The Americans with Disabilities Act: Disclosure and Reasonable … · 2020. 10. 23. · The...

The Americans with Disabilities Act: Disclosure and Reasonable Accommodations

in Employment

Barry Whaley, MSProject Director, Southeast ADA Center

Burton Blatt Institute, Syracuse University College of LawSyracuse, NY

September 25, 2020

Colleen McLaughlin, MEd

Associate DirectorThe Boggs Center on Developmental Disabilities

• COVID-19 National & State Resources• Plain Language and Accessible Information• Healthcare & Communication Resources• Resources in Support of Physical &

Emotional Well-Being and Mental Health• Employment & Financial Related Resources• Boggs Center Resources about Grief and Loss• Boggs Center Resources about Supported Employment• Boggs Center Resources about Planning for Emergencies• Boggs Center Resources for Supporting Students with Disabilities• Resources About Face Masks

COVID-19 Resources on The Boggs Center Website

http://rwjms.rutgers.edu/boggscenter/links/COVID-19Resources.html

GoToWebinar Control Panel Handouts

• Handouts may be downloaded from the Control Panel.

• The webinar recording and handouts will also be posted on The Boggs Center web site next week: http://rwjms.rutgers.edu/boggscenter/dd_lecture/audio.html

Questions

• We are planning to have a brief Question and Answer session at the end of the lecture.

• In order to ask a question, you have to type it in the Questions section of the Control Panel.

Certificates of Attendance for Continuing Education Recognition

To receive a Certificate of Attendance, you must:

Be logged onto the webinar from start to finish and

Complete the evaluation at the end of the webinar

Certificates will be emailed to attendees who meet these requirements next week

The Americans with Disabilities Act: Disclosure and Reasonable Accommodations

in Employment

Barry Whaley, MSProject Director, Southeast ADA Center

Burton Blatt Institute, Syracuse University College of LawSyracuse, NY

September 25, 2020

Barry Whaley, MS

Project Director, Southeast ADA CenterBurton Blatt Institute, Syracuse University College of Law

Syracuse, NY

The Americans With Disabilities Act: Disclosure And Reasonable Accommodations In Employment

Syracuse University | 2017

The contents of this presentation were developed under a grant from the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR grant number 90DP0090-01-00). NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this publication do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the Federal Government.

The information, materials, and/or technical assistance provided by the Southeast ADA Center are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA. The Southeast ADA Center does not warrant the accuracy of any information contained herein. Furthermore, in order to effectively provide technical assistance to all individuals and entities covered by the ADA, NIDILRR requires the Southeast ADA Center to assure confidentiality of communications between those covered and the Center. Any links to non-Southeast ADA Center information are provided as a courtesy, and are neither intended to, nor do they constitute, an endorsement of the linked materials.

You should be aware that NIDILRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast ADA Center via its web site at adasoutheast.org or by calling 1-800-949-4232 or 404-541-9001.

Disclaimer

David McCullough Quote

“How can we know who we are and where we are going if we don't know anything about where we have come from and what we have been through, the courage shown, the costs paid, to be where we are?”

David McCullough, Brave Companions: Portraits in History

11

Disability Rights Timeline (1917-1946)

1917 1920 1933 1935 1938 1940 1946

1917Smith‐Hughes Vocational Education Act

1920Fess‐Smith Vocational

Rehabilitation Act

1935League of the

Physically Handicapped

formed

1940American

Federation of the Physically

Handicapped

1933Franklin Roosevelt first President with an obvious disability

1938Fair Labor Standards Act

1946National Mental Health Foundation

1951

1951Camp Jened

Disability Rights Timeline (1964-1999)

1964 1972 1973 1975 1978 1986 1988

1964Civil Rights Act

1972Mills v. DC Board of Education and

PARC v. Pennsylvania

1975Education for All

Handicapped Children Act

1986Air Carriers Access Act

1973Rehabilitation Act

1978ADAPT bus protests

1988I. King Jordon –1st deaf president of Gallaudet University

1990

1990Americans with Disabilities Act

1999

1999Olmstead v. L.C.

Rehabilitation Act 1973• Passed into law in 1972 but vetoed by Richard Nixon• Foundation of the Americans with Disabilities Act• Section 501 prohibits employment discrimination based on disability in the federal government in hiring

• Section 503 prohibits discrimination in employment by federal contractors and subcontractors

• Section 504 Prohibits discrimination on the basis of disability by programs receiving federal funds

14

Rehab Act of 1973 Amendments

15

1978•Centers for Independent Living

1986•Supported Employment

1992•Employment as the primary goal of VR

A Snapshot: The Spirit of the ADA“The ADA is the civil rights act of the future.”

Justin Dart, Jr., “Father of the ADA”

“…“let the shameful wall of exclusion finally come tumbling down.”President George Bush, before signing

the ADA into law on July 26, 1990

16

Senator Tom HarkinAuthor of the ADA

Refers to the ADA as “an ‘emancipation proclamation’ for people with disabilities”

“Disabled individuals spend a lifetime overcoming not what God wrought, but what man has imposed by custom and law”

17

ADA Quiz Question 1

How many people with disabilities are there in the United States?

18

ADA Quiz Answer to Question 1

61 million

Source: Centers for Disease Control and Prevention Press Release ‐ 1 in 4 US adults live with a disability

Link: cdc.gov/media/releases/2018/p0816‐disability.html

19

ADA Quiz Question 2

How many people with disabilities live in New Jersey

20

ADA Quiz Question 2 Answer

21


Landmark civil rights law that guarantees equal treatmentfor people with all disabilities

or individuals who have an association or relationship with someone who has a disability.

Americans with Disabilities Act Overview

ADA30

23

• ADA Anniversary Tool KitLink: adaanniversary.org

• Share Your #ThanksToTheADA Moment!Link: adata.org/thanks‐to‐the‐ada‐campaign

ADA 30 ‐ Celebrate. Learn. Share.

24Funded by NIDILRR Grant #90DP0090‐01‐00


Title I Employment Protections.

Title II Public Entities and Transportation.

Title III Public Accommodation and Commercial Facilities.Title IV Telecommunications.Title V Technical Provisions.

Americans with Disabilities Act –What Does It Cover?


People with disabilities

13.2%

People without disabilities

8.4 %

Unemployment Rate

People with disabilities

20.6%

People without disabilities

67%

Labor Force Participation

Source: Department of Labor, Office of Disability Employment Policy, August 2020

Unemployment vs. Labor Force Participation


Employers cannot discriminate against people who have disabilities in regard to:• any employment practices or terms;• conditions; or• privileges of employment.

This prohibition covers all aspects of the employment process.

Title I of the ADA – The Basics


• Private employers with fewer than 15 employees• The Federal Government• Corporations fully owned by the US Government• Private Membership Clubs• US Government Executive Agencies• Indian Nations• Businesses operating in foreign countries,

if compliance violates foreign law

Exemptions


An employer cannot discriminate against qualified applicants and employees on the basis of disability.A qualified applicant is an individual who:• meets the skill, experience, education, and other job-

related requirements of a position held or desired, and• with or without reasonable accommodation, can

perform the essential functions of a job.

ADA Title I: Qualified Applicant


• Any change in the work environment or how things are usually done that results in equal employment opportunity for an individual with a disability.

• A business must make a reasonable accommodation to the known physical or mental limitations of a person with a disability unless it can show that the accommodation would cause an undue hardship on the operation of the business.

ADA and Reasonable Accommodation


• Using assistive technology (Screen readers, JAWS, Audio-text software)

• Change in schedule• Changes in break times• Work from home• Using job aids

Reasonable Accommodation ExamplesSlide 1 of 2


• Change in work location• Change in work environment• Change in equipment• Elimination or exchange of marginal job tasks• Re-assignment• Leave

Reasonable Accommodation ExamplesSlide 2 of 2


• The reason the job exists is to perform that function.

• Only a few employees can perform the function.

• The function is so highly specialized that the employer hires people into the position specifically because of their expertise in performing that function.

Essential Job Functions


• The presence of a disability does not result in a presumptive reasonable accommodation.

• The person with a disability has a responsibility to disclose his/her need for an accommodation.

• Reasonable accommodations should be reviewed.• Employers may ask for documentation of a

continuing disability.

Reasonable AccommodationThings to Know


The ADA applies to applicants or employees who:1. have a disability; or2. have a record of having a

disability; or3. are regarded as having a

disability.

Who has rights under the ADA?


…A physical or mental impairment that substantially limits one or more major life activities*

NOTE: Employers are not required to provide accommodation to employees that are “regarded as” having a disability.

What is a disability?


37

Non-obvious disabilities

• Most disabilities are not obvious yet they have an impact on daily lives. For instance:o Arthritiso Intellectual disabilityo HIV/AIDSo Seizure disorders

• This can lead to misunderstanding and to greater stigmatization.

The ADA Amendments Act (ADAAA)Restoration of the Definition of Disability• Supreme Court rulings narrowed the definition of disability so fewer people had protections

• Focus became proving disability not the alleged discrimination

• ADAAA restored the definition of disability

• Requires a broad interpretation of mitigating measures, episodic conditions and broadened “regarded as”


Qualified individuals who are:

• Pre-employed applicants• Full-time employees• Part-time employees• Seasonal workers• Temporary workers

Who has rights under the ADA?(Slide 1 of 2)


The ADA and the Association Provision• prohibits discrimination against a person, whether or not he or she

has a disability, because of his or her known relationship or association with a person with a known disability.

• The ADA does not require a: family relationship for an individual to be protected by the association

provision. a reasonable accommodation to a person without a disability due to that

person's association with someone with a disability.

Who has rights under the ADA?(Slide 2 of 2)

Disclosure Decisions


Disclosure• voluntarily sharing information about a disability

Self-identification• Invitation from an employer to voluntary check a box that

says the individual has a disability, anonymous, typically used for data collection purposes (Section 503)

Disclosure vs. Self-Identification


• The person has an obvious disability and wants to address any concerns head-on

• The person needs an accommodation to participate in the interview or do the job

• Disclosure would offer a competitive advantage in the selection process

• The person wants to bring his/her “whole self” to work• Explain the participation of a job coach or employment

specialist in the process

Why Disclose?


Good Disclosure• Focuses on needs • Provides suggestions for reasonable accommodations• Is specific rather than general (how my disability affects

my ability to perform essential job functions)• Focuses on job qualifications, not a disability

The Art of DisclosureSlide 1 of 2


Good Disclosure Avoids medical terms and labels• Discusses work barriers, not diagnoses• Focuses on the here and now, not past negative

experiences• Is positive

The Art of DisclosureSlide 2 of 2


• It varies greatly depending on the employer and the situation.

• Possible audiences: recruiters, hiring managers, supervisors/managers, human resources staff, EEO staff, co-workers, health and safety staff

• The key – only tell those who need to know.

To Whom Do I Disclose?


• Employers may use social media to seek out information on a job candidate• Be aware that what you post in social media. It may unintentionally disclose a disability. Pictures Comments Are there things that can be

misinterpreted?

Social Media and Disclosure(Slide 1 of 2)


• Be thoughtful and respectful in your posts.

• Know what information about you can be found on-line.

• Remember, once posted on-line, it never goes away.

Social Media and Disclosure(Slide 2 of 2)


The 411 on Disability Disclosure Workbook

Source: National Collaborative on Workforce and Disability for Youth

Disclosure Tools(slide 1 of 3)


Advising Youth with Disabilities on Disclosure: Tips for Service Providers

Source: U.S. Department of Labor - Office of Disability Employment Policy

The Art of Disclosing Your Disability

Source: Richard Pimentel



Disclosure Decisions to Get the Job

Source: Virginia Commonwealth University Rehabilitation Research & Training Center

Disclosure Tools

Source: Job Accommodation Network



• No standardized form or set of basic information required for seeking accommodation in the workplace.

• Requests can be made: Verbally Written Email Someone can make the request for you

Accommodation Basics


• Recognize a request for accommodation has been made• Begin an interactive process with the employee• Confirm the existence of a disability• Determine the essential functions and marginal

functions of the job• Investigate solutions• Implement the accommodation• Document the accommodation

Employer Responsibilities in the Reasonable Accommodation Process


Employers are not required to honor accommodation requests that:• Create an undue hardship for the business;

• Are extensive, disruptive, too costly, or fundamentally change the essential function of the job; and/or

• Are dangerous or illegal.

Employer Rights in the Reasonable Accommodation Process


Granting an accommodation does not result in:• Eliminating the essential functions of the job• Reducing the performance standards for the job

Employer Rights and Responsibilities in the Reasonable Accommodation Process

(slide 1 of 2)


Documentation• The employer has the right to request documentation about the disclosed disability.

• The documentation must be job-related and consistent with business necessity.

• Disability documentation must be kept confidential.• Must be kept in a secure file separate from the employee’s work file.

Employer Rights and Responsibilities in the Reasonable Accommodation Process

(slide 2 of 2)


A question, or series of questions, that are likely to solicit information about a person’s disability or

related medical condition.

Disability Inquiry


Pre-Employment(Before an offer of employment)

No disability inquiries are allowed

Pre-Employment – Post Offer (After an offer of employment is made)

Disability inquiries are allowed only if the same inquiry is made of all candidates for the job category

Employment A disability inquiry can only be made if it is job related and of a business necessity

Phases of the Employment Process and Disability Inquiries


• A person’s general well-being• A non disability-related impairment• Whether a person can perform the essential job functions• Whether a person has been drinking alcohol• Current illegal use of drugs• Pregnancy information (i.e., due date and well-being)• Emergency contact information

What Can Employers Ask in Disability Inquiry?


In writing job descriptions, some language is exclusionary to people with disabilities. Use words that convey the actual requirements of the job with an awareness of reasonable accommodation.

ADA Aligned Job Descriptions


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Language & ADA Aligned Job Descriptions

Exclusionary language ADA Aligned language

Stand or Sit Stationary position

Walk Move, Traverse, travel

Use of hands, fingers, handling, grasp, or feeling Operate, Activate, Use, Prepare, Inspect, Place, Detect, Position

Climb or Balance Ascend/Descend, atop, traverse

Stoop, Kneel, Couch, Crawl Position, Move

Talk or Hear Communicate, convey, express oneself, exchange information

Lift or Carry Move, position, transport, place


• Whether a person has, or had, a disability• Medical documentation of a condition• Genetic information• Prior workers' compensation history• Current or past prescription medication usage

What Can’t Employers Ask in Disability Inquiry?


1. Request for Medical Documentation

2. Disability Disclosure

3. Reasonable Accommodations and COVID-19

4. Face Mask Policies and Employment

5. Intersection of the ADA and Other Laws

The ADA and COVID-19

Justin Dart Jr. The Father of the ADA

President of Tupperware Japan, where he hired women and people with disabilities

64

Executives in the U.S. told Dart, “to stop promoting women to executive positions [and to] stop his disability campaign.”

Justin Dart Jr. Tour

• 1981, President Reagan selected Dart to be the vice‐chair of the National Council on Disability.

• Justin and Yoshiko tour the U.S., stopping in every state to collect stories from individuals with disabilities.

• The stories are brought to Washington, D.C. and began working towards legislation that is now known as the Americans with Disabilities Act (ADA).

65

Farewell Message of Justin Dart Jr.

Still Have Questions?

Contact the Southeast ADA CenterTelephone• 800‐949‐4232 (toll free)• 404‐541‐9001 • 711 (relay)E‐mail: [email protected]: adasoutheast.org

Barry Whaley

1419 Mayson Street NEAtlanta, GA 30324Toll Free: 800‐949‐4232Phone: 404‐541‐9001 Email: [email protected]

Certificates of Attendance for Continuing Education Recognition

To receive a Certificate of Attendance, you must:

Be logged onto the webinar from start to finish and

Complete the evaluation at the end of the webinar

Certificates will be emailed to attendees who meet these requirements next week

Stay on your screen, and if prompted, click CLOSE for the evaluation to pop up.

Thank you for attending and completing the evaluation.

Evaluation

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