Disability-Disability-Related Related

InformationInformation

Asking, Telling, Asking, Telling, Using and StoringUsing and Storing

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What we’ll coverWhat we’ll cover

•What questions you may ask in different contexts

•What you are permitted to do with the information Whom you may tell How you may use it How you must store it

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Terminology we’ll useTerminology 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)

AskingAsking

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It’s all about the It’s all about the context!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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Provision of servicesProvision of servicesvs. employmentvs. 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 servicesProvision of servicesvs. employment (cont’d)vs. employment (cont’d)

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What you What you mustmust ask in ask in bothboth contexts contexts

•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 you What you mustmust telltell the the customercustomerbefore asking before asking anyany disability-related questionsdisability-related 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 you What you mustmust telltell the the customercustomerbefore asking before asking anyany disability-related questions disability-related questions (cont’d)(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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Which activities fall underWhich activities fall under“provision of services”?“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 underWhich activities fall under“employment-related” “employment-related” standards?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 underWhich activities fall under“employment-related” “employment-related” standards? standards? (cont’d)(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 trainingOn-the-job trainingJob readiness training

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Which activities fall underWhich activities fall under“employment-related” “employment-related” standards? standards? (cont’d)(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 When you’re providing services …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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Where employment-related standards apply,

the questionsyou may ask

are much more limited

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Generally, you Generally, you must notmust not askask

• 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 What maymay you ask? 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)

Exceptionsto the general“Don’t Ask” rule

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Exception One:Exception One:Questions you Questions you mustmust ask 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:Exception Two:Questions you Questions you maymay ask ask

•Recipients may invite applicants for employment/training to disclose disability if all of the criteria on the next two slides are met

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Exception TwoException Two (cont’d)(cont’d)

Recipient must be either: taking remedial action to correct the effects

of past discrimination, ortaking 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 TwoException Two (cont’d)(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

This is in addition to information listed on slides 9 and 10

TellingTelling

Disclosure of medical and

disability-related information

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

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

•Confidentiality is paramount!

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Who you Who you must notmust not tell 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” Exceptions to “don’t-tell” rulerule

• 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

StoringStoring

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How must you How must you storestore medical or disability-medical or disability-related information?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 accessElectronic files: password-protectedHard files: kept locked

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

UsingUsing

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

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

Reasonable accommodations/modifications

Auxiliary aids and servicesAssistive technology

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How may you How may you useuse information about a information about a customer’s disability? customer’s disability? (cont’d)(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 How may you useuse information about a information about a customer’s disability? customer’s disability? (cont’d)(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 What is steeringsteering??

•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 Where to Get More InformationInformation

• 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 Where to Get More InformationInformation

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

ublications/411.html

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

efs/infobrief_issue9.pdf

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How To Contact MeHow To Contact Me

•E-mail: sudell.denise@dol.gov

•Phone: 202-693-6554 (voice)

800-877-8339 (relay service for TTY)