Guide to the ADA
SUPERVISOR’S GUIDE TO COMPLYING WITH THE AMERICANS WITH DISABILITIES ACT (ADA)
Table of Contents
- UNIVERSITY COMPLIANCE PHILOSOPHY
- OVERVIEW OF THE ADA
- What Is Covered
- Who Is Covered
RECRUITMENT UNDER THE ADA
- Defining Essential Job Functions, and Skills, Knowledge, and Abilities (SKAs)
- Screening and Interviewing Under the ADA
- Preferential Consideration of Employee Rehabilitation Services Referrals
SELECTING AND HIRING
- Medical Examinations
- Scope of the Act
- Two Exceptions to Reasonable Accommodation
- Disability Management Process for Current Employees
- Undue Hardship Review Process
MOST COMMONLY ASKED QUESTIONS & ANSWERS
WHERE TO GET HELP WITH ADA QUESTIONS
I. UNIVERSITY COMPLIANCE PHILOSOPHY
The University’s personnel policies are in compliance with both the substance and intent of the employment provisions (Title I) of The Americans with Disabilities Act of 1990, as well as with the provisions of Section 503 and 504 of the Rehabilitation Act of 1973.
Accordingly, in the application of its personnel policies, the University’s intent is to establish and sustain employment practices which do not discriminate against and/or have disparate or adverse impact upon disabled individuals on the basis of a disability.
This SUPERVISOR’S GUIDE is not a contract or University policy and is provided for informational purposes only. The SUPERVISOR’S GUIDE may be changed at any time at the sole discretion of the University.
II. OVERVIEW OF THE ADA
The President of the United States signed the Americans with Disabilities Act of 1990 (ADA) into law on July 26, 1990. The Act makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also prohibits discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications. The regulations for each of these areas are carefully detailed in the Act’s five titled sections:
Title I Employment Title II Public Services Title III Public Accommodations Title IV Telecommunication Relay Services Title V Miscellaneous Provisions
The purpose of this booklet is to explain the part of the ADA that prohibits job discrimination as covered by Title I of the Act. This part of the Act is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).
- What Is Covered
The ADA makes it unlawful to discriminate in all employement practices such as:
Recruitment Leave Hiring Benefits Promotion Dismissal Training Job Assignment Lay-Off All other related activities Pay
The Act also prohibits an employer from retaliating against applicants or employees for asserting their rights under the ADA. The University’s compliance obligation began on July 26, 1992.
- Who Is Covered
Title I of the ADA protects qualified individuals with disabilities from employment discrimination. To be protected under the ADA, an individual must have a physical or mental impairment that substantially limits one or more of the major life activities of such individual, have a record of such an impairment, or be regarded as having such an impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as: hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, or working.
An individual with a disability must also be qualified to perform the essential functions of the job with or without a reasonable accommodation, in order to be protected by the ADA. This means that an applicant or employee must:
- satisfy job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and
- be able to perform those tasks that are essential to the job, with or without reasonable accommodation.
The ADA does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified applicant or employee because of his or her disability.
III. RECRUITMENT UNDER THE ADA
The recruitment policies of the University still apply under the ADA.
- Defining Essential Job Functions and SKAs
All University positions should have written job descriptions, which identify the essential functions of the position. While the ADA does not require the employer to have written job descriptions, the presence of them is seen as evidence of the position’s essential functions. The job descriptions will also be required to outline the special skills, knowledge and abilities (SKAs) required to carry out the essential functions. Essential functions are the basic job duties that an employee must be able to perform with or without reasonable accommodation. As the supervisor, you must carefully examine each of your positions to determine which functions or tasks are essential to performance. In identifying an essential function, you should focus on the purpose of the function and the result to be accomplished rather than on how the function is currently performed.
Example: In a job requiring the use of a computer, the essential function is the ability to access, input and retrieve information. It is not essential that the employee enter information manually or read the information on the screen visually, since adaptive devices or computer software can enable a person without arms or with impaired vision to perform the essential functions of the job.1
In determining whether a function is essential to the position you should consider the following factors:
- Whether the reason the position exists is to perform that function;
- The number of other employees available to perform the function or among whom the performance of the function can be distributed;
- Whether the function is highly specialized and the incumbent is hired for the degree of expertise or skill required to perform the function.
The job description forms currently used to classify University positions will continue to be used. It is important, however, that the duties you list are clearly labeled. Tasks and duties that meet one or more of the above three factors will typically support labeling them as "essential" functions. Duties or tasks not meeting the above test or which are not essential to the positions should be labeled "other duties." Your judgment as to which functions are essential along with the written job description become the University’s prime evidence of a position’s essential function. The University’s obligation to make reasonable accommodation is tied to the position’s essential functions.
Screening and Interviewing Under the ADA
The University Policy of selecting the most qualified candidates for its positions still applies. The ADA does not force the employer to select an unqualified or lesser qualified candidate simply because he/she possesses a disability.
In screening applications the supervisor’s assessment decisions must be job related. A candidate’s inability to perform the essential functions of a position, with or without reasonable accommodation, should form the basis for all review decisions. The supervisor’s assessment decisions should be documented for Human Resources (Staffing & Compensation) and a record should be retained for future reference.
In interviewing candidates, it is unlawful under the ADA to ask an applicant whether he/she is disabled or about the nature or severity of a disability. The interviewer may ask applicants questions about their ability to perform job related functions as long as the questions are not phrased in terms of a disability. One may also ask applicants to describe or to demonstrate how, with or without a reasonable accommodation, they will perform job-related functions.
It is important that the interview proess be applied equally to all candidates and the questions pertaining to their ability to perform be asked of all candidates. The Human Resources Department offers an interviewing workshop for interviewers.
Preferential Consideration of Employee Rehabilitation Services Referrals
Departments are required to consider employee applicants referred by Employee Rehabilitation Services prior to reviewing the applications of any external candidates and/or any employee who is not eligible for recall or lay-off preference. Human Resources will be responsible for coordinating the applicant referral process and ensuring the apporpriate preferential sequence is followed.
IV. SELECTING AND HIRING
It is a violation of the ADA for a selecting official to refuse to select a qualified individual with a disability based merely on:
- the individual’s inability to perform a non-essential function of the position,
- the individual’s need for a reasonable accommodation, unless the accommodation would cause an "undue hardship" or is otherwise unavailable.
Employers are not required to offer preference in the selection process to individuals with disabilities. However, in instances where the assessment is that an individual with a disability is substantially equally qualified with others without a disability then the selection decision may be made in compliance with state and federal Affirmative Acion laws and employee career enhancement commitments.
Consistent with appropriate provisions of collective bargaining agreements and personnel policies, an employee with a disability may be selected for a position which has not been publicized.
- Medical Examinations
The use of medical examinations under the ADA is permitted, but under very specific circumstances, namely:
- Medical examinations can be required only after an offer of employment has been extended.
- The requirement of a medical examination must apply to all employees in the job group.
- The results of the medical examination must be kept confidential and maintained in separate medical files.
- Medical restrictions derived from the medical examinations must be job related.
The offer of employment may be made conditional on the candidate’s successful completion of a medical examination. Human Resources must be informed prior to the start of recruitment when the department intends to require the successful applicant to undergo a medical examination. Such a requirement will become a part of the recruitment notice.
The physician conducting the medical examinations should be given a copy of the position’s essential functions, along with any required skills and abilities.
V. REASONABLE ACCOMMODATION
- Scope of the Act
The ADA makes reasonable accommodation an affirmative obligation (unless the University can prove "undue hardship" or "threat to safety") in three areas: (1) permitting an employee to perform essential job functions, (2) testing and application procedures, and (3) permitting a disabled employee to enjoy benefits and privileges of employment (including access to non-work areas) that are "equal to" those afforded other similarly situated employees.
Reasonable accommodation may include any of the following:
- making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
- initiating part-time or modified work schedules;
- acquiring or modifying equipment or devices;
- appropriately adjusting or modifying employment examinations, training materials or local practices;
- providing qualified readers or interpreters;
- reassigning or referring a disabled individual to an active vacant position if all attempts to implement other reasonable accommodations have been unsuccessful.
Two Exceptions to Reasonable Accommodation
- The University may be absolved from providing reasonable accommodation if there is no accommodation that can be provided without undue hardship. "Undue hardship" refers to any accommodation that would be unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature of the business or service. The limitations of the department’s funds and resources is only one factor in determining undue hardship. The department must take into account the size, resources, nature and structure of the campus, as well as the impact on the specific facility providing the accommodation. It is only under rare circumstances that financial cost, claimed on the basis of its impact on a departmental budget, will be adequate to meet the test of undue hardship
- The University is not required to employ an individual with a disability who poses a "direct threat" to the health and safety of him/herself or others and who cannot perform the job at a safe level even with reasonable accommodation. This is a very narrow exception for which the employer will bear the burden of proof.
To reject on this basis, one must be able to show that there is not only high probability of substantial harm, but also that no reasonable accommodation could either eliminate the risk or reduce it to an acceptable level.
Accordingly, the University must identify that aspect of the disability that would impose a direct threat, taking into consideration the following four factors:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and,
- the imminence of the potential harm.
Disability Management Process for Current Employees
Informal efforts to accommodate the functional limitations of an employee with a disability may be made by the supervisor. Employee Rehabilitation Services should be contacted if assistance is needed in these efforts. A review by Employee Rehabilitation Services is required in cases where medical separation is an issue.
If the disability precludes the employee from performing essential job functions and reasonable accommodation is in dispute, then the undue hardship review process should be initiated.
Undue Hardship Review Process
When reasonable accommodation is in dispute, departments shall review and document the factors which constitute undue hardship and forward this information to appropriate higher level management and Employee Rehabilitation Services. Where undue hardship continues to be in dispute, Employee Rehabilitation Services will consult with Labor & Employee Relations and other University resources. If resolution cannot be obtained, the matter will be referred to the Human Resources Director and the ADA Coordinator for a final determination.
If the disability precludes the employee from performing essential job functions and reasonable accommodation cannot be accomplished, then the employee may be medically separated. Existing medical separation policies and appropriate provisions of collective bargaining agreements would apply.
VI. MOST COMMONLY ASKED QUESTIONS & ANSWERS
Q. Who is a "qualified individual with a disability"?
A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. Requiring the abililty to perform "essential functions" assures that an individual will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not necessarily conclusive evidence, of the essential functions of the job.
Q.Does an employer have to give preference to a qualified applicant with a disability over other applicants?
A. No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to the existence or consequence of a disability. For example, if two persons apply for a job opening as a typist, one a person with a disability who accurately types 50 words per minute, the other a person without a disability who accurately types 75 words per minute, the employer may hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.
Q. Are people with AIDS covered by the ADA?
A. Yes. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIV disease from discrimination.
Q. How does the ADA recognize public health concerns?
A. No provision in the ADA is intended to supplant the role of public health authorities in protecting the community from legitimate health threats. The ADA recognizes the need to strike a balance between the right of a disabled person to be free from discrimination based on unfounded fear and the right of the public to be protected.
Q. One of my employees has a broken arm that will heal, but is temporarily unable to perform the essential functions of his job as a mechanic. Is this employee protected by the ADA?
A. No. Although this employee does have an impairment, it does not substantially limit a major life activity if it is of limited duration and will have no long-term effect.
Q. What is "reasonable accommodation"?
A. A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has the same rights and privileges in employment as non-disabled employees.
Q. How do I determine whether a reasonable accommodation is appropriate and the type of accommodation that should be made available?
A. The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on a case-by-case basis, because the nature of a disabling condition and the requirements of a job will vary. The principal test in selecting a particular type of accommodation is that of effectiveness; i.e.,whether the accommodation will enable the person with a disability to perform the essential functions of the job. It need not be the best accommodation, or the accommodation the individual with a disability would prefer, although primary consideration should be given to the preference of the individual involved. However, as the employer, you have the discretion to choose between effective accommodations, and you may select one that is the least expensive or easier to provide. (Employee Rehabilitation Services is available to assist Supervisors in evaluating accommodation options.)