You’re Hired!You’re Hired!Applications, Interviews, Essential Job Functions

Karen Goss

Mid-Atlantic ADA Center

Welcome!

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Training ObjectivesAddress questions regarding what you can and

cannot do under the ADA in regards to hiring• What are your rights as an employer when you have

an employee with a disability who has performance issues?

• What is acceptable under the ADA relating to hiring and maintaining qualified applicants and employees?

• Do you employment practices pass the ADA test?3

• An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship. Covers Employers with 15 or more employees.

• 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

ADA Title I - Employment

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Obligations of Employers• Make the workplace free of unlawful discrimination,

harassment and retaliation• Promptly and confidentially investigate complaints of

discrimination, harassment and retaliation• Where discrimination, harassment and retaliation

may have occurred, take prompt and appropriate remedial action (i.e., discipline commensurate with the offense)

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Which Employers Are Covered?• Private Employers (15 or more employees)• Labor Organizations• Joint Labor-Management Apprenticeship and

Training Committees (Title VII & ADA)• Employment Agencies Serving Covered

Employers• State and Local Government (Federal workers

covered by the Rehab Act of 1973)6

Which Individuals are Protected?

• An employee• A temporary worker• A job applicant• A former employee• Undocumented workers

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Disabled in America

• 54 million Americans are living with some type of lasting condition or disability

• 72% have high school diploma or some higher education

• Employment rate is only about 25%

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Why?Misinformation

Many employers believe that disabled employees will drive up healthcare costs and insurance rates. They will have more accidents, be less productive and will require expensive accommodations.

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The Truth!• Disabled employees average better attendance,

lower turnover, and better job performance than their non-disabled counterparts

• They also have average or better safety records• Insurance rates do not appreciably rise• The average accommodation cost $500 or less

(20% cost nothing!)

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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 individuals

with disabilities:

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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…

Qualified Individual with a Disability

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Qualified Employee or Applicant

Can perform the essential functions of the job in question, with or without a reasonable accommodation.

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With or without reasonable accommodation can perform the

essential functions of such position.

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• 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?

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• 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

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• 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

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

Accomodations are:

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Reasonable Accommodation (RA)• Modifications to the job application process, the

work environment, or the privileges and benefits of employment

• Must enable the disabled employee to perform the essential functions of the position

• May not cause an undue hardship to employer• Request may be made by employee or be readily

apparent• RA process should timely and cooperative19

• 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 dependent upon:

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• Modification to the job application process• Modification to the work environment or the

manner under which the position held is customarily performed

• Modification that enables an employee with a disability to enjoy equal benefits and privileges of employment

Scope of Reasonable Accommodation:

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‣Communicate!‣Communicate!‣Communicate!

‣Communicate the decision to the employee

‣Document the result of the process

Elements of Elements of Accommodation PolicyAccommodation Policy

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• Physical Modifications

• Managerial Action

• Provision of Services

Categorizing Accommodations

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When Does it Start?

• When a qualified individual with a disability makes a request

• When the accommodation is readily apparent

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Examples of Reasonable Accommodation• Making a facility accessible• Restructuring the job, reallocating marginal functions• Altering when and how an essential task is

performed• Part time or modified work schedules• Flexible leave• Obtaining or modifying equipment or devices• Reassignment to a vacant position

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Employer is NOT Required to:• Eliminate essential functions of a job• Lower quality or production standards• Provide a new supervisor• Excuse bad behavior• Monitor medications• Provide personal use items such as hearing aids

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What is an Undue Hardship?

An employer is not obligated to provide an accommodation if doing so is cost prohibitive to its ongoing operation or overly disruptive.

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The Interactive Process

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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 Process

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Employer Rights and Responsibilities• Medical Records Pertaining to the impairment

• Exams relating to the impairment• Questions relating to the impairment• Cannot ask for more than is required to make an accommodation determination

• Employee has the right to a quick process30

Employee Rights and Responsibilities• Employee has the right to a quick process• Obligation to provide requested relevant information or allow access to information

• Engage in the interactive process, offer suggestions if known

• Cannot choose accommodation, accommodation only need to be effective

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Additional Coverage• Medical Examinations and Inquires

– Medical examinations of employees must be job related and consistent with business necessity

– Job offer may be conditioned upon the results of a medical examination only if all persons entering similar jobs are subject to medical examinations

– May not ask applicants about existence, nature or severity of a disability

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Stages of Employment

• Pre-offer

• Post-offer

• On the job

Disability Related Inquiries

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Interviewer May Ask Questions About:• An applicant’s ability to perform job-related

duties.

• An applicant’s previous job experience.

• Skills required to perform the job.

• Educational background.

Disability Related Inquiries

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Interviewer May Not Ask About:

• The nature or extent of the applicant’s disability.

• If the applicant or anyone in his/her family has a disability. • The applicant’s health.

• If the applicant has a history of emotional illness.

• If the applicant has ever had an injury or disease.

• If the applicant has ever seen a psychiatrist.

• If the applicant has ever had a drug or drinking problem.

Disability Related Inquiries

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• An individual does not need to disclose about his or her disability unless requesting an accommodation.

• Disclosure is a personal choice and such information is to be kept confidential.

To Disclose or Not to Disclose

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Confidentiality• Employers must keep all information

concerning the medical condition or history of its applicants or employees confidential.

• This includes medical information that an individual voluntarily tells his/her employer.

Disclosure

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Pre-Job Offer Questions

Lawful• Can you perform the job with or

without an accommodation?

• Are you currently using drugs illegally?

Unlawful• Can you perform the job with an

accommodation?

• What medications are you currently taking?

• Do you have a condition that will interfere with your ability to perform the job?

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Post-Offer/Pre-Employment• At this stage the employer may make medical

inquires or require individuals to take medical exams as long as the same inquires or exams are required of every individual in the same job category.

• The inquiries of exam do NOT have to be job related or consistent with business necessity

• Employers can also subject all employees to random drug screening

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Additional Coverage• Drug and Alcohol Abuse

– Employees and applicants currently engaged in the illegal use of drugs are not covered

– Tests for illegal drugs are not subject to the restrictions on medical examinations

– Illegal drug users and alcoholics may be held to the same performance standards as other employees

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Post-Offer/Post Employment

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When may an employer be allowed to make medical inquires & exams?

• If the employee is having difficulty performing job due to medical condition

• Needed to assist in determining reasonable accommodation

• Medical condition may pose a threat to employee or others

• Must be based on objective evidence • No fishing• Random drug testing ok42

Medical Information • Must be kept confidential and out of personnel

files• Only limited access• Supervisors and managers related to the

accommodation request• First aid personnel• ADA investigations, insurance carrier, workers

compensation43

ADA Association Claims• The “Association” provision protects applicants and

employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.

• The purpose of the association provision is to prevent employers from taking adverse actions based on unfound stereotypes and assumptions about individuals who associate with people who have disabilities.

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ADA Association Claims• The ADA does not require a family relationship for an

individual to be protected by the association provision,– The key is whether the employer is motivated by the individuals

relationship or association with a person who has a disability• The ADA does not require an employer to provide a

reasonable accommodation to a person without a disability due to that person’s association with someone with a disability

– Only qualified applicants and employees with disabilities and employees with disabilities are entitled to reasonable accommodation.

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Examples of ADA Association Discrimination• Refusing to hire an individual who has a child with a

disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable,

• Firing an employee who works with people who are HIV-positive or have AIDS based on the assumption that the employee with contract the disease.

• Denying an employee health care coverage available to others because of the disability of an employee’s dependent.

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ADA & Employer Tips• Examine all job descriptions to ensure that they reflect only essential

functions, thus making the process for reasonable accommodation easier if needed.

• Train staff on interviewing applicants with disabilities. • Establish and maintain procedures for handling reasonable

accommodation requests.• Designating an ADA Coordinator with management access and

decision making authority is important• Pay attention to the circumstances of required medical examinations

and make sure that employee medical information is kept confidential and separate from personnel files

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ADA & Employer Tips• Ensure that all employer-sponsored events, including

trainings, retreats and social gatherings, are accessible to people with disabilities. Programs must always be held in accessible locations and publications must be available in accessible formats.

• Review policy and procedures for promotions, transfers, layoffs and compensation to ensure that they are as inclusive as possible.

• Make sure that any benefits packages are not discriminatory.

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ADA & Employer Tips• Conduct an internal architectural barriers audit, looking for

whether there are physical barriers in your workplace that may limit employees with disabilities.

• Remember that the ADA covers owners, operators and lessees – so it is important to review contracts and leases.

• Recognize that you need not become an expert in every possible disability and accommodation. Reach out and build relationships with disability organizations. Use them as resources both for identifying potential employees and gathering information about disability issues.

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Determining the right AccommodationA great resource is:

The Job Accommodation Network

http://www.askjan.org

1-800-526-7234

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Starting Population

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Age 0-14

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Age 15-24

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Age 25-44

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Age 45-54

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• List what it took you to get ready today:

What were activities of daily living?

Exercise

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These are basic activities that the average person in the general population can perform with little or no difficulty.

• Caring for Oneself• Performing Manual Tasks• Seeing• Hearing• Eating

Major Life Activities

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

Major Life Activities, cont.

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Major Life Activities cont.

SleepingWalkingStandingLiftingBending

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• Immune system• Normal cell growth• Digestive• Bowel• Bladder

Major Life Activities: Bodily Functions

• Brain• Circulatory• Cardiovascular

systems• Neurological

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• Respiratory• Endocrine• Hemic• Lymphatic• Musculoskeletal

Bodily Functions• Special sense organs

and skin• Genitourinary• Reproductive

functions

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

Mitigating Measures

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

Mitigating Measures

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• Ordinary Eyeglasses and contact lenses are not considered as a mitigating measure

Mitigating Measures

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Examples of mitigating measures include: Mitigating Measures

• medication • low vision devices

•hearing aids • assistive technology

• prosthetics

• cochlear implants

• mobility devices

• oxygen therapy

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• Reasonable accommodations and auxiliary aids or services, behavioral or neurological modifications, and surgical interventions that do not permanently eliminate an impairment.

Mitigating Measures

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Mid-Atlantic ADA Center401 N. Washington Street

Suite 450Rockville, MD 20850

301-217-0124 voice/TTY800-949-4232 voice/TTY

adainfo@transcen.orgwww.adainfo.org

For more ADA Info…

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ADA National Network

Web: www.adata.orgPhone: 800-9494-ADA (Voice/TTY)

(800-9494-232)

Call will be routed directly to your regional ADA Center

Find your regional ADA Center…

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