Disability-Related Information Disability-Related Information Asking, Telling, Using and Storing

2 What we’ll cover What questions you may ask in different contexts What you are permitted to do with the information  Whom you may tell  How you may use it  How you must store it

3 Terminology we’ll use Disability-related information  Any information that discloses that the customer has a disability (e.g., information about special education, notes that a customer has been referred to Voc Rehab, etc.) Disability-related inquiries (asking)  Asking customers questions that are likely to elicit information about disabilities  Asking customers to undergo assessments to determine if they have hidden disabilities (such as learning disabilities)

Asking

5 It’s all about the context! Important: Some practices that are legal in the context of providing services are illegal in the context of employment-related activities

6 Provision of services vs. employment Two different types of legal standards  Standards relating to provision of services (e.g., ADA Title II, Section 504)  Standards relating to employment (e.g., ADA Title I, specific parts of Section 504 regs [29 CFR part 32 subparts B and C])

7 Both types of legal standards (service-related and employment- related) will apply to programs and activities in the One-Stop system Which standards apply will depend on the type of activity Provision of services vs. employment (cont’d)

8 What you must ask in both contexts You must ask customers to provide four types of demographic information (29 CFR 37.37(b))  Race/ethnicity  Gender  Age  Disability status Customers aren’t required to answer!

9 What you must tell the customer before asking any disability-related questions Whenever disability-related information is collected/requested, staff must clearly inform the person that:  providing the information is voluntary, and  the information will be kept confidential as provided by law, and... (cont’d on next slide)

10 What you must tell the customer before asking any disability- related questions (cont’d) And...  refusal to provide the information will not subject the applicant, employee or participant to any adverse treatment, and  the information will be used only in accordance with the law.

11 Which activities fall under “provision of services”? Examples of activities to which service-related standards apply:  Assessment of skills, prior work experience and employability  Creation of service strategy  Supportive programs such as child care, transportation, housing assistance, benefits counseling

12 Which activities fall under “employment-related” standards? Employment-related standards apply to:  Employment-related training  Job placement/referral and related activities of One-Stop agencies/programs/activities that are acting as “employment agencies”

13 Which activities fall under “employment-related” standards? (cont’d) What is employment-related training?  Definition is broad: “training that allows or enables an individual to obtain employment” (29 CFR § 37.4)  Examples: Occupational skills training On-the-job training Job readiness training

14 Which activities fall under “employment-related” standards? (cont’d) A One-Stop agency/program is acting as an“employment agency” when it regularly has as a “principal function”:  procuring employees for at least one employer, or  procuring work opportunities for customers

15 Where services-related standards apply, you have broad latitude in asking questions related to disability or medical conditions

16 When you’re providing services … In the services context, disability-related inquiries are legal – and recommended  Screening customers who have particular types of employment problems for signs of hidden disabilities  Determining eligibility for targeted programs  Determining whether – and which -- reasonable accommodations would help customers succeed in employment

17 Where employment-related standards apply, the questions you may ask are much more limited

18 Generally, you must not ask In employment-related contexts, disability- related inquiries are illegal (except in certain circumstances)  Examples of when you cannot ask disability- related questions: When you are a One-Stop staffer deciding whether to refer a customer to a particular job When you are an employer or training instructor and a customer is not performing well

19 What may you ask? You may ask questions about:  Whether the customer can perform specific job functions, has needed experience / education / licenses  Non-disability-related impairments (e.g., “How did you break your leg?”)  If the person has disclosed a disability or has an obvious disability, you can ask whether the person will need accommodations for the application process (not for the job)  Current illegal use of drugs (alcohol-related questions are limited)

Exceptions to the general “Don’t Ask” rule

21 Exception One: Questions you must ask Demographic data – required by 29 CFR 37.37(b)(2)  Must be asked of every applicant, registrant, eligible applicant/registrant, participant, terminee, applicant for employment, and employee  Response is NOT REQUIRED  Must be kept separate from other info about the individual

22 Exception Two: Questions you may ask Recipients may invite applicants for employment/training to disclose disability if all of the criteria on the next two slides are met

23 Exception Two (cont’d)  Recipient must be either: taking remedial action to correct the effects of past discrimination, or taking voluntary action to overcome the effects of conditions that resulted in limited participation by people with disabilities in the recipient's program or activity, or taking affirmative action under section 503 of the Rehab Act  And... (cont’d next slide)

24 Exception Two (cont’d) Criteria for inviting self-identification (cont’d from previous slide):  Recipient must inform the applicant clearly that the information will be used solely for remedial actions or voluntary or affirmative action efforts  This is in addition to information listed on slides 9 and 10

Telling Disclosure of medical and disability-related information

26 Whom may you tell about a customer’s disability? Extremely limited in either context (services or employment)  Supervisors, managers, trainers (in your agency or at a training provider) – but only to explain limitations or reasonable accommodations  First aid and safety personnel – but only if the condition may require emergency treatment (including evacuation) (cont’d on next slide)

27 Whom may you tell about a customer’s disability? (cont’d)  Others – only on a “need-to-know” basis (interpreted narrowly) Confidentiality is paramount!

28 Who you must not tell You must not tell (disclose medical or disability-related information to) an employer:  to whom you are referring a customer  who is considering hiring a customer Confidentiality is paramount!

29 Exceptions to “don’t-tell” rule You may tell (disclose to) an employer only if...  the job-seeker customer has made an independent decision to disclose to the employer; and  the job-seeker has specifically asked the One-Stop Center or its staff to make the disclosure on his or her behalf; and  the disclosure request has been initiated by the job- seeker, not by the One-Stop Center

Storing

31 How must you store medical or disability-related information? This information must be:  Kept in separate files (apart from all other information about a customer, applicant, or employee)  Stored securely, with limited access Electronic files: password-protected Hard files: kept locked  Available only to persons with a need to know (those you’re permitted to tell)

Using

33 How may you use information about a customer’s disability? Service-related context – broader range  You may use it to figure out: Reasonable accommodations/modifications Auxiliary aids and services Assistive technology

34 How may you use information about a customer’s disability? (cont’d) Employment context – much more limited  You cannot use it as the sole basis for deciding whether: to refer a customer to a particular job to suggest a particular career path to a customer

35 How may you use information about a customer’s disability? (cont’d)  Employment context – much more limited  You may talk with a customer about: whether s/he will need accommodations for the application process whether s/he is interested in special employment programs for persons with his/her disability

36 What is steering? Based solely on a person’s disability:  Referring her to a particular job/employer  Directing her to a particular profession/ career path Steering is illegal! Deciding on an individualized basis is appropriate – and required by law

37 Where to Get More Information Civil Rights Center (CRC) U.S. Department of Labor 200 Constitution Avenue N.W. Room N-4123 Washington, D.C Office of Disability Employment Policy (ODEP) U.S. Department of Labor ETA DDWP website (

38 Where to Get More Information The 411 on Disability Disclosure: A Workbook for Youth with Disabilities  youth.info/resources_&_Publications/411.html youth.info/resources_&_Publications/411.html Disability Inquiries in the Workforce Development System  info brief summarizing legal requirements  youth.info/assets/info_briefs/infobrief_issue9.pdf youth.info/assets/info_briefs/infobrief_issue9.pdf

39 How To Contact Me Phone: (voice) (relay service for TTY)