RECOVERY INSTITUTE OF SOUTH FLORIDA INC.
AMERICANS WITH DISABILITY ACT OF 1990
TOTAL CE CREDITS: 2.0
Title I, The Americans with Disabilities Act of 1990
The one of the five titles that was signed into law on July 26, 1990, to protect the rights of qualified individuals with disabilities in all aspects of employment.
It is necessary to understand the Act’s very specific definitions of “disability” and “qualified” individual with a disability. Like other determinations under the ADA, deciding who is a “qualified” individual is a case-by case process, depending on the circumstances of the particular employment situation.
Who Must Comply with the ADA:
-state and local governments
Employees include those working full and part-time for 20 or more calendar weeks in the current or preceding calendar year.
Under the ADA, an individual with a disability is a person who has:
- physical or mental impairment that substantially limits one or more major life activities;
- has a record of having such an impairment; or
- is regarded as having such an impairment.
What is an IMPAIRMENT?
Any condition that Substantially Limits Major Life Activities
A Physical Impairment is defined by the ADA as:
” any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.”
A Mental Impairment is defined by the ADA as:
” (a)ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”
Major Life Activities
To be a disability covered by ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty.
Performing manual tasks
Caring for oneself
- ·An impairment is only a “disability” under the ADA if it substantially limits one or more life activities.
- Three factors to consider in determining whether a person’s impairment substantially limits a major life activity:
It’s nature and severity;
How long it will last or is expected to last;
Its permanent or long term impact, or expected impact.
- Illegal drug use
- Homosexuality and bisexuality
- Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
- Compulsive gambling, kleptomania; or
- psychoactive substance use disorders resulting from current illegal use of drugs.
There are two basic steps in determining whether an individual is “qualified” under the ADA:
(1) Determine if the individual meets necessary prerequisites for the job, such as:
Education •Licenses -Skills;
Ability to work with other people
Determine if the individual can perform the essential function of the job, with or
without reasonable accommodation.
The second step, a key as]reflect of nondiscrimination under the ADA, has two parts:
- Identifying “essential functions of the job“; and
- Considering whether the person with a disability can perform these functions,
unaided or with a “reasonable accommodation.”
The term “essential functions” means: the fundamental job duties of the employment position the individual with a disability holds or desires.
Reasons Function Could Be Considered Essential
A job function may be considered essential for any of several reasons, including but not limited to the following:
- The position exists to perform that function;
- Limited number of employees available among whom the performance of that job
function can be distributed; and/or
- Highly specialized so that the incumbent in the position is hired for his or her
expertise or ability to perform the particular function.
Types of Evidence to be Considered in Determining Whether a Function is Essential
Evidence of whether a particular function is essential includes, but is not limited to:
- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement -The work experience of the past incumbent in the job;/and/or
- The current work experience of incumbents in similar jobs.
What Is a “Reasonable Accommodation
“Reasonable Accommodation” is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a “qualified individual” with a disability to enjoy an equal employment opportunity.
The ADA Requires Reasonable Accommodation in Three Aspects of Employment:
- To ensure equal opportunity in the application process;
- To enable a qualified individual with disability to perform the essential functions of a job; and
- To enable an employee with disability to enjoy equal benefits ‘and privileges of employment.
Some Basic Principles of Reasonable Accommodation
- A reasonable accommodation must be an effective accommodation.
- The reasonable accommodation obligation applies only to accommodations that reduce barriers to employment related to a person’s disability;
- A reasonable accommodation need not be the best accommodation available, as long as it is effective for the purpose.
- Look at the particular job involved. Determine its purpose and its essential functions.
- Consult with the individual with the disability to find out his/her specific physical or mental limitations.
- Consult with the individual, identify potential accommodations and assess how effective.
- Preference of the individual with a disability.
- Select the accommodation that best serves the needs of the individual and the employer.
Processes For Identifying reasonable Accommodation
Examples of Reasonable Accommodations
- Making existing facilities accessible to and usable by individuals with disabilities.
- Restructuring job duties, including removal of nonessential functions.
- Reassignment to a vacant position..
- Acquisition or modification of equipment or devices.
- Appropriate adjustment or modification of examinations, training materials, or policies.
- Providing personal assistants such as qualified readers, page turners, interpreters, or travel attendants.
- Permitting the use of accrued paid leave or providing additional unpaid
- Leave for necessary treatment, making employer-provided transportation accessible, and providing reserved parking spaces.
- Flexible or adjusted work schedules.
The Undue Hardship Limitation
An employer is not required to make a reasonable accommodation if it would impose an undue hardship on the operation of business.
If a particular accommodation would impose an undue hardship, the employer must consider whether an alternative accommodation that would not impose such a hardship.
Definition of “Undue Hardship
An undue hardship is an action that requires “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation.
Whether a particular accommodation will impose an undue hardship must always be on a case-by-case basis.
The Concept of Undue Hardship}l includes any Action that is:
- Unduly costly
- Substantial, disruptive, or
- That would fundamentally alter the nature or operation of the business.
Contractors To be considered provided by the Statute and Regulations:
The nature and net cost of the accommodation needed.
The financial resources of the facility making the accommodation, the number of employees of the facility, and the effect of the expenses resources of the facility.
The overall financial resources, size, number of employees, and type and location of facilities of the entity covered by the ADA.
The type of operation of the covered entity, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the larger entity.
The impact of the accommodation on the operation in the facility that is making the accommodation.
The terms of a collective bargaining agreement may be relevant in determining whether an accommodation would impose an undue hardship.
Health or Safety Defense
An employer may. require that an individual not pose a “direct threat” to the health or safety of himself/herself or to others.
Employers cannot deny an employment opportunity merely because of a slightly increased risk.
To Establish That A Direct Threat Exists
The employer must be prepared to show the following:
- Significant risk of substantial harm;
- The Specific risk must be identified;
- It must be current risk, not one that is speculative or remote;
- The assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
- Even genuine risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a “direct threat,” by reasonable accommodation.
In Preparing for An Interview the Employer should:
- Know the essential functions of the job, especially what the person in the job is supposed to accomplish;
- Know the job functions that are marginal, have a willingness to consider alternative ways essential functions may be performed or marginal functions can be reassigned.
- Have a list of questions tied to the individual’s ability to perform job functions that make no reference to disability.
- Be willing to ask how to be of assistance to the applicant.
- Plan to ask all individuals the same questions.
- Have a willingness to maintain any information, volunteered by the individual about his or her disability, as a confidential record.
During the Interview
- Should use positive language-“disability instead of “handicap,” “uses a wheel chair,” instead of “confined to a wheelchair,” “visual or hearing impaired,” instead of “blind or deaf,” and “individual with a disability” instead of “disabled individual;”· .
- Should explain completely and accurately the essential functions of the job, if individual does not have such information;
- Should focus on questions about ability of the individual to perform the essential functions of the job; Should ask about education, work experience, skills, or licenses that are job related;
- Should be willing to provide reasonable accommodation during the interview if the individual requests it, as well as other points during an employment relationship; and
- May ask all individuals to demonstrate an ability or skill if!!! individuals being interviewed in connection with the job or opportunity are being asked to demonstrate their ability.
During an Interview the Employer Should Not:
- Ask any questions directly or indirectly related to-the existence, the nature, severity, cause, prognosis, need for leave tied to, or past attendance records because of-disability.
- Make assumptions about limitations.
- Lessen expectations or standards, but be willing to offer reasonable accommodations so they can be met.
- Refer to family relationships and any other social or business relationship or association.
Relationship or Association
An employer may not:
- Refuse to hire an individual because the individual has a spouse, child, or other dependent who has a disability. The employer may not assume that the individual will be unreliable, have to use leave time, or be away from work in order to care for the family member with a disability.
- Refuse’ to hire an individual because she/he has a spouse, child, or other dependent who has a disability’ that is either not covered by the employer’s current health insurance plan or that may cause future increased health care costs.
- Refuse to insure, or subject an individual to different terms or conditions of insurance, solely because the individual has a spouse, child, or other dependent who ha a disability; or
- Refuse to hire an individual because the individual has a relationship or association with a person or persons who have disabilities.
- The Department of Justice enforces the ADA requirements in Title I, II, and III.
- The U.S. Equal Employment Commission (EEOC) has responsibility for enforcing compliance with Title I of the ADA.
- An employer must post notices. concerning the provisions of ADA.
- The notices must be accessible, as needed, to persons with visual and other
- reading disabilities.