1. 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

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

3. 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

4. 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

5. Disability Inclusion Resources
A Framework for Building a Disability-Inclusive Organization
TalentWorks
Building an Inclusive Workforce
Building on a Strong Foundation, Best and Emerging Practices consultants:best_practices

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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
EEOC’s Job Applicants and the ADA Fact Sheet

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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)

19. 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

20. 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…”

21. 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?

22. 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”

23. 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

24. 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

25. 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.

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

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

37. Other Resources
EEOC Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations
Job Applicants and the ADA-Fact Sheet
Opening Doors to All Candidates: Tips for Ensuring Access for Applicants with Disabilities (ODEP)

38. Thank you for attending!
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