Americans With Disabilities Act & Food Service

TITLE 1EMPLOYMENT

NOD-Harris Poll - 2010

21(35)% with a disability work full-time or part-time

59(78)% without disability work full-time or part-time

22% report encountering job discrimination (2004)

Source: National Organization on Disability, 2010

ADA Overview

Title I - Employment

Title II - State & Local Government

Title III - Public Accommodations

Title IV - Telecommunications

Title V - Miscellaneous

Definition of a Disability:

A physical or mental impairment that substantially limits one or more major life activities;

A record of such an impairment;

Is regarded as having such an impairment

ADA Amendments Act of 2008

“Substantially limits” – definition

Mitigating measures will not be considered

Exception – eyeglasses and contact lenses

Affected major life activities

Seeing

Performing manual tasks

Speaking

Learning

Walking

Breathing

Hearing

Working

Sleeping

Caring for oneself

Thinking

ADA Amendments Act of 2008

“Major life activities” includes bodily functions: functions of the immune system, normal

cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Episodic or in Remission

NOT covered by the ADA

Current illegal drug users

Sexual behavior disorders

Compulsive gambling

Kleptomania

Pyromania

Psychoactive substance use disorders (from use of illegal drugs)

Drug and Alcohol Use

Past illegal drug use covered

Current illegal drug use not covered

Employer may prohibit use of illegal drugs and alcohol in workplace

Drug tests are not illegal

Drug and Alcohol Use

Past alcohol use covered

Current alcohol use covered

Discipline, discharge or deny employment when alcohol impairs job performance or conduct

Title I - Employment

Private employers

State and local governments

Employment agencies

Labor Unions

What Employers Are Not Covered?

Those with less than 15 employees

Private clubs (i.e. country clubs)

Federal Government

Native American Tribes

Regulated Employment Practices

Application

Promotion

Testing

Medical exams

Hiring

Layoff/Recall

Assignments

Termination

Evaluation

Compensation

Disciplinary actions

Leave

Training

Benefits

The ADA prohibits discrimination against any qualified individual with a

disability in regard to all terms, conditions, and privileges of

employment.

What is a Qualified Individual?

Individual must have the education, experience and skills required

Must be able to perform the essential functions of the job with or without a reasonable accommodation

What makes a Job Task Essential?

The position exists to perform the function

There is a limited number of employees who can perform the task

The function is highly specialized, requiring specific expertise or skill

Determining if a Task is Essential

Employer’s judgment

Written job description

Amount of time spent performing the task

Reasonable Accommodation

Accessible work environmentModify exams, training materials,

job-restructuringModify work practices and procedures Part-time or modified work schedulesQualified interpreters or readersLeaveReassignment

Not Reasonable Accommodations:

Transfer to a different supervisorReassignment of essential functionsLowering production standardsProvision of personal use itemsProvision of “light duty” positionPromotionNon-adherence to policy and procedure that is consistent with business necessity

Reasonable AccommodationIndividual must request an accommodation

Individual may refuse an accommodation

Defenses Undue hardship

Significant expense or difficulty Fundamental alteration of business

Direct threat ...to health and safety of others Significant risk that can not be eliminated by reasonable

accommodation

Interview: Unacceptable QuestionsHow much alcohol do you drink?

What medications are you taking?

Have you ever been hospitalized?

Have you ever taken AZT?

Have you ever filed or received worker’s compensation?

Interview: Acceptable Questions

Are you capable of standing for 3 hours?

Would you be able to arrive to work by 8 am everyday?

Can you perform the essential functions of the job with or without a reasonable accommodation?

Can you move 50 lbs from point A to point B?

Can you sit for 2 hours at a time?

Can you read a video display terminal?

Reference ChecksMay ask about: job functions & tasks quality & quantity of work how job functions were performed attendance record other job-related issues that do not relate to

disability

Cannot ask about: Disability Illness Workers compensation history

Medical Inquiry: Pre-Employment

No questions which could elicit medical information

No medical exams permissible

Agility/aptitude testing permissible if consistent with business necessity

All other applicants are subject to same

Medical Inquiry: Post Offer

Permissible if all applicants or individuals in similar positions subject to same inquiry and exam

Additional inquiry allowed to follow-up on information found in initial inquiry

Withdrawal of offer must be based on direct threat

Medical Inquiry: Post-Hire

No medical inquiry unless consistent with business necessity

Participation in wellness or other health promotion activities sponsored by employer must be voluntary

Medical Records

Information regarding medical exams and inquiries must be kept confidentialmust be kept separate from

personnel files

Service Animals

Only dogs are recognized

Separate provision for miniature horses

Comfort or emotional support animals do not qualify as a service animal

Definition of Service AnimalIndividually trained to do work or perform tasksGuiding people who are blindAlerting people who are deafPulling a wheelchairAlerting and protecting due to seizureReminding person with mental illness to take

prescribed medicationsCalming a person with Post Traumatic Stress

Disorder (PTSD) during an anxiety attack

Where Service Animals are Allowed

Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

Control of Animal

Service animals must be harnessed, leashed, or tetheredExceptions

it interferes with the service animal’s work the individual’s disability prevents using these devices

Or, individual must maintain control of animal through voice, signal, or other effective controls

Inquiries Allowed

Two questions may be asked

Is the dog a service animal required because of a disability?

What work or task has the dog been trained to perform?

Inquiries Not Allowed

Asking about the disability

Requiring medical documentation

Requiring special ID card or training documentation for the dog

Asking that the dog demonstrate its ability to perform the work or task

Denying Access to Animals

Allergies and fear of dogs are NOT valid reasons

If dog is out of control and the handler does not take effective action to control it

If the dog is not housebroken

Offer the opportunity to obtain goods or services without the animal’s presence

Food Service

Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.

People with disabilities who use service animals cannot be isolated from other patrons

Employee with Service Animal

Food Code prohibits handling of animals

Allows employees to handle service animals

After handling, wash hands At least 20 secondsSoap, water, vigorous friction on hand surfacesRinsing, drying

Determine undue hardship/direct threat

CDC: Infectious and Communicable Diseases

Campylobacter

Salmonella

E. coli

Calicivirus or Norwalk-like virus

Shigella species

Hepatitis A virus

Staphylococcus aureaus

FDA Food CodeReporting Requirements

Employee must:

Report diagnosis

Report symptoms

Report past illness due to listed pathogens

Specific high-risk conditions

Get medical clearance before exclusion/restriction is lifted

Food Service Management

Restrict employee if symptoms are present

Exclude employee if diagnosed with illness

If disabled by disease, ADA applies

If Disabled by Disease…

Employer can exclude employee if:No reasonable accommodation would

eliminate riskAll reasonable accommodations would

pose an undue hardship on businessThere is no vacant position not involving

food handling for which employee is qualified

Company Policies and Practices

Training

Sensitivity training for managers and co-workers

Health insurance

Employee assistance programs

Fitness programs

Employee & family activities

Posting Notices

An employer must post notices concerning the provisions of the ADA

Must be accessible to persons with visual or other reading disabilities

Posters can be obtained from the EEOC800-669-EEOC or 800-800-3302 (TDD)

Financial AssistanceIRS Code 44 (Tax Credit) 30 employees or less OR annual gross receipts less

than $1M Up to $5000/year 50% of expenditures between $250 - $10,250

IRS Code 190 (Tax Deduction) Up to $15,000/year Architectural or Transportation

Targeted Jobs Tax Credit For hiring people with disabilities

ResourcesU.S. Department of Justice www.usdoj.gov/crt (800) 514-0301

Equal Employment Opportunity Commission www.eeoc.gov (800) 669-4000

U.S. Access Board www.access-board.gov (800) 872-2253

Job Accommodation Network (JAN) http://www.jan.wvu.edu/ (800) 526-7234

Great Lakes ADA Center www.gldbtac.org (800) 949-4232

National Center on Accessibility www.ncaonline.org (812) 856-4422 (voice) (812) 856-4421 (tty)