Title I of the ADA: What You Need to Know
23
9/4/2021 1 Title I of the ADA: What You Need to Know Colleen Moran [email protected] 605-201-4063 What Do You Need To Know? • Obligations under Title I • Ways in which to meet the obligations • Requirements during the entire employment process • Legal updates 2
Transcript of Title I of the ADA: What You Need to Know
9/4/2021
1
Title I of the ADA: What You Need to Know
Colleen Moran
605-201-4063
What Do You Need To Know?
• Obligations under Title I
• Ways in which to meet the obligations
• Requirements during the entire employment process
• Legal updates
2
9/4/2021
2
What Do You Know? True or False?
• Title I applies to organizations or businesses with 50 or more employees
• Reasonable accommodation requests must be in writing
• If an employee provides a return to work note, the reasonable accommodation process is over
• It is appropriate to ask an individual at an interview if the individual has a disability
• If a job posting says that the company does not discriminate based on disability, the company is protected from any employee claim of discrimination
• Courts have been clear in interpreting the ADA
3
Americans with Disabilities Act
4
9/4/2021
3
ADA Basics
• ADA became law
• Congressional Findings:• “Physical or mental disabilities in no way diminish a person’s right to fully
participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination”
5
The Basics
• More findings:
• “The Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and self-sufficiency for such individuals”
6
9/4/2021
4
Titles of the ADA
• Title I: Employment
• Title II: State and Local Government
• Title III: Public Accommodations
• Title IV: Public Transportation
• Title V: Miscellaneous
7
Title I
8
9/4/2021
5
Title I Basics
• Title I of the ADA protects the rights of employees and job seekers
• Covers employers with 15 or more employees (started out as 25 employees – changed in 1994), including state and local government and employment agencies and labor organizations (Section 503 of the Rehab Act covers federal employees)
• Covers all aspects of employment
9
Title I Protections
• Prohibits disability-related questions on job applications
• Requires employers to reasonably accommodate employees and job applicants
• Prohibits medical examinations before a job offer
• Limits disability-related questions and medical examinations of employees
• Improves accessibility to work places
• Prohibits discrimination and retaliation
10
9/4/2021
6
Where Are We Now?
• The 2008 Amendments Act really broadened the definition of disability and put the focus back on accommodations
• It addressed court decisions that appeared to focus on disability instead of the employer’s responsibility
11
Where Are We Now with Employing Individuals with Disabilities?• In 2020, 17.0% of persons with disabilities were employed (down from 19.3% in 2019)
• Half of all persons with a disability were over age 65
• Across all age groups, persons with disabilities were less likely to be employed than those with no disabilities
• Across all educational attainment groups, unemployment rates for persons with a disability were higher than those for persons without a disability
• Employed persons with a disability were more likely to be self-employed than those with no disability
• Approximately 8 out of 10 persons with disabilities were not in the labor force in 2020
• Bureau of Labor Statistics, US Department of Labor (February 24, 2021)
12
9/4/2021
7
Do Barriers to Employment Still Exist?
• Some employers still do not have a good grasp of Title I and the employer’s obligations
• Some employers do not have a good grasp of reasonable accommodations
• Some employers have a designated person to address ADA issues, but fail to share the information with employees
• Some employers do not have policies and procedures involving ADA issues
• Some employers have not addressed web and software access
13
How Do Employers Overcome the Barriers?
• Follow Title I
• Consider the ADA in every aspect of employment• Job posting
• Application
• Job descriptions
• Applicant review
• Interview
• Hiring decision
• Policies and procedures
• Benefits and compensation
14
9/4/2021
8
Job Postings and Applications
15
Job Postings and Applications 2
• No requirement about what must be in a job posting
• EEOC advises to list the essential functions and to include a nondiscrimination statement• Places you post
• Social media and demographics
• Postings need to be accessible• Not just a phone number, unless TDD is provided or relay service
• Have large print available
16
9/4/2021
9
Job Postings
• XYZ Organization is seeking a part-time coach to assist with its “We Can Run” program. Work hours are from 3:30 p.m. to 5:00 pm, M-F; qualified applications must be good communicators and must be able to have adequate vision and hearing abilities. XYZ Organization is an Equal Opportunity Employer and does discriminate based on sex, race, color, national origin, disability, genetic information, veteran status, or sexual identity or orientation.
17
Job Posting
• ABC Company is seeking a technology assistant to work in its IT lab. Duties include troubleshooting issues involving equipment, software systems, and other issues that may arise; taking help-desk calls one day per month; and training new employees on the use of software systems. ABC Company is an Equal Opportunity Employer and does discriminate based on sex, race, color, national origin, disability, genetic information, veteran status, or sexual identity or orientation.
18
9/4/2021
10
Application Accessibility
• If online, needs to be accessible or provide an alternative• Timing Out
• Qualified Reader
19
Application Questions
• No medical questions
• No disability-related questions
• No questions about previously receiving worker’s compensation
• No questions about drugs
20
9/4/2021
11
Job Descriptions
21
Job Descriptions 2
• Job descriptions are not required
• But, it’s in everyone’s best interest to have them
22
9/4/2021
12
Job Descriptions –What Do They Do?
• Assist employers in defining the essential functions of the position
• Assist employees in understanding the essential functions and qualifications
• Assist with requests for reasonable accommodations
• Assist in the prevention of discrimination claims
23
Job Description Elements
• Job title• Salary or pay grade• Supervisor/department• Hours of work• Brief summary of the position• Essential functions (90-95% of associated tasks)• Special or particular requirements• Qualifications• Work environment/conditions• Disclaimer
24
9/4/2021
13
Job Descriptions – Essential Functions
• Functions that the employee must be able to perform with or without an accommodation• Does the position exist for the performance of the function?
• Can the function be reassigned?
• Does the function require certain qualifications or expertise?
• Would the removal of the function fundamentally alter the position?
• What are the consequences for an inability to perform the function?
• Is the function critical to the success of the position (even if it is performed infrequently)?
25
Job Descriptions - Language
• Clear, concise, non-technical
• Focus on outcome, not process
• Be careful with words (see, hear, talk, walk)
26
9/4/2021
14
Writing a Job Description
• Receptionist
• Lawyer
• Accountant
• Computer Programmer
27
Choosing Candidates, Interviews, and Job Offer
28
9/4/2021
15
Choosing Candidates to Interview
• Resumes
• Social Media
• Implicit Bias
29
Job Interviews
• Must be held in an accessible location
• Must not ask questions about disability or any medical information
• May ask if the person is able to perform the essential functions of the job with or without an accommodation – must ask it of everyone
• If requested, must provide an accommodation
30
9/4/2021
16
Job Offer
• Once a formal job offer is extended to a candidate, an employer may:• Require the candidate to submit to a medical examination
• Can include physical and mental
• Ask disability-related questions
• Must require of everyone
31
Trainings, Employee Gatherings, Benefits
• Must provide the same benefits to all employees (health insurance, time off, bonuses and incentives, access to break rooms and cafeterias)
• Wellness programs• Incentives
• Training and gathering locations• Ramkota
32
9/4/2021
17
Policies and Procedures
33
Policies and Procedures 2
• Not required to have a employee handbook, but you should
• Policies and procedures should be clear and concise
• Words should be carefully chosen
• Exceptions can be made
34
9/4/2021
18
Required (not Legally) Policies and Procedures
• ADA Policy
• Reasonable Accommodation Policy
• Nondiscrimination/Anti-harassment Policy (including no retaliation)
• Confidentiality Policy
35
Reasonable Accommodations
36
9/4/2021
19
Reasonable Accommodations 2
• Reasonable accommodations: any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities• Modifications/adjustments to a job application process; or
• Modifications/adjustments to the work environment, or to how the position is customarily performed; or
• Modifications/adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment
37
Accommodations
• Must only be reasonable
• Requests do not need to be written
• Do not need to use the words “reasonable accommodation” in the request
• Needs to be acted on promptly• Interactive process
• Requires follow-up
38
9/4/2021
20
Work Scenarios
• ADHD• PTSD• Alcoholism• Anxiety• Diabetes• Mobility Issues• Deafness• Vision• Concussions• COVID
39
Legal Updates
40
9/4/2021
21
Q&A
41
I Will Start:
• Do employers have to accommodate for emergency situations?
• Can employers apply a no-fault attendance policy?
• Do employers have to consider working from home as an accommodation?
• Can the ADA extend FMLA leave?
• Can an employer make an employee pay for the reasonable accommodation?
• Do employers have to provide an accommodation for on-the-job travel?
42
9/4/2021
22
Your Turn
43
My ability is stronger than my disabilityAnonymous
44
