The Americans with Disabilities Act

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The Americans with Disabilities Act

• What Supervisors Need to Know

2
Session Objectives
Identify the purpose of the ADA Define
disability correctly Make reasonable
accommodations Handle job interviews and
post-offer discussions Deal appropriately with
leaves of absence and reinstatement Avoid
discrimination based on disability
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ADA at a Glance

• 1 in 6 Americans have a disability
• 1986 Civil Rights bill
• 1990 ADA
• 2008 Amendment Act
• Other disability rights laws

For more info 800-514-0301 (V) 800-514-0383
(TDD) www.ada.gov
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The Act
No covered entity shall discriminate against a
qualified individual on the basis of disability
in regard to job application procedures the
hiring, advancement, or discharge of employees
employee compensation job training and other
terms, conditions, and privileges of employment.

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ADA Applies to

• Covered employers
• Eligible employees

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Defining Disability
physical or mental impairments that substantially
limit major life activities
Disabilities
those who have recovered or were misclassified
Record of an impairment
being subjected to adverse employment action
because the employer thinks the individual has an
impairment
Regarded as having an impairment
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Defining Disability (cont.)
COVERED OR NOT COVERED?
Covered
NOT Covered
AIDS or HIV virus
Impairments of short duration

Hearing, vision, or speech impairment
Illegal drug use
AIDS or HIV virus
Epilepsy
Mental retardation
Paralysis
Impairments of short duration
Learning disability
Limited or no use of limbs
Temporaryimpairments
Epilepsy
Learning disability
Temporaryimpairments
Limited or no use of limbs
Illegal drug use
Mental retardation
Paralysis
Hearing, vision, or speech impairment
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Do Not Consider Mitigating Measures

• They include
• Hearing aids
• Medication
• Prosthetic devices, including limbs
• Mobility devices
• Reasonable accommodations
• Learned adaptive behaviors

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What if the Disability Is Not Apparent?

• Mental disorders
• Epilepsy
• Recovering alcoholic
• Learning disabilities

• Mental disorders
• Epilepsy
• Recovering alcoholic
• Learning disabilities

Focus on abilities, not disabilities!
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ADA and Addictions

• Alcoholism covered
• Current use of illegal drugs not covered
• Drug tests allowed
• Other addictions not covered

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Basic Obligations

• We may not discriminate based on disabilities
• We must make reasonable accommodations
• We may hire the best qualified applicant

JAN 1-800-ADA-WORK www.jan.wvu.edu
JAN 1-800-ADA-WORK www.jan.wvu.edu
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Reasonable Accommodation

• Reassignment to light-duty position
• Intermittent leave policy
• Undue hardship exception

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Undue Hardship

• Changes that are costly, extensive, substantial,
  disruptive, or that alter the nature of the
  business
• Prejudice is not hardship

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ADA Basics

• Do you understand
• To whom the ADA applies?
• How disability is defined?
• What reasonable accommodations are required?
• What undue hardship means?

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Posting and Recordkeeping

• Post ADA notices and information in forms and
  handbooks
• Postings must be accessible
• Record all requests and reports on action

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Medical Information

• All medical information must be kept strictly
  confidential

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Job Interviews

• Dont ask about the
• Existence of a disability
• Nature of a disability
• Severity of a disability

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Job Interviews (cont.)

• Only ask about reasonable accommodation when
• Describing the hiring process
• Disability is obvious or disclosed
• Describing or demonstrating how the job is
  performed

• Only ask about reasonable accommodation when
• Describing the hiring process
• Disability is obvious or disclosed
• Describing or demonstrating how the job is
  performed

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After the Job Offer

• Post-offer inquiries about accommodation are
  allowed
• Preemployment physicals may be allowed
• Medical exams may be requested

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Talking Accommodation

• Identify nonobvious disabilities
• Discuss accommodations
• Provide necessary medical information

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Talking Accommodation (cont.)

• Employees are not guaranteed their choice of
  accommodation

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Medical Certification And Exams

• Reasonable medical records may be requestednot
  all medical records
• Medical exams may be requested when
  documentation is insufficient

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Medical Certification And Exams (cont.)

• We must
• Choose healthcare professional
• Explain why documents from employees doctor are
  insufficient
• Outline information requested
• Pay for exam

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Direct Threat

• Employee with disability poses a significant risk
  of substantial harm in the workplace
• We are not required to accommodate
• We must determine direct threat

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Leave Requirements

• Cant use no-fault leave if more leave required
• We may have to modify our policy
• No maximum leave requirement

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Leave Requirements (cont.)

• Additional paid leave not required
• Unpaid leave is allowed after accrued paid leave
  is used
• Reasonable accommodation can help
• Benefits same as other unpaid leave

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Return to Work Requirements

• Employees get
• Same or equivalent position
• Vacant job at lower level
• No promoting or bumping required
• Termination possible

• Employees get
• Same or equivalent position
• Vacant job at lower level
• No promoting or bumping required
• Termination possible

• Employees get
• Same or equivalent position
• Vacant job at lower level
• No promoting or bumping required
• Termination possible

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Liability Under ADA

• Acts for which we may be liable
• Harassment
• What employees who sue can ask for

• Acts for which we may be liable
• Harassment
• What employees who sue can ask for

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Liability Under ADA (cont.)

• Compensation determined by extent of liability
  and damage to victim
• Retaliation prohibited

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What Would YOU Do?

1. You are conducting job interviews for the
   position of administrative assistant. One of your
   applicants has a hand disability due to an
   accident. You are not sure if she can handle the
   computer work associated with the job.

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What Would YOU Do? (cont.)
Do you a. Ask how she is able to type with her
disability? b. Tell her she is not right for
the job? c. Explain the duties of the job and
ask if she can accomplish them?
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What Would YOU Do? (cont.)

1. It has been rumored that one of your staff is a
   recovering alcoholic. Although you have not
   noticed any poor job performance, you are
   concerned the alcoholism will affect his job.

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What Would YOU Do? (cont.)
Do you a. Give the employee fewer job
responsibilities? b. Do nothing unless you start
to notice the employee having
performance-related issues? c. Document your
suspicions on the employees performance
appraisal?
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What Would YOU Do? (cont.)

1. You have an assembly line employee in a
   wheelchair. You have made several reasonable
   accommodations to allow the employee to complete
   her job, such as redesigning part of the line to
   fit her wheelchair. The employee complains to you
   that she still cannot comfortably do her job and
   she is requesting a piece of equipment that is
   expensive and would put your department
   significantly over budget.

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What Would YOU Do? (cont.)
Do you a. Explore less expensive
alternatives? b. Deny the claim for the equipment
and try to reassign the employee to another
job? c. Purchase the equipment for the
employee? d. Deny the claim for the equipment and
tell the employee she will have to do her
job or risk being fired?
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Key Points to Remember
Avoid making assumptions about a disability and
its impact on the job Judge individuals only on
their ability to perform essential job
functions Make reasonable accommodations to
provide equal opportunities to people with
disabilities