[PDF] - Session Objectives Definition of Disability Qualified Reasonable PDF Document

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1 Equal Employment Opportunity Commission Overview of Requirements of Title I/Employment Provisions of the Americans with Disabilities Act

Sharon Rennert EEOC Senior Attorney Advisor ADA/GINA Division

Session Objectives

◼ Definition of Disability ◼ Qualified ◼ Reasonable Accommodation ◼ Disability-Related Questions & Medical

Exams

 Applicants and Current Employees

◼ Direct Threat

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General Provisions

◼ Prohibits employment discrimination on the

basis of disability

◼ Covers private employers with 15 or more

employees

 State and local employers also covered (no

minimum number of employees required)

 Federal employers covered by Rehabilitation Act

◼ Prohibits retaliation, harassment

Definition of Disability

◼ An individual with a disability is one

who:

 Has a physical or mental impairment that

substantially limits a major life activity; or

 Has a record of such an impairment; or  Is regarded as having such an impairment.

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Impairment

◼ What is an impairment:

 A physiological disorder or condition  A mental or psychological disorder

Major Life Activities: Two Possible Categories/First One Focuses

n Major Bodily Functions

◼

Immune System

◼

Special sense organs (ears, nose) and skin

◼

Normal cell growth

◼

Digestive

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Genitourinary

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Bowel

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Bladder

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Neurological

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Brain

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Respiratory

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Circulatory

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Cardiovascular

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Endocrine

◼

Hemic

◼

Lymphatic

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Musculoskeletal

◼

Reproductive

◼

Operation of an individual

rgan (kidney)

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4 Major Life Activities: 2nd Category is Common Activities Performed by Everyone Without Disabilities

◼

Walking

◼

Seeing

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Hearing

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Eating

◼

Sleeping

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Standing

◼

Sitting

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Reaching

◼

Lifting

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[Working]

◼

Caring for oneself

◼

Interacting with others

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Performing manual tasks

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Bending

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Speaking

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Communicating

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Breathing

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Learning

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Reading

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Concentrating

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Thinking

Substantially Limited: Not Demanding Standard

◼

No single or simple definition of “substantially limited”

◼

Individualized assessment

◼

Construed broadly: No requirement that limitation be permanent or even long-term (several months suffices)

◼

Should not require extensive analysis (Meaning: shouldn’t take several weeks of analyzing information to make determination)

◼

Evaluate limitation in performing major life activity as compared to most people



No requirement that person be prevented or significantly restricted in performing major life activity

◼

May Consider:



Condition and Manner of performing major life activity



Duration can perform major life activity 7 8

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5 Disregard Positive Impact From Using Mitigating Measures When Assessing If Substantial Limitation Exists

◼

Measures to lessen impact of an impairment

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Medication

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Prosthetic limbs

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Hearing aids and cochlear implants

◼

Mobility devices: wheelchair, walker, cane

◼

Oxygen therapy equipment

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Other medical supplies or equipment

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Low vision devices (but not ordinary eyeglasses or contact lenses)

◼

Learned behavioral adaptations

Assessing Substantial Limitation for Impairments That Are Episodic

r In Remission

◼

Assess impact on performance of major life activity if/when the impairment is active to determine if person substantially limited

◼

Question to ask: What happens (or would happen) during period when impairment is active

◼

Examples of episodic impairments: epilepsy, major depression, multiple sclerosis (periods when active and periods when dormant)

◼

In remission: cancer (not cured necessarily)

◼

For those using a mitigating measure: ask what symptoms or impact existed prior to it use

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Impairments That Basically Always Constitute a Disability

◼

Individualized assessment certain to show a disability:



Deafness and Blindness



Intellectual Disability



Partially or Completely Missing Limbs



Mobility Impairments requiring use of wheelchair



Autism



Cancer



Cerebral Palsy



Major Depressive Disorder, Bipolar Disorder, PTSD, Obsessive Compulsive Disorder, Schizophrenia



Diabetes



Epilepsy



HIV Infection



Multiple Sclerosis



Muscular Dystrophy

Record of a Disability

◼ Disability in the past ◼ No longer substantially limited ◼ Rarely used definition ◼ Use same factors we just reviewed to

evaluate if a current impairment constitutes a disability, but just apply all the factors to the past

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Regarded as Having a Disability

◼

Occurs when employer/union/employment agency takes a negative employment action based on applicant or employee’s real or perceived (imagined) impairment

◼

Examples of negative employment actions: failure to hire or to promote, termination, denial of benefits

therwise eligible for, poor work evaluation

◼

Concepts of “substantial limitation” and “major life activity” irrelevant to this definition

◼

Myths, fears, or stereotypes

Association/Relationship with a Person with a Disability

◼ The ADA prohibits discrimination

against an individual based on their “association” with a person who has a disability (e.g., family member)

◼ Employer is not required to provide a

reasonable accommodation to an employee based on that person’s association.

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Qualified

◼ An individual with a disability is qualified

if s/he:

 Satisfies the skills, education, and

training required for the position; and

 Can perform the essential functions of the

position with or without reasonable accommodation

Essential Functions

◼ These are the fundamental job duties. ◼ Marginal Functions: Less important

duties in the position

◼ A function may be essential for several

reasons:

 The job exists to perform that function  There are a limited number of people to

perform the function

 The job is highly specialized

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What Do We Look at To Determine if Job Duty is Essential or Marginal

◼

Employer’s judgment (but need to back it up with facts)

◼

Job description written before advertising the position

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Amount of time employee spends performing the function

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Consequences of not performing the function

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Current work experience of incumbents in similar jobs

r work experience of past incumbents in this job

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Terms of a collective bargaining agreement

Essential versus Marginal Functions

◼ When is this distinction important:

 If employee requests removal of a job function  Never required to remove essential function

(ability to perform essential functions is one of the ways we determine if individual is “qualified”) but may be required to remove marginal function as a reasonable accommodation where safe/competent performance of marginal function not possible because of disability

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Employment Tests

◼ Administration of tests



A test must be selected and administered in the most effective manner to ensure that it does not measure impaired sensory, manual, or speaking skills, unless those skills are what the test is intended to measure.



Reasonable accommodations are required to allow applicants or employees with disabilities to take tests related to employment, unless the accommodation would result in undue hardship.

Employment Tests/Qualification Standards

❑

May not be used to screen out (or to take some other adverse action against) an applicant or employee on the basis of disability who can actually perform the essential functions of a job with or without a reasonable accommodation, despite an inability to pass the test or meet the qualification standard.

❑

If a test would (or does) screen out a person based on disability, employer must be able to justify use of test by showing that the test is related to competent performance

f an essential function of the position and no reasonable

accommodation would permit such performance

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Reasonable Accommodation

❑

A reasonable accommodation is a change in the workplace,

r in the way things are usually done, that provides equal

employment opportunities for individuals with disabilities

❑

General rule: An employer provides a reasonable accommodation to an individual with a disability if requested and if doing so does not pose an undue hardship

❑

Three areas where reasonable accommodation may be required

❑

Application process

❑

On the job or to access the workplace

❑

Access to benefits and privileges of employment

Interactive Process Used to Determine if Reasonable Accommodation is Needed

❑

Individualized Process: Avoid snap decisions

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Process usually starts with a request from applicant/employee (or third party such as doctor or family member acting on behalf of individual)

❑

No “magic words” needed: Person saying I need something from employer because of a medical condition = Request for reasonable accommodation

❑

Request need not be in writing

❑

Employer may obtain medical information to support the employee’s request

❑

Cooperative process: Individual shares information to enable employer to make informed decision and employer raises questions/concerns that individual may be able to address

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Reasonable Accommodation

◼ Includes:

 Physical modifications to the workplace  Job restructuring, part-time work, or modified

work schedules

 Sign language interpreters or readers  Modifying workplace policies (meaning making

an exception for a person with a disability)

 Leave  Reassignment to a vacant position

Reasonable Accommodation, 2

◼ Actions not required:



Removing an essential function or hiring someone else to perform it



Lowering production standards (meaning performance

r conduct standards that are applied to other workers)



Excusing poor or subpar performance or misconduct; never have to withhold disciplinary action employee has “earned”



Removing or replacing a supervisor



Providing personal use items, such as eyeglasses, wheelchairs

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Undue Hardship

◼

Significant difficulty or expense

◼

Focus on resources and circumstances of employer

◼

Difficulty: Focus on impact of providing the reasonable accommodation as it affects the ability of other workers to do their jobs and the smooth operation of the employer



Coworker morale is NOT an element of undue hardship (for example, coworker does not like that employee is permitted a modified work schedule)



Have to show that reasonable accommodation prevents

r significantly interferes with ability of coworkers to do

their jobs

Disability Related Questions and Medical Examinations

◼ General Principles:



Pre-offer – no questions (with very limited exceptions)

r medical examinations



Post-offer – all questions/exams are OK as long as they are applied to all applicants in same job category



During employment – questions/examinations must be job-related and consistent with business necessity



To process reasonable accommodation request – if disability and/or need for accommodation not obvious

r already known.

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Disability Related Questions and Medical Exams, 2

◼ Examples of Questions Prohibited Pre-Offer

 About an applicant’s impairment(s): past or

present

 About an applicant's use of medications  About an applicant's worker’s compensation

history

 About an applicant's mental health treatment (or

any other kind of treatment)

 About when individual last saw a doctor or was

hospitalized

Disability Related Questions and Medical Exams, 3

◼

Pre-Offer Permissible Questions:



Whether the applicant can perform the duties

f the job



Discuss past experience performing specific duties



Discuss educational background and skills



Whether the applicant currently uses drugs illegally



Why the applicant left a prior job



Whether the applicant will need a reasonable accommodation for the application process



Whether someone with an

bvious disability will require a

reasonable accommodation to perform specific job duty IF it is reasonable to assume

ne might be needed (and

can only ask about accommodation and not info

n disability)

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Post Offer: “Open Season”

◼

At end of pre-offer stage employer makes a conditional job

ffer: condition is that (1) individual must answer disability-

Now employer may ask all the questions prohibited at the pre-offer stage and/or require a medical examination

◼

All entering employees are subjected to the same initial exam/inquiry

◼

To justify revoking conditional job offer must show individual cannot perform essential functions of the job with

r without reasonable accommodation or poses a direct

threat

Disability Related Questions and Medical Examinations During Employment

◼ Employer must have a reasonable belief based

n objective evidence that the employee:

 Might be unable to perform the job’s essential

functions because of a medical condition; or

 Might pose a direct threat (high level

health/safety risk) because of a medical condition

◼ Employee has requested reasonable

accommodation and the disability and/or the need for reasonable accommodation are not clear

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Direct Threat

◼ Direct threat requires individualized

assessment

◼ Direct threat exists when:

 An individual poses a significant risk of

substantial harm to the health or safety of him/herself or others because of the disability; and

 The risk cannot be reduced or eliminated

with a reasonable accommodation

Direct Threat, 2

◼ Factors to be considered:

 Nature and severity of the risk  Severity of the potential harm  Imminence of the potential harm  Likelihood that the harm will occur  Whether the risk can be eliminated or

reduced with a reasonable accommodation

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For Further Information

www.eeoc.gov: Lots of ADA/Rehabilitation Act publications, including about specific disabilities, reasonable accommodation, leave, telework, performance and conduct issues, disability-related questions and medical examinations at all 3 stages of employment, overlap with workers’ compensation laws and the FMLA Sharon Rennert

 202-663-4676  Sharon.Rennert@eeoc.gov