Title I of the Title I of the

Americans with Disabilities Act as amended by the Americans with Disabilities Act as amended by the

ADA Amendments Act of 2008ADA Amendments Act of 2008

Traumatic Brain Injury & the ADA

August 11, 2011

Americans with Disabilities ActAmericans with Disabilities Act

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What is the ADA?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

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The Americans with Disabilities ActThe Americans with Disabilities Act

• Title I: Employment• Title II: Public Services• Title III: Public Accommodations• Title IV: Telecommunications• Title V: Miscellaneous

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• An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship.

ADA Title I - EmploymentADA Title I - Employment

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ADA Title 1- Employment

• 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

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• 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 Title I ensures that qualified individuals with disabilities:individuals with disabilities:

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Qualified Individual Qualified Individual with a Disabilitywith 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.

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What is the ADAAA?What is the ADAAA?

• 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

Definition of DisabilityDefinition 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..

Definition of DisabilityDefinition 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"

Major Life ActivitiesMajor 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

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• Thinking• Communicating• Sitting• Reaching• Interacting with

Others• Working

• Breathing• Learning• Reading• Concentrating• Thinking• Speaking

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Major Life ActivitMajor Life Activity continued

Under the ADAAA, 'major life activities' is Under the ADAAA, 'major life activities' is

expanded to include "major bodily functions."expanded to include "major bodily functions."

• Immune system• Normal cell growth

• Digestive• Bowel• Bladder

• Brain• Circulatory• Cardiovascular systems

• Neurological

Major Bodily Functions cont

• Respiratory• Endocrine• Lymphatic• Musculoskeletal

• Special sense organs and skin

• Genitourinary• Reproductive functions

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New StandardNew StandardEpisodic Disabilities:

Considered a disability even in remission, if when active would be substantially limiting

Mitigating MeasuresMitigating Measures

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

Mitigating MeasureMitigating Measure

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

• 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?What makes a job task essential?

• 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 Evidence of Essential Functions

• 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 Evidence of Essential Functions

• Any changes in the work setting that enable qualified workers to accomplish their tasks.

Accomodations are:Accomodations are:

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• 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 Accommodations are dependent upon:dependent upon:

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CommunicateCommunicateCommunicate

Communicate the decision to the employeeDocument the result of the process

Elements of Elements of Accommodation PolicyAccommodation Policy

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• 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 ProcessThe Interactive Process

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• Consult with 3rd 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 ProcessThe Interactive Process

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Accommodation ProcessAccommodation Process

2. Explore Accommodation Ideas

1. Define the Situation

3. Choose Accommodation

4. Implement Accommodation

5. Monitor Accommodation

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During the InterviewDuring 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

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 InterviewDuring the Interview

On the JobOn the Job

Can ask some things with reason•If performance concerns:

o Is there something we can do to help you improve your performance?

DisclosureDisclosure

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.

ConfidentialityConfidentiality• 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

DocumentationDocumentation

• 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

Employment ResourcesEmployment Resources

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New ResourcesNew ResourcesTwo Question-and-Answer documentsabout the ADAAA to aid the publicand employers – including smallbusiness – in understanding the lawand new regulations are availablewww.eeoc.gov.

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Equal Employment Opportunity Commissionhttp://www.eeoc.gov

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Job Accommodation Network http://www.askjan.org

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Cornell University - ILR School – Employment and Disability Institute

Disability & HR:Tips for Human Resource (HR) Professionals

http://www.hrtips.org

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Accessible Tech: For Accessible Technology in the Workplace

http://www.accessibletech.org/

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ADA Training Resource Center: Your One-Stop for Courses, Events & Tools on the

Americans with Disabilities Acthttp://www.adacourse.org

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State Assistive Technology ProjectsState Assistive Technology Projects

• District of Columbia: http://www.atpdc.org/• Maryland: http://www.mdtap.org/ • Virginia: http://www.vats.org/ • National Assistive Technology Technical Assistance

Partnership (NATTAP) http://resnaprojects.org/nattap/at/stateprograms.html

• AT @ Work Training

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ADA National Networkwww.adata.org

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Mid-Atlantic ADA CenterMid-Atlantic ADA Center1 of 10 Regional Centers Providing:1 of 10 Regional Centers Providing:• InformationInformation• GuidanceGuidance• MaterialsMaterials• Newsletter/E-BulletinNewsletter/E-Bulletin• TrainingTraining• Toll-free phone number:Toll-free phone number: 800-949-4232 V/TTY800-949-4232 V/TTY• Website: www.adainfo.orgWebsite: www.adainfo.org

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Marian VesselsDirector

Mid-Atlantic ADA Centermvessels@transcen.org

301 217-0124 v/tty

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