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Back to Basics: Disability Nondiscrimination Laws 2011 National Equal Opportunity Training Symposium August 30, 2011 1.

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Presentation on theme: "Back to Basics: Disability Nondiscrimination Laws 2011 National Equal Opportunity Training Symposium August 30, 2011 1."— Presentation transcript:

1 Back to Basics: Disability Nondiscrimination Laws 2011 National Equal Opportunity Training Symposium August 30, 2011 1

2 Federal civil rights laws that ensure equal opportunity for people with disabilities in employment Rehabilitation Act of 1973 Americans with Disabilities Act of 1990 ADA Amendments Act of 2008 2

3 Rehabilitation Act of 1973 Rehabilitation Act of 1973 – Prohibits discrimination in programs conducted by Federal agencies, programs receiving Federal financial assistance, in Federal employment, and in employment practices of Federal contractors 3

4 Rehabilitation Act of 1973 Rehabilitation Act of 1973 continued…. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act. 4

5 Rehabilitation Act of 1973 Rehabilitation Act of 1973 continued…. Section 501:requires nondiscrimination in employment by Federal agencies Section 503: prohibits employment discrimination by Federal government contractors 5

6 Rehabilitation Act of 1973 Rehabilitation Act of 1973 continued…. Section 504: states “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that receives Federal financial assistance. Includes:  reasonable accommodation for employees with disabilities  program accessibility  effective communication with people who have hearing or vision disabilities  accessible new construction and alterations 6

7 Rehabilitation Act of 1973 Rehabilitation Act of 1973 continued…. Section 508: requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public. 7

8 Americans with Disabilities Act 8

9 What is the ADA? Federal CIVIL RIGHTS legislation that says it is illegal to discriminate against people with disabilities in employment, state and local government services, private businesses, telecommunications and transportation 9

10 The Americans with Disabilities Act Title I: Employment Title II: Public Services Title III: Public Accommodations Title IV: Telecommunications Title V: Miscellaneous 10

11 An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship. The activities covered include: –Outreach, Application Process, Testing –Interviewing, Hiring, Assignments –Evaluation, Discipline, Medical Examinations –Compensation, Promotion, On-the-Job Training –Layoff/Recall, Termination, Leave –Benefits of employment e.g., health insurance ADA Title I - Employment 11

12 Have comparable access to the employment process Are afforded an interactive process to determine reasonable accommodation Are provided access to all benefits of employment including access to related services (e.g., gym, transportation) Title I ensures that qualified individuals with disabilities: 12

13 Qualified Individual with a Disability A qualified individual with a disability means one who satisfies the requisite skill, experience, education, and other job-related requirements of the position such individual holds or desires, and who: with or without reasonable accommodation can perform the essential functions of such position. 13

14 What is the ADA Amendments Act ? Americans with Disabilities Act Amendments Act (ADAAA) 2008 Overall purpose -- “To restore the intent and protections of the Americans with Disabilities Act of 1990” Effective January 1, 2009 Regulations effective as of May 24, 2011 14

15 Definition of Disability An individual with a disability is one who: has has a record of, or is regarded as having. a physical or mental impairment that substantially limits a major life activity. 15

16 Definition of Disability Now need not prevent, significantly or severely restrict the performance of a major life activity. Now, disability “shall be construed in favor of broad coverage “ and “ should not require extensive analysis" 16

17 Major Life Activities Caring for Oneself Performing Manual Tasks Seeing Hearing Eating These are basic activities that the average person in the general population can perform with little or no difficulty. Sleeping Walking Standing Lifting Bending 17

18 Thinking Communicating Sitting Reaching Interacting with Others Working Breathing Learning Reading Concentrating Thinking Speaking Major Life Activit Major Life Activity continued…. 18

19 Under the ADAAA, 'major life activities' is expanded to include "major bodily functions." Immune system Normal cell growth Digestive Bowel Bladder Brain Circulatory Cardiovascular systems Neurological 19

20 Major Bodily Functions Major Bodily Functions continued…. Respiratory Endocrine Lymphatic Musculoskeletal Special sense organs and skin Genitourinary Reproductive functions 20

21 New Standard Episodic Disabilities : epilepsy hypertension multiple sclerosis asthma diabetes major depression bipolar disorder schizophrenia cancer Considered a disability even in remission, if when active would be substantially limiting 21

22 Mitigating Measures Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting. 22

23 Mitigating Measure Any device, measure, or medication that reduces the effects of the disability 23

24 If the position exists to perform the function If there are a limited number of employees among whom the task can be distributed If the function is highly specialized What makes a job task essential? 24

25 Employer's judgment as to which functions are essential Written job descriptions prepared before advertising or interviewing applicants Amount of time spent performing the function Evidence of Essential Functions 25

26 Consequences of not performing the function The terms of a collective bargaining agreement Work experience of past incumbents on the job Current work experience of incumbents in similar jobs Evidence of Essential Functions 26

27 Any changes in the work setting that enable qualified workers to accomplish their tasks. Accomodations are: 27

28 The specific requirements of the job The particular need(s) of the employee or applicant The extent to which modifications or aids are available without causing an undue hardship on the employing organization Accommodations are dependent upon: 28

29  Communicate  Communicate the decision to the employee  Document the result of the process Elements of Accommodation Policy 29

30 Look at particular job and determine essential functions Look at employee’s prior history Consult with employee –Abilities and limitations –Effectiveness of potential accommodations The Interactive Process 30

31 Consult with 3 rd parties (advocates, medical professional, consultants) Consider the preference of the employee Select the accommodation that best addresses needs of the employee and the employer The Interactive Process 31

32 Accommodation Process 2. Explore Accommodation Ideas 1. Define the Situation 3. Choose Accommodation 4. Implement Accommodation 5. Monitor Accommodation 32

33 During the Interview Interviewer May NOT Ask: About the nature or extent of disability If they or anyone in their family have a disability About their health If they have a history of emotional illness If they have ever had an injury or disease If they have ever seen a psychiatrist If they have ever had a drug or drinking problem 33

34 Interviewer MAY Ask about: Ability to perform job-related duties Previous job experience Skills required to perform the job Educational background “Please demonstrate how you would do this job” “With or without a reasonable accommodation, can you perform the essential functions of the job” During the Interview 34

35 On the Job Can ask some things with reason If performance concerns: o Is there something we can do to help you improve your performance? 35

36 Disclosure Employer must provide reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability, unless it poses an undue hardship. 36

37 Confidentiality All information related to medical condition or health history must be kept confidential Includes medical information individual voluntarily tells employer Must be kept in locked file separate from personnel records 37

38 Documentation Reasonable documentation from an appropriate professional concerning the disability and functional limitations To verify the existence of a disability and the need for an accommodation 38

39 Employment Resources 39

40 New Resources Two Question-and-Answer documents about the ADAAA to aid the public and employers – including small business – in understanding the law and new regulations are available 40

41 Equal Employment Opportunity Commission 41

42 Job Accommodation Network 42

43 Cornell University - ILR School – Employment and Disability Institute Disability & HR:Tips for Human Resource (HR) Professionals 43

44 Accessible Tech: For Accessible Technology in the Workplace 44

45 ADA Training Resource Center: Your One-Stop for Courses, Events & Tools on the Americans with Disabilities Act 45

46 State Assistive Technology Projects National Assistive Technology Technical Assistance Partnership (NATTAP) 46

47 ADA National Network 10 Regional Centers Providing: InformationInformation GuidanceGuidance MaterialsMaterials TrainingTraining Toll-free phone number:Toll-free phone number: 800-949-4232 V/TTY 800-949-4232 V/TTY Website: www.adata.orgWebsite: 47

48 ADA National Network 48

49 Marian Vessels Director Mid-Atlantic ADA Center 301 217-0124 v/tty 49

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