ADA%20Update

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ADA Update

• LaVerne Albright Buchanan, Ed.D.Senior
  AssociateTransCen, Inc.401N. Washington St.
  Suite 450Rockville, MD 20850

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Reasonable Accommodation
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Goals

• To understand reasonable accommodation as a
  concept, a requirement, and a process
• To learn how to problem-solve situations where
  reasonable accommodation might be necessary in
  the workplace

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Definition of Disability

• An individual with a disability is one who
• Has a physical or mental impairment that
  substantially limits a major life activity
• Has a record of having such an impairment
• Is regarded as having such an impairment

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Definition of Disability
Continued

• An individual with a disability is one who has a
  physical or mental impairment that substantially
  limits a major life activity.

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Definition of Disability
ADAAA

• Need not prevent, or significantly or severely
  restrict, the performance of a major life
  activity.
• Disability shall be construed in favor of broad
  coverage and should not require extensive
  analysis

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Major Life Activities

• 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
• Walking
• Seeing
• Hearing
• Speaking

• Breathing
• Concentrating
• Learning
• Working
• Sitting
• Standing
• Lifting

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Major Life Activities includes Major Bodily
Functions
ADAAA

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

• Brain
• Circulatory
• Cardiovascular
• Neurological

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Major Bodily Functions
ADAAA
Continued

• Respiratory
• Endocrine
• Hemic
• Lymphatic
• Musculoskeletal

• Special sense organs and skin
• Genitourinary
• Reproductive functions

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Mitigating Measure
ADAAA

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

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Mitigating Measures
ADAAA

• Mitigating measures are ignored in determining
  whether an impairment is substantially limiting.
• Exception
• Ordinary eye glasses and contact lenses

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ADAAA

• Episodic Disabilities

• Epilepsy
• Hypertension
• Multiple sclerosis
• Asthma
• Diabetes
• Major depression
• Bipolar disorder
• Schizophrenia
• Cancer

Considered a disability, even in remission, if it
would be substantially limiting when active
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Qualified Individual with a Disability

• A qualified individual with a disability
  satisfies the requisite skill, experience,
  education, and other job-related requirements of
  the position such individual holds or desires to
  hold, and who
• can perform the essential functions of such
  position
• with or without a reasonable accommodation

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What makes a job task essential?

• 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

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Evidence of Essential Functions

• 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

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Evidence of Essential Functions
Continued

• 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

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Essential or Marginal?
Job Function Essential or Marginal?



Interacting with Customers
Waiter
Essential
Secretary
Making Coffee
Marginal
Coffee Shop Barista
Making Coffee
Essential
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Essential or Marginal?
Continued
Job Function Essential or Marginal?



Trainer
Public Speaking
Essential
Assembly Line Worker
Answering Phones
Marginal
Radio Announcer
Typing
Marginal
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Reasonable Accommodation

• Any change in the work environment or way things
  are done that enables a person with a disability
  to enjoy equal employment opportunity

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Scope of Reasonable Accommodation

• Modification to the job application process
• Modification to the work environment or the
  manner in which the position held is customarily
  performed
• Modification that enables an employee with a
  disability to enjoy equal benefits and privileges
  of employment

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Accommodations are dependent upon

• 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

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Undue Hardship
Significant difficulty or expense
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Undue Hardship

• Action that requires significant difficulty or
  expense - unduly costly, extensive, substantial,
  disruptive, fundamentally alters nature or
  operation of business
• In relation to size of the employer, resources
  available, nature of the operation
• Must be determined on a case-by-case basis
• IMPORTANT Consider alternate accommodations that
  do not create undue hardship

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Undue Hardship

• Look at the organization as a whole
• Difficult to claim undue hardship if funds are
  available for fringe benefits such as upgrades to
  furnishings, office parties, and entertainment
• Must truly place undue hardship on the business
  in response to the request for Reasonable
  Accommodation

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Examples of Reasonable Accommodation

• Making existing facilities used by employees
  readily accessible and usable by individuals with
  disabilities
• Job restructuring
• Part-time or modified work schedules

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Examples of Reasonable Accommodation
Continued

• Adjustment or modifications of examinations,
  training materials, or policies
• Providing qualified readers or interpreters
• Reassignment to vacant positions

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Brainstorm Accommodations

• College Professor
• Office Clerk
• Attorney
• Waitress
• Nurse
• HR Manager

• Anxiety Disorder
• Deaf
• Learning Disability
• Fibromyalgia
• Immune System Disorder
• Blind

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The Interactive Process

• Determine the essential functions of the job
• Consult with the employee to determine his or her
  abilities and specific needs
• Identify potential accommodations in consultation
  with the individual
• If two or more possible accommodations exist,
  consider the preference of the individual, and
  then if possible, select the method that best
  serves both the individual and the business

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The Interactive Process

• Look at particular job and determine essential
  functions
• Look at employees prior history
• Consult with employee to consider
• Abilities and limitations
• Effectiveness of potential accommodations to
  employee and business needs

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The Interactive Process

• Communication with the employee in need of the
  accommodation is critical to the success of the
  Reasonable Accommodation Process
• Avoids providing the wrong accommodation by
  assuming the need of the employee
• Ask How may I help you?
• Listen to what the employee tells you!

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Average Cost of Accommodations

• 56 of all accommodations have no cost
• 36 require only a one-time cost, typically about
  600
• 5 require both a one-time cost and an ongoing or
  annual cost
• Source Job Accommodation Network Survey1

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Quiz Question

• What is the most commonly requested
  accommodation?
• A Wheelchair Accessibility
• B Modified Schedule
• C Assistive Technology
• D Meetings to Discuss Work Performance and
  Duties

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Answer

• B Modified Schedule

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Quiz Question

• Approximately 88 of accommodations for people
  with disabilities will cost
• A. Under 1,000
• B. Between 1,000 - 1,999
• C. Between 2,000 - 5,000
• D. More than GOH can afford

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Answer A

• 88 of accommodations for people with
  disabilities will cost under 1,000

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Average Cost of Job Accommodations

• 20 of all accommodations suggested at no cost
• 51 cost between 1 and 500
• 11 cost between 501 and 1,000
• 3 cost between 1,001 and 1,500
• 3 cost between 1,501 and 2,000
• 8 cost between 2,001 and 5,000
• 4 cost more than 5,000
• Source Job Accommodation Network Survey

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Reasonable Accommodation

• Accommodations under the ADA are granted to
  qualified employee who needs them to accomplish
  the essentials functions of the job. Supervisors
  must be vigilant to assure that there are no
  modifications granted to other employees.

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Examples of Accommodations that are NOT
Reasonable

• Placing an applicant with a disability in a job
  for which he/she did not specifically apply
• Maintaining the salary of an employee reassigned
  from a higher-paying job to a lower-paying job,
  if the employer does not do so for other
  employees
• Changing an employees supervisor
• Changing staff who report to a supervisor who has
  a disability

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Examples of Accommodations that are NOT Reasonable
Continued

• Eliminating essential functions of the job
• Lowering production standards
• Providing personal use items (e.g. prosthetic
  limb, eyeglasses, hearing aids, wheelchair, hot
  pot or refrigerator)
• Creating a job
• Promoting an employee
• Bumping another employee from his/her job

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Accommodation Scenario A

• Juanita is a 32-year-old Postal Worker who
  communicates through handwritten notes, gestures
  and partial lip reading. She is in line for a
  promotion to the position of Time and Attendance
  Clerk. In the past, the person who was the Time
  and Attendance Clerk answered the telephone as a
  back up to the regular receptionist in addition
  to other duties. Juanita's supervisor is
  concerned about her ability to do the job and is
  considering denying Juanita this promotion
  because of his concerns.

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Accommodation Scenario B

• Jeanette is a Radio Broadcast Announcer. She is
  blind and needs to read the Associated Press wire
  news which she receives over the phone lines
  connected to a printer.

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Accommodation Scenario C

• Mohammed has held his position as Manager of the
  Communications Department for five years. His
  boss notices that he has become withdrawn in
  meetings, his work is late and he appears
  preoccupied while discussing business matters.
  When his supervisor shares his concerns, Mohammed
  explains that his doctor recently diagnosed
  Mohammed with depression.

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Accommodation Scenario D

• Tovah has a mild intellectual disability. She has
  the basic skills necessary for the job of
  Administrative Assistant, likes the work and
  shows potential. When she finishes one task,
  however, she tends to stand in one place and look
  around, unsure of what to do next. One of her
  co-workers has noticed this and will periodically
  give her small assignments to keep her busy.

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Accommodation Scenario E

• Rebecca, who has a spinal cord injury, loves her
  job, her co-workers and her supervisor. Recently,
  however, she has had difficulty making it to work
  on time and has been missing days due to problems
  with childcare.

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The Job Accommodation Network (JAN)
An information and consultation service providing
individualized accommodation solutions. JANs
purpose is to make it possible for employers and
others to share information about job
accommodations. http//askjan.org [phone]
(Voice)  [phone] (TTY)
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State Assistive Technology Projects

• Services may include
• Technology lending library
• Low interest loans for purchasing assistive
  technology
• Demonstration center
• Assessment
• To locate your states project
• Association of AT Act Programs
• http//www.ataporg.org/atap/index.php
• [phone] (Voice/TTY)

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Mid-Atlantic ADA Center

• One of 10 regional Disability and Technical
  Assistance Centers throughout the nation
• Provides training, information, and technical
  assistance on the ADA
• Reach us toll free 1-800-949-4ADA (4232)
• Local Contact information for the Mid -Atlantic
  ADA Center in your training packet

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• Questions?