Tracie DeFreitas, MS, CLMS, JAN Lead Consultant, ADA Specialist JAN Webcast Series: Disability Inclusion and ADA Compliance During the Hiring Process Tracie DeFreitas, MS, CLMS, JAN Lead Consultant, ADA Specialist

Disability Inclusion: ADA Compliance: Discussion Topics Disability Inclusion: Recruiting and Hiring ADA Compliance: Disability Disclosure Pre & Post Offer Disability-related Inquiries

Disability Inclusion Put out the WELCOME mat and invite job seekers to become part of your organization Be committed to hiring qualified individuals with disabilities Challenge biases and beliefs about what people can do, because that is what matters Focus on diverse abilities and contributions to productivity goals instead of disability Inform everyone about the ADA and reasonable accommodation

Disability Inclusion Adopt facilities and IT access for all – universal design reduces need for accommodations Create a safe space for disability-disclosure and requesting accommodation Train hiring managers and front-line supervisors to recognize requests for accommodation and to be solution-focused Keep workplace flexibility in-mind and be creative when identifying accommodations Access accommodation/ADA resources, like JAN

Disability Inclusion Resources Inclusion@Work: A Framework for Building a Disability-Inclusive Organization http://www.askearn.org/inclusion-work/ TalentWorks http://www.peatworks.org/talentworks Building an Inclusive Workforce https://www.dol.gov/odep/pubs/20100727.pdf Building on a Strong Foundation, Best and Emerging Practices https://askjan.org/toolkit/index.cfm#tools-for- consultants:best_practices

ADA Compliance Americans with Disabilities Act (ADA), title I ADA Amendments Act (ADAAA) of 2008 Federal law that prohibits covered entities from discriminating against qualified individuals on the basis of disability, in all employment practices, and during all stages of employment Requires reasonable accommodation for known disability of a qualified applicant or employee, barring undue hardship

ADA Compliance Who is protected by title I of the ADA? Not just employees – job applicants as well Disability as defined by the ADA Amendments Act: “Actual Disability” “Record Of” “Regarded As” Individuals with disabilities who are qualified Must meet the job’s general requirements AND be able to perform the essential functions of the job desired or held, with or without reasonable accommodation

ADA Compliance What is reasonable accommodation? Any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities Disability disclosure is necessary to receive accommodation, when the disability and need for accommodation are not known or obvious Must be effective for the purpose Should not pose undue hardship for employer

ADA Compliance & Inclusion Post EEO and accommodation statements Ensure websites, on-line applications, employment offices, interviewing and testing locations are universally accessible Train recruiters, hiring managers, testing centers on the ADA and compliant hiring practices Provide reasonable accommodations for hiring Restrict disability-related inquiries and medical exams during pre-employment

Common Pre-Employment Issues May I, must I, should I ask if accommodations will be needed for hiring What is an employer’s responsibility to provide accommodations for hiring (e.g., interpreter, testing modifications) May documentation be sought to support a request for accommodation for hiring Whether and when to address obvious impairments or disability disclosures How to respond to on-the-fly accommodation requests

Disability Disclosure Employers sometimes think/say: Applicants should disclose during the hiring stage If they had known about a disability, they would not have hired the employee Accommodations should not have to be provided for an employee who failed to disclose a disability and ask for accommodations before being hiring “An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment.” EEOC

Disability Disclosure Deciding if, when, and how to disclose disability-related information is a personal decision JAN’s A to Z by Topic: Disability Disclosure https://askjan.org/topics/Disability-Disclosure.cfm EEOC’s Job Applicants and the ADA Fact Sheet http://www.eeoc.gov/facts/jobapplicant.html

Disclosure & Pre-Employment Are applicants required to disclose disability- related information at a particular time? No, with limited exceptions Generally employers may not require applicants to disclose information about disability or medical impairment prior to an offer of employment However, an applicant will need to disclose during hiring to receive accommodation: To complete an on-line application To participate in a job interview To take an employment test

Voluntary Self-Identification May employers ask applicants to voluntarily disclose disability status? Yes, for affirmative action purposes under federal laws, policies, etc. - Rehabilitation Act, Section 503, Voluntary Self-Identification of Disability Form Please check one of the boxes below: Yes, I have a disability (or previously had a disability) No, I don’t have a disability I don’t wish to answer

Duty to Provide RA for Hiring Must provide RA that enables applicant with a known disability to participate in the job application process Onus falls on the individual to request Employer is responsible for costs and arrangements Required unless creates undue hardship Cannot refuse to provide an accommodation solely because it entails some costs Employer may choose accommodation If UH, provide alternative accommodation

ADA Compliance Make appropriate and reasonable accommodations for the hiring process For example: Modify application policies and procedures Provide materials in accessible formats Modify interview methods Share questions in advance Provide a reader or interpreter Modify tests or training materials Provide equipment Allow a support person to attend interview Allow access for service or emotional support dog

ADA Compliance What is a request for accommodation? An applicant or employee indicates the need for an adjustment or change at work for a reason related to a medical impairment/disability/limitation Not required to use the words ADA or “reasonable accommodation” when making a request Not required to make request in writing – but, written request IS recommended Not required to request at a particular time – request when the need becomes apparent Can be made through recruiter, hiring manager, supervisor/manager, human resources, disability program manager, or other appropriate personnel

ADA Compliance What is not a request for accommodation? Voluntary self-identification of disability Disability disclosure absent work-related barrier or specific request Request for workplace adjustments/access to benefits available to employees without disabilities (e.g., flex schedule, telework, ergo equipment)

ADA Compliance – Pre-Offer May employers ask if reasonable accommodation will be needed for hiring? Yes. Employers may tell all candidates what the hiring process involves and ask whether reasonable accommodation will be needed for that process. Another way – Inform all candidates how to request accommodation and let candidates decide whether/when to address

Informed Hiring Process Create an informed hiring process by educating candidates about what to expect and how to request reasonable accommodation Stages of employee selection Interview details Testing details How/when selection will be communicated “If you require reasonable accommodation in completing this application, interviewing, completing any pre- employment testing, or otherwise participating in the employee selection process, please direct your inquiries to…”

Getting to know you… Why did you leave your last job? What interests you about this job? What do you know about our company? What are your strengths?

ADA & Disability-related Inquiries ADA restricts disability-related inquiries and medical exams during three stages of employment: Pre-offer: Generally, no disability-related inquiries or medical exams of applicants until after a conditional job offer is made Post-offer: Disability-related inquiries and medical exams can be required if required for all candidates entering into the job category Employment: Disability-related inquiries and medical exams of employees must be "job-related and consistent with business necessity”

Pre-Employment Inquiries Pre-employment stage is the most restrictive May not ask disability- related questions under most circumstances Any question likely to elicit information about a disability/medical impairment May not require medical examinations No inquiries about disability: On application forms During job interview In background or reference checks

Pre-Offer – May Ask About ability to perform job duties (e.g., ability to lift a certain amount of weight, if job-related) About non-medical qualifications and skills, education, experience, certifications, etc. About ability to meet attendance requirements About drinking habits…unless the particular question is likely to elicit information about alcoholism About current and prior illegal drug use…provided the question is not likely to elicit information about past addiction/rehabilitation

Pre-Offer – May NOT Ask About disability, medical impairment…unless accommodation is requested for hiring and disability is not known or obvious About lawful drug use…unless tests positive for illegal drug use and the results need to be validated About ability to perform major life activities in general (e.g., standing, lifting, walking, etc.)…unless specifically job-related About workers’ compensation history Previous employers or other sources about candidate's disability, limitations, accommodation, etc.

ADA Compliance – Pre-Offer May employers ask applicants for documentation of disability when RA is requested for hiring? Yes. May request reasonable documentation about disability, if the disability and need for accommodation are not known/obvious Entitled to know applicant has a disability and needs accommodation to participate in the hiring process Documentation may be provided by an appropriate professional (e.g., healthcare provider, rehabilitation counselor, etc.) concerning the applicant's disability and functional limitations

ADA Compliance – Pre-Offer During pre-offer, may employers ask applicants if RA will be needed to perform the functions of the job for which they applied? Generally, no – because the question is likely to elicit information about a disability May not ask: "Can you perform these functions with ___ without ___ reasonable accommodation? Check One May ask: "Can you perform these functions with or without reasonable accommodation?” Yes or No

ADA Compliance – Pre-Offer What if an applicant has an obvious disability or discloses a disability during the interview? May ask limited questions if have reasonable belief that accommodation will be needed to perform job functions… Because of an obvious disability Because of a hidden disability the applicant has voluntarily disclosed Because the applicant has voluntarily disclosed the need for accommodation to perform job duties

ADA Compliance – Pre-Offer May a particular applicant be asked to describe or demonstrate how they would perform job duties, if other applicants are not asked? Yes…but only if there is a reasonable belief that the applicant will not be able to perform job functions because of a known disability A known disability is one that is: Obvious Voluntarily disclosed

Pre-Employment, Post-Offer Least restrictive disability-related inquiry stage Inquiries and exams do not have to be job-related May make job offer contingent upon medical information Some rules apply: Must ask same inquiries/require same exams of all applicants entering into the same job category Must maintain confidentiality of all medical information obtained at any time

ADA Compliance – Post-Offer Qualification standards or selection criteria that screen out or tend to screen out an individual with a disability on the basis of disability must be job-related and consistent with business necessity Job-related: A legitimate measure or qualification for the specific job, not a general class of jobs Consistent with business necessity: Must relate to the essential functions of the job If screened out, must determine if the qualification standard or selection criterion can be met with accommodation

ADA Compliance – Post-Offer If, at the post-offer stage, a candidate requests reasonable accommodation to perform the job, may documentation of disability be requested? Yes, if the disability and need for accommodation are not obvious, may require documentation of disability and limitations Focus on information related to reasonable accommodation

Disclosure & Post-Offer If employers ask disability-related questions during the post-offer stage, are individuals required to disclose disability- related information? Usually – Employers may condition job offers on the satisfactory completion of a medical questionnaire/exam Can limit type and scope of information shared, but candidates should be truthful

ADA Compliance – Post-Offer May employers ask specific individuals for additional medical information after obtaining basic medical information during post-offer exams and inquiries? Yes, if the follow-up examinations or questions are medically related to the previously obtained medical information

Practical Tips Don’t focus on an applicant’s disability Don’t ask unnecessary medical questions or require unnecessary medical examinations or documentation Don’t base hiring decisions on myths, fears, or stereotypes about people with disabilities Do focus on an applicant’s qualifications Do get the information needed to determine whether an applicant is qualified Do base hiring decisions on skills, qualifications, and experience

AskJAN.org Resources A to Z of Disabilities and Accommodations https://AskJAN.org/a-to-z.cfm By Topic: Disability Disclosure Interactive Process Medical Exams and Inquiries Online Applications Sample Forms Testing Accommodations Publications and Articles https://AskJAN.org/publications/index.cfm Accommodation Scenarios for the Interviewing Process Job Application/Interview Stage Dos and Don’ts

Other Resources EEOC Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations https://www.eeoc.gov/policy/docs/preemp.html Job Applicants and the ADA-Fact Sheet http://www.eeoc.gov/facts/jobapplicant.html Opening Doors to All Candidates: Tips for Ensuring Access for Applicants with Disabilities (ODEP) https://www.dol.gov/odep/pubs/fact/opening.htm

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