[nfbmi-talk] ada employment basics resources

Sun Oct 26 00:27:52 UTC 2014

Hi,

These are great resources.  The NFB or other organizations ought to approach
employers to educate them about these laws. 

Warmest Regards,

Fred

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Subject: [nfbmi-talk] ada employment basics resources

The ADA: Your Responsibilities as an Employer

The U.S. Equal Employment Opportunity Commission

The ADA: Your Responsibilities as an Employer

Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed
into law on September 25, 2008 and becomes effective January 1, 2009.
Because

this law makes several significant changes, including changes to the
definition of the term "disability," the EEOC will be evaluating the impact
of these

changes on this document and other publications. See the

list of specific changes to the ADA

made by the ADA Amendments Act.

ADDENDUM

Since The Americans with Disabilities Act: Your Responsibilities as an
Employer was published, the Supreme Court has ruled that the determination
of whether

a person has an ADA "disability" must take into consideration whether the
person is substantially limited in performing a major life activity when
using

a mitigating measure. This means that if a person has little or no
difficulty performing any major life activity because s/he uses a mitigating
measure,

then that person will not meet the ADA's first definition of "disability."
The Supreme Court's rulings were in Sutton v. United Airlines, Inc., 527
U.S.

____ (1999), and Murphy v. United Parcel Service, Inc., 527 U.S. ____
(1999).

As a result of the Supreme Court's ruling, this document's guidance on
mitigating measures, found in the section "Additional Questions and Answers
on the

Americans with Disabilities Act," is superseded. Following the Supreme
Court's ruling, whether a person has an ADA "disability" is determined by
taking

into account the positive and negative effects of mitigating measures used
by the individual. The Supreme Court's ruling does not change anything else

in this document.

For more information on the Supreme Court rulings and their impact on
determining whether specific individuals meet the definition of
"disability," consult

the Instructions for Field Offices: Analyzing ADA Charges After Supreme
Court Decisions Addressing "Disability" and "Qualified," which can be found
on

EEOC's website at www.eeoc.gov.

The

Americans with Disabilities Act of 1990

(ADA) makes it unlawful to discriminate in employment against a qualified
individual with a disability. The ADA also outlaws discrimination against
individuals

with disabilities in State and local government services, public
accommodations, transportation and telecommunications. This booklet explains
the part

of the ADA that prohibits job discrimination. This part of the law is
enforced by the U.S. Equal Employment Opportunity Commission and State and
local

civil rights enforcement agencies that work with the Commission.

Are You Covered?

Job discrimination against people with disabilities is illegal if practiced
by:

List of 5 items

. private employers,

. state and local governments,

. employment agencies,

. labor organizations, and

. labor-management committees.

list end

The part of the ADA enforced by the EEOC outlaws job discrimination by:

List of 2 items

. all employers, including State and local government employers, with 25 or
more employees after July 26, 1992, and

. all employers, including State and local government employers, with 15 or
more employees after July 26, 1994.

list end

Another part of the ADA, enforced by the U.S. Department of Justice,
prohibits discrimination in State and local government programs and
activities, including

discrimination by all State and local governments, regardless of the number
of employees, after January 26, 1992.

Because the ADA establishes overlapping responsibilities in both EEOC and
DOJ for employment by State and local governments, the Federal enforcement
effort

will be coordinated by EEOC and DOJ to avoid duplication in investigative
and enforcement activities. In addition, since some private and governmental

employers are already covered by nondiscrimination and affirmative action
requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the
Department

of Labor will similarly coordinate the enforcement effort under the ADA and
the Rehabilitation Act.

What Employment Practices are Covered?

The ADA makes it unlawful to discriminate in all employment practices such
as:

List of 11 items

. recruitment

. pay

. hiring

. firing

. promotion

. job assignments

. training

. leave

. lay-off

. benefits

. all other employment related activities.

list end

The ADA prohibits an employer from retaliating against an applicant or
employee for asserting his rights under the ADA. The Act also makes it
unlawful to

discriminate against an applicant or employee, whether disabled or not,
because of the individual's family, business, social or other relationship
or association

with an individual with a disability.

Who Is Protected?

Title I of the ADA protects qualified individuals with disabilities from
employment discrimination. Under the ADA, a person has a disability if he
has a

physical or mental impairment that substantially limits a major life
activity. The ADA also protects individuals who have a record of a
substantially limiting

impairment, and people who are regarded as having a substantially limiting
impairment.

To be protected under the ADA, an individual must have, have a record of, or
be regarded as having a substantial, as opposed to a minor, impairment. A
substantial

impairment is one that significantly limits or restricts a major life
activity such as hearing, seeing, speaking, breathing, performing manual
tasks, walking,

caring for oneself, learning or working.

An individual with a disability must also be qualified to perform the
essential functions of the job with or without reasonable accommodation, in
order

to be protected by the ADA. This means that the applicant or employee must:

List of 2 items

. satisfy your job requirements for educational background, employment
experience, skills, licenses, and any other qualification standards that are
job

related; and

. be able to perform those tasks that are essential to the job, with or
without reasonable accommodation.

list end

The ADA does not interfere with your right to hire the best qualified
applicant. Nor does the ADA impose any affirmative action obligations. The
ADA simply

prohibits you from discriminating against a qualified applicant or employee
because of her disability.

How Are Essential Functions Determined?

Essential functions are the basic job duties that an employee must be able
to perform, with or without reasonable accommodation. You should carefully
examine

each job to determine which functions or tasks are essential to performance.
(This is particularly important before taking an employment action such as

recruiting, advertising, hiring, promoting or firing).

Factors to consider in determining if a function is essential include:

List of 3 items

. whether the reason the position exists is to perform that function,

. the number of other employees available to perform the function or among
whom the performance of the function can be distributed, and

. the degree of expertise or skill required to perform the function.

list end

Your judgment as to which functions are essential, and a written job
description prepared before advertising or interviewing for a job will be
considered

by EEOC as evidence of essential functions. Other kinds of evidence that
EEOC will consider include:

List of 4 items

. the actual work experience of present or past employees in the job,

. the time spent performing a function,

. the consequences of not requiring that an employee perform a function, and

. the terms of a collective bargaining agreement.

list end

What Are My Obligations to Provide Reasonable Accommodations?

Reasonable accommodation is any change or adjustment to a job or work
environment that permits a qualified applicant or employee with a disability
to participate

in the job application process, to perform the essential functions of a job,
or to enjoy benefits and privileges of employment equal to those enjoyed by

employees without disabilities. For example, reasonable accommodation may
include:

List of 7 items

. acquiring or modifying equipment or devices,

. job restructuring,

. part-time or modified work schedules,

. reassignment to a vacant position,

. adjusting or modifying examinations, training materials or policies,

. providing readers and interpreters, and

. making the workplace readily accessible to and usable by people with
disabilities.

list end

Reasonable accommodation also must be made to enable an individual with a
disability to participate in the application process, and to enjoy benefits
and

privileges of employment equal to those available to other employees.

It is a violation of the ADA to fail to provide reasonable accommodation to
the known physical or mental limitations of a qualified individual with a
disability,

unless to do so would impose an undue hardship on the operation of your
business. Undue hardship means that the accommodation would require
significant

difficulty or expense.

What is the Best Way to Identify a Reasonable Accommodation?

Frequently, when a qualified individual with a disability requests a
reasonable accommodation, the appropriate accommodation is obvious. The
individual

may suggest a reasonable accommodation based upon her own life or work
experience. However, when the appropriate accommodation is not readily
apparent,

you must make a reasonable effort to identify one. The best way to do this
is to consult informally with the applicant or employee about potential
accommodations

that would enable the individual to participate in the application process
or perform the essential functions of the job. If this consultation does not

identify an appropriate accommodation, you may contact the EEOC, State or
local vocational rehabilitation agencies, or State or local organizations
representing

or providing services to individuals with disabilities. Another resource is
the Job Accommodation Network (JAN). JAN is a free consultant service that

helps employers make individualized accommodations. The telephone number is
1-800-526-7234.

When Does a Reasonable Accommodation Become An Undue Hardship?

It is not necessary to provide a reasonable accommodation if doing so would
cause an undue hardship. Undue hardship means that an accommodation would be

unduly costly, extensive, substantial or disruptive, or would fundamentally
alter the nature or operation of the business. Among the factors to be
considered

in determining whether an accommodation is an undue hardship are the cost of
the accommodation, the employer's size, financial resources and the nature

and structure of its operation.

If a particular accommodation would be an undue hardship, you must try to
identify another accommodation that will not pose such a hardship. If cost
causes

the undue hardship, you must also consider whether funding for an
accommodation is available from an outside source, such as a vocational
rehabilitation

agency, and if the cost of providing the accommodation can be offset by
state or federal tax credits or deductions. You must also give the applicant
or

employee with a disability the opportunity to provide the accommodation or
pay for the portion of the accommodation that constitutes an undue hardship.

Can I Require Medical Examinations or Ask Questions About an Individual's
Disability?

It is unlawful to:

List of 2 items

. ask an applicant whether she is disabled or about the nature or severity
of a disability, or

. to require the applicant to take a medical examination before making a job
offer.

list end

You can ask an applicant questions about ability to perform job-related
functions, as long as the questions are not phrased in terms of a
disability. You

can also ask an applicant to describe or to demonstrate how, with or without
reasonable accommodation, the applicant will perform job-related functions.

After a job offer is made and prior to the commencement of employment
duties, you may require that an applicant take a medical examination if
everyone who

will be working in the job category must also take the examination. You may
condition the job offer on the results of the medical examination. However,

if an individual is not hired because a medical examination reveals the
existence of a disability, you must be able to show that the reasons for
exclusion

are job related and necessary for conduct of your business. You also must be
able to show that there was no reasonable accommodation that would have made

it possible for the individual to perform the essential job functions.

Once you have hired an applicant, you cannot require a medical examination
or ask an employee questions about disability unless you can show that these

requirements are job related and necessary for the conduct of your business.
You may conduct voluntary medical examinations that are part of an employee

health program.

The results of all medical examinations or information from inquiries about
a disability must be kept confidential, and maintained in separate medical
files.

You may provide medical information required by State workers' compensation
laws to the agencies that administer such laws.

Do Individuals Who Use Drugs Illegally Have Rights Under the ADA?

Anyone who is currently using drugs illegally is not protected by the ADA
and may be denied employment or fired on the basis of such use. The ADA does
not

prevent employers from testing applicants or employees for current illegal
drug use, or from making employment decisions based on verifiable results. A

test for the illegal use of drugs is not considered a medical examination
under the ADA; therefore, it is not a prohibited pre-employment medical
examination

and you will not have to show that the administration of the test is job
related and consistent with business necessity. The ADA does not encourage,
authorize

or prohibit drug tests.

How will the ADA Be Enforced and What Are the Available Remedies?

The provisions of the ADA which prohibit job discrimination will be enforced
by the U.S. Equal Employment Opportunity Commission. After July 26, 1992,
individuals

who believe they have been discriminated against on the basis of their
disability can file a charge with the Commission at any of its offices
located throughout

the United States. A charge of discrimination must be filed within 180 days
of the discrimination, unless there is a state or local law that also
provides

relief for discrimination on the basis of disability. In those cases, the
complainant has 300 days to file a charge.

The Commission will investigate and initially attempt to resolve the charge
through conciliation, following the same procedures used to handle charges
of

discrimination filed under Title VII of the Civil Rights Act of 1964. The
ADA also incorporates the remedies contained in Title VII. These remedies
include

hiring, promotion, reinstatement, back pay, and attorneys fees. Reasonable
accommodation is also available as a remedy under the ADA.

How Will EEOC Help Employers Who Want to Comply with the ADA?

The Commission believes that employers want to comply with the ADA, and that
if they are given sufficient information on how to comply, they will do so

voluntarily.

Accordingly, the Commission conducts an active technical assistance program
to promote voluntary compliance with the ADA. This program is designed to
help

employers understand their responsibilities and assist people with
disabilities to understand their rights and the law.

In January 1992, EEOC published a Technical Assistance Manual, providing
practical application of legal requirements to specific employment
activities,

with a directory of resources to aid compliance. EEOC publishes other
educational materials, provides training on the law for employers and for
people

with disabilities, and participates in meetings and training programs of
other organizations. EEOC staff also will respond to individual requests for
information

and assistance. The Commission's technical assistance program is separate
and distinct from its enforcement responsibilities. Employers who seek
information

or assistance from the Commission will not be subject to any enforcement
action because of such inquiries.

The Commission also recognizes that differences and disputes about the ADA
requirements may arise between employers and people with disabilities as a
result

of misunderstandings. Such disputes frequently can be resolved more
effectively through informal negotiation or mediation procedures, rather
than through

the formal enforcement process of the ADA. Accordingly, EEOC will encourage
efforts to settle such differences through alternative dispute resolution,

providing that such efforts do not deprive any individual of legal rights
provided by the statute.

Additional Questions and Answers on the Americans with Disabilities Act

Q. What is the relationship between the ADA and the Rehabilitation Act of
1973?

A. The Rehabilitation Act of 1973 prohibits discrimination on the basis of
handicap by the federal government, federal contractors and by recipients of

federal financial assistance. If you were covered by the Rehabilitation Act
prior to the passage of the ADA, the ADA will not affect that coverage. Many

of the provisions contained in the ADA are based on Section 504 of the
Rehabilitation Act and its implementing regulations. If you are receiving
federal

financial assistance and are in compliance with Section 504, you are
probably in compliance with the ADA requirements affecting employment except
in those

areas where the ADA contains additional requirements. Your nondiscrimination
requirements as a federal contractor under Section 503 of the Rehabilitation

Act will be essentially the same as those under the ADA; however, you will
continue to have additional affirmative action requirements under Section
503

that do not exist under the ADA.

Q. If I have several qualified applicants for a job, does the ADA require
that I hire the applicant with a disability?

A. No. You may hire the most qualified applicant. The ADA only makes it
unlawful for you to discriminate against a qualified individual with a
disability

on the basis of disability.

Q. One of my employees is a diabetic, but takes insulin daily to control his
diabetes. As a result, the diabetes has no significant impact on his
employment.

Is he protected by the ADA?

A. Yes. The determination as to whether a person has a disability under the
ADA is made without regard to

mitigating measures,

such as medications, auxiliary aids and reasonable accommodations. If an
individual has an impairment that substantially limits a major life
activity, she

is protected under the ADA, regardless of the fact that the disease or
condition or its effects may be corrected or controlled.

Q. One of my employees has a broken arm that will heal but is temporarily
unable to perform the essential functions of his job as a mechanic. Is this
employee

protected by the ADA?

A. No. Although this employee does have an impairment, it does not
substantially limit a major life activity if it is of limited duration and
will have

no long term effect.

Q. Am I obligated to provide a reasonable accommodation for an individual if
I am unaware of her physical or mental impairment?

A. No. An employer's obligation to provide reasonable accommodation applies
only to known physical or mental limitations. However, this does not mean
that

an applicant or employee must always inform you of a disability. If a
disability is obvious, e.g., the applicant uses a wheelchair, the employer
"knows"

of the disability even if the applicant never mentions it.

Q. How do I determine whether a reasonable accommodation is appropriate and
the type of accommodation that should be made available?

A. The requirement generally will be triggered by a request from an
individual with a disability, who frequently can suggest an appropriate
accommodation.

Accommodations must be made on a case-by-case basis, because the nature and
extent of a disabling condition and the requirements of the job will vary.

The principal test in selecting a particular type of accommodation is that
of effectiveness, i.e., whether the accommodation will enable the person
with

a disability to perform the essential functions of the job. It need not be
the best accommodation or the accommodation the individual with a disability

would prefer, although primary consideration should be given to the
preference of the individual involved. However, as the employer, you have
the final

discretion to choose between effective accommodations, and you may select
one that is least expensive or easier to provide.

Q. When must I consider reassigning an employee with a disability to another
job as a reasonable accommodation?

A. When an employee with a disability is unable to perform her present job
even with the provision of a reasonable accommodation, you must consider
reassigning

the employee to an existing position that she can perform with or without a
reasonable accommodation. The requirement to consider reassignment applies

only to employees and not to applicants. You are not required to create a
position or to bump another employee in order to create a vacancy. Nor are
you

required to promote an employee with a disability to a higher level
position.

Q. What if an applicant or employee refuses to accept an accommodation that
I offer?

A. The ADA provides that an employer cannot require a qualified individual
with a disability to accept an accommodation that is neither requested nor
needed

by the individual. However, if a necessary reasonable accommodation is
refused, the individual may be considered not qualified.

Q. If our business has a health spa in the building, must it be accessible
to employees with disabilities?

A. Yes. Under the ADA , workers with disabilities must have equal access to
all benefits and privileges of employment that are available to similarly
situated

employees without disabilities. The duty to provide reasonable accommodation
applies to all non-work facilities provided or maintained by you for your

employees. This includes cafeterias, lounges, auditoriums, company-provided
transportation and counseling services. If making an existing facility
accessible

would be an undue hardship, you must provide a comparable facility that will
enable a person with a disability to enjoy benefits and privileges of
employment

similar to those enjoyed by other employees, unless this would be an undue
hardship.

Q. If I contract for a consulting firm to develop a training course for my
employees, and the firm arranges for the course to be held at a hotel that
is

inaccessible to one of my employees, am I liable under the ADA?

A. Yes. An employer may not do through a contractual or other relationship
what it is prohibited from doing directly. You would be required to provide
a

location that is readily accessible to, and usable by your employee with a
disability unless to do so would create an undue hardship.

Q. What are my responsibilities as an employer for making my facilities
accessible?

A. As an employer, you are responsible under Title I of the ADA for making
facilities accessible to qualified applicants and employees with
disabilities

as a reasonable accommodation, unless this would cause undue hardship.
Accessibility must be provided to enable a qualified applicant to
participate in

the application process, to enable a qualified individual to perform
essential job functions and to enable an employee with a disability to enjoy
benefits

and privileges available to other employees. However, if your business is a
place of public accommodation (such as a restaurant, retail store or bank)

you have different obligations to provide accessibility to the general
public, under Title III of the ADA. Title III also will require places of
public

accommodation and commercial facilities (such as office buildings, factories
and warehouses) to provide accessibility in new construction or when making

alterations to existing structures. Further information on these
requirements may be obtained from the U.S. Department of Justice, which
enforces Title

III. (See page 22).

Q. Under the ADA, can an employer refuse to hire an individual or fire a
current employee who uses drugs illegally?

A. Yes. Individuals who currently use drugs illegally are specifically
excluded from the ADA's protections. However, the ADA does not exclude:

List of 2 items

. persons who have successfully completed or are currently in a
rehabilitation program and are no longer illegally using drugs, and

. persons erroneously regarded as engaging in the illegal use of drugs.

list end

Q. Does the ADA cover people with AIDS?

A. Yes. The legislative history indicates that Congress intended the ADA to
protect persons with AIDS and HIV disease from discrimination.

Q. Can I consider health and safety in deciding whether to hire an applicant
or retain an employee with a disability?

A. The ADA permits an employer to require that an individual not pose a
direct threat to the health and safety of the individual or others in the
work-place.

A direct threat means a significant risk of substantial harm. You cannot
refuse to hire or fire an individual because of a slightly increased risk of
harm

to himself or others. Nor can you do so based on a speculative or remote
risk. The determination that an individual poses a direct threat must be
based

on objective, factual evidence regarding the individual's present ability to
perform essential job functions. If an applicant or employee with a
disability

poses a direct threat to the health or safety of himself or others, you must
consider whether the risk can be eliminated or reduced to an acceptable
level

with a reasonable accommodation. Q. Am I required to provide additional
insurance for employees with disabilities?

A. No. The ADA only requires that you provide an employee with a disability
equal access to whatever health insurance coverage you provide to other
employees.

For example, if your health insurance coverage for certain treatments is
limited to a specified number per year, and an employee, because of a
disability,

needs more than the specified number, the ADA does not require that you
provide additional coverage to meet that employee's health insurance needs.
The

ADA also does not require changes in insurance plans that exclude or limit
coverage for pre-existing conditions.

Q. Does the ADA require that I post a notice explaining its requirements?

A. The ADA requires that you post a notice in an accessible format to
applicants, employees and members of labor organizations, describing the
provisions

of the Act. EEOC will provide employers with a poster summarizing these and
other Federal legal requirements for nondiscrimination. EEOC will also
provide

guidance on making this information available in accessible formats for
people with disabilities.

For more specific information about ADA requirements affecting employment
contact:

Equal Employment Opportunity Commission

P.O. Box 7033

Lawrence, Kansas 66044

(800) 669-4000 (Voice), (800) 669-6820 (TDD)

For more specific information about ADA requirements affecting public
accommodations and State and local government services contact:

Department of Justice

Office on the Americans with Disabilities Act

Civil Rights Division

P.O. Box 66118

Washington, DC 20035-6118

(202) 514-0301 (Voice)

(202) 514-0381 (TDD)

(202) 514-0383 (TDD)

For more specific information about requirements for accessible design in
new construction and alterations contact:

Architectural and Transportation Barriers

Compliance Board

1111 18th Street, NW

Suite 501

Washington, DC 20036

800-USA-ABLE

800-USA-ABLE ( TDD)

For more specific information about ADA requirements affecting
transportation contact:

Department of Transportation

400 Seventh Street, SW

Washington, DC 20590

(202) 366-9305

(202) 755-7687 (TDD)

For more specific information about ADA requirements for telecommunications
contact:

Federal Communications Commission

1919 M Street, NW

Washington, DC 20554

(202) 634-1837

(202) 632-1836 (TDD)

For more specific information about federal disability-related tax credits
and deductions for business contact:

Internal Revenue Service

Department of the Treasury

1111 Constitution Avenue, NW

Washington, DC 20044

(202) 566-2000

This booklet is available in Braille, large print, audiotape and electronic
file on computer disk. To obtain accessible formats call the Office of Equal

Employment Opportunity on (202) 663-4395 (voice) or (202) 663-4399 (TDD), or
write to this office at 1801 L Street, N.W., Washington, D.C. 20507.

This page was last modified on August 1, 2008.

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Source:

http://www.eeoc.gov/facts/ada17.html
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