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

An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship. ADA Title I - Employment 5

ADA Title 1- Employment The activities covered include: 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 6

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) Title I ensures that qualified individuals with disabilities: 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 Caring for Oneself Performing Manual Tasks Seeing Hearing Eating These are basic activities that the average person in the general population can perform with little or no difficulty. Sleeping Walking Standing Lifting Bending 12

Thinking Communicating Sitting Reaching Interacting with Others Working Breathing Learning Reading Concentrating Thinking Speaking 13 Major Life Activit Major Life Activity continued

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 Respiratory Endocrine Lymphatic Musculoskeletal Special sense organs and skin Genitourinary Reproductive functions 15

New Standard Episodic Disabilities : epilepsy hypertension multiple sclerosis asthma diabetes major depression bipolar disorder schizophrenia cancer 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

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 What makes a job task essential?

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 Evidence of Essential Functions

Any changes in the work setting that enable qualified workers to accomplish their tasks. Accomodations are: 22

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 Accommodations are dependent upon: 23

 Communicate  Communicate the decision to the employee  Document the result of the process Elements of Accommodation Policy 24

Look at particular job and determine essential functions Look at employee’s prior history Consult with employee –Abilities and limitations –Effectiveness of potential accommodations The Interactive Process 25

Consult with 3 rd parties (advocates, medical professional, consultants) Consider the preference of the employee Select the accommodation that best addresses needs of the employee and the employer The Interactive Process 26

Accommodation Process 2. Explore Accommodation Ideas 1. Define the Situation 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

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” During the Interview

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 35

Equal Employment Opportunity Commission 36

Job Accommodation Network 37

Cornell University - ILR School – Employment and Disability Institute Disability & HR:Tips for Human Resource (HR) Professionals 38

Accessible Tech: For Accessible Technology in the Workplace 39

ADA Training Resource Center: Your One-Stop for Courses, Events & Tools on the Americans with Disabilities Act 40

State Assistive Technology Projects District of Columbia: Maryland: Virginia: National Assistive Technology Technical Assistance Partnership (NATTAP) Work Training 41

ADA National Network 42

Mid-Atlantic ADA Center 1 of 10 Regional Centers Providing: InformationInformation GuidanceGuidance MaterialsMaterials Newsletter/E-BulletinNewsletter/E-Bulletin TrainingTraining Toll-free phone number:Toll-free phone number: V/TTY V/TTY Website:

Marian Vessels Director Mid-Atlantic ADA Center v/tty 44