1 Employment Basics: A Primer: ADA - Title I David Scherer

2 Disclaimer Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.

3 Who’s Covered by the ADA? Definition of Disability ADA vs. FMLA vs. Worker’s Comp

4 Definition of Disability Mental or physical condition that substantially limits one or more of life’s major functions Record of impairment which substantially limits… Regarded by others as having… Note: Diagnosis of an impairment does NOT necessarily mean a “disability”

5 Substantially Limiting Factors to consider  Nature and severity of the impairment  Duration or expected duration  Permanent or long-term impact  Mitigating Measures (medications, auxiliary aids, etc.)

6 Is your employee covered? A physical or mental impairment? What is the impairment? Long-term or permanent? Does it impact a major life activity? If yes, what activity? Is it a substantial limitation?

7 Coverage Comparison ADA: Mental or physical impairment substantially limiting 1 or more major life activity FMLA: Serious injury or illness that involves inpatient care or ongoing treatment Worker’s Comp: Only work-related illnesses or injuries

8 Overview of Title I Which employers have responsibilities under Title I? What are the basic provisions of Title I?

9 Which Employers Must Comply? Private employers with 15 or more employees All state and local government entities Employment agencies Labor unions Joint labor-management committees

10 General Employment Rule Job application process Hiring Promotion Discharge Compensation Benefits Training All aspects of employment! Unlawful to discriminate against a qualified individual with a disability with regards to:

11 It’s All About Equality! Hire, fire, and promote the most qualified, deserving individual!

Qualified Employee To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified. The regulations define a qualified individual with a disability as a person with a disability who: "satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 12

Qualified Employee Determination 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. 2. Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation. 13

Meeting the Necessary Pre-Requisites Pre-Requisites for employment might include:  Education  Work Experience  Training  Skills  Licenses  Certificates  other job-related requirements, such as good judgment or ability to work with other people 14

Performing Essential Functions This second step, a key aspect of non- discrimination under the ADA, has two parts: 1. Identifying "essential functions of the job“ 2. Considering whether the person with a disability can perform these functions, unaided or with a "reasonable accommodation." 15

16 Essential Job Functions What is the purpose of a position and how can I identify a position’s essential functions?

17 Essential Functions Fundamental job duties of the employment position Does not include marginal or peripheral functions Specifies what needs to be done, not how

18 Identifying Essential Functions The position is actually required to perform the function Position exists to perform function Fundamental change to position if removed Limited number of other employees available to perform Function highly specialized- person hired for special expertise or ability

19 Evidence of Essential Employer’s judgment Written job description Amount of time performing function If infrequently performed, serious consequences if not performed when needed Terms of collective bargaining agreement Other employees in same position Nature of the work operation or organizational structure

20 The Reasonable Accommodation Process What is a reasonable accommodation? What are the employer’s responsibilities in the accommodation process?

21 Reasonable Accommodations  Modifications or adjustments to a job, employment practice, or work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity  Equal employment opportunity: opportunity to attain same level of performance or to enjoy equal benefits and privileges of employment

22 When Accommodations are Required Application process Performance of the essential functions of the position Enjoyment of equal benefits and privileges of employment

23 Accommodation Basics Must be an effective accommodation Need not be best accommodation, just effective Must only reduce employment-related barriers Personal devices not required Employer not prevented from providing extra accommodations

24 Employee Responsibilities Process must be initiated by the employee with a disability- disclosure required Provide documentation of need for accommodation if requested Be involved in the process of identifying effective accommodation

25 The Employer/ Employee Interactive Process Look at particular job and determine essential functions Consult with employee about abilities and limitations Consult with employee, identify potential accommodations, and assess effectiveness Consider the preference of the employee Select the accommodation that best addresses needs of the employee and the employer

26 Employer Strategies for the Accommodation Process Develop strategies for recognizing RA requests Consider developing accommodation request forms Don’t be afraid to ask for documentation of need for accommodation Consult with the employee Know your accommodation resources Designate an organization/workplace resource coordinator Consider implementing a centralized funding mechanism Monitor implementation of the accommodation

27 Accommodation Factoids Over 70% of employees with disabilities never request an accommodation Cost effectiveness: 50% cost $50 or less $50 return in productivity and saved costs for every $1 spent on ADA-related accommodations

28 Undue Hardship 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

29 Tax Incentives Available Disabled Access Tax Credit 50% TAX CREDIT of eligible expenditures over $250 up to $10,500 a year. So your tax bill can be reduced by up to $5,000. for Small Business ($1 million gross income OR less than 30 employees ) Barrier Removal Deduction Any private business may claim up to $15,000 per tax year for making its premises or public transportation vehicles more accessible to persons with disabilities or the elderly. Eligible expenditures may include installing ramps, widening doorways, modifying restrooms, or equipping a shuttle van with a lift. Work Opportunity Tax Credit Designed to encourage employers to add hard-to-employ individuals to their payroll, the credit is generally equal to 40% (only 25% if the employee doesn’t reach a minimum employment level) of the first $6,000 of wages paid to each qualified employee on your payroll. There are minimum employment qualifications so be sure to check for additional information through the IRS

30 Employment Resources It’s not about knowing all the answers. It’s about knowing where to find the answers!

31 Key Publications Title I Technical Assistance Manual Cornell Series Job Accommodation Network’s Fact Sheet Series EEOC Guidance Documents Employer Responsibilities Under the ADA

32 Resource Connections Disability & Business Technical Assistance Center DBTAC 800/ (V, TTY) Job Accommodation Network 800/ (V, TTY) EEOC 800/ DOL’s Office of Disability Employment Policy