Individuals with disabilities, advocates, service providers, government agencies, and businesses.
4 Breaking Down Barriers to Understanding The ADA The ADA in the Real World (Overview) Employment Rights Employing People with Disabilities, It’s Good Business Trainings The ADA and Supreme Court Transportation Voting Emerging Issues
5 Contacting The Illinois ADA Project Contact The Illinois ADA Project if You: Have ADA Questions Want to schedule a training for your organization or group Desire ADA information and/or resources Contact Information: Telephone: 1-877-ADA-3601 TTY: 1-800-610-2779 Website: www.ADA-IL.orgwww.ADA-IL.org
6 The Training Institute at Equip For Equality Provides Free Training to people with disabilities and their family, friends, employers, and service providers regarding: Legal Rights Self-Advocacy The A.D.A. (Titles I,II&III) Special Education Transportation Guardianship Employment Rights Practical Advice
7 PABSS: A Blue Ribbon Project PABSS P rotection and A dvocacy for B eneficiaries of S ocial S ecurity PABSS Provides Education, Training, and Advocacy on: Social Security Benefits & Work Incentives Information Obtaining Vocational Rehabilitation Services (DRS) Using the Ticket to Work Employment Laws (A.D.A. & F.M.L.A.) School to Work Transition Issues Any Employment Barrier
8 Laws Regarding Disability Discrimination In the Beginning…
9 In the Beginning… Do not curse the deaf or place a stumbling block before the blind… 3300 Years Ago Leviticus 19:14:
10 … And More Recently 30 Years Ago The Rehabilitation Act Creates a right to receive vocational rehabilitation; Prohibits discrimination by federal funding recipients 30 Years Ago Individuals with Disabilities Education Act (IDEA) Creates a right to receive a free and appropriate public education; 13 Years Ago The Americans With Disabilities Act (ADA) Provides equal opportunity and access in employment, governmental services, public accommodations, and telecommunications. This includes private and public places of education.
11 The Rehabilitation Act An Individual’s Right to Receive Vocational Rehabilitation Services
12 Vocational Rehabilitation Services DRS provides the following work-related services for individuals with disabilities: Career counseling, job placement, and job training Supported employment services such as a job coach Interpreters, note takers, readers, attendants,... Occupational licenses, tools, and equipment Technological aids and devices Home and vehicle modifications Medical Services including attendants Financial assistance with school, equipment, or training DRS can help with providing reasonable accommodations
13 The Rehab Act: Benefiting Employers & Employees Utilizing The Rehabilitation Act and the Illinois Division of Rehabilitation Services: DRS provides free advice regarding reasonable accommodations. (As does the Illinois ADA Project, Equip for Equality, EEOC, and JAN). DRS can pay all or part of the cost of reasonable accommodations (e.g. computer hardware or software) If DRS pays, the employee or student owns the accommodation SSA may help an employee or student save for an accommodation or other employment goal through PASS Plans
14 The Americans With Disabilities Act (ADA) The ADA in the Real World
15 The Americans with Disabilities Act (ADA) The ADA has 5 different Sections called “Titles” Title I – Employment Title II – State and Local Government Services / Public Transportation Title III – Public Accommodations and Commercial Facilities Title IV – Telecommunications Title V – Technical Assistance and Miscellaneous Provisions
16 Goals of The ADA Eliminate discrimination Ensure that people with disabilities experience: Equality of opportunity Full participation and integration Independence Remove barriers to access. Barriers can be attitudinal, architectural, communicative, or transportational in nature. Provide clear, strong, enforceable standards FAIRNESS !!
18 Employers Covered by the ADA Employers with 15 or more employees All State and local government employers with at least one employee Local laws may cover smaller private employers (For example, The Illinois Human Rights Act and The Cook County and Chicago Human Rights Ordinances cover all employers with one or more employee)
19 Protected Individuals An employee is protected under the ADA if they: Have a substantial limitation of a major life activity Major life activities include: Breathing, walking, lifting, working, speaking, hearing, seeing, eating, caring for oneself, interacting with others, sex, sleeping, sitting, concentrating, performing manual tasks, learning, standing, reading, reaching, … Are qualified to do the essential job functions with or without a reasonable accommodation Also covered are people who: Have a record of such an impairment; Are “regarded as” having such an impairment. Disability is decided on a case by case basis and requires an individualized assessment
20 Workplace Protections Under The ADA Discrimination is prohibited in any facet of employment, including: Job application procedures Hiring / Firing Benefits and Compensation Advancement Training Any terms, conditions, or privileges of employment
21 Prohibited Conduct by Employers Pre-Offer: Asking disability related questions. An employer may ask about performance of job functions but cannot request a medical examination or ask for information about: Worker’s Compensation Claims Reasons for time off from work Medical Treatment, Conditions, or Medications At all times, an employer is prohibited from: Denying a Reasonable Accommodations Otherwise discriminating in any facet of employment on the basis of disability, whether or not the discrimination is intentional.
22 Medical Examinations Prior to A Job Offer Are Prohibited Certain tests are not considered medical exams, and are not prohibited by ADA Medical exams must be: Given to all applicants for the position Decisions denying employment based upon medical information must be “job related and consistent with business necessity.” An employer cannot withdraw a job offer unless the disability interferes with essential functions of the job or results in an a health or safety risk and a reasonable accommodation cannot be provided
23 Title I of the ADA Reasonable Accommodations and Other Issues
24 Reasonable Accommodation Any change or adjustment to a job or work environment that allows a person to: Participate in the job application process Perform “Essential Functions” of the job Fundamental Job Duties An employer cannot refuse to employ someone because of inability to perform non-essential duties Job descriptions may be used as evidence but are not necessarily determinative Enjoy benefits and privileges of employment
25 Examples of Reasonable Accommodations Accommodations as part or emergency evacuation procedures (Disclosure, alarms, changing offices, …) Providing or modifying equipment or devices Job restructuring Part-time or modified work schedules Job reassignment Modifying exams, training, or policies Providing readers and interpreters Making the workplace accessible Utilize the employee’s ideas and the Job Accommodation Network
26 Reasonable Accommodation Requirements and Limits Reasonable Accommodations must be provided unless there’s an undue hardship or a health and safety risk to the employee or to others An undue hardship is defined as requiring significant difficulty or expense Employers must provide an effective accommodation, not necessarily the exact accommodation requested Fundamental alterations are not required Personal Devices or Services are not required
27 Reasonable Accommodation: Responsibility of Employees The Employee usually makes the request for a reasonable accommodation The request need not be in writing but it is in everybody’s interest to have the request written, dated, and signed The request should include: Nature of the disability Reason for the request Requested accommodation If possible, include a doctor’s note explaining the disability and accommodation
28 ADA Review - Reasonable Accommodations Reasonable Accommodations must be provided unless they: Are an undue hardship Pose a health or safety risk to the employee or others Constitute a fundamental alteration of the job An effective accommodation, not necessarily the requested accommodation, must be provided. Employers may request medical information only to substantiate the employee’s disability and their need for an accommodation.
29 Employment Application And Interview Tips An individual does not have to disclose a disability unless: They need a reasonable accommodation They have received a conditional offer of employment It may help them get the job How to deal with inappropriate questions – DO NOT LIE! On the application, leave it blank (get an extra copy) On the interview, say, “I do not answer questions about private matters unrelated to the job. I would be happy to discuss my qualifications for this job.” “I took time off to handle a private family matter.”
30 Tips For Requesting A Reasonable Accommodation Put your request in writing If possible include a letter from your doctor describing your disability and the reasons for the requested accommodation Ask for a response by a specific date Keep a copy of the letter If the accommodation is provided, send a “Thank You” letter Check the Illinois ADA Project, EFE, and JAN Websites
31 The Reasonable Accommodation Process An employee, or someone on their behalf, usually makes the initial request for an accommodation. After that, the employer may ask the employee for documentation describing the impairment and how it relates to the reasonable accommodation request if the impariment is not readily apparent. The employer may request information relating to: The nature, severity, and duration of the impairment The activity or activities that the impairment limits The extent to which the impairment limits the employee's ability to perform the activity or activities How the impariment relates to the requested accommodation
32 The Reasonable Accommodation Process The employer is NOT entitled to request information regarding: General medical information Medical conditions or impairments unrelated to the reasonable accommodation request
33 The Reasonable Accommodation Process; Step by Step Step 1: The Request for a Reasonable Accommodation Step 2: The employer may seek limited medical information if the need for the accommodation and/or the disability apparent. This documentation should be limited in scope to coincide with the accommodation request Step 3: The “Interactive Process.” Does the employer agree that the accommodation is reasonable and effective? Do other possible accommodations need to be examined?
34 The Reasonable Accommodation Process Step by Step Step 4: Utilize available resources in determining an effective accommodation (e.g. EEOC, JAN, DRS, others). Step 5: If an effective, reasonable accommodation is agreed upon, it should be implemented and there should be follow-up to ensure its effectiveness
35 Pre-Employment Accommodations Application/Interview Process Providing someone to read or interpret application materials Demonstrating, rather than describing what the job requires Modifying tests, training materials, testing time, and/or policy manuals Replacing a written test with a more extensive interview which allows the individual to demonstrate their knowledge/skills at the work site Allowing individual to have a support person present during the interview
36 Employment Accommodations To do the job: Job restructuring o Shifting/changing non-essential job functions to other employees Learning the job o Supervisor break job tasks into sequential steps o Additional time to complete training o Provide instructions at a slower pace (not everything at the same time, etc.) o Use pictures, charts, colors, etc. as cues
37 Employment Accommodations Job Coach An employer is probably not required to provide a job coach throughout employment process but would need to consider as part of learning the job Employer must consider allowing a Job Coach to work with the employee and modify policy if necessary (i.e. Allow non-employee in restricted areas, etc.) Use of internal supports for employee (assign staff to work one-on-one when learning new tasks and to serve as support to the staff person)
38 Employment Accommodations Modified Work Schedule Allow flexibility in schedule based on use of public transportation or side effects of medication, etc. o Flexible arrival/departure times o Break periods for rest/taking medications, etc. Allow time off or adjustment in schedule to attend counseling, treatment or other meetings related to the disability Part Time versus Full Time if reasonable
39 Employment Accommodations Acquisition or Modification of Equipment or Devices Tape recorder to record/review instructions Large button telephone PDA (Personal digital assistant) to allow for supervisor to record instructions or use of video to demonstrate tasks that can be retrieved by employee when needed during course of work day Use of color to mark files/bins/controls Simplified instructions using diagrams, etc. for operating machinery
40 Employment Accommodations Modification of Supervisory Process Review tasks to be completed on daily basis and provide in writing versus orally Supervisor providing a demonstration of what needs to be done versus describing orally what the employee is expected to do More frequent feedback regarding performance Allowing individual to bring someone to support them during review of performance or disciplinary meetings
41 Employment Accommodations Modification of Policy/Procedure Workplace conduct rules o Modify those that are not job related and consistent with business necessity Never required to tolerate violent or abusive behaviors that are inconsistent with uniformly applied conduct rules
42 The Family Medical Leave Act The FMLA, Family Values, and Disability
43 Reasons for FMLA Leave Covered employees are entitled to up to 12 weeks of medical leave for any of the following reasons: The birth and care of a newborn child Placement with the employee of a son or daughter for adoption or foster care; To care for an immediate family member (spouse, child, or parent) with a serious health condition; or To take medical leave when the employee is unable to work because of a “serious health condition.”
44 FMLA Leave FMLA Leave Provides: Up to 12 weeks of leave in a 12 month period (The 12 weeks may be taken intermittently) Maintenance of Health Care Coverage Job Protection FMLA Leave is usually unpaid
45 FMLA – Employee Coverage The Employee (Worker) must meet all of these conditions to be protected by the FMLA: Working at a covered employer Worked for the employer for 12 months. (The 12 months do not have to be consecutive) and Performed 1250 hours of work during those 12 months
46 FMLA – ADA Interplay As a Reasonable Accommodation under the ADA, FMLA Leave may be: Extended beyond 12 weeks Given to an employee who is otherwise not eligible under the FMLA and/or Given as paid leave
47 Confidentiality All information about disability and accommodations must be kept in a separate medical file, not the personnel file. Information can be available to supervisors and management personnel on a need to know basis
48 Harassment Pervasive or severe and affecting a term, condition, or privilege of employment Employer knew or should have known, and failed to take remedial action Based on disability
49 Other Issues Harassment – Employer required to maintain harassment free workplace for all employees – Disability awareness training may be necessary to address attitudes, stereotypes, etc. of other employees – Employer is responsible to actions taken in the workplace by other employees and can be held accountable for harassment based on disability
50 ADA – Emerging Issues Disability Harassment Working at home as a reasonable accommodation Requirements to be “Whole” or “100% Healed to Return to Work Temporary Workers Websites Harassment by co-workers and/or supervisors Retaliation
51 Remedies A Complaint or Charged can be filed under applicable Federal, State, or local law at: Chicago Commission on Human Relations Cook County Commission on Human Rights Illinois Department of Human Rights U.S. Equal Employment Opportunity Commission
52 Accommodations and the ADA: How do they differ between high school and post-secondary education?
53 Legal Protections for Students with Disabilities IDEA as amended Rehabilitation Act of 1973 - Section 504 Americans with Disabilities Act of 1990 Civil Rights Act of l964, Title VII as amended in l991 State Civil Rights Laws & Architectural Accessibility Requirements
54 IDEA, ADA, & Section 504 IDEA is a law which mandates access to a “free appropriate public education” for qualified individuals with disabilities. – Limited to elementary and secondary education Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability in federally funded programs – Applies to programs operated by recipients of federal funds including education ADA is a civil rights law and based on “non-discrimination on the basis of a disability” regardless of age. – Applies to broad range of programs and activities including education
56 Definition of Disability ADA/504 Anyone with a physical or mental impairment that substantially limits one or more major life activities Anyone with a record of such an impairment Anyone who is regarded as having such an impairment Also protected are individuals associated with persons with disabilities (i.e. spouse, child, etc.)
57 What is Required? - IDEA Transition Services - "a coordinated set of activities for a student, designed within an outcome-oriented process, which promotes movement from school to post-school activities." – Includes: post-secondary education vocational training integrated employment (including supported employment) continuing and adult education adult services independent living or community participation."
58 What is Required? – ADA/504 Non-discrimination in admission and practices and procedures based on disability Reasonable Modification of policies and procedures to ensure equal access to the goods and services provided unless it would result in a “fundamental alteration of the program or service” Reasonable accommodations to “qualified individuals” to ensure equal access to the programs, services and activities unless it would pose a fundamental alteration of a program or an undue hardship or burden
59 What is NOT Required? – ADA/504 Not Required are: – Exemption from a course or degree requirement – Specialized or Personal services – Fundamental Alterations (Services not provided to students without disabilities) – Actions that are an “undue hardship” – Assistance for “unqualified” individuals – Actions that result in a “direct threat to the health or safety of the individual or others.”
60 Qualified Individual Meets the established eligibility criteria or able to perform the essential functions of the role/position (including the role of a student)
61 Reasonable Accommodation Modification or adjustment to a entrance/course requirement, the classroom environment, or the way things usually are done.
62 Modification of Policies or Procedures Reasonable modification to allow for equal opportunity or access unless it would fundamentally alter the nature of the program, activity or service
63 Auxiliary Aids and Services Ensure effective communication and participation for students and program participants – Communication Access Examples: o Qualified Interpreters o TTY’s or Relay Services o Assistive Listening Devices o Captioning Services o Alternative Formats Large Print Braille Electronic Audio
64 Electronic Media Accessibility Web sites, Course Materials, Educational Tools (videos, courseware, distance learning methods, etc.), Kiosks………
65 Special Equipment or Services Portable (laptop) computers Special software (time and project management) Reference/Referral services Tape recorders Assistive listening devices Student “buddies” Mentors Note takers or scribes ASL Interpreters Utilization of word recognition software Utilization of electronic thesaurus or Dictionary Provide instructions or information on audio tape Large Print Captioning
66 Additional Possible Accommodations Additional time to complete tasks Providing information in verbal versus written format Repeating information to assure comprehension Extended time to access resources, utilize services Extra tutoring or training Quiet areas free from distraction Assistance to verify information
67 Additional Possible Accommodations Visual and verbal prompting. Repetition of information Longer time span to complete tasks Specific systematic instruction from staff Picture cues for completing tasks Simplified displays of information Behavioral Management Strategies – Redirecting activity – Quiet Areas
68 What Are Not Reasonable Accommodations Fundamentally altering a course requirement Violent or abusive behaviors Non-adherence to policy and procedure that is consistent with educational program Personal services such as toileting, clothing management, feeding, medications, etc. Personal devices such as wheelchairs or hearing aids
69 DEFENSES Fundamental Alteration of the Program or Activity Undue Burden or Hardship – Administrative – Financial Direct Threat To Self or Others – Cannot be eliminated or reduced through reasonable accommodation
70 Documentation Provided to substantiate that an individual is a person with a disability under the ADA or 504 and that the requested accommodation relates to the impairment/limitation Information must be current. Critical that there is documentation to show that accommodations have been provided and that there is documentation that can substantiate the need for the accommodation. Unnecessary inquiry prohibited when the need for accommodation is obvious or previously known Provide information early
71 Documentation may be provided to one central office (i.e. Disability Services Office). An teacher/instructor only needs to know that student qualifies for an accommodation unless there are safety concerns where more information is needed to manage the situation Documentation
72 Confidentiality Medical records must be kept confidential and access limited to individuals who need to know for purposes of determining eligibility for accommodation or safety related issues
73 Who’s Responsibility is it? Educational Institution – responsible to assure that qualified students receive appropriate accommodations to be successful in classroom and other degree requirements – responsible for providing auxiliary aids and services to ensure participation
74 Student – Responsible for identifying the need for accommodation and engaging in interactive process to determine appropriate accommodation prior to engaging in academic or other activities. Difficult to come back after the fact and request exemption or “retake”, etc. based on disability unless an accommodation was previously denied. – Responsible for providing documentation to substantiate disability and need for accommodations in a timely manner Who’s Responsibility is it?
75 Remedies Informal – Use internal grievance procedure – Engage in informal negotiation with parties involved Formal – File a Complaint in Federal Court – US Department of Justice (DOJ), Office of Civil Rights Down Load Complaint Form at www.ada.gov 800-514-0301 (V) or 800-514-0383 (TTY) – US Dept. of Education, Office of Civil Rights (OCR), On-line complaint form at www.ed.gov/ocr/complaintprocess.html Contact Regional Office: 312-886-8434 – 111 North Canal Street, Suite 1053; Chicago, IL 60606
76 Disability-Related Statistics "Get your facts first, and then you can distort them as much as you please." Mark Twain “There are white lies, damn lies, and statistics.” Will Rogers
77 Statistics From 2004 Harris / N.O.D. Survey Subject People With People W/O a Disability a Disability Employment (Work FT or PT)35% 78% Prefer to be working63% 42% Education(HS Graduate)79% 89% Income($15,000 or less)26% 9% Transportation Problems31% 13% Voted in 200041% 51% Health Care Problems18% 7% Socializing (2X/Month)79% 89% Life Satisfaction34% 61%
78 Additional Statistics 20% of the U.S. population has a disability. Almost half of these people, 26 million, have a severe disability. The percentage of adults with disabilities who work has not improved much since 1986 (30-35%). 22% (formerly 36%) of employed people with disabilities say they have encountered workplace discrimination. 90% of people who have heard of the ADA support it. People with Disabilities were asked: “Has the ADA made your life better?” 30% - “Yes”; 1% - “Worse”; 64% - “No difference”
79 Job Accommodation Network (JAN) Statistics Reasonable Accommodation Costs vs. Benefits 20% cost nothing Over 70% cost $ 500 or less Median Cost: $ 250 Benefit to the Company: $35 for each $1 spent on Reasonable Accommodations
80 Company Benefits from Accommodations Hired or retained a qualified employee:56% Eliminated cost of new employee training:31% Saved insurance costs: 38% Increased the worker's productivity: 54% Other:25% (Note: This total over 100% as companies often experience more than one benefit)
81 Employment Rates 2.5 million people with intellectual disability (1% of the population) 31% employment rate 82% earn less than $5.50 hour (mean $4.87) 25% working full time (39% work 20 hours or less) Source: Institute for Community Inclusion
83 Resources Equip For Equality www.equipforequality.org Great Lakes ADA Center www.adagreatlakes.org www.adagreatlakes.org Job Accommodation Network www.jan.wvu.edu U.S. Department of Justice ADA Home Page www.usdoj.gov/crt/adahom1.htm www.usdoj.gov/crt/adahom1.htm Equal Employment Opportunity Commission www.eeoc.gov
84 More Resources IL Division of Rehabilitation Services - DRS www.state.il.us/agency/dhs www.state.il.us/agency/dhs Office of the Illinois Attorney General www.ag.state.il.us www.ag.state.il.us Mayor’s Office for People with Disabilities www.ci.chi.il.us/Disabilities www.ci.chi.il.us/Disabilities Ability Links www.abilitylinks.org www.abilitylinks.org Social Security Administration / Ticket to Hire www.ssa.gov/work/Ticket/TicketHire
85 Resources Equip For Equality www.equipforequality.org www.equipforequality.org Illinois ADA Project at Equip For Equality www.ADA-IL.org www.ADA-IL.org Job Accommodation Network www.jan.wvu.edu www.jan.wvu.edu Equal Employment Opportunity Commission www.eeoc.govwww.eeoc.gov Division or Rehabilitation Services – DRS www.state.il.us/agency/dhs www.state.il.us/agency/dhs
86 More Resources Ability Links www.abilitylinks.org www.abilitylinks.org Mayor’s Office for People with Disabilities www.ci.chi.il.us/Disabilities www.ci.chi.il.us/Disabilities Ticket to Work / Employment Networks: EFE or www.yourticketowork.comwww.yourticketowork.com Social Security Administration / Ticket to Hire www.ssa.gov/work/Ticket/TicketHire Great Lakes Technical Assistance Center www.adagreatlakes.org www.adagreatlakes.org
87 Resources for More Information National Dissemination Center for Children with Disabilities (NICHCY) – 800-695-0285 – www.nichcy.org U.S. Department of Education – Office of Civil Rights 1-800-421-3481 http://www.ed.gov
More Resources Great Lakes ADA and Accessible IT Center 1-800-949-4232 http://www.adagreatlakes.org AccessIT http://www.u.wash.edu/accessit U.S. Department of Justice 1-800-514-0301 http://www. ada.gov
89 HEATH Resource Center – National Clearing House on Postsecondary Education For Individuals with Disabilities 800-544-3284 http://www.heath.gwu.edu Association of Higher Education and Disability (AHEAD) 1-614-488-4972 http://www.ahead.org More Resources
90 REQUESTING AN ACCOMMODATION AT WORK AND COLLEGE THE END
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