Presentation on theme: "Cindy Held Tarshish Title I Employment:"— Presentation transcript:
1 Cindy Held Tarshish Title I Employment: Interviews, Disclosure, Reasonable Accommodations, Resources &The Americans with Disabilities ActCindy Held Tarshish
2 Supporting Facts and Statistics 54 million people with disabilities = 3rd largest market segment2.2 million emerging college students have disabilities92% of Americans view companies that hire people with disabilities more favorably87% of the public prefers to support businesses who hire people with disabilities
3 Americans with Disabilities Act ADA overviewTitle I –employmentDisability definition/ADA Amendments ActEssential functions & applicationsInterview processDirect threat/undue hardshipDisclosureReasonable accommodationsResources
4 ADA Overview & Terminology The ADA prohibits discrimination against individuals with disabilities through the following five Titles of the Act:Title I – Employment; covers all employers with at least 15 employeesTitle II – State & Local Government; covers all programs, services and public activitiesTitle III – Public Accommodations; Restaurants, stores, and places of public businessTitle IV – Telecommunications; Every state must have a message relay service – 711Title V – Miscellaneous Provisions
5 Title I General RuleNo employer shall discriminate against any qualified individual with a disability in regard to any aspect of employment.Aspects of employment include:Recruitment, Application process, HiringLeaves, LayoffsTraining, Job assignments, PromotionsBenefits, Employer-sponsored eventsDischarges
6 Definition of “Disability” An individual with a “disability” is someone who:Has a physical or mental impairment that substantially limits one or more major life activitiesHas a record of such an impairmentIs regarded as having such an impairmentAssociation with a person with a disability
7 ADA Amendments Act Major Life Activities 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);the 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").
8 Essential Functions under the ADA Employees, with or without disabilities, should be able to:Satisfy the skills, education and training for a position andPerform the essential functions of the position with or without a reasonable accommodationQualifications for a position are determined by the employerJob Descriptions/Advertisements are a piece of evidence of what these are. A job description is not required under the ADA
9 Application Process Excessive job requirements and criteria Online applications – accessibility and legalitiesKiosk applicationsEssential functions and reasonable accommodations on the application
10 Disability-Related Questions and Medical Examinations General PrinciplesPre-offer: no questions or examinations of applicantsPost-offer: all questions and examinations okay as long as required of all applicants in the same job categoryDuring employment: must be job-related and consistent with business necessityTo process an accommodation request: if the disability and/or the need for accommodation is not obvious or already known.
11 Pre-offer, Disability related Questions: Dos and Don’ts Resource: Job Accommodation Fact Sheet
12 Disability-Related Questions & Medical Examinations The Job Interview Prohibited Questions:Questions about an individual’s impairmentQuestions about an individual’s use of medicationQuestions about workers’ compensation historyQuestions about mental health treatment
13 Examples of Unlawful Questions Do you have a heart condition?Do you have a disability which would interfere with your ability to perform the job?How many days were you sick last year?Have you ever filed for workers' compensation?Have you ever been injured on the job?Have you ever been treated for mental health problems?What prescription drugs are you currently taking
14 Permissible Questions: The Job InterviewPermissible Questions:Questions about whether the person can perform the essential functions of the job with or without an reasonable accommodationQuestions about current illegal use of drugsQuestions concerning a history of workplace violence
15 Permissible Questions: The Job InterviewPermissible Questions:Questions about why the person left a prior jobWhether an applicant will need a reasonable accommodation for the application processWhether someone with an obvious disability will require a reasonable accommodation to perform the job.
16 Permissible Questions During Employment The employer must have a reasonable belief based on objective evidence that a particular employee:Will be unable to perform essential functions because of a medical condition; or,Will pose a direct threat because of a medical condition
17 Factors to consider in assessing direct threat: Safety ConcernsFactors to consider in assessing direct threat:The nature and severity of the riskThe severity of the potential harmThe imminence of the harmThe likelihood that harm will occurWhether risk can be eliminated or reduced
18 DisclosureWhy would an employee disclose any disability, hidden or otherwise?To ask for job accommodationsTo receive benefits or privileges specifically for employees with disabilitiesTo explain an unusual circumstance or phenomenon
19 Disclosure Why someone may choose to not disclose a disability? Employee does not need an accommodationEmployee is afraid to disclose, for many reasons:Fear they will be stereotyped, or misunderstood, or not believedFear their confidentiality will be violatedFear of retaliationFear of their disability “being used against them”Fearful of adverse employment action such as:DemotionCut in hoursShift changeEmployee desires privacy about their disability
20 What an employee may disclose General information about their disability;Why they are disclosing their disability;How their disability affects their ability to perform key job tasks;Types of accommodations that have worked for them in the past; andTypes of accommodations they anticipate needing in the workplace.
21 Confidentiality of disclosure All disclosure details, requests for accommodations & medical documentation must be in a locked file separate from the employee’s personal file.Information regarding the employee’s disability may be shared only on a “need to know” basisAppropriate response to inquiring colleagues/co-workers.
22 What the EEOC says about Reasonable Accommodation: An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment.The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer.An individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.As a practical matter, it may be in an employee's interest to request a reasonable accommodation before performance suffers or conduct problems occur
23 Accommodating Employees with Disabilities in the Workplace A reasonable accommodation is:Any change in the workplace or in the way things are usually done that provides equal opportunities for those with disabilitiesGeneral Rule: An employer provides reasonable accommodations to a qualified individual with a disability if requested and not an undue hardship
24 Accommodating Employees with Disabilities in the Workplace Undue Hardship:Significant difficulty or expense (financial hardship)Focuses on the resources and circumstances of particular employerRefers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptiveAdministrative Hardship – alters the nature of the job or activity
25 Principles of Reasonable Accommodation Effective reasonable accommodation process must be interactive (employer and applicant or employee)A reasonable accommodation must be an effective accommodation.The reasonable accommodation obligation applies only to accommodations that reduce barriers to employment as they relate to an individual’s disability.A reasonable accommodation need not be the best accommodation as long as it is effective.
26 Accommodating Employees with Disabilities in the Workplace Interactive Process:Generally begins with a request from the individual with the disabilityNo “magic words” such as “ADA” or “reasonable accommodation”Request does not have to be in writingRequest may come from someone other than the employee - a family member or counselorADA requirements do not prevent an employer from providing an accommodation beyond what is required by the ADA
27 Is the Request Reasonable? Determine if accommodation is reasonableWhat evidence do you have to substantiate “unreasonable”?Case by case analysis – avoid generalizations“If we do it for one, we will need to do it for everyone” is not a defense for “unreasonable”Avoid saying “no” unless you can substantiate “why” and have reviewed the “reasonableness” of the potential accommodation
28 If the Request is Reasonable… If reasonable, implement the accommodationEvaluate effectiveness of the accommodationAdjust if needed or try a different accommodation if what has been provided is not “effective”Monitor effectiveness of accommodationPeriodic review of whether or not the accommodation remains needed and/or continues to be effective
29 Accommodating Employees with Disabilities in the Workplace Reasonable accommodations include:Physical modifications to the workplaceJob restructuring, part-time work, or modified work schedulesLeave – must be related to employee’s disabilityProviding qualified readers or interpreters
30 Reassignment to a vacant position Last resort when unable to accommodate in current positionIndividual must be “qualified” for the positionFirst obligation is to identify positions of similar rank/pay, if not available, then may be a position with lower rank/payEmployer is not required to create a position or remove someone else from a position to create a vacancy
31 Acquiring or modifying equipment Modified keyboard, specialized software, etc.Changing tests, training materialsAdditional time on tests and or for training as neededTraining materials in alternative formatsModification of policies/proceduresAllow service animal in the workplaceModified dress code
32 Accommodating Employees with Disabilities in the Workplace Actions that are not required:Removing an essential function or hiring someone else to perform the functionLowering production standardsReassign to a different supervisorPromotion to a higher positionProvision of “light duty” itemsExcusing misconductProviding “personal use items”, such as eyeglasses, wheelchairs, prosthetic limbs
33 National Resources US Equal Employment Opportunity Commission (EEOC) toll free: , local number:Job Accommodation Network (JAN)HR Tips
34 Minnesota Specific Resources Minnesota Department of Human RightsVoice:TTY:Toll Free:Disability Employment Resources link:DEED/Rehabilitation Services Branch or TTY, TTY
35 Contact us: Still Have Questions? ADA Minnesota @ Metropolitan Center for Independent LivingVoice: ,Toll free: