ADA Update LaVerne Albright Buchanan, Ed.D. Senior Associate TransCen, Inc. 401N. Washington St. Suite 450 Rockville, MD 20850

Reasonable Accommodation

Goals To understand reasonable accommodation as a concept, a requirement, and a process To learn how to problem-solve situations where reasonable accommodation might be necessary in the workplace

Definition of Disability An individual with a disability is one who: Has a physical or mental impairment that substantially limits a major life activity Has a record of having such an impairment Is regarded as having such an impairment

Definition of Disability An individual with a disability is one who has a physical or mental impairment that substantially limits a major life activity. Continued

Definition of Disability Need not prevent, or significantly or severely restrict, the performance of a major life activity. Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis” ADAAA

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 Walking Seeing Hearing Speaking Breathing Concentrating Learning Working Sitting Standing Lifting

Major Life Activities includes Major Bodily Functions Immune system Normal cell growth Digestive Bowel Bladder Brain Circulatory Cardiovascular Neurological ADAAA

Major Bodily Functions Respiratory Endocrine Hemic Lymphatic Musculoskeletal Special sense organs and skin Genitourinary Reproductive functions ADAAA Continued

Mitigating Measure Any device, measure, or medication that reduces the effects of the disability ADAAA

Mitigating Measures Mitigating measures are ignored in determining whether an impairment is substantially limiting. Exception: Ordinary eye glasses and contact lenses ADAAA

Episodic Disabilities: Epilepsy Hypertension Multiple sclerosis Asthma Diabetes Major depression Bipolar disorder Schizophrenia Cancer Considered a disability, even in remission, if it would be substantially limiting when active ADAAA

Qualified Individual with a Disability A qualified individual with a disability satisfies the requisite skill, experience, education, and other job-related requirements of the position such individual holds or desires to hold, and who: can perform the essential functions of such position with or without a reasonable accommodation

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 Continued

Essential or Marginal? JobFunction Essential or Marginal? Waiter Interacting with Customers Essential SecretaryMaking CoffeeMarginal Coffee Shop Barista Making CoffeeEssential

Essential or Marginal? JobFunction Essential or Marginal? Continued TrainerPublic SpeakingEssential Assembly Line Worker Answering Phones Marginal Radio Announcer TypingMarginal

Reasonable Accommodation Any change in the work environment or way things are done that enables a person with a disability to enjoy equal employment opportunity

Scope of Reasonable Accommodation: Modification to the job application process Modification to the work environment or the manner in which the position held is customarily performed Modification that enables an employee with a disability to enjoy equal benefits and privileges of employment

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

Undue Hardship Significant difficulty or expense

Action that requires significant difficulty or expense - unduly costly, extensive, substantial, disruptive, fundamentally alters nature or operation of business In relation to size of the employer, resources available, nature of the operation Must be determined on a case-by-case basis IMPORTANT: Consider alternate accommodations that do not create undue hardship Undue Hardship

Look at the organization as a whole Difficult to claim undue hardship if funds are available for fringe benefits such as upgrades to furnishings, office parties, and entertainment Must truly place undue hardship on the business in response to the request for Reasonable Accommodation

Examples of Reasonable Accommodation: Making existing facilities used by employees readily accessible and usable by individuals with disabilities Job restructuring Part-time or modified work schedules

Examples of Reasonable Accommodation: Adjustment or modifications of examinations, training materials, or policies Providing qualified readers or interpreters Reassignment to vacant positions Continued

Brainstorm Accommodations College Professor Office Clerk Attorney Waitress Nurse HR Manager Anxiety Disorder Deaf Learning Disability Fibromyalgia Immune System Disorder Blind

The Interactive Process Determine the essential functions of the job Consult with the employee to determine his or her abilities and specific needs Identify potential accommodations in consultation with the individual If two or more possible accommodations exist, consider the preference of the individual, and then if possible, select the method that best serves both the individual and the business

The Interactive Process Look at particular job and determine essential functions Look at employee’s prior history Consult with employee to consider: –Abilities and limitations –Effectiveness of potential accommodations to employee and business needs

The Interactive Process Communication with the employee in need of the accommodation is critical to the success of the Reasonable Accommodation Process Avoids providing the wrong accommodation by assuming the need of the employee Ask “How may I help you? Listen to what the employee tells you!

Average Cost of Accommodations 56% of all accommodations have no cost 36% require only a one-time cost, typically about $600 5% require both a one-time cost and an ongoing or annual cost Source: Job Accommodation Network Survey 1

What is the most commonly requested accommodation? A: Wheelchair Accessibility B: Modified Schedule C: Assistive Technology D: Meetings to Discuss Work Performance and Duties Quiz Question

B: Modified Schedule Answer:

Approximately 88% of accommodations for people with disabilities will cost: A. Under $1,000 B. Between $1,000 - $1,999 C. Between $2,000 - $5,000 D. More than GOH can afford Quiz Question

88% of accommodations for people with disabilities will cost under $1,000 Answer: A

20% of all accommodations suggested at no cost ‣ 51% cost between $1 and $500 ‣ 11% cost between $501 and $1,000 ‣ 3% cost between $1,001 and $1,500 ‣ 3% cost between $1,501 and $2,000 ‣ 8% cost between $2,001 and $5,000 ‣ 4% cost more than $5,000 Source: Job Accommodation Network Survey Average Cost of Job Accommodations

Accommodations under the ADA are granted to qualified employee who needs them to accomplish the essentials functions of the job. Supervisors must be vigilant to assure that there are no modifications granted to other employees. Reasonable Accommodation

Examples of Accommodations that are NOT Reasonable Placing an applicant with a disability in a job for which he/she did not specifically apply Maintaining the salary of an employee reassigned from a higher-paying job to a lower-paying job, if the employer does not do so for other employees Changing an employee’s supervisor Changing staff who report to a supervisor who has a disability

Examples of Accommodations that are NOT Reasonable Eliminating essential functions of the job Lowering production standards Providing personal use items (e.g. prosthetic limb, eyeglasses, hearing aids, wheelchair, hot pot or refrigerator) Creating a job Promoting an employee Bumping another employee from his/her job Continued

Accommodation Scenario A Juanita is a 32-year-old Postal Worker who communicates through handwritten notes, gestures and partial lip reading. She is in line for a promotion to the position of Time and Attendance Clerk. In the past, the person who was the Time and Attendance Clerk answered the telephone as a back up to the regular receptionist in addition to other duties. Juanita's supervisor is concerned about her ability to do the job and is considering denying Juanita this promotion because of his concerns.

Accommodation Scenario B Jeanette is a Radio Broadcast Announcer. She is blind and needs to read the Associated Press wire news which she receives over the phone lines connected to a printer.

Accommodation Scenario C Mohammed has held his position as Manager of the Communications Department for five years. His boss notices that he has become withdrawn in meetings, his work is late and he appears preoccupied while discussing business matters. When his supervisor shares his concerns, Mohammed explains that his doctor recently diagnosed Mohammed with depression.

Accommodation Scenario D Tovah has a mild intellectual disability. She has the basic skills necessary for the job of Administrative Assistant, likes the work and shows potential. When she finishes one task, however, she tends to stand in one place and look around, unsure of what to do next. One of her co-workers has noticed this and will periodically give her small assignments to keep her busy.

Accommodation Scenario E Rebecca, who has a spinal cord injury, loves her job, her co-workers and her supervisor. Recently, however, she has had difficulty making it to work on time and has been missing days due to problems with childcare.

The Job Accommodation Network (JAN) An information and consultation service providing individualized accommodation solutions. JAN’s purpose is to make it possible for employers and others to share information about job accommodations. (800) (Voice) (877) (TTY)

State Assistive Technology Projects Services may include: Technology lending library Low interest loans for purchasing assistive technology Demonstration center Assessment To locate your state’s project: Association of AT Act Programs (518) (Voice/TTY)

Mid-Atlantic ADA Center One of 10 regional Disability and Technical Assistance Centers throughout the nation Provides training, information, and technical assistance on the ADA Reach us toll free : ADA (4232) Local Contact information for the Mid -Atlantic ADA Center in your training packet

Questions?