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The Accommodation Conversation
Strategies for Effective ADA Reasonable Accommodation Dialogue
Barry WhaleyEmployment Outreach Coordinator,
Southeast ADA Center
Gary CowanDirector of Compliance, America's Job Exchange
Presenter
• Barry Whaley is the Employer Outreach Coordinator for the Southeast ADA Center based in Atlanta, GA. He provides training and guidance on ADA Title I for employers throughout the southeast United States.
• The Southeast ADA Center is a project of the Burton Blatt Institute at Syracuse University. The mission of the Southeast ADA Center is to facilitate voluntary compliance with the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act as Amended (ADAAA)
• Our mission is to eliminate barriers to employment and economic self-sufficiency and to increase the civic and social participation of Americans with disabilities
Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or
responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.
ADA Center is funded by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR)
Disclaimer
Americans with Disabilities Act (ADA) Overview
The Americans with Disabilities Act is the landmark civil rights law
that guarantees equal treatment for peoplewith all disabilities or have an association or
relationship with someone who has a disability. Passed 1990
Amended 2008
Americans with Disabilities Act (ADA) Overview
Title I Employment Protections
Title II Public Entities and Transportation (State and Local Governments)
Title III Public Accommodation and Commercial Facilities (Private Business)
Title IV Telecommunications
Title V Technical Provisions
ADA Title I
Employers cannot discriminate against people who have disabilities in regard to any employment practices or terms, conditions, or privileges of employment.
This prohibition convers all aspects of the employment process.
ADA Title I
An employer cannot discriminate against qualified applicants and employees on the basis of disability.
A qualified applicant is an individual who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.
Essential Job Functions
The reason the job exists is to perform that function. Example: An essential function of a pilot is to fly planes.
Only a few employees can perform the function.
The function is so highly specialized that the employer hires people into the position specifically because of their expertise in performing that function.
Qualification Standards
Should an employer screen out individuals or classes of individuals they must demonstrate:
The screening must be related to the position in question;
Is consistent with business necessity.
Reasonable Accommodation
Reasonable accommodation is a critical component of the ADA.
Reasonable accommodation is any change in the work environment or how things are usually done that results in equal employment opportunity for an individual with a disability.
An employer must make a reasonable accommodation to the knownphysical or mental limitations of a person with a disability unless you can show that the accommodation would cause an undue hardship on the operation of the business.
Reasonable Accommodation
The presence of a disability does not result in a presumptive reasonable accommodation.
The employee has a responsibility is to disclose a need for an accommodation.
Reasonable accommodations are time-limited.
Employers may ask for reasonable documentation of a continuing disability.
Disclosure vs. Self-Identification
Self-identificationInvitation from an employer to voluntarily, and anonymously, “check a box” that indicates that the individual has a disability; typically used for data collection purposes or Section 503 utilization goals.
DisclosureThe employee voluntarily shares information about a disability. Disclosure is protected under ADA
Disclosure
Disclosure is not required under the ADA. One exception – requesting reasonable accommodations.
Disclosure can occur at any time during the employment relationship.
The ADA prohibits an employer from retaliating against an applicant or employee for asserting his/her rights under the ADA.
The Art of Disclosure
Good disclosure:
Is positive
Focuses on needs
Provides suggestions for reasonable accommodations
Is specific rather than general (how my disability affects my ability to perform essential job functions)
The Art of Disclosure
Good disclosure:
Focuses on job qualifications, not the disability
Avoids medical terms and labels
Discusses work barriers, not diagnoses
Focuses on the “here and now,” not past negative experiences
Disability Inquiry
A question or series of questions likely to solicit information about a person’s disability or related medical condition
A disability inquiry must be: Job related Consistent with Business Necessity
Phases of the Employment Process and Disability Inquiries
Employment Phase Disability Inquiry
Pre-Employment Before an offer of employment is made No disability inquiries are allowed
Pre-Employment After an offer of employment is made
Disability inquiries are allowed only if the same inquiry is made of all candidates for the job category
Employment A disability inquiry can only be made if it is jobrelated and of a business necessity
What Can Employers Ask in Disability Inquiry?
Questions about:
A person’s general well-being A non disability-related impairment Whether a person can perform the job functions (Essential Functions) Whether a person has been drinking Current illegal use of drugs Pregnancy info like due date and well-being Emergency contact information
What Employers Can Not Ask in Disability Inquiry
Questions about:
Whether a person currently has or has ever had a disability Medical documentation of a condition Genetic information Prior workers’ compensation history Current or past prescription medication usage
Requesting Accommodation
There is no standard in the ADA for asking for accommodation.
Requests can be made: Verbally Written E-mail Someone else can make the request on an employee’s behalf
Employer Responsibilities
Recognize a request for accommodation has been made
Begin an interactive process with the employee
Confirm the existence of a disability
Determine the essential functions and marginal functions of the job
Investigate potential accommodation solutions
Implement the accommodation
Document the accommodation
Employer Rights
Employers are not required to honor requests that:
Create an undue hardship for the business
If the modifications are extensive, disruptive, too costly, or fundamentally changes the essential function of the job
Is dangerous or illegal
Direct Threat
An employer may refuse to hire someone or fire someone if:
There is significant risk of substantial harm to the health or safety of that employee or others;
The risk cannot be eliminated or reduced by a reasonable accommodation.
Direct Threat
Four Factors in Assessing Direct Threat:
Duration ofthe risk
Nature and severity of the potential harm
How likely it is that the potential harm will occur
How imminent the potential
harm is
ADA National Network
Ten regional centers funded by the Administration on Community Living, NIDILRR
The ADA National Network provides information, guidance and training on the Americans with Disabilities Act (ADA), tailored to meet the needs of business, government and individuals at local, regional and national levels.
Contact information Toll free hot line - 800-949-4232 (voice/TTY) Web site - www.adata.org
America’s Job Exchange has been a pioneer in online recruitment and compliance from the very beginning, having evolved from America’s Job Bank which was
founded by the Department of Labor in 1995. We keep true to the original mission of America’s Job Bank assisting Federal Contractors meet OFCCP regulations for
online job postings and distribution.
OUR MISSIONWe believe that a diverse workforce is beneficial to every company and its
employees. Our mission is to provide the best tools, resources and information to connect employers and diverse job seekers
About America’s Job Exchange
Why AJE?
Complete SolutionReceive unparalleled value when you bundle our products and services for recruitment advertising and compliance.
Competitive PricingThe AJE solution is customizable and priced based on your business needs with variables such as size, hiring forecast and budget.
Breadth of Distribution NetworkBroad network of partners and affiliates including recruitment media agencies, technology providers, associations and states.
Tools and SupportAJE’s tools allow you to stay on top of your outreach efforts and our teamis here to support you every step of the way.
REPUTATION
TRACK RECORD
CLIENTELE
Our Webinars Have Gone Monthly
It is the responsibility of Federal Contractors and Subcontractors to have a current and compliant AAP – and the supporting documentation to prove it.
OFCCP Audits – 5 Reasons They Fail
Grace M. ContiDirector, Affirmative Action CompliancePortnoy, Messinger, Pearl & Associates
Presenter Tune into our next webinar to find out how Compliance Reviews are selected and what’s at risk because of Non-Compliance.
September 20, 2016 1:00-2:00pm ET
Barry WhaleyEmployer Outreach Coordinator
Southeast ADA Center A Project of Burton Blatt Institute at Syracuse University
Funded by the National Institute on Disability, Independent Living, and Rehabilitation Research
(NIDILRR) - Grant #90DP0019-01-00
Contact Information
Gary CowanDirector of Compliance, America's Job Exchange
[email protected](o) 978-946-7928(c) 617-997-6477www.americasjobexchange.com
Contact Information
Web – www.americasjobexchange.com
Facebook – www.facebook.com/AmericasJobExchange
LinkedIn – www.linkedin.com/company/230717
Twitter – www.twitter.com/ajejobs
Thank You!