Reasonable accommodations oct 2011 edits

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  • 1. Americans with Disabilities Act Amendments Act of 2008 and Reasonable Accommodations in the Workplace  ----------  ----------  GUAM LEGAL SERVICES CORPORATION – DISABILITY LAW CENTER “ The Protection and Advocacy System for Guam.” October 2011
  • 2. About GLSC-DLC
    • Guam Legal Services Corporation – Disability Law Center
      • Chartered and began servicing the low income community of Guam in 1979
      • Currently provides legal representation to individuals with low income, individuals with disabilities in cases related to their disabilities, and victims of family violence.
  • 3. About the ADA
    • Americans with Disabilities Act
      • A Federal Law passed in 1990 that requires that public and private entities have accessible facilities and that these organizations do not discriminate against people on the basis of disability.
  • 4. Title I of the ADA
    • Applies to…
      • Employers with 15 or more employees, including private employers, and state and local government employers, working at least 20 calendar weeks a year;
      • Employment agencies; and
      • Labor organizations.
  • 5. ADA Amendments Act of 2008
    • Signed into law by President George W. Bush on September 25, 2008
    • Went into effect on January 1, 2009
    • EEOC issued final regulations effective as of May 24, 2011.
    • Also applies to discrimination under Rehabilitation Act (employment by federal agencies and those that receive federal funds)
  • 6. Purpose of the ADA Amendments Act of 2008 (ADAAA)
    • Congress originally intended the ADA to “provide broad coverage.”
    • Whether an individual’s impairment is a disability under the ADA “should not demand extensive analysis.”
    • The Supreme Court’s ruling that the definition of disability under the ADA is a “demanding standard” and that an impairment must “significantly restrict” an individual from doing activities of “central importance to most people’s daily lives” is rejected.
  • 7. Definition of “Disability” under the ADA and ADAAA
    • A person has:
    • A physical or mental impairment that substantially limits one or more major life activities of such individual;
    • A record of such an impairment; or
    • Being regarded as having such an impairment
  • 8. Major Life Activities
    • caring for oneself
    • performing manual tasks
    • seeing
    • hearing
    • eating
    • sleeping
    • walking
    • standing
    • lifting
    • bending
    • speaking
    • breathing
    • learning
    • reading
    • concentrating
    Definition for “major life activities” added. Major life activities include, but are not limited to:
    • thinking
    • communicating
    • working
  • 9. Major Life Activity Also includes the operation of a “major bodily function,” including, but not limited to:
    • functions of the immune system (HIV/AIDS)
    • normal cell growth (cancer)
    • digestive
    • bowel
    • bladder (kidney disease)
    • neurological (multiple sclerosis, epilepsy)
    • brain
    • respiratory (asthma)
    • circulatory (heart disease)
    • endocrine (diabetes)
    • reproductive functions
  • 10. “Substantially Limits”
    • Should be construed in favor of broad coverage. Not meant to be a demanding standard.
    • The impairment of a person with a disability that substantially limits a major life activity should be compared to “most people in the general population.”
    • The impairment need not prevent, or significantly or severely restrict a person from performing a major life activity.
    • The inquiry should not demand extensive analysis or require scientific, medical, or statistical analysis.
  • 11. Mitigating Measures
    • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (such as medication, assistive technology, hearing aids—not eyeglasses or contact lenses).
    • If the mitigating measure itself causes limitations (e.g. medication side effects), those effects will be considered.
    • An impairment that is episodic or in remission is considered when it is active.
  • 12. “Substantially Limits”
    • The impairment need only substantially limit one major life activity.
    • Some impairments should easily be concluded to substantially limit a major life activity. E.g. deafness, blindness, intellectual disability, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, schizophrenia.
  • 13. “Substantially Limits”
    • In determining whether an impairment substantially limits a major life activity, may look at the condition, manner, or duration, such as the difficulty, effort, or time required to perform the activity, or the pain experienced.
    • Focus is on how the major life activity is substantially limited, not “what outcomes an individual can achieve.” e.g. Somebody with a learning disability who has achieved high academic success may still be covered because of the additional time she spent studying.
  • 14. “ Being Regarded As Having a Disability”
    • A person who meets the “being regarded as” prong of the definition of disability does not need to show she was regarded as “substantially limited in a major life activity” to bring a claim of unlawful discrimination based on disability.
  • 15. Reasonable Accommodations
    • A covered entity must provide reasonable accommodations to the known physical or mental limitations of an applicant or employee unless it would impose an undue hardship on the employer’s operations.
    • Individuals who only meet the “regarded as” definition of disability are not entitled to receive reasonable accommodations.
  • 16. “Qualified Individual”
    • The individual with the disability must be able to perform the essential functions of the job with or without reasonable accommodation.
    • Must have the objective skills, education, and experience required.
  • 17. Examples of Reasonable Accommodations
    • Making existing facilities accessible
    • Job restructuring
    • Modifying work schedules, such as part-time
    • Re-assignment to a different job
    • Providing qualified readers and interpreters
    • Acquiring or modifying work equipment and devices
    • Appropriate adjustment or modifications of examinations, training materials, or policies
  • 18. Reasonable Accommodations: Limitations
    • Employers do not have to provide:
    • Adjustment or modifications that are primarily for the personal benefit of the employee
    • Personal use items needed to accomplish daily activities both on and off the job
  • 19. Reasonable Accommodations: Limitations:
    • An employer does not have to:
    • Excuse a violation of a uniformly applied conduct rule that is legitimate and non-discriminatory
    • Eliminate essential functions of the job
    • Create a new position or move somebody from a position
    • Lowering legitimate quality and quantity requirements.
    • Provide an accommodation that would cause an undue hardship on or a direct threat to the business, such as fundamentally alter the business, or tolerate violent or abusive behaviors.
  • 20. The Interactive Process
    • Once reasonable accommodation is made an issue, the employer should “initiate an informal interactive process with the individual with a disability.”
    • Both the employer and employee should participate in good faith
    • An employer’s failure to engage in the interactive process is not in itself against the law, but it is relevant when it results in a failure to identify a reasonable accommodation which exists.
  • 21. The Interactive Process: Employee’s Responsibilities
    • The employee should:
    • Make the request for a reasonable accommodation.
    • Should be in writing and include:
      • The nature of the disability
      • Reason for the request
      • Request accommodation
      • If necessary, include a doctor’s note
  • 22. The Interactive Process: Employer’s Responsibilities
    • After the request, the employer should “initiate the interactive process” including the employee, her supervisor, and any other relevant people (e.g. doctor, human resources, AT specialist). See 29 C.F.R § 1630.2(o)(3).
    • Employer is allowed to request more in-depth information if needed relating to the nature, severity, and duration of the impairment, the activities that are limited, how the impairment relates to the accommodation, and how the reasonable accommodation will help the person do the job.
  • 23. Reasonable Accommodations Employer Defenses
    • Undue Hardship :
    • An action requiring “significant difficulty or expense” by the employer, employment agency, or labor organization when considering five general factors.
    • Also looks at more than financial difficulty; refers to unduly costly, extensive, substantial, disruptive, or would fundamentally alter the nature of the business.
  • 24. Undue Hardship Factors:
    • The nature and net cost of the accommodation (looks at the employer as a whole), considering tax credits, etc.
    • The overall financial resources of the facility, the effect on expenses and resources, and the number of person’s employed there.
    • The overall financial resources of the employer, the overall size with respect to its number of employees, the number, type, and location of its facilities.
    • The type of operation
    • The impact of the accommodation on the facility
  • 25. Reasonable Accommodations Employer Defenses
    • Direct Threat :
    • “ A significant risk of substantial harm to the health or safety of the individual or others than cannot be eliminated or reduced by reasonable accommodation.”
    • Employers must investigate whether a direct threat can be eliminated or reduced by a reasonable accommodation.
  • 26. Application/Interview
    • Reasonable Accommodations
    • during the Application /
    • Interview Phase
  • 27. Disclosure of Disability
    • An employee or applicant is not required to mention that they have a disability unless or until they need a reasonable accommodation.
    • If an application needs an accommodation during the application phase, then the individual will need to mention the disability.
    • A person is never required to disclose a disability generally.
  • 28. Application/Interview
    • Reasonable accommodations at the Application/Interview Phase include…
      • Providing a person to read or interpret application materials;
      • Demonstrating what the job requires;
      • Modifying tests, training materials, testing time, and/or policy manuals;
      • Replacing a written test with a more extensive interview which allows the individual to demonstrate their knowledge/skills at the work site; and
      • Allowing a support person during the interview.
  • 29. Application/Interview
    • An employer may:
    • Ask the question, “Are you able to do the essential functions of the job with or without a reasonable accommodation?”
    • State the physical requirements of a job and ask if an applicant can satisfy these (with or without reasonable accommodations).
    • Ask someone to describe or demonstrate how they would do the job
  • 30. Adjusting / Modifying
    • Reasonable Accommodations
    • by restructuring the job, making modifications to schedules, policies, processes, and so on.
  • 31. Job Restructuring
    • Yes is reasonable accommodation:
      • Shift/ switch non-essential job functions (e.g. prosthetic leg, can’t sweep stairs, but can clean lower kitchen)
      • Change manner of tasks
      • Modifying job requirements (no need to lower quality/quantity standards)
      • vacant position
  • 32. Modified Work Schedule
    • Yes is reasonable accommodation:
      • Allowing schedule flexibility (e.g. arrival/departure times , sensitive to light)
      • More frequent breaks (e.g. for meds)
      • Allowing time off or Part Time (e.g. emphysema, requests 10 weeks surgery, or 7 if part time)
      • Changing policy that requires scheduling vacation in advance (e.g. if needed for med problems)
      • Providing more leave , unless undue hardship
  • 33. Equipment and Devices
    • Yes is reasonable accommodation:
      • Acquiring/ modifying equipment and devices
      • Tape-recording instructions
      • Large button telephone
      • All-day accessible video to demonstrate tasks
      • Use of color to mark files
      • Simplified machinery instructions using diagrams
      • Software or hardware
  • 34. Learning & Doing the Job
    • Yes is reasonable accommodation:
      • Providing Auxiliary Aids or Services (e.g. personal amplifiers, hearing aid-compatible phones, interpreters, note takers)
      • Breaking job tasks into sequential steps
      • Providing information in alternative formats ( e.g. large print)
      • Using visual (pictures/charts/colors/demonstrations) and verbal prompting
      • Allowing job coach (need not provide throughout, but must consider while learning)
      • Internal Supports (e.g. assigning staff as 1:1)
      • Modifying policies (e.g. allowing non-employee in restricted area)
      • Modifying training (e.g. contract w/ trainer, blind request Braille, employer cannot refuse becs ADA Title I, trainer cannot refuse becs ADA Title III, neither eliminates duty of other)
  • 35. Modified Supervision
    • Yes is reasonable accommodation:
      • Reviewing tasks to be completed on a daily basis
      • More frequent feedback
      • Assigning a new supervisor is NOT a reasonable accommodation (“presumed unreasonable” according to Kvorjak v. Maine , 259 F.3d 48 (1 st Circuit 2001))
  • 36. Modified Policies/Procedures
    • Yes is reasonable accommodation:
      • Allowing service animals
      • Allowing to bring someone for support during meetings
      • Modifying Emergency Evacuation Procedures.
      • Modifying conduct rules not job-related (can still discipline for violence/threats/stealing/destruction, but if accommodation will further conduct rule compliance, must provide it)
  • 37. Job Accommodation Process
    • Steps for making Job Accommodations
  • 38. Job Accommodation Process
    • Begins with a Qualified Person (meets skill/experience/education requirements and can perform essential job functions w/ or w/o reasonable accommodations )
    • Steps:
      • Worker Assessment
      • Worksite Analysis
      • Accommodate Worker
      • Follow Up
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 39. Step 1: Worker Assessment
    • Characterize Worker’s Limitations:
      • Difficulty interpreting information/lifting/reaching/sitting
      • Limitation of sight/hearing/speech
      • Susceptibility to fainting/dizziness/seizures
      • Coordination, stamina, balance
      • Psycho-social/psychiatric/med factors
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 40. Step 2: Worksite Analysis
    • WHAT does employee do?
    • HOW/WHY/HOW OFTEN/FOR HOW LONG is it done?
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 41. Step 2: Worksite Analysis
      • Overall job description of skill/physical/mental requirements and time related tasks and required settings
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 42. Step 2: Worksite Analysis
    • In conducting interviews :
      • Describe tasks, workplace, see if applicant respects supervisors and fully understands process and terminology
      • Take photos /video
      • Use only necessary words with 1 connotation
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 43. Step 2: Worksite Analysis
    • Consider Environmental Factors
      • Heat, humidity, ventilation, noise, lighting, glare
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 44. Step 3: Accommodate Worker
    • Shifting schedules/non-essential functions
    • Adding auxiliary aids/devices
    • Is team oriented , so include input from VR counselor, OT, PT
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 45. Step 3: Accommodate Worker
    • Keep Design Simple
    • Use Universal Design (accessible to able-bodied and disabled)
      • e.g. curb ramps needed for wheelchairs, but used by all
      • e.g. cabinets with pull-out shelves
      • E.g. counters at several heights to accommodate different tasks and postures
      • E.g. lever instead of round doorknobs
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 46. Step 4: Follow Up
    • need ongoing support from VR counselor/job coach
    • Supervisors must know of accommodations/services/devices
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 47. Step 4: Placement/Follow Up
    • Consumer Duties:
      • Know accommodations and skills
      • Disclose disability only as needed
      • Update resume
      • Be computer literate and organized
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 48. Step 4: Placement/Follow Up
    • Reassess:
      • Is job being performed to expectations ?
      • Are accommodations working ? (do they interfere with other operations?)
      • Have emergency procedures been tested?
    Source: “Job Accommodations Process: Steps and Considerations”, Tech Connections
  • 49. Thank you! Guam Legal Services Corporation – Disability Law Center 113 Bradley Place, Hagatna, GU 96910 Phone: (671) 477-9811 Fax: (671) 477-1320 Email: information@guamlsc.org Web: www.lawhelp.org/gu