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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 2 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 3 The Americans with Disabilities Act • Title I: Employment • Title II: Public Services • Title III: Public Accommodations • Title IV: Telecommunications • Title V: Miscellaneous 4 ADA Title I - Employment • An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship. 5 ADA Title 1- Employment • The activities covered include: • • • • • • 6 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) 7 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. 8 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 12 • Sleeping • Walking • Standing • Lifting • Bending Major Life Activity • Thinking • Communicating • Sitting • Reaching • Interacting with Others • Working 13 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 15 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 • 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. 22 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 23 Elements of Accommodation Policy Communicate Communicate Communicate Communicate the decision to the employee Document the result of the process 24 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 25 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 26 Accommodation Process 1. Define the Situation 2. Explore Accommodation Ideas 3. Choose Accommodation 4. Implement Accommodation 5. Monitor Accommodation 27 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 34 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. 35 Equal Employment Opportunity Commission http://www.eeoc.gov 36 Job Accommodation Network http://www.askjan.org 37 Cornell University - ILR School – Employment and Disability Institute Disability & HR:Tips for Human Resource (HR) Professionals http://www.hrtips.org 38 Accessible Tech: For Accessible Technology in the Workplace http://www.accessibletech.org/ 39 ADA Training Resource Center: Your One-Stop for Courses, Events & Tools on the Americans with Disabilities Act http://www.adacourse.org 40 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 41 ADA National Network www.adata.org 42 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 43 Marian Vessels Director Mid-Atlantic ADA Center [email protected] 301 217-0124 v/tty 44