Transcript Slide 1

Title I of the
Americans with Disabilities Act
as amended by the
ADA Amendments Act of 2008
Traumatic Brain Injury & the ADA
August 11, 2011
Americans with Disabilities Act
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What is the ADA?
• Federal CIVIL RIGHTS legislation that says it
is illegal to discriminate against people with
disabilities in employment, state and local
government services, private businesses,
telecommunications and transportation
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The Americans with Disabilities Act
• Title I:
Employment
• Title II:
Public Services
• Title III:
Public Accommodations
• Title IV:
Telecommunications
• Title V:
Miscellaneous
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ADA Title I - Employment
• An employer may not discriminate against an
employee on the basis of disability in any
aspect of the employment relationship.
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ADA Title 1- Employment
• The activities covered include:
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Outreach, Application Process, Testing
Interviewing, Hiring, Assignments
Evaluation, Discipline, Medical Examinations
Compensation, Promotion, On-the-Job Training
Layoff/Recall, Termination, Leave
Benefits of employment e.g., health insurance
Title I ensures that qualified
individuals with disabilities:
• Have comparable access to the
employment process
• Are afforded an interactive process to
determine reasonable accommodation
• Are provided access to all benefits of
employment including access to related
services (e.g., gym, transportation)
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Qualified Individual
with a Disability
A qualified individual with a disability means one
who satisfies the requisite skill, experience,
education, and other job-related requirements of
the position such individual holds or desires,
and who:
with or without reasonable accommodation can
perform the essential functions of such
position.
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What is the ADAAA?
• Americans with Disabilities Act Amendments Act
(ADAAA) 2008
• Overall purpose -- “To restore the intent and
protections of the Americans with Disabilities Act
of 1990”
• Effective January 1, 2009
• Regulations effective as of May 24, 2011
Definition of Disability
An individual with a disability is one who:
• has
• has a record of, or
• is regarded as having
a physical or mental impairment that
substantially limits a major life activity.
Definition of Disability
• Now need not prevent, significantly or
severely restrict the performance of a
major life activity.
• Now, disability “shall be construed in favor
of broad coverage “ and “ should not
require extensive analysis"
Major Life Activities
These are basic activities that the average person in the
general population can perform with little or no difficulty.
• Caring for Oneself
• Performing Manual Tasks
• Seeing
• Hearing
• Eating
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• Sleeping
• Walking
• Standing
• Lifting
• Bending
Major Life Activity
• Thinking
• Communicating
• Sitting
• Reaching
• Interacting with
Others
• Working
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continued
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Speaking
Under the ADAAA, 'major life activities' is
expanded to include "major bodily functions."
• Immune system
• Normal cell
growth
• Digestive
• Bowel
• Bladder
• Brain
• Circulatory
• Cardiovascular
systems
• Neurological
Major Bodily Functions cont
• Special sense
• Respiratory
organs
and
skin
• Endocrine
• Genitourinary
• Lymphatic
• Reproductive
• Musculoskeletal
functions
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New Standard
Episodic Disabilities:
• epilepsy
• major depression
• hypertension
• bipolar disorder
• multiple sclerosis
• schizophrenia
• asthma
• cancer
• diabetes
Considered a disability even in remission, if
when active would be substantially limiting
Mitigating Measures
Positive effects of mitigating measures
(except for ordinary eyeglasses and
contact lenses) are ignored in determining
whether an impairment is substantially
limiting.
Mitigating Measure
Any device, measure, or
medication that reduces the
effects of the disability
What makes a job task essential?
If the position exists to perform the function
• If there are a limited number of employees among
whom the task can be distributed
• If the function is highly specialized
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Evidence of Essential Functions
• Employer's judgment as to which
functions are essential
• Written job descriptions prepared before
advertising or interviewing applicants
• Amount of time spent performing the
function
Evidence of Essential Functions
• Consequences of not performing the function
• The terms of a collective bargaining agreement
• Work experience of past incumbents on the job
• Current work experience of incumbents in similar jobs
Accomodations are:
• Any changes in the work setting that
enable qualified workers to accomplish
their tasks.
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Accommodations are
dependent upon:
• The specific requirements of the job
• The particular need(s) of the employee or applicant
• The extent to which modifications or aids are
available without causing an undue hardship on
the employing organization
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Elements of
Accommodation Policy
Communicate
Communicate
Communicate
Communicate
the decision to the employee
Document the result of the process
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The Interactive Process
• Look at particular job and determine essential
functions
• Look at employee’s prior history
• Consult with employee
– Abilities and limitations
– Effectiveness of potential accommodations
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The Interactive Process
• Consult with 3rd parties (advocates, medical
professional, consultants)
• Consider the preference of the employee
• Select the accommodation that best addresses
needs of the employee and the employer
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Accommodation Process
1. Define the Situation
2. Explore Accommodation Ideas
3. Choose Accommodation
4. Implement Accommodation
5. Monitor Accommodation
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During the Interview
Interviewer May NOT Ask:
• About the nature or extent of disability
• If they or anyone in their family have a disability
• About their health
• If they have a history of emotional illness
• If they have ever had an injury or disease
• If they have ever seen a psychiatrist
• If they have ever had a drug or drinking problem
During the Interview
Interviewer MAY Ask about:
• Ability to perform job-related duties
• Previous job experience
• Skills required to perform the job
• Educational background
• “Please demonstrate how you would do this job”
• “With or without a reasonable accommodation, can you
perform the essential functions of the job”
On the Job
Can ask some things with reason
• If performance concerns:
o Is there something we can do to help you
improve your performance?
Disclosure
Employer must provide reasonable
accommodations for the known physical or
mental limitations of a qualified applicant or
employee with a disability, unless it poses
an undue hardship.
Confidentiality
• All information related to medical condition or
health history must be kept confidential
• Includes medical information individual voluntarily
tells employer
• Must be kept in locked file separate from personnel
records
Documentation
• Reasonable documentation from an
appropriate professional concerning the
disability and functional limitations
• To verify the existence of a disability and the
need for an accommodation
Employment Resources
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New Resources
Two Question-and-Answer documents
about the ADAAA to aid the public
and employers – including small
business – in understanding the law
and new regulations are available
www.eeoc.gov.
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Equal Employment Opportunity Commission
http://www.eeoc.gov
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Job Accommodation Network
http://www.askjan.org
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Cornell University - ILR School –
Employment and Disability Institute
Disability & HR:Tips for Human Resource (HR) Professionals
http://www.hrtips.org
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Accessible Tech: For Accessible
Technology in the Workplace
http://www.accessibletech.org/
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ADA Training Resource Center:
Your One-Stop for Courses, Events & Tools on the
Americans with Disabilities Act
http://www.adacourse.org
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State Assistive Technology Projects
• District of Columbia: http://www.atpdc.org/
• Maryland: http://www.mdtap.org/
• Virginia: http://www.vats.org/
• National Assistive Technology Technical Assistance
Partnership (NATTAP)
http://resnaprojects.org/nattap/at/stateprograms.html
• AT @ Work Training
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ADA National Network
www.adata.org
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Mid-Atlantic ADA Center
1 of 10 Regional Centers Providing:
• Information
• Guidance
• Materials
• Newsletter/E-Bulletin
• Training
• Toll-free phone number:
800-949-4232 V/TTY
• Website: www.adainfo.org
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Marian Vessels
Director
Mid-Atlantic ADA Center
[email protected]
301 217-0124 v/tty
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