Copyright© 2010 WeComply, Inc. All rights reserved. 8/29/2015 Americans with Disabilities Act

Copyright© 2010 WeComply, Inc. All rights reserved. 8/29/2015 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

Copyright© 2010 WeComply, Inc. All rights reserved. 4 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"

Copyright© 2010 WeComply, Inc. All rights reserved. 5 Persons with Disabilities (cont’d) 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"

Copyright© 2010 WeComply, Inc. All rights reserved. 6 Persons with Disabilities (cont’d) 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"

Copyright© 2010 WeComply, Inc. All rights reserved. 7 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

Copyright© 2010 WeComply, Inc. All rights reserved. 8 Pop Quiz! True or False: Whether something is considered an impairment under the ADA can depend on its cause. A.True. B.False.

Copyright© 2010 WeComply, Inc. All rights reserved. 9 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

Copyright© 2010 WeComply, Inc. All rights reserved. 10 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

Copyright© 2010 WeComply, Inc. All rights reserved. 11 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

Copyright© 2010 WeComply, Inc. All rights reserved. 12 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

Copyright© 2010 WeComply, Inc. All rights reserved. 13 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.

Copyright© 2010 WeComply, Inc. All rights reserved. 14 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

Copyright© 2010 WeComply, Inc. All rights reserved. 15 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

Copyright© 2010 WeComply, Inc. All rights reserved. 16 In the news…

Copyright© 2010 WeComply, Inc. All rights reserved. 17 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

Copyright© 2010 WeComply, Inc. All rights reserved. 18 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

Copyright© 2010 WeComply, Inc. All rights reserved. 19 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

Copyright© 2010 WeComply, Inc. All rights reserved. 20 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?

Copyright© 2010 WeComply, Inc. All rights reserved. 21 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

Copyright© 2010 WeComply, Inc. All rights reserved. 22 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

Copyright© 2010 WeComply, Inc. All rights reserved. 23 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

Copyright© 2010 WeComply, Inc. All rights reserved. 24 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

Copyright© 2010 WeComply, Inc. All rights reserved. 25 In the news…

Copyright© 2010 WeComply, Inc. All rights reserved. 26 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

Copyright© 2010 WeComply, Inc. All rights reserved. 8/29/2015 Final Quiz

Copyright© 2010 WeComply, Inc. All rights reserved. 8/29/2015 Questions?

Copyright© 2010 WeComply, Inc. All rights reserved. 8/29/2015 Thank you for participating! This course and the related materials were developed by WeComply, Inc. and the Association of Corporate Counsel.