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Disability-Related Information: Asking, Telling, Using and Storing

Presented by Denise Sudell, Esq.

Senior Policy Advisor, Disability Issues

USDOL, Civil Rights Center

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Introduction

• In this workshop, we’ll discuss the legal requirements that apply to:– Asking: you want to ask a customer questions that

may reveal whether s/he has a disability– Telling: you know a customer has a disability and

are considering telling someone else about the disability

– Using: what the law permits you to do with disability-related information

– Storing: where and how the law requires you to keep disability-related information about customers, applicants, and employees

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Terminology we’ll use• Disability-related information

– Any information that discloses that the customer has a disability (e.g., information about special education, notes that a customer has been referred to Voc Rehab, etc.)

• Disability-related inquiries (asking)– Asking customers questions that are likely to elicit

information about disabilities

– Asking customers to undergo assessments to determine if they have hidden disabilities (such as learning disabilities)

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What Federal Disability Nondiscrimination Laws Apply to the One-Stop System?

• Several different disability nondiscrimination laws apply to each program or activity within the One-Stop system

• You need to know about all the laws that apply to your program or activity

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Applicable Federal Disability Nondiscrimination Laws (cont’d)

• Workforce Investment Act of 1998 (WIA), Section 188 (29 U.S.C. § 2938)– Implementing regulations: 29 CFR part 37– Bar disability-based discrimination and . . .– Require equal opportunity for customers with

disabilities through:• individualized treatment • positive actions (e.g., reasonable accommodation)

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Applicable Federal Disability Nondiscrimination Laws (cont’d)

• Other applicable laws:– Section 504 of the Rehabilitation Act

of 1973, as amended (29 U.S.C. § 794)

– The Americans with Disabilities Act of 1990, as amended (42 U.S.C. § 12101 et seq.)

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Applicable Federal Disability Nondiscrimination Laws (cont’d)

• Under these laws, the One-Stop system . . . – should focus on:

• the individual customer’s abilities

• the accommodations and auxiliary aids and services she needs in order to use those abilities

– should not focus on:• the limitations caused by the customer’s

disability

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“Handicapped” vs. “Individual (or Person) with a Disability”

• DOL’s Section 504 regulations (29 CFR part 32) have not yet been amended to replace the term “handicap” with “disability”

• However, the term “handicapped” is unacceptable and should not be used

• Use “people first” language (“person with a disability,” “people who are blind”) – not “the blind” or “the disabled”

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Asking

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Provision of servicesvs. employment

• Two different types of legal standards– Standards relating to provision of services

(e.g., ADA Title II, Section 504)

– Standards relating to employment (e.g., ADA Title I, specific parts of Section 504 regs [29 CFR part 32 subparts B and C])

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• Both types of legal standards (service-related and employment-related) will apply to programs and activities in the One-Stop system

• Which standards apply will depend on the type of activity

Provision of servicesvs. employment (cont’d)

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It’s all about the context!

• Important: Some practices that are legal in the context of providing services . . .

• . . . are illegal in the context of employment-related activities

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Which activities fall under“provision of services”?

• Examples of activities to which service-related standards apply:– Assessment of skills, prior work experience

and employability

– Creation of service strategy

– Supportive programs such as child care, transportation, housing assistance, benefits counseling

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Which activities fall under“employment-related” standards?• Employment-related standards apply to:

– Employment-related training– Job placement/referral and related activities

of One-Stop agencies/programs/activities that are acting as “employment agencies”

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Which activities fall under“employment-related” standards? (cont’d)

• What is employment-related training?– Definition is broad: “training that allows or enables

an individual to obtain employment” (29 CFR § 37.4)– Examples:

• Occupational skills training• On-the-job training• Job readiness training

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Which activities fall under“employment-related” standards? (cont’d)

• A One-Stop agency/program is acting as an“employment agency” when it regularly has as a “principal function”:– procuring employees for at least one

employer, or

– procuring work opportunities for customers

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Where services-related standards apply,

you have broad latitude in asking questionsrelated to disability

or medical conditions

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When you’re providing services …• In the services context, disability-related

inquiries are legal – and recommended– Screening customers who have particular

types of employment problems for signs of hidden disabilities

– Determining eligibility for targeted programs– Determining whether – and which --

reasonable accommodations would help customers succeed in employment

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When you’re providing services … (cont’d)

• You must ask customers to provide four types of demographic information (29 CFR 37.37(b))– Race/ethnicity– Gender– Age– Disability status

• Customers aren’t required to answer!

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What must you tell the customerbefore asking these questions?

• Whenever disability-related information is collected/requested, staff must clearly inform the person that:– providing the information is voluntary,

and

– the information will be kept confidential as provided by law, and . . .

(cont’d on next slide)

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What must you tell the customerbefore asking these questions?(cont’d)

• And . . .– refusal to provide the information will

not subject the applicant, employee or participant to any adverse treatment, and

– the information will be used only in accordance with the law.

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You might want to tell the customer. . .

• It’s a good practice to tell the customer why you are asking medical or disability-related questions

• That way, the customer has the information s/he needs in order to decide whether to disclose his/her medical or disability-related information

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Where employment-related standards apply,

the questionsyou may ask

are much more limited

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Generally, you must not ask

• In employment-related contexts, disability-related inquiries are illegal (except in certain circumstances)– Examples of when you cannot ask

disability-related questions:• When you are a One-Stop staffer deciding

whether to refer a customer to a particular job• When you are an employer or training

instructor and a customer is not performing well

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What may you ask?• You may ask questions about:

– Whether the customer can perform specific job functions, has needed experience / education / licenses

– Non-disability-related impairments (e.g., “How did you break your leg?”)

– If the person has disclosed a disability or has an obvious disability, you can ask whether the person will need accommodations for the application process (not for the job)

– Current illegal use of drugs (alcohol-related questions are limited)

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Exceptionsto the general

“Don’t Ask” rule

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Exception One:Questions you must ask

• Demographic data – required by 29 CFR 37.37(b)(2)– Must be asked of every applicant, registrant,

eligible applicant/registrant, participant, terminee, applicant for employment, and employee

– Response is NOT REQUIRED– Must be kept separate from other info about

the individual

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Exception Two:Questions you may ask

• Recipients may invite applicants for employment/training to disclose disability if all of these criteria are met:– Recipient must be either:

• taking remedial action to correct the effects of past discrimination, or

• taking voluntary action to overcome the effects of conditions that resulted in limited participation by people with disabilities in the recipient's program or activity, or

• taking affirmative action under section 503 of the Rehab Act

– And . . . (cont’d next slide)

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Exception Two (cont’d)

• Criteria for inviting self-identification (cont’d from previous slide):– Recipient must inform the applicant clearly

that the information will be used solely for remedial actions or voluntary or affirmative action efforts

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What you must tell the customerbefore asking these questions

• Same information as in service context:– providing the information is voluntary, and– the information will be kept confidential as provided

by law, and– refusal to provide the information will not subject

the applicant, employee or participant to any adverse treatment, and

– the information will be used only in accordance with the law

• Plus . . .

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What you must tell the customerbefore asking these questions

• Plus . . . –Why you are asking for the

information–What you will do with the information

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Telling

Disclosure of

medical and

disability-related information

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Whom may you tell about a customer’s disability?• Extremely limited in either context

(services or employment) – Supervisors, managers, trainers (in your

agency or at a training provider) – but only to explain limitations or reasonable accommodations

– First aid and safety personnel – but only if the condition may require emergency treatment (including evacuation)

(cont’d on next slide)

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Whom may you tell about a customer’s disability? (cont’d)

–Others – only on a “need-to-know” basis (interpreted narrowly)

• Confidentiality is paramount!

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Who you must not tell

• You must not tell (disclose medical or disability-related information to) an employer:– to whom you are referring a customer–who is considering hiring a customer

• Confidentiality is paramount!

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Exceptions to “don’t-tell” rule

• You may tell (disclose to) an employer only if . . .– the job-seeker customer has made an independent

decision to disclose to the employer; and – the job-seeker has specifically asked the One-Stop

Center or its staff to make the disclosure on his or her behalf; and

– the disclosure request has been initiated by the job-seeker, not by the One-Stop Center

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Storing

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How must you store medical or disability-related information?

• This information must be:– Kept in separate files (apart from all other

information about a customer, applicant, or employee)

– Stored securely, with limited access• Electronic files: password-protected

• Hard files: kept locked

– Available only to persons with a need to know (those you’re permitted to tell)

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Using

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How may you use information about a customer’s disability?

• Service-related context – broader range– You may use it to figure out:

• Reasonable accommodations/modifications

• Auxiliary aids and services• Assistive technology

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How may you use information about a customer’s disability? (cont’d)

• Employment context – much more limited– You cannot use it as the sole basis for

deciding whether:• to refer a customer to a particular job

• to suggest a particular career path to a customer

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How may you use information about a customer’s disability? (cont’d)

– Employment context – much more limited

– You may talk with a customer about:• whether s/he will need accommodations for

the application process

• whether s/he is interested in special employment programs for persons with his/her disability

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What is steering?

• Based solely on a person’s disability:– Referring her to a particular job/employer

– Directing her to a particular profession/ career path

• Steering is illegal!• Deciding on an individualized basis is

appropriate – and required by law

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Where to Get More Information

• Civil Rights Center (CRC)U.S. Department of Labor200 Constitution Avenue N.W.Room N-4123Washington, D.C. 20210http://www.dol.gov/dol/oasam/crchome.htm

• Office of Disability Employment Policy (ODEP)U.S. Department of Laborhttp://www.dol.gov/odep

• ETA DDWP website (http://www.doleta.gov/disability/)

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Where to Get More Information

• The 411 on Disability Disclosure: A Workbook for Youth with Disabilities– http://www.ncwd-youth.info/resources_&_Publications/

411.html

• Disability Inquiries in the Workforce Development System– info brief summarizing legal requirements– http://www.ncwd-youth.info/assets/info_briefs/infobrief

_issue9.pdf

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How To Contact Me

• E-mail: sudell.denise@dol.gov• Phone: 202-693-6554 (voice)

800-877-8339 (relay service for TTY)