With funding from the U.S. Department of Education, Cornell University prepared a series of technical assistance materials targeted to employers on implementing the Americans with Disabilities Act. Though a few years old, I've just obtained the complete series in electronic form and think it is worth sharing. I've put general topics related to ADA and employment first, followed by guidance on accommodating specific disabilities. Each handout is separated by a line of ten dashes to help one search for the next one. The order is as follows: A HUMAN RESOURCE PERSPECTIVE ON IMPLEMENTING THE ADA THE ADA AND PERSONNEL TRAINING THE AMERICANS WITH DISABILITIES ACT OF 1990 AND INJURED WORKERS THE AMERICANS WITH DISABILITIES ACT AND WORKERS' COMPENSATION PRE-EMPLOYMENT TESTING AND THE ADA REASONABLE ACCOMMODATION UNDER THE ADA HEALTH BENEFIT PLANS AND THE ADA CAUSES OF POOR INDOOR AIR QUALITY AND WHAT YOU CAN DO ABOUT IT THE ADA AND COLLECTIVE BARGAINING ISSUES CULTURAL DIVERSITY AND THE ADA THE ADA AND TOTAL QUALITY MANAGEMENT EMPLOYING AND ACCOMMODATING INDIVIDUALS WITH HISTORIES OF ALCOHOL OR DRUG ABUSE ACCOMMODATING THE ALLERGIC EMPLOYEE IN THE WORKPLACE WORKING EFFECTIVELY WITH PEOPLE WHO ARE BLIND OR VISUALLY IMPAIRED WORKING EFFECTIVELY WITH PERSONS WHO HAVE COGNITIVE DISABILITIES WORKING EFFECTIVELY WITH PERSONS WHO ARE DEAF OR HARD OF HEARING EMPLOYMENT CONSIDERATIONS FOR PEOPLE WHO HAVE DIABETES WORKING EFFECTIVELY WITH INDIVIDUALS WHO ARE HIV-POSITIVE WORKING EFFECTIVELY WITH PEOPLE WITH LEARNING DISABILITIES EMPLOYING AND ACCOMMODATING WORKERS WITH PSYCHIATRIC DISABILITIES WORKING EFFECTIVELY WITH EMPLOYEES WHO HAVE SUSTAINED A BRAIN INJURY Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- A HUMAN RESOURCE PERSPECTIVE ON IMPLEMENTING THE ADA How should I go about developing and implementing a plan? The information presented here focuses on the steps needed to ensure compliance with the ADA. More importantly the information focuses on implementation strategies for the short-term and long-term. The key in any implementation program plan is to maximize employment opportunities for individuals with disabilities. While most of the suggestions might work better in medium-sized or large companies, smaller organizations can develop similar models given their own resources and culture. It may seem that the provided suggestions are expensive, but they need not be. Use the talents, expertise and resources within your organization. Seek out agencies in the community that have additional expertise and are ready to help--often at no expense. Outlined below are the steps to assure ADA compliance: 1. Immerse yourself in ADA literature You canþt read enough, listen enough, or learn enough when preparing you and your organization for legislative compliance. Because the ADA legislation is so comprehensive the only way to understand the impact and the requirements is to read, read and read some more. Not just the regulations and the technical assistance manual provided by EEOC, but handbooks, articles, training guides, etc. While there are a few cases out there now to help you decide if the approach you have taken is on target, you will want to remember that everything you do should be on a case-by-case basis. The more basic background information you have learned, the easier it will be to make good, defendable decisions. It is also important to consult with legal counsel as you develop policies and procedures no matter how well grounded you are. 2. Secure support "from the top." Now that you are "informed," you need to sell the top administrators in your organization that ADA is alive and well. And that your organization canþt rely on past practices in making good faith efforts to hire individuals with disabilities. Good faith efforts are not enough. Now your efforts must be programmatic, must be concerted, must be coordinated. And to do that, the President, CEO, CFO and/or other top-level administrators must understand the impact of ADA on your organization. You will need to secure their support and authority for the program you develop to succeed. How do you do that? Meet with them. The best way to sell ADA is to gain support that the ADA is not only legally required for covered employers and a good business decision, but the "right thing to do" ethically and morally. A centralized approach will be easier to administer ; authority needs to be centralized to ensure consistent application of programs, policies and procedures. When securing top-level administrative support it will be helpful to outline the pros and cons of centralized versus decentralized authority. Legal counsel may be helpful in detailing the impact of noncompliance and inconsistent applications of decisions. 3. Appoint a Task Force and/or hire a Coordinator You need two things: buy-in and authority. While not required by the ADA, you may want to appoint an organization-wide Task Force. You can then utilize the expertise, ideas and input from staff members at all levels of the organization. Invite individuals with disabilities, members of a collective bargaining agreement, and external customers as "consultants" to the group. An ADA Coordinator hired to develop and implement the organizationþs program (again not required, but helpful) is further evidence of commitment and support in ensuring compliance with the regulations; and can make implementation and administration easier. If a full-time coordinator is not justified, at minimum identify an ombudsman or intercessor. Employees will then have an internal, informal access point rather than starting their complaint process outside the organization with legal counsel or other third parties. 4. Review policies, procedures, and forms Certainly your employment policies and procedures should be scrutinized carefully. BNA has published a self-evaluation guide that may be a start (Bureau of National Affairs, Inc., 1991). This guide asks you to look at not only your recruiting and hiring practices (including qualification standards and selection criteria), but your upgrading, promotion, demotion, transfer, layoff, termination and rehiring procedures. You will also want to look at your testing programs and processes. Are your application forms in compliance? Will you invite applicants to request reasonable accommodations? Is your employment office accessible to individuals with disabilities? Do your interviewers know what they can and canþt ask, when they can and canþt ask? The ADA prohibits an employer from asking an applicant, at the pre-offer stage, about job related injuries or workers' compensation history. You may require a medical examination and may condition an offer on the results of this examination after an offer of employment is made, but before the individual actually begins work, if all entering employees in the same job category are given an examination regardless of disability. You should also review your recordkeeping requirements and the need for confidentiality of information obtained during the medical examination. Do you require drug testing? Do your supervisors know what to do when reviewing performance issues for all individuals including those who may have a disability? What is the approach a supervisor should take if he/she does not know the individual may have a disability? Are your benefits programs (medical, hospital, accident, life insurance, retirement programs) in compliance? What about Workersþ Compensation? (There is a good article, "Shining Light on ADA" you might want to read (Pimental & Lotito, 1992)). Are lunchrooms, lounges, bathrooms, etc. accessible to all employees? Are your businessþ social and recreation activities made accessible to all employees? Are all your program offerings accessible to all employees? Your assessment should be complete--when you read information in any of the guides or assistance manuals, write yourself notes and jot down questions. What are we doing now? What should we be doing? What could we be doing? 5. Review job descriptions ADA does not require employers to have written job descriptions. But most of the literature suggests that properly prepared job descriptions are critical in complying with the regulations. Job descriptions can be a valuable tool in the recruitment, selection, hiring, and accommodation assessments needed for successful programs. Job descriptions are a road map for supervisors, interviewers, medical staff, even applicants and employees throughout the employment process. The job description should be used prior to recruitment and posting. A copy should be given to applicants. The key is to articulate and understand what the essential functions of the job are. This will help in determining what accommodations can or cannot be made. 6. Develop budget requirements Yes, implementation of the ADA program will cost you money. But you donþt necessarily need to look at program costs as a burden. The Job Accommodation Network has compiled information that reinforces the point that job accommodations may not be as cumbersome as some may suspect: * 31% cost nothing at all * 19% cost between $1 and $50 * 19% cost between $51 and $500 * 19% cost between $501 and $1000 * 11% cost between $1001 and $5000 * 1% cost more than $5000 It should also be noted that most individuals with disabilities do not require any accommodations. An employer must seek out assistance in paying for accommodations before it can "cry" undue hardship. The employer should work with the individual who needs the accommodation. Many times the applicant or employee already possesses the required accommodation and is willing to use it in the workplace. When developing a budget it may make sense to centralize funding for accommodations. Supervisors are likely to resist paying for accommodations and may say "it is too expensive." There are many factors developed by the EEOC that only the employer can analyze (not the specific supervisor) when determining "expense" and undue hardship. 7. Develop a process for making accommodations and determining undue hardship Your process for making accommodations must be on a case-by-case basis but within a structured system for making assessments. The EEOCþs regulations and technical assistance manual provide in-depth information about the process for determining appropriate reasonable accommodations. They recommend a problem-solving approach or process which includes 1) analyzing the particular job (purpose and essential functions), 2) consulting with the individual with the disability and how limitations to his or her ability to perform essential job functions could be overcome with accommodations, 3) identifying potential accommodations (with use of external sources such as JAN, state or local rehabilitation agencies or from disability constituent agencies), 4)considering the preference of the individual, and 5) selecting the accommodation that is most appropriate for both the employee and the employer. Remember, "employment decisions must be based on the abilities of individual applicants or employees, and not on ... presumptions or generalizations about what individuals with disabilities can or cannot do."* Unlawful activities in making accommodations include restricting the duties of the employee based on þwhatþs bestþ for the employee, having separate tracks for job promotions or progression, physically separating employees in a particular office or area. Be sensitive. Be sensible. 8. Develop training programs and manuals Training is key. Training is important at all levels of the organization. Not just interviewers. Not just hiring supervisors or administrators. But all employees. Why? ADA isnþt just about a law to provide equal access to individuals with disabilities. Itþs about sensitivity, itþs about looking at our behaviors and attitudes and making us realize we may be part of the problem in ensuring equal access--and making sure we are part of the solution in ensuring equal employment opportunity. 9. Review of collective bargaining agreements Your unions are also subject to the ADA regulations. You will want to work closely with them to ensure there is flexibility in the contracts to allow accommodations to be made if appropriate. The regulations suggest that the terms and conditions of a collective bargaining agreement may be used as a factor in determining whether an accommodation would be an undue hardship. However, you will want to look at all the factors and focus on good faith efforts with the union. The key is to fulfill the legal obligation to make reasonable accommodations for the employee. 10. Develop and implement a comprehensive communication program Communication vehicles need to be multi-faceted. Articles in your in-house newsletter wonþt do it. Training manuals for supervisors wonþt do it. You will want to make presentations (invite yourself to department meetings, donþt expect people to come to you). Develop a plan that focuses on before, during and after implementation. Know that communication is ongoing, not just for the first six months after implementation. Like any program, it is only as good as what employees hear and know about the program. 11. Develop evaluation and monitoring tools Many of the articles and information suggest the need to document, document, document. By documenting what you are doing, you are showing your good faith efforts--appointment of a Task Force, communication of plans for implementation, etc. You will also want to develop a system for recording not only what accommodations have been made for whom but what attempts were made to make accommodations, including what resources you accessed in your attempts. And a system for indicating when accommodations were not made because of your interpretation of undue hardship. Documentation and evaluation are important components of any program, including your ADA plan and program components. Make sure your systems are in place early. Logs, files, documentation processes should start as soon as possible, not when you "start" the program. Conclusion Implementation of the ADA program for your organization will take time and effort. But taking the time on the front end (a proactive approach) to outline your plan is much more effective than reacting later to specific issues or problems. You can take the cautious approach, the insightful approach or the visionary approach. If employers are sensitive and programmatic in their implementation philosophy and plan, we will start to make some strides in equal employment opportunity for all individuals -- those with and those without disabilities. Resources ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). * From Lotito, M.J., Esq. with Jones, Craig, & Pimental, R. with Baker,L. (1990). "The Americans with Disabilities Act: Making the ADA work for you." Milt Wright & Associates, Inc./Jackson, Lewis, Schnitzler & Krupman, page 23. This brochure was written by Kay N. Robinson, SPHR, Assistant Vice Chancellor for Business Affairs - Human Resources, University of North Carolina at Wilmington, North Carolina. This publication is taken from a more extensive review of the topic entitled "A Model Plan for Implementation of Title I of the Americans with Disabilities Act of 1990: The Human Resource Perspective," which is currently available for purchase from your Regional Disability and Business Technical Assistance Center at 1-800-949-4232, or from LRP Publications (specify Product #31015.PLAN, 24 pp., $9) at Dept. NIDRR, PO Box 908, Horsham, PA 19044-0980, phone 1-800-341-7874, Fax 1-215-784-9639. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- THE ADA AND PERSONNEL TRAINING What is the Americans with Disabilities Act? The Americans with Disabilities Act (ADA) is a landmark piece of Civil Rights legislation that extends the prohibition against discrimination on the basis of race, sex, religion, and national origin to persons with disabilities. Because the ADA covers all aspects of participation in society, such as employment, public accommodations, transportation, and telecommunications, its impact will be felt in business organizations in multiple ways. Businesses will be impacted by the ADA both as employers and as providers of goods and services. It is therefore important that each business organization prepare its employees for the Americans with Disabilities Act by providing appropriate information and personnel training on the provisions of the ADA, its relevance to the functioning of the organization as a whole, and the responsibilities of specific personnel. Which personnel in our organization should receive training on the ADA? Since the impact of the ADA is broad, virtually everyone in your organization might find informational material or training on the ADA relevant for their respective functioning. General information could be useful to all employees, informing them of their rights under the ADA. Employers should consider a number of personnel who may benefit from ADA training both in terms of ensuring that their efforts are in compliance with the ADA, and to ensure that their response to persons with disabilities in their respective functioning is appropriate. Personnel categories which can be considered for training are as follows: training or staff development personnel; human resource development professionals; top management; middle managers; front line supervisors; line employees; union leadership and field representatives; benefits and compensation staff; safety and environmental health personnel; recruitment and job interviewing personnel; industrial/organizational psychologists or other personnel doing pre-employment screening; organizational development personnel; ergonomic specialists; short and long-term disability managers; customer relations representatives; receptionists and others who interface with the general public. Which kinds of information on the ADA should be shared with these personnel? Most personnel can benefit from some basic knowledge about the existence of the law and its requirements. More specific information should be directly relevant to the functioning of these personnel and their responsibilities, which might be impacted by the requirements of a particular provision of the ADA. The following are some examples of personnel training that can be considered and targeted to meet the unique information needs of personnel, dependent upon their job functioning: * Overall knowledge of all titles of the ADA * Knowledge specific to the ADA employment provisions * Knowledge specific to the ADA public accommodations provisions * Employment pre-screening and applicant interviewing under the ADA * Medical, drug, and other testing under the ADA * Interface of the ADA with other state and federal employment and non-discrimination legislation * Identifying essential job functions * Writing job descriptions that identify essential job functions * The reasonable accommodation process * General information regarding specific disabilities an possible accommodations * Job evaluation and compensation information and persons with disabilities * Career equity/promotional considerations for persons with disabilities * Reskilling when disability occurs * Non-discriminatory performance appraisals * The impact of the ADA on accommodation requirements in personnel training * Customer relations with customers with disabilities * Data/record keeping on accommodations * Negotiation/conflict management in the reasonable accommodation process * The place of job coaching and/or supportive employment in the reasonable accommodation process Selected topics, such as specific accommodations for persons with particular disabilities may be best presented by coupling the information of an instructor familiar with the ADA, with that of a professional with expertise on accommodation for such persons. Some examples of these professionals might be an ergonomist, physical or occupational therapist, rehabilitation counselor, supported employment specialist, mental health or drug and alcohol abuse therapist/counselor, or rehabilitation engineer. Other topics which may not directly relate to the requirements of the ADA, but may support the intent of the ADA are training in such topics as: attitudes toward persons with disability; disability as a facet of cultural diversity; effective disability management; prevention of disability; and effective recruitment of persons with disabilities. The above list is not exhaustive, but representative of many content areas which can be considered for effective information sharing and staff development on the provisions of the Americans with Disabilities Act of 1990. Specific content should be targeted toward the job responsibilities of personnel receiving the training. Where is a good place to start a training effort on the ADA? As previously mentioned, personnel at all levels of an organization might benefit from ADA information and training. Getting the support and commitment from top management is an imperative place to start for any such effort. It is important for any such information dissemination initiative to be seen as a company-wide commitment for a real impact to occur. In larger companies, where human resource professionals are the personnel chiefly responsible for employee recruitment, interviewing, pre-employment screening, benefits, compensation, and training, this department may be the appropriate place to focus initial information dissemination efforts. It would also be useful to include employee and labor relations personnel in this round of training. The next level of training in larger companies, and perhaps the first level of focus in smaller companies is that of managers. Some of the topics on the ADA employment provisions which can be targeted to the information needs of supervisors are as follows: pre-employment screening and ADA requirements; medical, drug, and other testing; writing job descriptions with essential job functions; the reasonable accommodation process; performance expectations and the person with a disability; and equal access for persons with disabilities to staff development and promotional opportunities. What are factors to consider for accessibility of training to persons with disabilities? The employment provisions of the Americans with Disabilities Act provides that þno employer shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job training.þ This may mean that personnel trainers, to meet the accommodation needs of a trainee with a disability, could be required to make any of the following examples of possible modifications to address the need of a given individual: * Restructuring or simplifying training formats to accommodate trainees with cognitive impairments * Making training rooms wheelchair accessible * Brailling or audio-taping print materials * Providing a sign language interpreter or reader * Captioning videotape materials * Being aware of environmental irritants for chemically sensitive trainees * Advocating on behalf of a trainee for training held elsewhere, when an accommodation is needed for that individual Are there other related training responsibilities we should be considering? The ADA employment provisions also state that covered entities cannot use a third-party to discriminate on their behalf. Thus, employers should also consider the possible information needs on ADA requirements of organizations that they have contractual relationships with, for example, insurance companies, third party administrators of worker compensation or health care benefits, labor unions, or employee assistance programs. ADA Title I prohibits discriminating against a qualified individual with a disability in all terms, conditions, and privileges of employment, including health benefits. The ADA specifically prohibits participating in a discriminatory contractual or other arrangement with organizations that provide fringe benefits to employees. The union steward is the person in the union with whom each member may have direct contact -- to whom s/he brings his/her problems and grievances, from whom s/he gets information, and who s/he generally sees everyday on the job. The shop steward can serve a role in information dissemination on the ADA. It is at this level that information about the ADA can be shared with union membership on such topics as the union's role in informing the workforce about non-discrimination of persons with disabilities in the workplace and the reasonable accommodation process. There are a number of topics related to the ADA employment provisions which may have relevancy to the functioning of Employee Assistance Program (EAP) professionals. The prior focus of EAP professionals has been on service to persons who have alcohol and drug addiction problems; certainly these individuals may be persons who are covered by the employment provisions of the Americans with Disabilities Act of 1990. Therefore, providing EAP professionals with information about categories of covered entities under the ADA, and their rights in terms of non-discrimination in employment practices is most important. In addition, persons with disabilities of other kinds may also seek support from EAP professionals to assist them through the difficult times they incur when a disabling condition or serious illness impacts their work and day to day life functioning. EAP professionals may be the support counseling system for business organizations, and therefore providing EAP professionals with information about the impact of disability, and the rights of persons with disabilities is most appropriate. Where can I get further resources to conduct training on the Americans with Disabilities Act? Many private commercial distributors and not-for-profit organizations have now developed informational and training materials on the ADA. A comprehensive listing of print and audio visual materials on the employment provisions of the ADA is provided in the expanded version of this paper available through your local Disability and Business Technical Assistance Center or LRP Publications, as listed on page one of this informational brochure. In addition, listings of resources and copies of publications and video tapes are available from your local Disability and Business Technical Assistance Center; call 1-800-949-4232 to request such a list. A complete listing of products and training packages produced by the National Materials Development Project on the ADA Employment Provisions at Cornell University is available either from the Program on Employment and Disability in the School of Industrial and Labor Relations at (607)255-7727, or also from your regional disability and business technical assistance center as listed above. Further resources on the Employment provisions of the ADA are available from the following: Job Accommodation Network (JAN), 800/526-7234, West Virginia University, P.O. Box 6080, Morgan-town, West Virginia 26506-6080. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). ADA Regional Disability and Business Technical Assistance Center Hotline, 800/949-4232 (voice/TTY). -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- THE AMERICANS WITH DISABILITIES ACT OF 1990 AND INJURED WORKERS What is the Americans with Disabilities Act? The Americans with Disabilities Act of 1990 is civil rights legislation that extends to persons with disabilities the same protection against discrimination that has been in place for other persons on the basis of race, sex, religion, and national origin. The ADA covers all aspects of participation in society--employment, public accommodations, transportation, and telecommunications. The employment provisions of the Americans with Disabilities Act (Title I) prohibit discrimination against persons with disabilities in all facets of employment, including: recruitment, pre-employment screening, hiring practices, promotional practices, and layoffs and terminations. Employers, human resource professionals, and labor union representatives need to be aware of the requirements of the ADA in order to respond appropriately to accommodation requests by workers with disabilities. Is there a relationship between the ADA and injured workers? The employment provisions of the ADA became effective on July 26, 1992. Private employers, state and local governments, employment agencies, labor unions, and joint labor-management committees must comply with Title I of the ADA. Covered employers are those who have 25 or more employees (July 15, 1992) or 15 or more employees (July 15, 1994), working for them for 20 or more calendar weeks in the current or preceding calendar year. The definition of "employer" includes persons who are "agents" of the employer such as managers, supervisors, foremen, or others who act for the employer, such as agencies used to conduct background checks on candidates. Therefore, the employer is responsible for actions of such persons that may violate the law. In the first year of the implementation of these provisions, almost 13,000 charges have been filed with the Equal Employment Opportunity Commission, that branch of the federal government that oversees compliance with the employment provisions of the ADA. The ADA violations most often alleged in these complaints in the first year, have been wrongful discharge (49%) and failure to provide reasonable accommodation (22%). The most often cited disability where discrimination has been charged is in back impairments (19%). These figures suggest that people already in the workforce who incur an illness or injury are using the coverage of the ADA to seek protection against discrimination. The areas which employers and workers should consider when trying to identify whether an issue for an injured worker is one that is relevant to coverage by the Americans with Disabilities Act are the following: whether the employee is one who is covered under the ADA, medical examination and medical inquiries under the ADA, confidentiality of medical records, and accommodation of injured workers. Is an injured worker automatically covered under the ADA? Whether an injured worker is protected by the ADA will depend on whether or not the person meets the ADA definitions of "an individual with a disability" and "qualified individual with a disability." For purposes of the ADA, a person with a disability is one whose physical or mental impairment substantially limits one or more major life activities of that individual, or the person has a record of such an impairment, or is regarded as having such an impairment. The key factor under this definition is that the person is substantially limited in his or her major life functioning. However, as the expanded definition indicates, a person who may no longer be experiencing this serious disability, but is discriminated against based on the history of that disability or the perception of being disabled, may also e a person protected under the ADA. Another important facet of definition under the ADA is the concept of the person being qualified for the job. The ADA protects an employee or job applicant who meets the applicable qualification standards and is able to perform the essential functions of the job, with or without the employer making a reasonable accommodation for that disability. The fact that an employee is awarded workers' compensation benefits, or is assigned a high workers' compensation disability rating, does not automatically establish that this person is protected by the ADA. Does the ADA change anything about my ability to find out about a worker's prior workers' compensation history? An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may ask about a person's workers' compensation history in a medical inquiry or examination that is required of all applicants in the same job category. An employer may not require an applicant to have a medical examination simply because the response to a medical inquiry discloses a previous on-the-job injury, unless all applicants in the same job category are required to have the examination. What does the ADA say about pre-employment medical examinations? Under the ADA, it is illegal to conduct medical exams prior to an employment offer. However, a covered entity may require a medical examination after making an offer of employment to a job applicant before beginning his or her employment duties, and may condition an offer of employment on the results of such examination, if all entering employees in the same job category are subjected to such an examination regardless of disability. If the employer withdraws a job offer because the medical examination reveals that the person does not satisfy certain employment criteria, the employer must be able to show that: * the exclusionary criteria does not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities; or * the exclusionary criteria is job-related and consistent with business necessity, and that there is no reasonable accommodation that will permit the individual with A disability to perform the essential functions of the job. With whom can medical records be shared? Information obtained from permitted medical examinations and inquiries is a "confidential medical record," and shall be collected and maintained on separate forms and in separate medical files. Access to the file and the information contained in it must be strictly limited and disclosed only under the following circumstances: * supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; * first-aid safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and * government officials investigating compliance with this chapter shall be provided relevant information on request. What is reasonable accommodation under the ADA? A critical concept in the employment provisions (Title I) of the Americans with Disabilities Act of 1990 (ADA) is that of reasonable accommodation. Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate in and enjoy an equal employment opportunity. The employer's obligation to provide a reasonable accommodation applies to all aspects of employment; the duty is ongoing and may arise any time a person's disability or job changes, unless the accommodation causes an undue hardship to the employer. An undue hardship is an action that requires significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation. An employment opportunity cannot be denied to a qualified applicant or employee solely because of the need to provide reasonable accommodation. If the cost of the accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would otherwise constitute an undue hardship for the employer. The ADA does not require an employer to create "light duty" positions unless the "heavy duty" tasks an injured worker can no longer perform are marginal job functions which may be reallocated to co-workers as part of the reasonable accommodation of job restructuring. An employer is not required to reallocate essential job functions when restructuring a job. However, if an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. Does filing a workers' compensation claim prevent an injured worker from filing a charge under the ADA? Filing a workers' compensation claim does not prevent an injured worker from filing a charge under the ADA. "Exclusivity" clauses in state workers' compensation laws bar all other civil remedies related to an injury that has been compensated by a workers' compensation system. However, these clauses do not prohibit a qualified individual with a disability from filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC), or filing a suit under the ADA, if issued a "right to sue" letter by the EEOC. Where can I go to get more information on these issues? The following are national resources available to you that will provide you with further information on the employment provisions of the Americans with Disabilities Act of 1990 and reasonable accommodation: ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). This publication was written by Susanne M. BruyŠre, Ph.D., C.R.C., Director, ILR Program on Employment and Disability, Cornell University, 106 ILR Extension, Garden Avenue, Ithaca, New York 14853-3901, 607/255-7727 (voice) or 607/255-2891 (TTY). This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. BruyŠre, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. OTHER TITLES IN THIS IMPLEMENTING THE ADA SERIES ARE: * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Working Effectively with People who are Blind or Visually Impaired * Working Effectively with Employees who have Sustained a Brain Injury * Workplace Accommodations for Persons with Musculoskeletal Disorders * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Working Effectively with People with Learning Disabilities * Accommodating the Allergic Employee in the Workplace * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with People who are Deaf or Hard of Hearing For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- THE AMERICANS WITH DISABILITIES ACT AND WORKERS' COMPENSATION: CRITICAL ISSUES AND MAJOR EFFECTS by Bruce S. Growick, Ph.D. and Patrick L. Dunn, M.S. The Ohio State University Cornell University, School of Industrial and Labor Relations National Institute on Disability and Rehabilitation Research This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations, Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed by the U.S. Equal Employment Opportunity Commission. Opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the authors and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and in its Technical Assistance Manual for Title I of the act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). You should be aware, however, that NIDRR is not responsible for enforcement of the ADA. The information, materials, or technical assistance are intended solely as informal guidance and are neither a determination of your legal rights or responsibilities under the Act nor binding on any agency with enforcement responsibility under the ADA. LRP Publications, Horsham, Pennsylvania Abstract The Americans with Disabilities Act (ADA) was signed into law by President Bush in 1990 and is having widespread impact on disability-related issues in America. It will continue to have an impact on the workplace for many years to come. The purpose of this paper is to examine the connection between the ADA and workers' compensation. Several areas of critical importance are examined for their impact on workers' compensation in America today: the differences in definition and coverage between the ADA and workers' compensation; workers' compensation inquiries on job applications and second injury funds; appropriate medical pre-screening in light of the ADA; the injured worker and health care benefits under the ADA; employer-based disability manage-ment strategies and reasonable accommodation; the role of collective bargaining and unions under the ADA; and possible employers concerns about the ADA and its enforcement. Included in the discus-sion are ways in which these issues might be resolved and the full implementation of the ADA achieved. Convergence and Divergence in the Americans with Disabilities Act of 1990 and Workers' Compensation The Americans with Disabilities Act (ADA) was signed into law by President Bush in 1990 and is having widespread impact on disability-related issues in America, especially in the area of workers' compensation. The purpose of Title I of the ADA is to remove the barriers that prevent individuals with disabilities from enjoying the same opportunity for employment as individuals without disabilities. For the first time in the history of America, individuals with disabilities in all sectors of employment (not just the federal government and their contractors and grantees) are protected from discrimination and unfair employment practices at the national level. To the largest minority group in our society -- the 43 million Americans with disabilities -- the ADA is, in essence, an extension of the Civil Rights Act of 1964. Title I of the ADA incorporates many of the standards set forth in the regulations implementing Section 504 of the Rehabilitation Act of 1973 and in the case law interpreting these regulations. It has been sufficiently documented that the unemployment rate of individuals with disabilities is currently about 66% while the unemployment rate of their non-disabled peers is only 10-15% at most (Harris, 1986). The high unemployment rate among people with disabilities results in a drain on our national resources and represents an absence in our labor pool of the many individuals who want to contribute to our society. A significant goal of the ADA is to reduce the unemployment rate of individuals with disabilities and thereby to reduce the amount of social supports provided to individuals who would not otherwise be able to care for themselves. Currently, approximately eight percent of our Gross National Product is allocated to subsidizing persons with disabilities. This means that about one dollar of the hourly pay of a citizen earning an average hourly wage is used for disability-related expenses (Harris, 1987). There are obviously strong monetary reasons for including as many individuals with disabilities in our workforce as possible. The overall intent of Title I of the ADA to increase the employment rate of persons with disabilities and their integration into society through greater accessibility and employment is important. However, it is also likely that Title I may have its greatest impact on disabled individuals who want to return to work after a work-related injury, rather than on individuals with disabilities who would be entering the workforce for the first time. Even though much debate was involved in drafting the ADA (11 congressional hearings and five committee markup sessions), workers' compensation was apparently not considered. There perhaps may be some reason for this apparent oversight. First of all, in order for persons with a disability to be covered under the ADA, they must be a "qualified individual" with a disability, defined in Title I of the ADA as: "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires". Employees injured on the job must meet the definition of a "qualified individual with a disability" to gain the protections of the ADA. Some individuals receiving workers' compensation, however, may not meet this definition and therefore would not be covered under the ADA. The separate protections afforded employees under workers' compensation laws and the ADA may have contributed to the lack of discussion of workers' compensation issues in the legislative history of the ADA. It is not surprising that the Equal Employment Opportunity Commission (EEOC), which has enforcement responsibility for Title I of the ADA, reported that, in the first two years that the employment provisions have been in effect (July, 1992 to July, 1994,) over 80% of the complaints (over 33,000 in all) filed under the ADA were done so by current employees rather than by applicants. These complaints include unlawful discharge (50%), unwillingness to make a reasonable accommodation (24%), and discrimination in other terms, conditions, or privileges of employment (17%). Furthermore, it is interesting to note that, according to the EEOC, the most common type of disabling condition being reported is back impairment. Back injuries are also the most common type of disability reported in claims of workers' compensation (ADA Compliance Guide, 1993). The overlap between coverage under the ADA and coverage under state workers' compensation laws is of potential importance to the workers' compen- sation system. When workers' compensation was developed in 1910 as the "exclusive remedy" for work-related injuries and illnesses, the control for the design, implementation, and maintenance of the systemÄwithin broad guidelinesÄwas given to the states. Each state was responsible for the development and articulation of its own system for protecting both employees and employers from the litigious aspects of injuries "occurring in and out of the course of employment" (DeCarlo & Minkowitz, 1989). Workers' compensation protects employers from further liability and costly civil suits. At the same time, it provides employees with weekly monetary compensation, with the medical care necessary to cure and relieve the effects of the "allowed" condition, and, in most states, with rehabilitation services designed to help injured workers return to employment. The workers' compensation system has been operating at the state level in this country for the last 80 years and has kept work-related injuries and illnesses out of the civil (tort) system with little interference from the federal government. However, through the provisions of the ADA, persons with disabilities resulting from work-related injuries may sue employers when the workers' rights against disability discrimination have been violated. From an employer's perspective, some provisions of the ADA may be advantageous. Costs related to disability can, in some cases, be extreme, and the ADA can help to reduce some of these costs. This is especially true if the disability is work-related and related to a valid workers' compensation claim. In 1986, employers across the country paid 87.3 billion dollars in compensation to people who couldn't work because of physical or mental impair-ments (Chelius, Galvin, & Owens, 1992). If medical, rehabilitation, and administrative expenses are added, the total for disability-related expenses to employers was almost 170 billion dollars, or approximately 4% of the GNP. On the average for most employers, disability costs approximately 8% of payroll, of which 4% are direct costs, 3% are hidden costs, and 1% are management costs. A more detailed discussion of the benefits of disability management programs to employers can be found later in the section entitled under the section entitled Employer-Based Disability Management Strategies and Reasonable Accommodation. Employers have so far indicated that they are most concerned about the effects of the ADA on workers' compensation. In 1991, Gilbride and Strenstrud from Drake University contacted 110 employers from 15 states and asked them about their perceptions and concerns surrounding the implemen-tation of the ADA (Gilbride & Stensrud, 1993). Out of 10 areas of concern (including hiring practices, job restructuring, and productivity), the impact of the ADA on workers' compensation was ranked eighth in importance. When the survey was again con-ducted in 1992, this same issue ranked first. This finding may suggest that, as the authors state, "employers did not initially recognize the full implications of the ADA upon the manner in which their companies needed to manage and respond to injured workers." Now that we have examined the relevance of the ADA to workers' compensation, it is equally important to examine some of the critical issues and major effects that the ADA will have on workers' compensation. Seven very important issues or factors will have profound effects on how the ADA impacts workers' compensation. These are (1) the differences in coverage between the ADA and workers' compensation; (2) workers' compensation inquiries on job applications and second injury funds; (3) the role of the medical exam in a post-ADA era; (4) health care benefits under the ADA as they affect the injured worker; (5) the role of collective bargaining and unions under the ADA; (6) employer-based disability management strategies and reasonable accommodation; and, finally, (7) the concerns of employers about the ADA and its enforcement. Difference in Coverage between the ADA and Workers' Compensation Before the full impact of the ADA is felt on the workers' compensation system in America today, the difference between the ADA and workers' compen-sation on the definition of who is eligible for coverage and what that protection entails needs to be clarified and resolved. This issue is perhaps the most important concern to employers, and its resolution must precede many other issues. Under the ADA, an individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. The ADA prohibits discrimination on the basis of disability against qualified individuals with disabilities. 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 require-ments of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position" (EEOC, 1992). Like other determinations under the ADA, deciding who is a "qualified" individual is a case-by-case process, depending on the circumstances of the particular employment situation. This process of individual determination is quite different from the way in which the workers' compensation system operates. Under workers' compensation in most states, all injured employees are covered as long as the injury occurs "out of and in the course of employment" (DeCarlo & Minkowitz, 1989). Therefore, an individual who is injured on the job but is not disabled can be covered under workers' compensa-tion but not under the ADA; conversely, a person who is severely injured away from work might be covered under the ADA but not under workers' compensation. This difference in coverage is highlighted by the EEOC's Technical Assistance Manual on the Employment Provisions (Title I) of the ADA wherein it states: "the fact that an employee is awarded workers' compensation benefits, or is assigned a high workers' compensation disability rating, does not automatically establish that the person is protected by ADA." In Figure 1, the two concentric circles which do not completely overlap show the differences in coverage between the ADA and workers' compensation. For example, an employee might sustain a serious work-related injury (such as an amputation) which may qualify the individual for coverage under both the ADA and workers' compensation (segment C); however, if a work-related injury (such as a laceration) is not serious enough to be covered under the ADA (segment A), or if a serious injury covered by the ADA as a disability is not work-related (segment B), then only one of the laws may be applicable. Coverage underCoverage underCoverage under Workers' both ADA only Compensation ADA and WC A CB a work-related a work-related injurya non-work-related injury or illness or illness that resultsimpairment that or any severity in a substantial limitationthat results in a of a major life activitysubstantial limitation of a major life activity Figure 1. The Difference in Coverage Between the ADA and Workers' Compensation It is important to note here that under the ADA, an impairment substantially limits a major life activity when 1.the individual is unable to perform a major life activity that the average person in the general population can perform with little or no difficulty; or 2.the individual is significantly restricted as to the condition, manner or duration under which an individual can perform a particu-lar major life activity as compared to an average person. Factors to consider in determining whether an individual is "substantially limited" in a major life activity are 1.the nature and severity of impairment; 2.the duration or expected duration of the impairment; and 3.the permanent or long-term impact, or expected permanent or long-term impact (EEOC, 1992). Situations in which an injured employee is covered under both the ADA and workers' compensation may be referred to as examples of double protection under both sets of legislation. In these situations, the settlement of a workers' compensation claim through a compromise and release agreement does not necessarily release an employer from obligations to that employee under the ADA. As part of the exclusive remedy doctrine of workers' compensation, when an employee has filed a workers' compensation claim, the liability arising from that accepted claim is not resolved until the employee returns to work or a settlement of that claim has been made. This settlement is commonly called a "compromise and release." With the passage of the ADA, employers released from their work-related liability under a workers' compensation settlement are concerned that they will be sued in civil court because of their apparent failure to consider reasonable accommodation and other means to retain injured workers. The potential penalties faced by employers found to be in violation of Title I of the ADA are identical to those levied for violation of Title VII of the Civil Rights Act of 1964 as amended in 1991 (EEOC, 1992). These penalties include: ùequitable relief, including injunctions against discrimination, the provision of a reasonable accommodation, reinstatement and back pay[1]. ùattorneys fees for the prevailing party. ùmoney damages (i.e., compensatory and punitive damages) and jury trial available for intentional discrimination only. ùpunitive damages available for when an employer acts with malice or reckless disregard for federally-protected rights. ùcompensatory and punitive damages capped depending on the number of employees, as follows: a. 15-100 employees:$ 50,000 cap b.101-200 employees:$100,000 cap c.201-500 employees:$200,000 cap d.500+employees:$300,000 cap Concern about this double protection is based on the possible scenario that an injured employee settles a workers' compensation claim with an employer and then files an ADA claim if the employer does not attempt reasonable accommo-dation that would allow the employee to return to work. While most state laws prohibit terminating workers for filing and collecting a workers' compensation claim, statistics show that relatively few workers actually return to work for the same employer after accepting a compromise and release, especially if the settlement involves litigation. The ADA gives workers who have been disabled by a work-related injury the opportunity to settle a workers' compensation claim and also enables them to demand the opportunity to return to work if he or she can perform the essential functions of the job, with or without an accommodation. Although compromise and release stipulations are used every day by employers and insurance companies, workers' compensation should also be concerned with helping a person return to and maintain employment regardless of work-related restrictions caused by an accident. The compromise and release agreement, which previously allowed employers to totally divorce themselves of further liability to an injured worker, may not now be a universal solution. These agreements do not release an employer from obligations to employees covered under the ADA. Employers are required to return a disabled worker to employment when the employee so requests and can perform the essential functions of the job with or without reasonable accommodation. Reassignment to a vacant position may also need to be considered if the employee cannot be accommodated in his current position. In a mock ADA trial held at the 1993 annual meeting of the National Association of Rehabilitation Professionals in the Private Sector (Ellis, 1993), a workers' compensation/ADA case was presented to a jury wherein an injured employee was suing an employer under the ADA. The person was an employee disabled by a work-related injury who needed an accommodation in order to return to his/her old job. The employer spent a great deal of money on an extensive rehabilitation plan including retraining for another job, without offering a reasonable accommodation so that the injured employee could return to his/her former job. The jury found in favor of the plaintiff, since the employer had not attempted to accommodate the injured worker even though indemnity, medical, and rehabilitation payments had been made over a three- year period. It is clear from this example that employers must allow employees with a disability to return to work if he/she can perform the essential functions of the job, with or without reasonable accommodation, regardless of payments previously made under workers' compensation. This additional responsibility for employers should not only reduce the number of lump sum settlements, but should also help disabled workers from becoming disenfran-chised from the work place and from later relying on other social support systems. Research has shown that most injured workers who settle their compensation claims spend most of their money within three years of settlement. Many of these individuals are supported eventually by other social systems, such as social security, unemployment insurance, and even public welfare. Even though double protection may be frightening to some employers, its effect may help employers to save money and employees to save their jobs. Job Applications and Second Injury Funds One of the major goals of disability advocates under the ADA is to change the way in which the employer views the applicant with a disability from the onset. In order to accomplish this goal, application forms for employment must now omit questions related to disability and workers' compensation history. Employers may ask questions about an applicant's qualifications, including inquiries into the applicant's ability to perform job-related functions. However, nonessential marginal functions of the job which the applicant cannot perform because of his disability can no longer be used as a basis for refusing employment. Prior to the passage of the ADA, it was a common practice to include a list of common illnesses and disabilities on job applications, with the applicant asked to indicate all that applied. In addition and most notably, these job applications also contained questions that asked job applicants about previously filed workers' compensation claims, including when and where the claim was submitted and on what medical condition the claim was allowed. It is obvious that the purpose of these questions was to screen out applicants who had a disability or who had a history of submitting workers' compensation claims. The apparent assumption here is that individuals with disabilities were poor job candidates regardless of the ability to perform the essential functions of the job, with or without an accommodation. Furthermore, if an individual had submitted a workers' compensation claim, s/he was assumed to be a bad risk for employment. Individuals with disabilities are now evaluated by their ability to perform job functions, rather than by an employer's misconceptions concerning disability and workers' compensation history. It is also important to note that the ADA requirement does not negate the positive effects of a second injury fund in workers' compensation. Currently, 46 states maintain a second injury fund in workers' compensation for this purpose (Alliance of American Insurers, 1994). Second injury funds in workers' compensation are established so that employers who hire a person with a previously sustained work-related limitation are not liable for compensation associated with injuries sustained while working for previous employers. (Eccleston, 1992). The purpose of a second injury fund is "to encourage the employment of [persons] who have a permanent partial disability by protecting employers and insurers from excess liability for workers' compensation for disability when a subsequent injury to such an employee merges with his [or her] pre-existing permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone." (La. Stat. Ann.-R.S. 23-1371A). If an employee suffers further injury where the pre-existing condition is wholly responsible for the work-related injury or illness, then all of the costs of the subsequent claim are absorbed by the second injury fund. In such cases, not only are the direct costs paid for, but these costs are also not charged to the account of an experience-rated employer (an employer whose premium is based upon the number of accidents.) Second injury funds are important to rehabilitation because, without them, the re-employment of injured workers would be difficult, if not impossible. The incentives for hiring a skilled worker who has sustained an injury yet who has been rehabilitated would be outweighed by the potential workers' compensation liabilities. A healthy and viable second injury fund in workers' compensation is an absolute prerequisite for an efficient industrial rehabilitation program in any state. For the employer, second injury funds restore balance to the workers' compensation system of reasonable liabilities; for the employee, they provide opportunity for re-employment regardless of prior losses, and for the rehabilitation professional, they remove a barrier to job placement endeavors that would otherwise thwart the best of intentions. Second injury funds are an excellent example of good policy making in workers' compensation. Most importantly, the positive effects of a second injury fund are not negated by the ADA. Employers can make disability-related inquiries, including inquiries about any pre-existing condition and/or about previous workers' compensation claims, after a conditional offer of employment has been made. However, an employer must ask these questions only in a medical examination or other inquiry that is required of all applicants in the same job category. In addition, this information must be kept in a separate and confidential medical file. Once this information has been obtained, it can be forwarded to an insurance company or the state's second injury fund so that an employer may exercise the right to limitations on their compensation premiums. Accordingly, employers can still benefit from the knowledge that an employee has a previous workers' compensation claim through the second injury fund, even though this information cannot be used in deciding whether to make a contingent offer of employment. Role of the Medical Exam in a Post-ADA Era In workers' compensation, when a claimant's medical condition has stabilized and become permanent (i.e., the medical condition will not get worse, and the claimant's restrictions are permanent), an employer will often schedule an injured worker for a medical examination. The primary purpose of this medical examination is to determine whether or not the injured worker has reached maximum medical improvement (MMI) and can return to a former job or to remunerative work. In many states, when a claimant has reached MMI, s/he can be required to settle the claim and return to work. Unfortunately, most workers' compensation laws do not require the employer to consider a job modification or work site accommodation as part of a MMI assessment, though such action is often suggested. In essence, the medical examination determines medical stability and permanence, not physical capabilities or transferability of skills. Thus, there is a difference between the ADA and workers' compensation as to how the documentation and accommodation of existing disabling conditions are to be approached. The primary purpose of the medical exam in workers' compensation is to document and justify either the existence of a work-related injury for compensability or for the purpose of termination of benefits. Beyond the determination of whether or not benefits should be denied or curtailed when MMI is reached, the traditional medical examination in workers' compensation is primarily geared towards substantiating or denying the extent of physical impairments according to the specific guidelines of the American Medical Association (AMA). With the passage of the ADA, the medical community must now incorporate into the medical exam a means of determining whether or not the worker disabled by a work-related injury can perform the essential functions of the job, with or without a reasonable accommodation. If the worker with a disability cannot return to the pre-injury occupation, then the physician under the ADA must play a role in determining how to return the employee to produc-tive work. The employer, however, bears the ultimate responsibility for deciding whether or not the individual is qualified for another position, with or without reasonable accommodation. The best way to determine what tasks an individual is able to perform is to conduct a physical capacities examination (PCE) in conjunction with an MMI examination. The findings of a physical capacities exam can help determine which jobs or group of jobs an individual is able to perform. The philosophical and procedural difference between a MMI exam in workers' compensation and a PCE in a post-ADA era is that the medical exam is to be used to determine what an injured worker is able to do, rather than to determine the presence and extent of physical limitations according to AMA guidelines. For a more in-depth description of how rehabilitation personnel determine transferability of skills and the use of a PCE in this process, see Dunn, Finch & Growick (1992). Health Care Benefits Under the ADA and the Injured Worker One of the more problematic areas of the ADA and its relationship to the injured worker is in the delivery of health care benefits. Decisions about the employment of an individual with a disability cannot be motivated by concerns about the impact of the individual's disability on the employer's health insurance plan. Moreover, the ADA requires nondiscrimination on the basis of disability in the provision of health insurance to employees. However, the fundamentals of this requirement are complicated by the fact that the ADA does not mandate employers to provide health insurance that will cover all of the medical conditions of their employees. Under the ADA, pre-existing condition clauses that exclude from coverage the treatment of conditions that pre-date an individual's eligibility for benefits under that health insurance plan are not disability-based insurance distinctions and therefore do not violate the ADA. For the injured worker who is returning to work, the availability of health care coverage is a very important factor to consider. If an individual's health care coverage is not guaranteed upon returning to work, the injured worker may reject the offer of employment. (Hanson and Watson, 1993).[2] For the injured worker, it is paramount that the same coverage be extended for medical needs upon return to work as when disabled and receiving workers' compensation. This is a persistent dilemma. Employer-based Disability Management Strategies The concept of reasonable accommodation is another critical issue in the implementation of the ADA (McMahon & Shrey, 1992). In effect, this means that employers must be willing to explore ways in which the workplace can be modified to accommodate injured employees who have substantial limitations on a major life activity, regardless of whether or not these limitations were produced by a work-related injury. In other words, employers will no longer be able to deny an employment opportunity to an otherwise qualified employee with a disability simply because that employee has not completely recovered from the injury. Many companies have included in their personnel handbook the requirement that employees must be capable of performing 100% of their job duties without any consideration of worksite accommodation before they will even be considered for return to work. This standard employer practice is now illegal for individuals with a disability. Employers are now obliged by the ADA to reinstate disabled employees with restrictions once they are medically stable and capable of performing the essential functions of a job, with or without a reasonable accommodation. Employees, then, cannot be refused consideration for employment simply because they are not functioning at 100% of vocational capacity. Since employers will now have to attempt accommodation of disabled workers with restrictions, as long as the accommodation doesn't impose an undue hardship, transitional work centers or specified, limited-duty jobs become more important to employers. Transitional work, according to Shrey and Olsheski (1992), is any job or combination of tasks and functions that may be performed safely and with remuneration by an employee whose physical capacity to perform functional job demands has been compromised. Because employers are now obligated to engage in a dialogue with qualified employees, including workers who are not at 100% capacity, with restrictions concerning work they are able to perform, employers should consider developing transitional work. This would not only save money on workers' compensation claims but would also help accommodate workers who have permanent restric- tions. For example, the Owens-Illinois Company in Columbus, Ohio, has recently developed a transitional work center (TWC) which has helped this company reduce its workers' compensation costs and has assisted in compliance with the ADA (Growick & Olsheski, 1993). A joint labor/ management committee developed a formal policy and procedures manual for the TWC which outlines how employees who are injured either on or off the job can access the TWC. This manual also describes the work to be performed in the TWC and discusses issues such as length-of-stay, remuneration, and return to regular duty. Another tool of rehabilitation professionals in fighting the war against escalating workers' compensation costs is now the added incentive of establishing a mechanism by which employers can also abide by their legal responsibilities under the ADA. Whereas most transitional work centers were developed to contain and even lower workers' compensation costs, now modified- or limited-duty jobs can also be a means of developing accommo- dations for workers with a disability who want to return to work. It is important to remember in this discussion of light duty and transitional work programs that employers are not under an ADA obligation to create a light-duty position for a disabled worker. However, when a vacant job that is within the disabled workers' physical capacities and qualifications exists, it may be a reasonable accommodation to reassign the worker to the position. In addition, if the heavy-duty portions of a position are marginal functions and are outside of the injured workers's physical capacities, the employer must consider reallo-cating such functions to co-workers as part of the reasonable accommodation of job restructuring. Unions seldom disagree with or attempt to disrupt the establishment of transitional work programs as long as they are involved in their establishment and operation and the jobs created in the transitional work center do not displace regular employees or take work away from contracted positions. Role of Unions and Collective Bargaining Under the ADA The role that unions will play in the implemen-tation of the ADA is an area which has also been debated since the passage of the ADA (BruyŠre, 1993). One of the cornerstones of the union movement is adherence to seniority in the employment process. This foundation of union involvement in the return-to-work process for injured workers, however, poses a threat to the flexibility which employers must have in order to comply with the ADA. When an employer is considering reassigning a returning employee with a disability, it may be necessary to take into account the seniority of that employee before making an accommodation for a job that would otherwise go to a more senior employee. Therefore, unions should play a very important role in establishing the policies and procedures by which employers help accommodate injured workers who are transferring to other jobs upon return to work. The flexibility of union stewards will be equally important in developing ways in which employees who have been impacted by injury can return to work and again become productive members of society as well as dues-paying union members. For example, a woman in her mid-fifties who is injured on the job can no longer perform the essential functions of her former position even with the provision of a reasonable accommodation. She has requested, through her attorney, that the employer find another job that she can perform within her limitations. The employer states that, under the union contract, the employer's obligation to return her to her former job and shift persists for only two years following the date of injury. The union is reluctant to grant the employer the ability to accommodate this woman in any job other than the one she left because it would violate the union contract, as well as the National Labor Relations Act (NLRA). The employer and the union are uncertain as to what should be done. This example illustrates a potential conflict which can exist between the ADA and union negotiated labor contracts. EEOC regulations make clear that an employer is prohibited by the ADA from participating in a contractual relationship with a labor union that has the effect of discriminating against qualified individuals with a disability. However, the terms of a collective bargaining agreement may be relevant in determining whether a particular accommodation would impose an undue hardship on the employer. Moreover, most union contracts hold that employees cannot engage in "direct dealing with their employer" (Smith, 1992). To resolve these issues, two actions could be taken. First, union contracts should be modified to allow greater flexibility in accommodating injured workers, and second, joint labor/management disability committees should be formed to investigate, recommend, and negotiate reasonable recommendations, including those that violate seniority when necessary (AFL-CIO, 1992). Apprehensions of Employers concerning the ADA Some employers argue that because the ADA is complaint-driven legislation, it will cause unneces-sary litigation. They also maintain that compliance with the statute will be exceptionally costly. Such arguments make it necessary to review the purpose of the ADA, particularly Title I. As previously stated, the unemployment rate of individuals with disabilities who want to work is approximately 66%, and this unemployment is costing the nation billions of dollars each year. Before the ADA, individuals with disabilities who experienced discrimination had no opportunity for redress under federal law unless they were employed by the federal government or one of its grantees or contractors. That is why the ADA was passed resoundingly by Congress and signed by President Bush. Overall, the ADA is a well- balanced law that does not require quotas and elaborate affirmative action plans, yet it removes some of the barriers to employment that individuals with disabilities have experienced. Ideally, the ADA should prevent unnecessary social expenditures while supplying employers with eager and capable employees. In light of the protection the ADA affords an individual with a disability, many employers fear that such individuals will be the sole judge of the adequacy of an accommodation and that there is virtually no limit to what s/he can demand from an employer. The ADA does in fact limit the degree as to what can fairly be considered a reasonable accommodations by including the concept of "undue hardship" in the accommodation decision-making process. An undue hardship, according to the ADA, is an action requiring "significant difficulty or expense," when considered in light of the following factors: the nature and net cost of the accommoda-tion; the overall financial resources of the facility and the covered entity; the type of operation of the covered entity; and the impact of the accommodation upon the operation of the facility. Defining who has a disability is, of course, not as simple as defining sex, age, or race. The medical profession has identified over 900 separate and distinct disorders that can affect a person. For every bodily function or movement, there can develop a problem that can lead to a disability, which is why the ADA does not simply list the conditions that are covered. Moreover, the Department of Labor has identified over 12,000 distinct and separate jobs in our economy that people can be asked to perform. Thus, many determinations under the law must be made on a case-by-case basis. Of course, giving people with disabilities the right to request a reasonable accommodation does not necessarily mean that they are entitled to employment. Employers can still choose the best person for the job. Some employers question apparent inconsist-encies in the ADA, such as the provisions surrounding treatment of illegal drug use, and the role of the medical exam in the hiring process. A recent editorial in The Wall Street Journal pointed to language in the ADA concerning these two situations which may create confusion in the business commu-nity. For instance, an individual who currently engages in the illegal use of drugs is not considered an individual with a disability. Persons addicted to drugs but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully are protected from discrimination on the basis of past drug addiction. Likewise, while the personnel officer is restricted from asking questions concerning the presence of a disability during a pre- employment interview, the ADA does not prohibit these questions at the post- offer stage. Regardless of their attitudes toward the intentions of the ADA, many employers are unclear about how the provisions of the ADA apply in various employment situations. Continued educational and technical assistance efforts are needed to lessen the confusion and to clarify the accommodation process. The employer should seek community resources to meet this need. The relationship between the ADA and workers' compensation holds great promise for employers. Workers' compensation costs are increasing exponentially, and many employers are struggling to reduce costs. The ADA provides a unique opportunity for employers to use requirements relating to reasonable accommodation to forge an alliance with injured workers by returning them to work while reducing compensation costs. Under the ADA, employers now have a legal obligation to consider disabled employees with restrictions for returning to work when they are medically stable and capable of performing the essential job functions. Conversely, injured workers who do not accept such positions can be terminated from workers' compensa-tion. The ADA permits employers to take measures to avoid increased workers' compensation liability while complying with the requirements of the ADA. For example, employers might use post-offer inquiries to reduce potential liability by resolving issues such as 1)verification of employment history; 2)identification of individuals with a history of fraudulent workers' compensation claims; 3)provision of information to state officials regulating workers' compensation and second injury funds, as may be required by law; 4)identification of individuals who would pose a "direct threat" to the health and safety of themselves or others, which could not be reduced to an acceptable level or eliminated by a reasonable accommodation. With the passage of the ADA. there have been high hopes that employers and individuals with disabilities would engage in constructive dialogue concerning ways that the ADA could be imple-mented for the benefit of all parties. This goal is still attainable if the intent of the law is followed and if employers and workers cooperate to achieve a mutually beneficial solution. REFERENCES ADA Compliance Guide, Monthly Bulletin (Jan., 1993). Washington, D.C.: Thompson Publishing Group. AFL-CIO. (1992). ADA: Instructor's guide for training representatives on application of the ADA. Washington, D.C.: Author. Alliance of American Insurers (1994). Survey of Workers' Compensation Laws. Chicago, Ill.: Author. Arterton, J., & Phelan, G. (1992). For Americans with disabilities, a new door opens. ATLA Trial Magazine. Bell, C. (1993). The ADA and injured workers: Implications for rehabilitation. Rehabilitation Psychology, 38(2), 103-116. Bowe, F. (1992). Development of the ADA. In J. Hablutzed & B. McMahon (Eds.), ADA: Access and Accommodations. Orlando, Florida: PMD Press. BruyŠre, S. (1993). Implications of the ADA for labor relations, collective bargaining, and contract administration. Journal of Rehabilitation Administration, 17 (3), 120-126. Chelius, J., Galvin, D, & Owens, P. (1992). Disability: It's more expensive than you think. Business and Health, 11(4), 78-84. DeCarlo, D., & Minkowitz, M. (1989). Workers' compensation insurance and law practice. Horsham, PA: LRP Publications. Dunn, P., Finch, J., & Growick, B. (1992). The Role of vocational rehabilitation in returning injured workers to employment. Physical Medicine and Rehabilitation Clinics of North America, 3, 615-628. Eccleston, S. (Ed.). (1992). ADA: Implications for workers' compensation. Cambridge, MA. Workers' Compensation Research Institute. EEOC issues guidance on health insurance decisions. 61 U.S.L.W. 2761 (6/15/93). Ellis, C. (1993). "Mock American Disabilities Act/Workers' Compensation Trial." NARPPS National Conference. Atlanta, GA. Equal Employment Opportunity Commission. (1992). Technical Assistance Manual on the Employment Provisions (Title I) of the ADA. Washington, D.C.: Author. Gilbride, D, & Stensrud, R. (1993). Challenges and opportunities for rehabilitation counselors in the ADA era. NARPPS Journal, 8(2), 67-74. Growick, B. (1993). Principles of Title I of ADA. Unpublished manuscript. Growick, B., & Olsheski, J. (1993). Policy and procedure manual for transitional work at OI-NEG. Unpublished manuscript. Hanson, S., & Watson, S. (1993). The ADA, health and worker' compensation insurance: Implications for private sector rehabilitation. NARPPS Journal, 8(2), 83-90. Harris, L. (1986). Disabled Americans' self-perception: Bringing disabled Americans into the mainstream (Study 845009). New York: Louis Harris and Associates, Inc. Harris, L. (1987). The ICD survey II: Employing disabled Americans (Study 865009). New York: Louis Harris and Associates, Inc. McMahon, B. T., & Shrey, D. E. (1992). The ADA, disability management, and injured workers. Journal of Workers' Compensation, 1(4), 9-28. Shrey, D., & Olsheski, J. (1992). Disability management and industry-based work return transition programs. Physical Medicine and Rehabilitation, 6(2). Smith, J. (1992). Accommodating the ADA to collective bargaining under the NLRA. Employee Relations Law Journal, 18(2), 273-286. Stockdell, S., & Crawford, M. (1992). An industrial model for assisting employers to comply with the ADA. American Journal of Occupational Therapy, 46(5), 427-433. 1. Unlike Workers' Compensation, the ADA is not primarily concerned with paying a wage replacement benefit to a worker because of a work-related injury. 2. It is important to note that the ADA does not generally prohibit an insurer from considering pre-existing conditions in determining eligibility for coverage or in setting rates. ---------- PRE-EMPLOYMENT TESTING AND THE ADA The ADA is modeled on the regulations implementing section 504 of the Rehabilitation Act of 1973, including the requirement for reasonable accommodation and the inclusion of modified examinations as a form of accommodation. It is the goal of this article to acquaint employers with the legal requirements and psychometric issues that must be considered in using selection tests under the ADA. There are three types of information that must be considered in using selection tests under the ADA. First, employers must be familiar with the legal requirements of the ADA and the rationale behind these requirements. Second, employers should be aware of the specific role of their tests in helping to select qualified employees (in other words, the validity basis for their tests). Third, employers should be familiar with the types of accommodations that are most likely to be effective in preserving the reliability and validity of the tests for people with various disabilities. Legal and Regulatory Requirements Under the ADA, it is discriminatory to use selection criteria that screen out or tend to screen out individuals with disabilities unless the criteria are shown to be job-related for the position in question and are consistent with business necessity. This is to ensure that tests do not act as barriers to the employment of persons with disabilities unless the person is unable to do the job, even with reasonable accommodation. Employers should design selection criteria for jobs to ensure a close fit between the selection criteria and an individualþs ability to do the job. A criterion that tends to screen out an individual with a disability must be shown to be job-related for the position and consistent with business necessity. To be consistent with business necessity a criterion must be related to an essential job function. The obligation to make reasonable accommodation means that an employer must make modifications or adjustments to the application process that would enable a qualified individual with a disability to be considered for the position he or she desires. Tests should not be given in formats that require use of the impaired skill, unless it is a job-related skill that the test is intended to measure. For example, it is unlawful to give a written test to a person who is unable to read because of dyslexia, unless the ability to read is the job-related skill that the test is designed to measure. If, instead, the test is designed to measure a factor such as verbal comprehension or reasoning, the test should be given orally. Similarly, test time limits should be relaxed for applicants whose disabilities cause them to need more time to take a test, unless the test is specifically designed to test speed. However, the results of a test of speed could not be used to exclude an individual with a disability unless the skill was necessary to perform an essential function of the position that could not be performed by the individual with or without reasonable accommodation. If speed is related to an essential job function and there is no reasonable accommodation available to enable the applicant to demonstrate the skill or to perform the job, then the employer is not required to employ the individual. An employer is obligated to make reasonable accommodation only to the physical or mental limitations, resulting from the disability of a qualified individual with a disability, that are known to the employer. While an employer may inquire whether an employee is having difficulty performing his or her job, it is generally the responsibility of the employee to inform the employer that accommodation for a disability is needed. Similarly, an employer is generally required to provide testing accommodations only if it knows i advance that an applicant has a disability that requires such accommodations. Usually, it is the responsibility of the individual with a disability to request any accommodation for a test. The employer can be helpful by informing applicants in advance about any tests to be administered as part of the application process, so that they may request an accommodation, if needed. Employers may also ask applicants with a hidden disability for documentation of the need for testing accommodations. It should be noted that the ADA and the Title I regulations prohibit pre-employment inquiry into a personþs disability or the nature of the disability, with one narrow exception. The ADA permits employers to ask individuals with a hidden disability who request accommodations at the application stage to provide documentation to verify the disability and the need for accommodation. However, the employer may not make further inquiries as to the nature or severity of the disability. Test Validity Models The use of tests for making employment decisions is supported by evidence of the tests' validity under one or more of the following models: * Content validity: the test is a representative sample of performance in some defined area of job-related knowledge, skill, ability, or other characteristic. * Construct validity: the test is demonstrated to be a measure of a job-relevant characteristic (e.g., reasoning ability). * Criterion-related validity: the test is shown to be statistically related to some criterion of successful job performance. Test accommodations should be made as to retain the validity of the test for selecting qualified employees. Types of Testing Accommodations Testing accommodations will be discussed under three broad categories: testing format, time limits, and test content. Testing format. A change in testing format refers to the use of a different medium or method to present the same information. Test information is usually presented in print in the English language. Therefore, braille, large print, reader, and audiotape are simply different ways of presenting the same information. In most cases, these formats could be interchanged without a change in the question content or the ability being tested. However, several problem areas exist in the use of different formats: 1. Long reading passages may be more difficult when presented orally or in other formats for visually impaired applicants. For oral presentation, the test-taker must try to keep the entire passage in memory. In braille or large print, scanning through the passage is slower than it is with regular print. 2. Figural material is problematic for people with visual impairments. The embossing of figural material should not be viewed as a simple format change, because the tactual sense is quite different from the visual sense (hence, the need for braille). 3. When readers are used, they should be people who read well and articulate clearly, and they should practice reading the test in advance. They should be warned against inadvertently giving clues to the test-taker when they read. It should be noted that changing a test from a printed version into a sign language version is a translation into another language, rather than simply a change of format. It must be done with all of the care that would be taken in translating a test from English into, say, Japanese. Time limits. In most cases of accommodated testing it is necessary to change the testþs time limits. Often the change in time limits causes a problem in interpreting test results. This problem arises because of the use of þspeeded powerþ tests. In order to understand this problem, it is necessary to learn a bit of testing terminology. A pure power test is a test in which everyone has an opportunity to attempt to answer every question, and the scores are based on how many questions people can answer rather than on how fast they can work. The pure speed test, on the other hand, contains questions of trivial difficulty given with a very short time limit. Scores are based only on how fast people can work. Many tests which are intended to be power tests are actually somewhat speeded because a considerable number of people are unable to attempt every question. On a speeded power test, a person who had unlimited time would have an advantage over people who took it with the regular time limit. However, since many people with disabilities, e.g., braille-users, need extra time to take tests, there is the difficult problem of determining exactly how much extra time should be allotted so that the test-taker with a disability is at neither an advantage nor a disadvantage. The ideal solution to this problem would be to eliminate the use of speeded power tests. If a power test has a liberal time limit, with a completion rate of, say, ninety-five percent of all test-takers, then test-takers with disabilities can be given unlimited time without having an undue advantage. The difficult question of how much extra time to allow would no longer need to be answered. In the case of existing speeded power tests in which the regular time limits cannot be changed, unlimited time may be inappropriate. One method of determining appropriate time limits is to conduct empirical studies. The Office of Personnel Management conducted a study to set time limits for visually impaired and deaf applicants on one of its large volume examinations. It was found that at least double time was needed for visually impaired users of all media to answer questions that consisted of a short reading passage followed by five answer choices. Mathematical questions involving computation required considerably more time than that. Such empirical studies are only possible in large-scale programs in which there are many test-takers. Pure speed tests are used in the employment context to test such skills as perceptual speed and clerical checking. Such tests are clearly inappropriate for use with visually impaired test-takers because all of the media for transmitting information are slower, and for some physically impaired applicants, because the physical mechanism for responding (e.g., marking the answer sheet) is slower. The time limit cannot be adjusted on these tests because speed is the factor that is being tested. Therefore, the test user must decide if the speed test should be used with the regular time limit (which is permissible, as noted in the earlier section on legal and regulatory requirements, if the speed factor is related to an essential job function and the applicant cannot meet the requirement even with reasonable accommodation) or if the test should be deleted from the battery and possibly be replaced with another type of assessment. This would be an instance of the last type of test accommodation--change of test content. Test content. In the context of competitive testing for persons with disabilities, changes in test content are not made frequently. However, it is clear that this type of change is a form of accommodation that may be required for compliance with the ADA. Any change in test content would need to be consistent with the validity strategy on which the test was based. For example, substituting one test question for another is easily done under a construct validity model, but might be troublesome under a content validity model. Changes in test content can be divided for convenience into three types: change in individual test questions, change in the question-type, and change or deletion of a knowledge, skill, or ability (KSA) that is being measured. The first type of change, as mentioned above, is easily done in a construct-valid test. The second type of change--using a different type of question to test the same ability--is feasible if another question-type exists and if scoring comparability can be determined. The interpretive guidance to the EEOCþs Title I regulations describes some bold substitutions of methods for measuring the same KSAþs, as the following excerpt shows: "Where it is not possible to test in an alternative format, the employer may be required, as a reasonable accommodation, to evaluate the skill to be tested in another manner (e. g., through an interview, or through education license, or work experience requirements)." This excerpt does not reflect a concern for score comparability. In fact, it is difficult to see how this approach could be used if applicants needed to be rank-ordered on the basis of quantitative scores. If there is no effective way to test a person with a disability for a certain KSA, and if there is reason to believe that KSA will not be required on the job by the person, it would be appropriate to change or delete the requirement for measuring that KSA. Accommodation for Specific Disabilities The following is a brief listing of the types of testing accommodations that are appropriate for test-takers with different disabilities. For more detailed information about each group, see the bibliography at the end of the paper entitled "Pre-Employment Testing and the ADA" published by LRP Publications (see cover page of this brochure for ordering information). For test-takers with visual impairments, tests must be presented in appropriate formats, such as braille, large print, and audiotape. Time limits must be extended for all of these media, and speed tests are inappropriate. Within the context of changing test materials into different formats, certain types of test material may be problematic, as noted earlier. In addition, the test-taker will probably need accommodation or assistance in marking answers. For test-takers who have physical impairments that affect use of the hands, the principal test accommodation is the adjustment of test time limits and the avoidance of speed tests. In addition, accessible test sites, the assistance of a test administrator in turning pages and marking answers, and extra rest breaks may be required. Among hearing impaired test-takers, only those who are deaf need extensive testing accommodations. For the majority of prelingually deaf persons, that is, persons who lost their hearing before acquiring speech, verbal tests are not good measures of any ability. For most prelingually deaf people, English is a second language and the native language is sign language. (Of course, there are exceptions to this rule; some prelingually deaf people have very good English skills.) Therefore, as a general rule, verbal tests cannot be used effectively with most deaf test-takers to test anything except verbal ability. Tests that are completely nonverbal, however, do not pose a problem. Test instructions should be given very carefully, with the use of sign language or demonstration, and time limits should be explained clearly. Extra time should be allowed on power tests that include verbal material. Individuals with specific learning disabilities now constitute the largest group that requires testing accommodations. The specific tasks that are affected by learning disabilities vary widely, so it is difficult to generalize about testing accommodations. Accommodations will need to be arranged on a case-by-case basis for applicants with specific learning disabilities. The most frequently used accommodations are the allowance of additional time for power tests and reconsideration of speed tests in areas of specific weakness. For example, a test-taker who had a specific learning disability that affected numerical computation might be screened out by a speeded test of computation. Under the ADA, it would be inappropriate to use that test unless it tested an essential job function that the test-taker could not perform with or without reasonable accommodation. Resources ADA Regional Disability and Business Technical Assistance Center Hotline (800) 949-4232 (voice/TTY) Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- REASONABLE ACCOMMODATION UNDER THE ADA What is Reasonable Accommodation? The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodation for a qualified individual with a known physical or mental disability. Potential reasonable accommodations include job restructuring, reassignment to a vacant position, part-time or modified work schedules, assistive technology, or aides or qualified interpreters. Although the ADA does not require employers to make accommodations that pose an "undue hardship" (defined as significantly difficult or expensive), the experiences of employers around the nation demonstrates that many accommodations cost nothing, and few pose the "significant expense" that many employers fear. Studies conducted in 1986 and in 1992 showed that more than half of the accommodations made for employees with disabilities cost nothing, while another fifteen percent cost under $500. Tax credits are available to businesses who remove architectural barriers, target jobs for individuals with disabilities, or provide assistive technology or interpreters to workers with disabilities. Employers are required to make reasonable accommodation for qualified individuals with a disability, who are defined by the ADA as individuals with a disability who satisfy the job-related requirements of a position held or desired, and who can perform the "essential functions" of such position, with or without reasonable accommodation. The employer identifies the jobþs essential functions; job descriptions prepared before an individual is interviewed or selected for a position are considered evidence of a jobþs essential functions. If the individual cannot perform an essential function, even with accommodation, the individual is not considered "a qualified individual with a disability" under the law. The employer should confer with the employee with regard to the type of accommodation that will enable the employee to perform the essential functions of the position. The requirements of the particular position and the employeeþs physical or mental limitations should be evaluated in order to determine the accommodation that will be effective. If a reasonable accommodation poses an undue hardship, it need not be implemented. Undue hardship is evaluated by assessing various factors, including the nature and net cost of the accommodation, the overall financial resources of the facility and of the business, and the impact of the accommodation on the operation of the facility. Accommodations of a personal nature (such as a guide dog for a visually-impaired employee, or a wheelchair) would not be the employerþs responsibility. The employer need not create a new job for the person with the disability, nor must the employer reallocate essential functions to another worker. An employer may be required to restructure a job by reallocating nonessential, marginal job functions. For example, the Postal Service refused to promote a hearing-impaired secretary because she could not answer the telephone. The court ordered the Postal Service to promote the individual, noting that several other secretaries were available to answer the telephone, and that simply because telephone answering was considered a low status assignment did not make it an essential function of the secretaryþs job. Employers who fear that accommodating a worker with a disability will lower the morale of co-workers will not find this a helpful defense to an ADA charge. Nor will the concern that co-workers or customers will not wish to associate with an individual with a disability be an appropriate reason to deny such an individual employment. Accommodating a Worker with a Disability The accommodation process begins before the disabled worker is hired (or identified, if it is a current employee who becomes disabled after being hired. Written job descriptions prepared before advertising or interviewing applicants are evidence of whether particular job functions are essential, but other evidence, such as what previous or current holders of the job actually do, is also relevant. Job descriptions should be reviewed to ensure that they include the essential functions of each job, particularly with regard to physical requirements. Statements such as "all incumbents must perform all functions of the position," or "there is no light duty in this department" are not determinative of whether a reasonable accommodation must be provided. Recruiters or interviewers must be trained with regard to inquiries which are permissible under the ADA. Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This prohibition ensures that the applicantþs hidden disability is not considered prior to the assessment of the applicantþs non-medical qualifications. At this pre-offer stage, employers may ask about an applicantþs ability to perform specific job-related functions. An employer also may ask other questions that are not disability-related and may require examinations that are not medical. After making a job offer, an employer may require a medical examination or make disability-related inquiries if all entering employees are subject to the exam or inquiry. If an examination or inquiry screens out an individual because of disability, the exclusionary criterion must be job-related and consistent with business necessity. The employer also must show that the criterion cannot be satisfied and the essential functions cannot be performed with reasonable accommodation. Employers are also permitted to conduct medical examination and make disability-related inquiries of employees if such exams or inquiries are job-related and consistent with business necessity. Any medical information obtained must be kept confidential by the employer. This means that the employer must collect and maintain the information on separate forms and in separate medical files. The employer may disclose the information only to persons and entities specified in the ADA. Employers may use any kind of test to determine job qualifications. However, qualification standards, tests or other selection criteria that screen out an individual with a disability or a class of individuals with disabilities will violate the ADA unless shown to be job-related and consistent with business necessity. Even if this showing can be made, an employer must consider whether the criteria can be met, or job performance accomplished with the provision of reasonable accommodation. In addition, tests must be administered to an applicant or employee with a disability in a way that ensures that the test results accurately reflect the skills, aptitude, or whatever other factor is being tested, rather than reflecting the impaired sensory, manual or speaking skills of the person, unless these skills are what is being tested. Reasonable Accommodation and Safety Some employers are concerned that a worker with a disability could be a safety hazard, either to herself or to co-workers or customers. The law takes this concern into account, but only if it is founded upon clear, documented evidence that the individual is a "direct threat" to herself or others because of the nature of the job and the specific characteristics of that individualþs disability. In determining whether an individual with a disability poses a direct threat, including an individual with a contagious disease, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Part of the reasonable accommodation determination is an analysis of whether the individual can be accommodated in a way that eliminates the direct threat or reduces it to an acceptable level. For example, an employer would not be required to hire an individual who is blind to drive a bus, but several courts have said that disabilities such as diabetes do not automatically preclude an individual from holding a bus driverþs job. The key here is to obtain individualized medical information about the limitations that are posed by this workerþs disability and the probable harm that this individualþs specific physical or psychological problems will pose for the position in question. Reasonable Accommodation and Worker Misconduct The ADA protects individuals with mental as well as physical disabilities, and the reasonable accommodation requirement applies in the same way for both kinds of disabilities. However, employers may hold individuals with disabilities to the same performance and conduct standards as other workers; if the worker engages in misconduct that warrants discipline under the employerþs policy, even if the conduct is related to the individualþs disability, the employer may discipline the worker. If an employee requests accommodation prior to engaging in misconduct, e.g., leave to attend therapy sessions, the accommodation must be provided unless it would impose an undue hardship. On the other hand, if the employee engages in misconduct prior to requesting the accommodation, the employer may impose the appropriate discipline. This may include discharge, depending on the employer's discipline policy and the nature of the misconduct involved. If the employer has a policy of progressive discipline, the employer may impose discipline short of discharge and then provide an accommodation that would enable the employee to meet the conduct standards. Off-duty misconduct may also be grounds for discharge or discipline, even if the worker asserts that the disability þcausedþ the misconduct. In most cases that have reached the courts, the misconduct was related to alcohol or drug abuse, and the employer was able to demonstrate that being required to retain the individual would be an undue hardship because the job itself required the individual to demonstrate good judgment or to be law-abiding (such as a police officer or an FBI agent). Employees whose excessive absences or tardiness create problems for the employer are not necessarily protected even if the attendance problems are related to the disability. However, the employer must consider whether a reasonable accommodation (such as a different work schedule, additional paid or unpaid time off, or working at home) is possible and whether such an accommodation would constitute an undue hardship. Employers should train their staff about the general requirements of the ADA, with particular emphasis on defining the essential functions of each position and the accommodation requirement. Learning to assess the individual first and the disability second, working with the individual and his or her counselor, medical professional, or other knowledgeable persons in fashioning the appropriate accommodation, and responding to requests to review the effectiveness of the accommodation will very likely satisfy the demands of the ADA, the practical needs of the individual with a disability, and the employerþs need for a productive and committed workforce. The following are national resources available to you that will provide you with further information on the employment provisions of the Americans with Disabilities Act of 1990 and reasonable accommodation: ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). This publication was written by Barbara A. Lee, Associate Professor, Institute of Management and Labor Relations, Rutgers University, New Brunswick, New Jersey. This publication is taken from a more extensive review of the topic entitled "Reasonable Accommodation Under the Americans with Disabilities Act" which is currently available for purchase from your Regional Disability and Business Technical Assistance Center at 800-949-4232, or from LRP Publications (specify Product #31015.ACCOM, 47 pp., $16), PO Box 980, Horsham, PA 19044-0980, phone 1-800-341-7874, Fax 1-215-784-9639. --Funding Source-- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. BruyŠre, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The ADA and Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Cultural Diversity and the ADA * The ADA and Total Quality Management For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- HEALTH BENEFIT PLANS AND THE ADA What is the Americans With Disabilities Act? The Americans With Disabilities Act of 1990 (ADA) is a civil rights law for individuals who have a current disability or a record of disability, or are perceived as having a disability. The ADA protects against disability-based discrimination in employment, access to government and commercial services, transportation and telecommunications. For purposes of the ADA, a disability is a physical or mental impairment "such as a visual, hearing or mobility impairment, HIV disease, mental retardation, etc." that substantially limits a major life activity. How does the ADA Apply to Employment? ADA Title I prohibits limiting, segregating or classifying an individual in a way that adversely affects employment opportunities on the basis of an individualþs disability. Title I also forbids denying equal jobs or benefits based on an individual's relationship to someone else with a disability. Title I applies to both public and private employers with at least twenty-five employees (fifteen employees after July 25, 1994). Title II applies the same standards to state and local government employers regardless of the number of employees. Title I also covers employment agencies, labor unions, and joint labor-management committees. Title I reaches purposeful discrimination and employment practices with discriminatory impact. Criteria that have the effect of excluding individuals with disabilities from employment opportunities may not be used unless justified by business necessity. Further, Title I establishes the obligation, except if it is an undue hardship for the covered entity, to reasonably accommodate "a qualified individual with a disability," that is, an individual with a disability who meets the necessary prerequisites for a job and can perform the essential job functions with (or without) reasonable accommodation. Does the ADA Apply to the Terms of Health Benefit Plans? Yes. ADA Title I prohibits discriminating against a qualified individual with a disability in all terms, conditions and privileges of employment, including health benefits. The ADA specifically prohibits participating in a discriminatory contractual or other arrangement with organizations that provide fringe benefits to employees. The Equal Employment Opportunity Commission (EEOC) has addressed health benefits issues in regulations and various informational materials. In addition, the EEOC has issued specific guidance to its enforcement staff on the application of the ADA to health benefit plans. All are based on explanations in congressional committee reports. The application of the ADA to health benefit plans also currently is being considered by federal courts. What follows is based on the EEOC's interpretations. Does the ADA Apply to Health Benefit Plans Adopted Before the ADA? Yes. The ADA does not provide a "safe harbor" for plans that were adopted prior to the ADAþs July 26, 1990 enactment date. Does the ADA Apply to Self-Funded Plans? Yes. The EEOC enforcement guidance applies to the terms both of plans insured by a third party and self-insured health plans. How Does the ADA Affect Health Benefit Plans? First, personnel decisions regarding an individual with a disability may not take account of whether, or to what extent, an individual is or would be covered under a health benefit plan. For example, an employer may not refuse to hire a qualified applicant who has a disability or has a dependent with a disability because of concern about the potential impact on health insurance costs. Further, the ADA regulations require that employees be accorded equal access to whatever health benefits are provided to other employees. If an employer provides health insurance to employees in general, the employer must provide equal access to employees with disabilities. However, ADA Title V allows insurers and health benefit plans to make health-related distinctions, provided that these practices are not used as a subterfuge to evade the purposes of the ADA. This means that any coverage limits or exclusions based on disability must be justified by sound actuarial data or other legitimate business or insurance justification. For example, it may be illegal for a health plan to cap benefits for the treatment of AIDS at a lower level than the cap applicable to the treatment of all other physical conditions. The lower AIDS cap would violate the ADA unless the disability-based distinction can be justified. Studies demonstrating that the cost of AIDS is comparable to the costs of other commonly covered conditions make it unlikely that this type of disparate treatment could be justified. Finally, even if a disability-based distinction is justified, a plan is rarely justified in completely denying coverage to an individual based on a diagnosis of disability. For example, a group plan generally could not deny coverage for treatments or procedures unrelated to the disability. Must All Limitations and Exclusions Be Justified? No. Justification is required only for disability-based distinctions. Not all health-related plan distinctions discriminate on the basis of disability. The EEOC does not require justification of generally applicable limitations and exclusions, even if they adversely affect individuals with disabilities. Nor does the EEOC interpret the ADA to require that health plans make reasonable accommodation for individuals with disabilities. Employers, insurers and unions may continue to apply insurance distinctions that are not based on disability and are uniformly applied to all employees. For example, employers may still offer health insurance that does not cover pre-existing conditions for a certain period of time specified in the plan, even if such a pre-existing condition exclusion adversely affects employees with disabilities. The guidelines also permit facially neutral limitations such as lifetime coverage caps applied to all employees. Further, a health plan may exclude or limit coverage for specific procedures or treatments if they are not exclusively or nearly exclusively applicable to a particular disability. For example, a plan may limit the number of blood transfusions or x-rays that the plan will pay for, even though this may have an adverse effect on individuals with certain disabilities such as hemophilia. Likewise, a plan may limit or deny coverage for all "experimental" drugs and/or treatments or all "elective surgery." Finally, a plan may exclude or provide lower levels of coverage for broad categories of conditions that are not drawn along lines of disability. For example, a plan may have lower reimbursement rates for treatment of "mental or nervous conditions" or for "eye care." The EEOC does not consider these to be disability-based distinctions because these conditions are not always "disabilities" as defined in the ADA. That is, they are not always impairments that substantially limit a major life activity. How Does the ADA Apply to Disability-Based Distinctions? A plan term or provision is disability-based if it singles out a particular disability, a discrete group of disabilities, disability in general (all conditions that substantially limit a major life activity), or a treatment or procedure used exclusively or nearly exclusively to treat a particular disability. Exclusions that are based on a disability like deafness, AIDS, cancer or alcoholism, may violate the ADA. The best way to avoid possible violations of the ADA is to avoid singling out diseases or conditions considered disabilities under the ADA. However, differential treatment may be justified by the risks or costs associated with the disability. Justification will be determined on a case-by-case basis. The plan sponsor bears the burden of proof that a disability-based distinction is permitted by first showing that the health plan either is a bona fide plan that is consistent with state law or is a bona fide self-funded plan, and then proving that the disability-based risk classification is not being used as a subterfuge to evade the purposes of the law. Plan sponsors may use accepted principles of insurance risk classification and current and accurate actuarial data, but not data based on myths, fears, stereotypes or false or outdated assumptions about a disability. Disability-based limitations or exclusions will not be considered to violate the ADA if: 1. they are based on legitimate actuarial data, or actual or reasonably anticipated experience, and apply equally to conditions with comparable actuarial data and/or experience; or 2. they are necessary because no alternative to a disability-based distinction is available to prevent an "unacceptable" change such as: * a drastic increase in premiums, co-payments or deductibles; * a drastic alteration in the scope of coverage or level of benefits; or * other changes that would make the plan unavailable to a significant number of other employees, or so unattractive that the employer could not compete in recruiting and maintaining qualified workers due to the superiority of health insurance plans offered by other employers in the community, or so unattractive as to result in significant adverse selection. How Does The ADA Apply to Dependent Coverage? Disability-based distinctions involving dependent coverage will be analyzed in the same fashion as disability-based distinctions in employee coverage. The ADA, however, does not require that the coverage accorded dependents be the same in scope as the coverage accorded employees. For example, a $100,000 benefit cap for employees but only a $50,000 for dependents, would be permitted. Will There Be Future EEOC Guidance? Yes. The EEOC plans to publish further guidance with an opportunity for public comment. Future guidance will address issues relating to wellness plans, and clarify issues related to the coverage of workers with substance abuse problems. Resources EEOC materials are available from the U.S. Equal Employment Opportunity Commission, 1801 L Street, N.W., Washington, D.C. 20507, (800) 669-4000 (Voice), (800) 800-3302 (TTY), or (800) 669-EEOC (Publications-voice). ADA Regional Disability and Business Technical Assistance Center Hotline, 800/949-4232 (voice/TTY). This was written by Gwen Thayer Handelman, Associate Professor of Law, Washington and Lee University, School of Law, Lexington, Virginia. This publication is taken from a more extensive review of the topic entitled "Health Benefit Plans and the ADA", which is currently available for purchase from your Regional Disability and Business Technical Assistance Center at 1-800-949-4232 (Voice/TTY), or from LRP Publications (specify Product #31015.HEALTH, 39 pp., $16) at Dept. NIDRR, PO Box 980, Horsham, PA, 19044-0980, phone (800) 341-7874, Fax 1-215-784-9639. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- CAUSES OF POOR INDOOR AIR QUALITY AND WHAT YOU CAN DO ABOUT IT What are the typical symptoms of poor indoor air quality? * irritations of eyes, nose, and throat * dry mucous membranes and skin * erythema (reddening of the skin; rashes) * mental fatigue, headache, and sleepiness * airway infections, cough * hoarseness, wheezing * nausea, dizziness * unspecific hypersensitivity reactions There does not tend to be a rapid, acute onset of symptoms; rather, there are slow, subtle effects. The symptoms are often subjective, and other problems/stresses (including heat stress) may aggravate the problem. Some individuals may be particularly sensitive. Since people exposed to poor indoor air quality frequently experience subjective symptoms, they are often viewed as over-emotional or simply complainers -- so it is important to place this problem on a scientific basis so as to be able to take a more constructive, problem-solving approach. What is poor indoor air quality? An indoor air quality problem (also called "sick building syndrome") consists of the complaints, symptoms, and illnesses believed to be related to contaminants concentrated within buildings. With over 52 million office workers in the United States, plus teachers and students in school buildings, health care professionals and patients in hospitals, residents in apartments, the homeowner, and many others, there is a large population potentially affected. In fact, indoor air is an issue which impacts on the health and productivity of the majority of all working adults and the vast majority of working women. What are the causes of poor indoor air quality? * inadequate fresh air supply and/or poor ventilation system maintenance * pollutants given off by building or furnishing materials * pollutants from processes occurring within the building, including cleaning products, office machines, pesticides, offgases from new materials * microorganismal contaminants, or, * contaminants brought into the building from outside. When building ventilation is inadequate, the resulting low air-exchange rate is such that there is insufficient fresh air brought into the building to dilute or flush out contaminants and they can become concentrated within the building. Improving indoor air quality does not mean that the indoor air must be a pristine pure environment, but rather that building occupants should not be subjected to air quality which is significantly worse than the air outside. How do you find out if your building has an indoor air quality problem? Gather information from the building occupants. When investigating complaints of indoor air quality, it is important to determine the nature of the complaints and extent of the problem. This can be accomplished by surveying the building occupants. When collecting information about occupant complaints: * review the records of complaints; if there are no existing records, begin the use of a complaint log * interview the occupants, either directly or by the use of a questionnaire, or both. Avoid asking questions, particularly about health, which might be unnecessarily intrusive; such as about reproductive history or psychological problems. * ask occupants to document their observations in an occupant diary. Check out the ventilation system. Find out if there is enough fresh air being brought into the building. The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) 62-1989 recommends that office spaces have 20 cubic feet per minute (cfm)/person of outdoor air provided. Verify this with carbon dioxide measurements; outside there is about 300-350 ppm of carbon dioxide. Inside, the carbon dioxide should be less than 1000 ppm. Examine the intakes and exhausts for contamination and cross-contamination; verify this with carbon monoxide or other measurements as appropriate. For any monitoring performed, measure the same items in the outdoor air for comparison purposes. Be careful in the choice of method used so as to obtain a low enough detection limit as to be able to compare indoor with outdoor air. Check out the heating, ventilation, and air conditioning system's performance and maintenance. Walk through the building and look for signs of leaks and water damage. Check the chemical usage in the building and look for potential sources of air contaminants. Make any corrections necessary as a result of these examinations and then re-survey the building inhabitants to see if conditions have improved and if any problems remain. Further monitoring (if needed). If the corrections to ventilation do not fix the problem or if the ventilation system was adequate, it may become necessary to proceed further to better identify the specific contaminants and their possible sources, such as: microbial monitoring (with or without identification of the bacteria and molds), measurement of particulates (with or without identification of particles and fibers), or chemical analysis for air contaminants (such as formaldehyde, ozone, pesticides, volatile solvents). And, as above, take outdoor measurements as well and compare indoor air with outdoor air. This additional monitoring is usually considerably more expensive than the measurements taken as described above. Consider whether the expense is justified; it may be far more cost-effective to remove the contaminant source than to pay for the testing. Consider whether this additional data will make a difference in the decision to fix or not fix a potential problem. If you are going to fix it anyway, are the data needed to confirm that exposure happened or are the data a waste of the funds which could be used to fix the problem? Keep building occupants informed. Building occupants should be kept informed during the entire process of investigation and mitigation, including: * how the investigation is progressing, the types of information being gathered, and ways that they can help the process along * the nature of the health problems being reported; this enables occupants to put their symptoms into perspective * how long the investigation is expected to last * any attempts which are made to improve indoor air quality * any remaining work which needs to be done and the schedule for its completion. If the above described investigation appears to indicate that an indoor quality problem exists, a qualified expert should be consulted to make appropriate recommendations for remediation; such an expert could include an industrial hygienist, ventilation engineer with IAQ experience, HVAC contractor with IAQ experience, safety risk manager with IAQ experience, or other similarly qualified consultant. What can you do to correct poor indoor air quality problems? If ventilation is inadequate, increase the fresh air supply to meet the recommendations of Standard 62-1989 of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE). This industry standard recommends ventilation needs in terms of the amount of cubic feet per minute per person of fresh air for rooms and buildings depending upon their usage. For office space, it recommends 20 cfm/person of outdoor air. Check to make sure that air intakes and exhausts for each room are functioning. Ventilation adequacy can be verified by measuring the air concentration of carbon dioxide during occupancy. If indoor sources are the problem, choose alternative products or eliminate the use of troublesome products. Schedule product usage or construction/remodeling for times when it will have the least impact on occupants. Consider changing schedules or using flextime or time off for sensitive individuals such as those who are pregnant or who have allergies, respiratory, cardiovascular, or other problems which the exposure could adversely affect. Provide better ventilation or local exhaust ventilation for specific contaminant sources. Ban smoking in the building or provide a smoking lounge with smoke vented to the outside away from any air intakes. Consider increased ventilation or baking off for new materials or remodeled areas. Baking-off is a technique for speeding up the offgassing of new materials by heating the room, wing, or building (as appropriate) to about 80-85 fahrenheit for about 12 hours; then drop the air temperature as low as possible for the next 12 hours and ventilate during this cooling cycle. The heating/cooling cycles can be repeated several times. If outside sources are the problem, separate air intakes from exhausts or raise exhausts higher to prevent exhaust air from being drawn back inside. Prevent vehicles from idling for long periods of time near air intakes. Separate a garage's part of the ventilation system from that servicing the rest of the building. If biological contamination is the problem, make sure there is adequate cleaning and maintenance of air intakes, filters, and ductwork. Fix leaks, condensation, and standing water in the building or the ventilation system. Have the condensation from air conditioners go to a floor drain. Discard water-damaged items and those with porous surfaces. Disinfect nonporous materials. If building fabric is the problem, baking off may help. Check insulation to verify its proper installation; verify with appropriate air monitoring. What could be reasonable accommodation under the ADA for someone who needs better air quality (even after corrections are done)? In striving to make the indoor environment not significantly different from the outdoor environment, the building air quality may reach the limit of what is feasible for a whole building performance approach. Despite the best efforts to improve ventilation and remove sources of contaminants, you may discover that the individuals who meet the definition of disability under the ADA due to an environmental illness still require some form of reasonable accommodation to be able to perform their job. The following are some options which could be considered: (1) Consider removing from a room any chemical challenges by stripping the room of any items which could be a problem, such as carpeting or pressed wood products, and provide a plain floor, a metal desk, minimal use of solvent-based products, no air-fresheners, etc. (2) Consider the use of an air cleaning unit having a carbon filter and high efficiency particulate air filter (HEPA) capable of removing the problem contaminants. Be sure the unit is large enough to handle the air volume needs for the size of the room. (3) Consider moving the person to a different work environment such as a different room, wing, or building. Resources ADA Regional Disability and Business Technical Assistance Center Hotline - (800) 949-4232 Equal Employment Opportunity Commission, 1801 L Street NW, Washington, DC 20507, (800) 669-4000 (voice); (800) 800-3302 (TTY); or (800) 666-EEOC (publications). Your local Department of Health at the state or county level. USEPA, Indoor Air Division, Office of Air and Radiation, 401 M Street SW, Washington, DC 20460, (703) 308-8470. USDHHS - NIOSH, Division of Surveillance, Hazard Evaluations and Field Studies, 4676 Columbia Parkway, Cincinnati, OH 45226, (513) 841-4428. Chemical Hazard Information Program, Cornell University, School of Industrial and Labor Relations, 110 Pearl Street, 8th Floor, Buffalo, NY 14202-4111, (716) 842-1124. National Center for Environmental Health Strategies, 1100 Rural Avenue, Voorhees, NJ 08043, (609) 429-5358. Human Ecology Action League, P.O. Box 49126, Atlanta, GA 30359-1126, (404) 248-1898. This publication was developed by Nellie J. Brown, M.S., Western Regional Director, Chemical Hazard Information Program, New York State School of Industrial and Labor Relations, Cornell University, 110 Pearl Street, 8th Floor, Buffalo, New York 14202-4111, (716) 842-1124. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- THE ADA AND COLLECTIVE BARGAINING ISSUES What is the Americans with Disabilities Act? The Americans with Disabilities Act ("ADA"), passed in 1990, is legislation to protect and guarantee access and participation in society for persons with disabilities. The statute is specifically directed at employment, public accommodations, public services (i.e., services delivered by state and local governments), transportation and telecommunications. Title I of the ADA prohibits discrimination against qualified persons with disabilities in all terms and conditions of employment, including recruitment, pre-employment screening, hiring, benefits, promotions, layoff and termination. Under the ADA, an employer must provide an effective reasonable accommodation when a qualified individual with a disability requests accommodation, unless the employer can demonstrate that it would be an undue hardship to do so. An employer may not deny an employment opportunity to a qualified applicant or employee with a disability because of a request or need for a reasonable accommodation. As of July 26, 1994, Title I of the ADA applies to employers of 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. The Equal Employment Opportunity Commission ("EEOC"), the administrative enforcement agency for Title VII of the Civil Rights Act of 1964 ("Title VII") and the ADA has not yet issued any policies or guidance with respect to the ADA and collective bargaining issues. The opinions expressed here are those of the author. What Obligations does a Union have under the ADA and the NLRA? The employment discrimination provisions of the ADA apply to labor unions both as employers and as bargaining agents. The courts have found under Title VII (which prohibits employment discrimination based on race, sex, national origin and religion) that a union must not interfere with an employer's duty to reasonably accommodate an employee's religious observances when the accommodation does not violate the collective bargaining agreement. It is very likely that the courts will impose a similar requirement on unions under the ADA. Federal labor law imposes a duty of fair representation on unions, that is, they must act reasonably, in a non-discriminatory fashion and in good faith, with respect to the employees they represent. This duty of fair representation may include assisting an employee in obtaining a reasonable accommodation, or cooperating with an employer in attempting to determine a reasonable accommodation within the bargaining unit and the terms of the collective bargaining agreement. How Does the ADA Affect Unionized Employers? Private sector employers who have unionized employees are also subject to the National Labor Relations Act ("NLRA"). The NLRA provides, among other things, that the union is the exclusive representative of the employees, and that the employer is prohibited from dealing directly with employees concerning terms and conditions of employment. Furthermore, the NLRA prohibits an employer from implementing any change in terms and conditions of employment without first negotiating that change with the union. The ADA prohibits employers from entering into collective bargaining agreements that discriminate against individuals protected by the ADA. What is Reasonable Accommodation? A reasonable accommodation is any modification of or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate and enjoy equal employment opportunity. Reasonable accommodations include modification or adjustment of the application process to enable qualified individuals with disabilities to apply, making facilities readily accessible to and usable by persons with disabilities, modifying work schedules, reassignment to a vacant position, reallocating non-essential job functions, and acquisition or modification of equipment or devices. An employer is not required to create "light duty" positions or to reallocate essential job functions. An employer is not required to provide a reasonable accommodation if it would create an undue hardship for the employer. Whether a reasonable accommodation creates an undue hardship is a factual issue depending on factors such as the nature and net cost of the accommodation and the size and nature of the business. The terms of a collective bargaining agreement may be relevant in determining whether a particular accommodation would cause undue hardship, but they will not be determinative of that question. The duty of reasonable accommodation is situation-specific. What is the Reasonable Accommodation Process? In determining a reasonable accommodation under the ADA, if an effective accommodation is not obvious, the employer and employee may wish to engage in a flexible interactive process to determine an appropriate accommodation. Generally, an individual with a disability must request a reasonable accommodation. If the employer has not done so, it should determine the essential functions of the job involved, then consult with the individual requesting accommodation to determine the job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation. The possible accommodations should be evaluated, and an effective accommodation selected. While the employee's preference is given consideration, the employer has the discretion to chose between equally effective reasonable accommodations. The ADA also requires that medical information concerning job applicants and employees be kept in separate files and confidential. To the extent medical information is required or used during discussions concerning reasonable accommodations, the employer has a continuing obligation to maintain the confidentiality of that information. The reasonable accommodation process, however, may conflict with the NLRA prohibitions on direct dealing and unilateral changes to terms and conditions of employment. Furthermore, unlike Title VII, the ADA does not contain an exception for collectively bargained seniority systems. Most likely, therefore, an employer can not automatically reject a requested accommodation that conflicts with or affects the terms of a collective bargaining agreement, such as request for a light duty job without the requisite seniority or a request for job restructuring, but must show that the accommodation would be an undue hardship, that is, unduly disruptive to other employees or to the functioning of the employer's business. Is An Employer Required to Meet its Obligations under the ADA and the NLRA? Yes, the legislative history of the ADA shows that Congress considered the unique problems created by collective bargaining agreements and intended that the provisions of an agreement be dovetailed with the duty of reasonable accommodation under the ADA. Similarly, the General Counsel for the National Labor Relations Board ("NLRB"), the government agency charged with the enforcement of the NLRA, has stated that to the extent that a reasonable accommodation does not affect terms and conditions of employment, for instance, putting a desk on blocks, providing a ramp, Braille signage, or providing an interpreter, an employer does not have to negotiate with the union representing its employees. The union, however, must be part of the process of determining a reasonable accommodation where the reasonable accommodation would cause a material, substantial or significant change in working conditions. It is both possible and desirable to reconcile the ADA and the NLRA. The best way is to ensure that full communication exists at all points in the ADA dialogue process. Effective achievement of ADA objectives requires harmonizing two statutory schemes that have the needs of workers at their core. What Proactive Approaches are Available to Employers and Unions to Meet the Requirements of the ADA and the NLRA? The potential conflicts between the ADA and the NLRA may be lessened or eliminated through collaborative long-range planning by unions and employers, and, thereby, protecting the interests of unions and all their members under the terms of a collective bargaining agreement as well as statutory mandates. Employers and unions can create a cooperative environment with respect to their obligations under the ADA and NLRA. At the outset, the employer and union could decide to utilize informal accommodations for persons with disabilities within the unit. For instance, if a person with a disability had difficulty performing a non-essential function of the job, for example, an employee in a wheelchair who couldn't reach the copying machine, an accommodation, with the approval of the union and the employees affected, might be made to have other employees do that employee's copying. Employers and unions might also present educational programs on the ADA, including open discussions on the effects of the ADA on the work environment by both management and union personnel. Employers and unions might also decide to establish a committee of an equal number of management and union representatives to deal with ADA compliance issues. This joint labor management committee might consider requests for reasonable accommodations, and work with the employee in the informal, interactive process of determining a reasonable accommodation. Since both the employer and union would be represented in this committee, their interests could be asserted and protected in the process. Furthermore, in the course of the committeeþs work, it could develop factors for evaluating a requested accommodation, assist in the determination of the essential functions of the job, determine the accommodations available, evaluate whether the requested accommodation would affect other members of the bargaining unit, how it would affect them, whether other possible accommodations are available, and the possible consequences of those accommodations. As noted above, generally, employers have an obligation to keep employee medical information confidential. To the extent, that medical information is needed in the determination of a reasonable accommodation, and most likely it will not, the information could be provided by the employee or by the employee authorizing the employer to release the medical information to the committee. What Role Can the Shop Steward Play in Assisting in Implementation of the ADA? The union steward is the person in the union with whom each member may have direct contact -- to whom members bring their problems and grievances, from whom members get information, and whom members generally see everyday on the job. The shop steward can serve a role in information dissemination on the ADA. It is at this level that information about the ADA can be shared with union membership on such topics as the union's role in informing the workforce about non-discrimination of persons with disabilities in the workplace and the reasonable accommodation process. Conclusion These proactive approaches will serve the employer with respect to its obligations under the ADA, to provide reasonable accommodations, and under the NLRA, to include the union in the process of determining a reasonable accommodation. A union will also benefit by these proactive approaches with respect to its legal obligations to the employees it represents. Most of all, these proactive approaches will foster positive and productive working environments for employers and unions, and further the goal of the ADA, the inclusion of persons with disabilities in the work place and society. Resources ADA Regional Disability and Business Technical Assistance Center Hotline, 800/949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, N.W., Washington, D.C. 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Civil Rights Department, 815-16th Streets, N.W., Washington, D.C. 20006, (202) 637-5000 (Voice). -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- CULTURAL DIVERSITY AND THE ADA What is the Americans with Disabilities Act? The Americans with Disabilities Act (the "ADA"), passed in 1990, is legislation intended to protect and guarantee access and participation in society for persons with disabilities. The statute is specifically directed at employment, public accommodations, public services (i.e., services delivered by state and local governments), transportation, and telecommunications. Title I of the ADA prohibits discrimination against qualified persons with disabilities in all terms, conditions, and privileges of employment, including recruitment, pre-employment screening, hiring, benefits, promotions, layoff and termination. Under the ADA, an employer must provide an effective reasonable accommodation when a qualified individual with a disability requests a needed accommodation, unless the employer can demonstrate that it would be an undue hardship to do so. An employer may not deny an employment opportunity to a qualified applicant or employee with a disability because of a request or need for a reasonable accommodation. As of July 26, 1994, Title I of the ADA applies to employers of 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. What are employer considerations in addressing cultural diversity issues? Broadly defined, diversity issues can encompass ethnicity, gender, age, religion, and sexual preference considerations for individuals in the workplace and their employers. According to Department of Labor projections, diversity will increase dramatically in the coming years. Changes in the labor market are expected to result in a shortage of traditional workers, leading to increased reliance on non-traditional populations. In addition, cultural diversity is becoming more important as the globalization of business makes a diverse workforce essential. By the year 2000, one-third of all new workers will be non-white; two-thirds will be women; and the average age of workers will increase. The religious diversity of the workforce is also expected to increase. Diversity poses many challenges to employers and as the diversity of the workforce increases, so will the challenges. Diverse populations bring different attitudes, perceptions, motivations, and needs to the workplace. Productive work requires that employees have their needs adequately addressed and have effective communication with co-workers. This creates challenges to employers in terms of training, supervision, loyalty, group cohesion, rewards, co-worker and management tolerance, and special support needs. What implications does the Americans with Disabilities Act have for cultural diversity issues? Companies now realize that homogenizing the workforce is not an effective response to workforce diversity. More and more companies are finding that valuing differences and managing diversity minimizes the potential productivity losses which can arise from the challenges that diversity presents, and thereby better harnesses the productivity gains possible from a diverse workforce. Additionally, such efforts can contribute towards compliance with federal non-discrimination laws and help to attract non-traditional workers who will be needed to fulfill future labor market demands. Surveys indicate that about 50% of employers with 100 or more employees have cultural diversity initiatives in place today. Valuing diversity involves recognizing and appreciating the differences of individuals. Managing diversity emphasizes developing company policy, culture, and goals to optimize the productivity of an organization's employees by utilizing their differences. Model programs have revealed that diversity initiatives require the support of top management. Managing diversity changes the culture of the organization to reflect the valuing and utilization of employee differences. As with any change in corporate culture, the lead must come from the top, with management embracing the diversity initiative to assure employees of a real change in the company's position. Successful diversity initiatives include an array of programs. Generally, these programs include some form of training and some effort to change the communication norms of the organization. Specifically, employee surveys, cultural networks, diversity-management training, and mentoring programs are frequently begun to assess and broaden the attitudes of employees and management. In addition, many corporations investigate their reward systems to ensure that employees are not being evaluated on their personal style but rather on the merits of their work. As a part of the initiative, sometimes flexibility is incorporated into the work schedule. Employers are also making strides in assuring compliance with the Americans with Disabilities Act employment provisions in their workplace environment. This may mean training a number of personnel on the following topics relating to ADA implementation: * Employment pre-screening and applicant interviewing under the ADA * Interface of the ADA with other state and federal employment and non-discrimination legislation * Writing job descriptions that identify essential job functions * The reasonable accommodation process * Career equity/promotional considerations for persons with disabilities * Non-discriminatory performance appraisals * Customer relations with customers with disabilities * Negotiation/conflict management in the reasonable accommodation process Since one of the major barriers that is found in the hiring and retention of persons with disabilities in the workplace is attitudinal bias, it is a logical extension of cultural diversity training to integrate into existing training concerns about discrimination for people who are different by virtue of a physical or mental impairment. Such awareness is imperative to effective implementation of the reasonable accommodation process under the employment provisions of the Americans with Disabilities Act. What is Reasonable Accommodation? Reasonable accommodation is any modification of or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate and enjoy equal employment opportunity. Reasonable accommodation includes, but is not limited to, modification or adjustment of the application process to enable qualified individuals with disabilities to apply, making facilities readily accessible to and usable by persons with disabilities, modifying work schedules, reassignment to a vacant position, reallocating non-essential job functions, and acquisition or modification of equipment or devices. An employer is not required to reallocate essential job functions. An employer is also not required to create a "light-duty" position. An employer is not required to provide a reasonable accommodation if it would create an undue hardship for the employer. Whether a reasonable accommodation creates an undue hardship is a factual issue depending on factors such as the nature and net cost of the accommodation and the size and nature of the business. The duty of reasonable accommodation is situation-specific. What is the Reasonable Accommodation Process? In determining a reasonable accommodation under the ADA, if an effective accommodation is not obvious, the employer and employee may wish to engage in a flexible interactive process to determine an appropriate accommodation. Generally, if an individual with a disability wants a reasonable accommodation, he or she must request one. If the employer has not done so, it should determine the essential functions of the job involved, then consult with the individual requesting accommodation to determine the job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation. The possible accommodations should be evaluated, and an effective accommodation selected. While the employee's preference is given consideration, the employer has the discretion to chose between equally effective reasonable accommodations. It is important that the concept of non-discrimination and equal access for persons with disabilities be an ongoing discussion in the workplace. It will be easier to facilitate the accommodation process and make needed changes to meet an individual's specific needs when a climate of receptivity to the principles and requirements of the ADA has been fostered through ongoing discussion. For example, negotiating a job restructuring for a particular individual will likely be more easily facilitated if co-workers have already been apprised of the organization's commitment to reasonable accommodation and the non-discrimination values inherent in the ADA. An example is when a person has difficulty performing a non-essential function of a job and the accommodation is having other employees pick up some of those tasks. Effecting such a task reallocation will be easier when the work force is prepared through prior training and ongoing group dialogue on accommodation issues. The ADA contains strict confidentiality requirements pertaining to medical information obtained during a medical examination or inquiry. Medical information must be collected and maintained on separate forms and in separate medical files, and kept confidential. There are certain narrow circumstances when such information may be disclosed, including informing supervisors and managers about necessary work restrictions or accommodations. What are some suggested implementation strategies to heighten awareness of the ADA through cultural diversity initiatives in business and industry? Successful implementation of both cultural diversity and ADA initiatives require efforts to change corporate culture and attitudes. Both suggest the need for personnel training on non-discrimination practices, flexibility in work schedules and investigation of employee evaluation and reward structures. These similarities suggest that the combination of disability and cultural diversity initiatives is both possible and advisable. Conducting separate initiatives may result in duplication of efforts and consume much more time, especially when training and policy evaluations are included in the initiatives. Selected strategies that will both further cultural diversity and implementation of the ADA might be as follows: * Affirmative action initiatives, if chosen to be undertaken, could include active recruitment of individuals with disabilities to the workplace, through collaborative agreements with state Vocational Rehabilitation agencies or local job placement services for individuals with disabilities. * Training and promotional opportunities should afford all minorities an opportunity to advance their job options; for individuals with disabilities, this may be the provision of needed supports to enable them to access training, consider new positions, or acquire needed retraining when a disability occurs that prevents a return to the original job position. * Integration of the nondiscrimination requirements of the ADA for persons with disabilities in all facets of personnel training and human resources practices. These are only a few of many proactive initiatives which employers can take to recruit and retain individuals with disabilities in the workplace, thereby expanding their potential labor pool and maximizing human resources to enhance workplace outcomes. Resources ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). American Institute for Managing Diversity, Morehouse College, Box 83, 351-55 Westview Drive, Atlanta, GA 30314, (404) 756-1170. American Society for Training and Development, 1640 Kings Street, Box 1443, Alexandria, VA 22313, (703) 683-8100. This publication was written by Susanne M. BruyŠre, Ph.D., C.R.C., and Joyce Hoying, ILR Program on Employment and Disability, Cornell University, 106 ILR Extension, Garden Avenue, Ithaca, New York 14853-3901, 607/255-7727 (voice) or 607/255-2891 (TTY). --Funding Source-- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. BruyŠre, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The ADA and Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Cultural Diversity and the ADA * The ADA and Total Quality Management For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- THE ADA AND TOTAL QUALITY MANAGEMENT What Is the Americans with Disabilities Act? The Americans with Disabilities Act of 1990 (ADA) is a significant piece of civil rights legislation that extends the prohibition against discrimination on the basis of race, sex, religion, and national origin to persons with disabilities. The employment provisions in Title I prohibit discrimination against persons with disabilities in recruitment, preemployment screening, hiring, promotions, layoffs and terminations, and any other term, condition, or privilege of employment. Title I covers private employers, state and local governments, employment agencies, and labor unions. What Is Total Quality Management? Total quality management (TQM) is a form of doing business in which managers and line employees work cooperatively toward improved quality and productivity. Three components are necessary for total quality management to flourish in any company: participatory management, continuous process improvement, and use of teams. Participatory management is a process of trust and feedback that evolves between managers and employees. It means providing individual employees and teams with the skills and support they need to understand better how they do business, help improve the production process, and participate in making changes in the organization. A 1992 Gallup poll revealed that 39 percent of American managers had a quality improvement program in place and were pleased by the results. Continuous process improvement means accepting small, incremental gains as steps toward total quality. This approach enables employees to develop confidence in the total quality management process and gives managers opportunities to support and encourage employees and teams. Each process is studied, often by the employee responsible for doing it, to see how it can be improved. Cross functional teams (sometimes called quality improvement teams) meet frequently using TQM principles to study a particular area that needs work. What Is "Reasonable Accommodation" under the ADA? Reasonable accommodation, a critical concept in the employment provisions (Title I) of the ADA is a modification or adjustment to a job, employment practice, or work environment that enables a qualified individual with a disability to participate in and enjoy equal employment opportunity. The employer's obligation to provide a reasonable accommodation applies to all aspects of employment. This requirement may arise anytime a person's disability or job changes, unless the accommodation causes an undue hardship to the employer. An undue hardship is an action that poses significant difficulty or expense in relation to the size of the company, available resources, or the nature of the business. A qualified individual with a disability or employee cannot be denied an employment opportunity solely because of the need to provide reasonable accommodation. If the employer can show that the cost of the accommodation would impose an undue hardship, it would still be required to provide the accommodation if funding is available from another source, e.g. a State vocational rehabilitation agency, or if tax deductions or credits are available to offset the cost of the accommodation. In the absence of such funding, the individual with the disability requesting the accommodation should be given the option of providing the accommodation or of paying that portion which constitutes the undue hardship on the operation of the business. How Can TQM Be Used to Help Implement the ADA? Total quality management can be used when implementing the ADA so as to improve human resource practices in general, in addition to increasing employment opportunities for people with disabilities. The advantages of TQM apply not only to human resource departments responsible for recruitment, hiring, and employment in both large and small companies. At least four features of total quality management focus on improvements in the workplace that can benefit all employees. These four features are * capacity building * universal design * focus on strengths rather than deficits * use data for decision making Emphasis on capacity building calls both for changing human resource methods and building the changes into day-to-day practice. Under the ADA, an employer may be required to make modifications or adjustments to a job application process that enable a qualified applicant to be considered for the position desired. Improving the capacity of human resource processes enhances opportunities for people with disabilities and all other potential employees. Universal design concepts accommodate the diversity of the current and future workforce, including persons with disabilities. Whereas universal design is frequently discussed in terms of physical accessibility and environmental modifications, the same principles apply to services and processes. For example, the use of icons on application forms and computer programs allows a much broader range of people to recognize immediately the information needed. Focus on strengths rather than deficits create the potential for configuring job duties to take advantage of individual differences. Traditional hiring processes often emphasize assumed requirements that extend beyond the essential functions of a specific job. As a result, they may eliminate potential employees who have transferable skills but do not meet all assumed requirements. Use of data for decision making includes evaluation of progress and ways to improve processes. If a company intends to increase the diversity of its workforce by hiring employees with disabilities, then data about progress in recruiting, interviewing, and hiring will provide feedback about the effectiveness of its new human resource practices. How can the Planning Process of Total Quality Management Be Applied to Reasonable Accommodation? Most organizations that use total quality management use the Plan-Do-Check-Act (PDCA) cycle or a variation of it. Plan-Do-Check-Act can be used as a blueprint for supervisors faced with the need to provide a reasonable accommodation. The steps, spelled out below, can also help in devising an appropriate accommodation for a particular individual. Plan. The individual with a disability and his or her supervisor should discuss the needed accommodation, evaluate alternative solutions, and select those that appear best. Worker, manager, and other experts work as a team. The President's Committee on Employment of People with Disabilities' Job Accommodation Network (see below) can help. Do. Once the employee and his or her supervisor or employer agree on an accommodation, it can be implemented. This should be done with the understanding that the accommodation may need to be reexamined and updated in the event of a job change or a change in the status of the employee's disability. Check. Assess whether the accommodation is working. Ask the individual, observe outcomes of the individual's work, and observe the worker. If there are problems, return to the planning portion of the cycle. Act. The request for accommodation may signal action needed to assess the causes of work-related injury to prevent future such occurrences. Also, the information gained overtime on accommodations can be helpful if similar such accommodations are needed in the future. Educating Personnel about the ADA Because the ADA applies to all aspects of participation in society, including employment, public accommodations, transportation, and telecommunications, it will affect businesses both as employers and as providers of goods and services. Each business organization must educate its employees on the provisions of the ADA, its relevance to the functioning of the organization as a whole, and the responsibilities of specific personnel. One way to introduce ADA nondiscrimination material might be to add it to TQM training efforts which are being offered by many companies. A familiar term in TQM is benchmarking. Benchmarking is a formalized process for assessing current practices in work performance and outcomes and comparing that with desired or superior performance processes and outcomes. For example, training supervisors on effective benchmarking for unit effectiveness could include the number of work-related injuries for a particular quarter or the number of persons with disabilities who are newly recruited in the workplace. Using such examples will raise awareness of disability discrimination issues in the context of total quality management training for the organization. Other ADA-related information of particular relevance to supervisors includes * employment prescreening and applicant interviewing * medical, drug, and other testing * identification of essential job functions * and equal access for persons with disabilities to staff development and promotional opportunities. Reference Jablonski, J. R. (1990). Implementing Total Quality Management þ competing in the 1990s. Albuquerque, N.M.: Technical Management Consortium. Resources ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). This brochure was written by Dale S. Brown, Susanne M. Bruyere, and David Mank. For a more extensive review of the topic entitled "Quality Through Equality: Total Quality Management Applied to the Implementation of Title I of the Americans with Disabilities Act" by Dale Brown, Susanne Bruyere, and David Mank which will be available for purchase from your Regional Disability and Business Technical Assistance Center at 1-800-949-4232, or from LRP Publications (specify Product #31015.PLAN, 24 pp., $9), PO Box 908, Horsham, PA 19044-0980, phone 1-800-341-7874, Fax 1-215-784-9639. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The ADA and Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Cultural Diversity and the ADA * The ADA and Total Quality Management For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- EMPLOYING AND ACCOMMODATING INDIVIDUALS WITH HISTORIES OF ALCOHOL OR DRUG ABUSE Why is Drug and Alcohol Abuse Considered a Disability? Clinicians and researchers commonly divide drug and alcohol consumption into three levels or stages of use: use, abuse, and dependence. While the use of drugs and alcohol does not generally rise to the level of an impairment that constitutes a disability, abuse and dependence do. Drug and alcohol abuse is characterized by intensified, regular, sporadically heavy, or "binge" use, and dependence is characterized by compulsive or addictive use. Drug and alcohol abuse and dependence are classified as treatable illnesses by both standard diagnostic medical manuals, the Diagnostic and Statistical Manual IV (DSM-IV) and the International Statistical Classification of Diseases, Injuries, and Causes of Death (ICD-10). These manuals also provide criteria for diagnosing drug and alcohol abuse and dependence that focus on psychological, behavioral, and cognitive symptoms. The impact of drug and alcohol use on social and occupational functioning is an important factor in evaluating the severity of an individualþs condition. 1 Many individuals with drug and alcohol problems can continue to function in their jobs long after drug and alcohol use has begun to take its toll on family and social functioning. What Protections Against Discrimination are Provided to Individuals With Drug and Alcohol Impairments? Many employers do not realize that the Americans with Disabilities Act (ADA) protects individuals with drug and alcohol problems against discrimination in employment. This confusion exists because the ADA imposes some special requirements for the employment of individuals with current drug problems. People with past drug or alcohol problems are protected from job discrimination by the ADA, as are persons with current alcohol problems who are able to perform their job. The only individuals with drug and alcohol problems who do not have the same rights as others with disabilities are those who currently use drugs illegally. The ADA specifically excludes from the definitions of "individual with a disability" any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. This includes individuals who use illicit drugs as well as those who use prescription medications unlawfully. Individuals who use drugs under the supervision of a licensed health care professional -- such as methadone -- are not using drugs illegally, and therefore could be protected against discrimination. Although individuals with current drug problems are not protected, the ADA specifically protects individuals who are participating in a supervised drug rehabilitation program or who have completed a treatment program or have been rehabilitated through self-help groups, employee assistance programs or any other type of rehabilitation, and are no longer using drugs. In addition, the ADA protects individuals who are erroneously perceived as abusing drugs illegally, but are not doing so. Because of societal attitudes about drug abuse, many individuals who have had drug problems in the past are perceived as still being drug dependent. Similarly, individuals who participate in methadone maintenance programs are also often perceived as drug dependent, even though methadone is a lawfully prescribed medication and individuals who participate in a methadone maintenance program are able to do every task -- even safety-related tasks -- that a person who is not receiving such treatment can do. These individuals are protected against discrimination under the ADA. Workplace drug testing programs also create a pool of individuals who may be erroneously perceived as being drug dependent when, in fact, they are not. Invariably, drug tests will inaccurately identify some individuals as drug users. This occurs because the drug test may be performed incorrectly, substances in an individualþs system may be incorrectly identified as a drug, or a prescription medication may be incorrectly identified as an illicit drug. The ADA prohibits discrimination against individuals who are erroneously regarded as engaging in the illegal use of drugs because of a false positive drug test, but are not engaging in such use. Individuals with current alcohol impairments are protected against discrimination like any other individual with a disability. Alcohol is not considered a "drug" under the ADA, and, therefore, the current abuse of alcohol does not exclude an individual from the ADAþs protection. Individuals with current alcohol impairments, like any other individual with a current disability, must be able to perform the essential functions of the job to be protected against discrimination. In addition, the ADA specifically permits an employer to hold employees who abuse alcohol to the same performance and conduct standards applicable to all employees, even if that employee's problems are related to the alcohol abuse. What is "Current" Illegal Use of a Drug? To determine whether an employee or job applicant is "currently" using drugs illegally, an employer must make an individualized determination that focuses on whether the individual has used drugs close enough to the time of the employment action to indicate that there is a real and on-going problem. It is not permissible to impose a blanket time limitation, such as 30 or 60 days of abstinence from drugs, as a way to define what is "current" illegal use of drugs. In addition, because the ADA protects individuals who are participating in a rehabilitation program and those who have been rehabilitated (as long as they are not still using drugs illegally), employers should be careful about reaching back in time and taking adverse actions against individuals for drug use that occurred before they entered treatment. What Medical Tests or Inquiries are Permitted to Determine Whether an Individual has a Drug or Alcohol Problem? The permissible scope of medical tests and inquiries depends upon whether an employer is seeking information, on the one hand, about a current drug impairment or a current or past alcohol impairment or, on the other, past drug impairment. Because the current illegal use of drugs is not a protected disability, employers can obtain information about drug use that they could not otherwise get about other disabilities. For example, employers may ask a job applicant about current illegal use of drugs prior to a conditional offer of employment. They may also ask an employee about current illegal use of drugs at any time without showing that the inquiry is job related or required by business necessity. Finally, the ADA explicitly states that a test to detect the illegal use of drugs is not considered a medical examination, and, therefore, drug tests may be given prior to a conditional offer of employment or at any time in an employee's tenure. Employers must be careful, however, in conducting a drug test prior to a conditional offer of employment because the drug test could reveal information about other disabilities that applicants have a right to withhold until after an employment offer. For example, a drug test could reveal the presence of dilantin, which is used to treat epilepsy, or methadone, which is used to treat heroin addiction. If such protected information is obtained, employers cannot use such information in a way that violates the ADA. The ADA also requires that information collected from medical examinations and inquiries be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record. Inquiries about alcohol use or past drug use, on the other hand, must be treated like inquiries about any other disability. Such inquiries cannot be made of applicants until after a conditional offer of employment or of employees except when job related or required by business necessity. In addition, urine or breath tests that detect the use of alcohol cannot be done prior to a conditional offer of employment or cannot be required of an employee unless the test is job related and required by business necessity. What Can an Employer Do To Ensure that an Individual is No Longer Using Drugs? The ADA permits employers to take reasonable steps to ensure that an individual is no longer illegally using drugs. Employers are permitted to conduct drug tests and to obtain information from treatment programs in order to monitor drug use. If an employer has an employee assistance program (EAP), the EAP may be the best entity to conduct the follow-up. While the ADA does not impose many restrictions on drug testing, employers are required to use accurate test procedures and to comply with any federal, state, or local law that regulates drug testing. In addition, when seeking information from a drug or alcohol treatment program about an individualþs rehabilitation, employers should be aware that federal regulations govern the release of drug and alcohol patient information by virtually all treatment programs. 2 These regulations, in order to protect the confidentiality of individuals with drug and alcohol problems, require the execution of a detailed consent form before employers can receive treatment information and place strict limitations on the employerþs use, maintenance and redisclosure of that information. Because these regulations impose more stringent confidentiality standards than those in the ADA, they supersede the ADA's requirements for protection of drug and alcohol treatment information. What Accommodations Do Individuals With Drug and Alcohol Problems Need? Accommodations for individuals in recovery from a drug or alcohol problem will vary depending upon the requirements of their jobs and their length of time in recovery. For example, individuals who have recently completed a rehabilitation program may need to participate in a structured, out-patient continuing care program on a regular basis. Others who have been sober for a long time will participate in self-help groups, such as Alcoholics Anonymous, for the rest of their lives in order to prevent relapse. Involvement in such continuing care may require some accommodation. Examples of necessary accommodations could include: * a modified work schedule to permit an employee to pick up her daily methadone dosage or to attend an out-patient relapse prevention counseling session. * job restructuring to relieve an employee of particular marginal tasks that may compromise recovery or be inappropriate in the early stages of recovery. * temporary reassignment of an employee in a safety-related position to a vacant non-safety sensitive position while he or she completes treatment. In addition, because individuals with current alcohol impairments are protected against discrimination to the extent they can perform their job effectively and safely, employers are required to consider providing unpaid leave to permit an individual with a current alcohol impairment to attend an in-patient treatment program. In addition, if an employer provides paid leave to individuals who are obtaining medical treatment for a disability, the employer must provide the same benefit to an individual who is obtaining treatment for an alcohol problem. Some employees will need no accommodation, but simply a change in attitude regarding what an individual with a past drug or alcohol impairment can do. It is important to understand that such individuals are able to perform all jobs safely, including safety-related jobs, and that they pose no risk to others solely because of a past drug or alcohol addition. An employerþs most important obligation under the ADA is to evaluate the individualþs ability to do the essential job tasks and make employment decisions based on the individualþs qualifications and work performance. How Do Other Federal Laws Relating to Drug and Alcohol Use Affect the ADA's Standards? The ADA permits employers to comply with other federal laws and regulations that relate to drug and alcohol use. These federal standards include the Drug Free Workplace Act and standards established by the Department of Transportation, Department of Defense, and the Nuclear Regulatory Commission relating to testing safety-sensitive employees for drug use, and in some cases, alcohol use. The standards established by these other federal laws and rules are consistent with the ADA and, generally do not restrict the rights of individuals in safety-related jobs beyond what the ADA permits. The drug testing regulations, in particular, cover a fairly narrow set of employees whose jobs directly affect safety. They require employees to comply with restrictions on off-duty drug and alcohol use and prohibit individuals who violate drug or alcohol rules from holding safety-sensitive jobs. The regulations give employers the right to determine when individuals who have tested positive for drug or alcohol may return to work in the safety-related position. Apart from these standards, the ADA does not permit employers to treat individuals with past drug or alcohol impairments who hold safety-related jobs any differently from other employees. Resources For information on the Americans with Disabilities Act and accommodations the following can be contacted: ADA Regional Disability and Business Technical Assistance Center Hotline, 800/949-4232 (voice/TTY). U.S. Equal Employment Opportunity Commission, 1801 L Street NW, Washington, DC 20507, 800/669-4000 (voice), 800/800-3302 (TTY), or 800/669-EEOC (publications-voice). There are a number of organizations that can provide information about drug and alcohol problems and assist individuals with such problems. Some of these are: Employee Assistance Professional Association, 4601 North Fairfax Drive, Suite 1001, Arlington, VA 22203, 703/522-6272. Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TTY). Legal Action Center, 153 Waverly Place, New York, NY 10014, 212/243-1313, and 236 Massachusetts Avenue, N.E., Suite 510, Washington, DC 20002, 202/544-5478. The Workplace Center, Columbia University, School of Social Work, 622 West 113th Street, New York, NY 10025, 212/854-5458. 1 Institute of Medicine, Treating Drug Problems, 61-62, 69-72 (1990). 2 Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. Part 2. This publication was developed by Ellen. M. Weber, Co-Director of National Policy of the Legal Action Center, 236 Massachusetts Avenue, NE, Suite 510, Washington, DC 20002, 202/544-5478. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- ACCOMMODATING THE ALLERGIC EMPLOYEE IN THE WORKPLACE Defining the Allergic Employee An allergy is an overreaction of the immune system to a substance. The function of the immune system is to recognize and eliminate agents that are harmful to the host. When the immune system is functioning properly, the foreign agents are eliminated quickly and efficiently. Occasionally the immune system responds adversely to environmental agents, resulting in an allergic reaction. When the immune system hyperreacts, the response is out of proportion to, and more harmful than, the initial threat of the substance. The details of all kinds of allergic reactions will not be discussed here, but one type occurs when antibodies bind to the environmental agent or antigen which has been taken into the body or makes contact with the skin or mucous membranes. This binding reaction causes chemicals from the body to be released which produce dilation of the blood vessels, the release of fluid causing swelling and inflammation. The main targets of this type of reaction are the skin (producing urticaria and atopic dermatitis), the respiratory system (producing rhinitis and asthma), the vasculature (causing anaphylactic shock), and the gastrointestinal tract (causing food allergies). These responses are called immediate hypersensitivity because they tend to occur quickly after rechallenge with an antigen to which the individual has been sensitized. Another type of allergic reaction, called delayed hypersensitivity, does not involve antibodies, but produces an inflammatory reaction by the action of specialized types of white blood cells. The target for this type of reaction can be almost any organ, but the classic example is the skin as in the case of contact dermatitis. Anaphylactic shock is an allergic condition in which the antigen-antibody reaction takes place all through the body immediately after an antigen to which the person is sensitive has entered the circulatory system. If the reaction takes place in direct contact with the walls of the blood vessels or the muscles of the heart, damage to these tissues can result directly. The reaction causes the release of body chemicals which make the arteries and veins dilate, greatly reducing blood pressure in the arteries. The permeability of the capillaries increases causing a rapid loss of fluid from the blood and into the tissue spaces. The result of the great loss in blood returning via the veins to the heart is often so drastic that the resulting shock can produce death within minutes. Hypersensitivity, or allergy, is not due to an alteration of the immune system by a foreign substance, but is an inappropriate activation of the immune system. So an allergy is a normal immune response with deleterious consequences, such as allergic rhinitis, hay fever, or contact sensitivity. In some of these cases, the response can be the source of tissue damage, so that suppressing certain immune reactions actually reduces tissue injury. Once sensitized, the affected individual becomes more sensitive to low concentrations. Allergies to Workplace Exposures Hypersensitivity from environmental exposures in the workplace can produce respiratory disorders, skin disorders, or anaphylactic shock. Numerous inhalants cause immune-mediated respiratory disorders, including some types of bronchial asthma, hypersensitivity pneumonitis, allergic rhinitis, and bronchopulmonary aspergillosis. Immune system involvement has also been seen for silicosis, asbestosis, coalworkers' pneumoconiosis, and possibly byssinosis. Allergic reactions of the skin include allergic contact dermatitis (red rashes, swelling, itching, and sometimes blisters). Although almost anyone can develop an allergy to a given substance, a distinct segment (15 - 20 percent) of the population is clinically atopic; that is, individuals who are unusually reactive to a variety of substances. Persons could have genetic differences that might predispose them to allergies to certain environmental and occupational antigens. However, it is very frequent that the individual who develops occupational asthma is nonatopic. This person may not get the symptoms at work, but may have a delayed response in the evening or at night. Characteristically, the individual develops the symptoms of asthma, which are wheezing, shortness of breath, cough, and sometimes chest tightness. The symptoms improve away from work, but get worse upon return to work. Identifying the Sensitizer in the Work Environment There is an enormous range of potential allergens in the workplace. Documented case histories involve a large number of substances, even though the numbers of people affected by any one substance may be very small. Below are listed some industrial chemicals which have been documented as producing allergic reactions. Additional information is available on the allergens which have been shown to be related to specific occupations or exposures. Some common industrial chemicals associated with occupational asthma include: Platinum salts Nickel salts Pyrethrum (used as the bases of some insecticides) Diisocyanates (such as toluene diisocyanate or TDI) Ethylenediamine Phthalic anhydrides Colophony resins (derived from pine resin) Exotic wood dusts Some common contact sensitizers of the skin include: Poison ivy European primrose Benzocaine Epoxy Resins Mercaptan Picric acid derivatives Ethylenediamine Formaldehyde Thimerosol Beryllium Nickel Cadmium Chromates Silver Zirconium Cutting oils Paraphenylenediamine Carbon-iodine hydrocarbon compounds Occupational Exposure Limits and the and the Sensitive Worker It would be most helpful in solving a workplace exposure problem if the specific allergen could be identified and the nature and extent of the exposure documented so that it could be addressed or reduced. Immunotoxicologists have identified many substances that have demonstrable immunotoxic effects in laboratory animals, and in a few instances, the effects of these substances have been observed in humans as well. Occupational experience has provided some evidence of substances' inadvertent immunotoxic effects in humans. For the most part, however, data are sparse on the effects of general exposure to immunotoxicants in the environment, although the scientific community does recognize that the immune system is an important target organ for toxicity. Several Federal activities are designed to enhance public awareness of the hazards of toxic substances, including those which affect the immune system. OSHA's Hazard Communication Standards (29 CFR 1910.1200) and Laboratory Standard (29 CFR 1910.1450) require that workers be provided with information about the known health hazards of their jobs. However, since so little information is available regarding immunotoxic effects, and since the Standards cannot be used to compel testing, the Standards do little at present to protect workers from potential allergens. OSHA does have a substance-specific standard dealing with formaldehyde (29 CFR 1910.1048). OSHA's occupational exposure limit regulations were recently rolled back to the 1971 limits due to a court decision. Newer limits which had been set in 1989 on some chemicals to prevent allergic reactions have, as a result, been either eliminated or reverted to the older limits. Only a few potential sensitizers are presently regulated by OSHA: * Cobalt metal, dust, and fume (Respiratory System) * Formaldehyde (Skin and Respiratory System) * Isophorone Diisocyanate (Skin and Respiratory System) * Phenyl Glycidyl Ether (Skin) * Picric Acid (Skin) * Toluene-2,4-Diisocyanate (Respiratory System) Most scientists agree that the lack of human test data should not preclude efforts to control human exposures to suspected immunotoxicants, but the absence of data will ensure continued disagreement about suitable means and levels of control. It is important to note that in regulating exposure to potential allergens, the nature of the dose is significant: to prevent adverse health effects, should the exposure be handled as an eight-hour time-weighted-average dose (such as a workshift) or as a peak dose or as an intermittent high dose? Then the occupational exposure should be controlled accordingly. Some information indicates that perhaps high intermittent doses can result in sensitization or can affect individuals who are sensitive. There is some evidence to indicate that the exposure may have been a one-time event to produce sensitization. Another problem with setting exposure limits for a immune system-related response is the challenge of developing an acceptable exposure limit for an event that does not appear to either have a threshold or fit the standard dose-response relationship. Accommodating the Allergic Employee Once an employer learns an applicant or employee is allergic, and in need of an accommodation, the employer may be required by the Americans with Disabilities Act to provide the needed accommodation. The allergic worker may be able to respond to low levels of exposure, levels which may be lower than the relevant occupational exposure limits set by OSHA or recommended by agencies such as NIOSH or organizations such as the ACGIH. Accommodating the allergic employee would therefore generally involve reducing exposure further by providing specific protection for the sensitive individual, such as additional protective equipment which the average (nonallergic) worker probably wouldn't need. Protective equipment could involve the use of respirators for respiratory protection or protective clothing (such as gloves) or barrier creams for skin protection. The use of respirators would involve employer compliance with OSHA's Respiratory Protection Standard (29 CFR 1910.134) including the use of a physical to determine whether a worker could wear a respirator. Battery-powered respirators may enable those with pulmonary or cardiovascular problems to still use a respirator. Respirators made of silicone may enable someone to wear a respirator who has a rubber allergy (such as an allergy to mercaptobenzothiazole). Exposure could be reduced by the use of engineering controls such as better or more efficient use of ventilation to dilute or remove exposure; improved equipment design to reduce the production of vapors, mists, and splashes; or enclosures of equipment or processes to contain or collect any emissions. Air cleaning equipment could be used to reduce the air concentration of a potential allergen in the work area of a sensitive individual. Exposure may be reduced by scheduling changes which do not place the sensitive worker in a work area at the same time that a potential allergen is being used. (For example, avoiding the use of products such as cleaning chemicals or pesticides or paints in the sensitive person's office or work area.) One important accommodation would include having personnel aware of what to do or who to call (such as emergency telephone numbers) if the allergic person experiences an adverse reaction such as an asthmatic attack or anaphylactic shock. The allergic person's physician should be consulted as to what such measures should include (such as having antihistamines or brochodilators available for emergency use). However, these are some other alternatives to consider which could reduce or altogether remove the potential for exposure to an allergen: product substitution, the use of an alternative formulation for the chemical or material being used, eliminates containing or using the potential allergen. (For example, to avoid asthma from inhalation of persulfate boosters in hair bleaches, a hairdresser could use a bleach with a non-persulfate booster such as sodium perborate, sodium percarbonate, or magnesium carbonate.) Process substitution reduces or eliminates exposure to an allergen by the use of an alternative method for doing a job. (For example, to avoid skin or respiratory allergies from the use of cold sterilization with formaldehyde solutions, sterilization using steam or ultraviolet light could be considered.) Both product and process substitution may be well worth investigating because they may have advantages to the employer in the areas of cost savings on hazardous waste disposal, less potential liability for handling or storage of hazardous materials, reduced need for extra or special ventilation or protective materials, reduced need for extra or special ventilation or protective equipment/clothing, reduced needs for fire or other types of insurance, reduced workers' compensation costs for injuries or illnesses, etc. Moreover, substitutions may have the added advantage of reducing exposure for other workers who have not yet shown any adverse health effects. For some chemical exposures, it may be possible to have medical testing to determine if an individual is likely to have an allergic reaction to an exposure or to diagnose hyperreactive respiratory airways. It is important that such testing be performed post-job offer or by a physician who reports to the employer only the information as to whether the employee can perform the requirements of the job and what accommodations might be necessary so that privacy can be protected and the potential for discrimination reduced. Resources For information on the Americans with Disabilities Act and accommodations the following can be contacted: ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TTY). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). This publication was developed by Nellie J. Brown, M.S., Western Regional Director. Chemical Hazard Information Program, New York State School of Industrial and Labor Relations, Cornell University, 110 Pearl Street, 8th Floor, Buffalo, New York 14202-4111, (716) 842-1124. This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. BruyŠre, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. OTHER TITLES IN THIS IMPLEMENTING THE ADA SERIES ARE: * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Working Effectively with People who are Blind or Visually Impaired * Working Effectively with Employees who have Sustained a Brain Injury * Workplace Accommodations for Persons with Musculoskeletal Disorders * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Causes of Poor Indoor Air Quality and What You Can Do About It * The Americans with Disabilities Act of 1990 and Injured Workers For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- WORKING EFFECTIVELY WITH PEOPLE WHO ARE BLIND OR VISUALLY IMPAIRED What is Blindness or Visual Impairment? When we think of "blind," we think of total darkness. However, a person may be "legally blind" with either...  20/200 vision in both eyes with best correction in the better eye, OR  a field of vision restricted to 20 or less. A person whose vision is 20/70 to 20/200 is often referred to as "visually impaired." Some people are born with no vision or significantly reduced vision. Others lose vision due to accidents or the natural aging process, usually starting in the 40s. For some, vision loss is sudden, while for others, it may be gradual. Some conditions, diabetes, for example, cause vision to fluctuate from day to day. Many people who have lost significant levels of visual functioning take time out from their careers to learn alternative skills which allow them to live and work effectively. If a person who is blind or visually impaired applies for a job in your company, the resume and application will indicate experience and skills. What Types of Jobs Do People Who are Blind Do? With appropriate training and equipment, people who are blind or visually impaired have the same range of abilities as anyone else. There are no "jobs for blind people." To broaden your thinking, consider that blind people have been successful as ... artists machinists auto mechanics masseuses boat builders mayors computer programmers lawyers musicians fashion models production workers professional teachers story tellers word processing specialists An employer's perception of inability is often the biggest limitation that people who are blind face. Accommodating the Person who is Blind or Visually Impaired During the Employee Selection Process You are trying to determine whether an applicant has the necessary skills, experience, education, or other background to successfully perform the essential functions of the job. This is the same information you need about any applicant to help you make an effective hiring decision. A person who does not see well enough to read an application form may be discouraged from applying for a job, even if the job itself requires minimal vision. Ask the applicant how he or she would prefer to meet the requirements of the process. For example, if you require applicants to complete an application form, ask the applicant which would be most convenient... * Mail the application to the candidate who requests it * Offer the walk-in applicant an opportunity to take the form, have someone help complete it, and return it by mail or in person * Offer the services of someone in the office to assist in completing the form. When you invite a person who is blind or visually impaired to an interview... * Ask if he or she needs directions if someone is driving * If the candidate is taking public transportation, indicate which stop is closest, then give directions from the stop. * Offer assistance from the reception area to your office by asking, "Would you like to take my arm?" If the person needs to, he or she will lightly grasp your arm just above your elbow and will follow one step behind you. Don't insist on helping, and certainly, don't push the person ahead of you. If the person uses a dog guide, the dog will follow you. Do not pet or distract the dog. * When you get to your office, place the persons hand on the back of the chair you are offering. Do not push the person into a chair. When a blind or visually impaired person is in your office... * Be yourself. Use normal language. Its OK to say: * "Do you see what I mean?" * "Would you like to take a look at the work area?" * "I hope to see you again." Enhancing Productivity on the Job Velcro fasteners on protective clothing, hand trucks, and word processors allow us to do things that would otherwise be difficult. These tools enhance our productivity by reasonably accommodating our humanness. The Americans with Disabilities Act (ADA) asks us to "reasonably accommodate" the limitations imposed by a persons physical or mental disability. Reasonable accommodation is defined as modification or adjustment of a job, employment practice, or the work environment that makes it possible for a qualified person with a disability to be employed. The employer needs to accommodate from the first contact with the person with the disability, during the application process, on the job, in training, on the work site, and when considering promotions and layoffs. If job duties change, new accommodations may need to be made. The ADA requires an employer to accommodate unless doing so would cause an undue hardship. If that cost is an undue burden the employer may offer the person with the disability an opportunity to provide the accommodation or assist in finding resources to pay for it. If we think of accommodations as "productivity enhancements" similar to others in the workplace, they become part of the cost of doing business. Types of Productivity Enhancers The employer and employee should brainstorm and research equipment or job restructuring. The person who requests accommodation has lived, and perhaps worked, with the disability and may know what will enhance productivity most effectively. Low tech Productivity enhancers do not have to be fancy or expensive. * Dot of silicon on a knob, switch, or button permits a person to align controls on a machine. * Wide felt-tip marker may make file folder labels readable. * Braille labels on the soft drink machine gives the braille user equal access to flavor choice. * Different size strips of masking tape identify parts bins for production employees. Consult your employee who is blind or has low vision for other simple solutions. High tech Computers can be modified to provide enlarged screen display, synthesized voice, or braille output. * Optical scanners, also known as "reading machines," scan printed material and "read it" into a computer or voice synthesizer. Some scanners require only adding a card and an external monitor. * Screen text enlargers use software to enlarge print on a computer screen up to several inches high. * A tactile representation board allows a person with vision loss to touch a tablet and a synthesized voice reads the word that is at the corresponding point on the screen. At present, most advanced computer access technology is for DOS-based applications. However, first-generation graphical user interface access shows great promise. Costs vary considerably, depending on whether the employee can benefit most from text enlargement, voice, or braille output. Software for text enlargement runs around $500 - 600, braille printers cost between $2,000 - 5,000. Speech output devices range widely, depending on sophistication, from $800 - 1,800. Braille scanners and printers run from $500 - 15,000. Machines which magnify printed materials (closed circuit televisions) permit a person who has some usable vision to read memos and books and fill out forms. They cost around $2,500. When considering costs of accommodations, review the cost of the company's entire computer system overall, the "overall financial resources of the facility..." and the "overall financial resources of the covered entity...." before deciding that the equipment needed to enhance a blind workers productivity is too expensive. Appropriately setting up any employees work station helps guarantee maximum productivity. Tips for On-The-Job Training Employees who are blind or visually impaired need the same introduction to a job and initial training as sighted colleagues. Provide orientation to the company and the job. Ask the employee whether he or she learns best from verbal instruction or a combination of hands-on, written, and verbal learning. Allow the person to organize the work area for greatest efficiency, even if it means organizing it differently than in the past. You may find that the new design would make other employees more productive as well. Make sure that the work station is adequately equipped and that the employee knows where to get replacement supplies. If an outside organization has provided equipment, determine who is responsible for ownership, upkeep, upgrading, or replacement of the equipment. Performance Management A supervisors responsibility is to establish an atmosphere of quality and productivity. Appropriate on-going training is crucial. Assume that an employee who is blind or visually impaired has the same career aspirations as other employees and provide training, ensuring that materials are accessible to the persons visual limitations. Supervise as you would for any other employee. Be sure that all employees understand performance expectations. Provide praise and constructive feedback. If a performance problem arises, deal with it openly. Do not automatically assume that it is disability-related. Do not avoid giving feedback. Employees who are blind or visually impaired, as all employees, want to know when they are performing well and when they need to do things differently. Occasionally, a supervisor will not provide feedback until a major problem arises, then dismiss the employee. No employee should be surprised with such actions! Conduct performance appraisals, using the same criteria as with other employees. If a supervisor has provided feedback throughout the year, an annual performance appraisal should contain no surprises. Review any adaptive equipment to ensure that it is still working well. Determine if it needs upgrading to keep the employee competitive. Training and Promotion As an employee grows in the job, provide the same opportunities for learning and taking on new challenges as for other employees. If this means attending out-of-town training, speaking at professional conferences, or training new workers, encourage these activities. Check with the employee to identify any needed accommodations. Assist the person to plan the next steps in a successful career. Promote qualified people who are blind or visually impaired using the same criteria as promotion for others. Resources There are a number of resources that can assist employers and people who are blind or visually impaired with job adaptation. Begin all discussion of accommodation with the employee. If additional information is needed, consult the following organizations: ADA Regional Disability and Business Technical Assistance Center Hotline - (800) 949-4232. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice); (800) 800-3302 (TTY); or (800) 666-EEOC (publications). Services (or Commission) for the Blind (look in local telephone book under state agencies or vocational rehabilitation). Some of these agencies have technology centers where employers can view adaptive equipment. Vocational Rehabilitation Division (in states that do not have a separate agency for blind people). American Foundation for the Blind, National Technology Center, 15 West 16th Street, New York, NY 10011, (212) 620-2080 (Mon-Fri, 8:30 AM - 4:30 PM). The Center has a database of 1,200 blind and visually impaired people who use adaptive equipment in various jobs. Employers are welcome to call for information. The Center also evaluates high-tech products. Job Accommodation Network (JAN). Call 1-800-526-7234. Employers talk with Human Factors Consultants about an individual with a disability (not limited to blindness or low vision). The consultant will search JAN's database for information related to the functional requirements of the job, the functional limitations of the employee, environmental factors, etc. The search will provide information about similar situations, names and addresses of appropriate resources. For specific computer adaptations, contact: Apple Computer, Inc. Office of Special Education Programs 20525 Mariani Avenue Cupertino, CA 95014 (408) 996-1010 This publication was developed by Mary B. Dickson, President of Creative Compliance Management, a human resource consulting and training firm whose mission is to maximize human potential in the workplace. She is the author of Supervising Employees with Disabilities: Beyond ADA Compliance, published in 1993 by Crisp Publications, Inc. For further information, write to 13629 SE Grant Court, Portland, OR 97233, or call (503) 255-9318. Significant assistance was provided by:  Pam Maxon, Employment Specialist, and Mark Nelson, Technology Specialist, Oregon Commission for the Blind, 535 SE 12th Avenue, Portland, OR 97214, (503) 731-3221.  Thomas Ciesielski, consultant on blindness and low vision issues, 5225 NE Couch Street, Portland, OR 97213, (503) 236-8479. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- WORKING EFFECTIVELY WITH PERSONS WHO HAVE COGNITIVE DISABILITIES -- What is Reasonable Accommodation? -- The critical concept in the Employment Provisions (Title I) of the Americans with Disabilities Act of 1990 (ADA) is that of reasonable accommodation. Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate in and enjoy an equal employment opportunity. The employers obligation to provide a reasonable accommodation applies to all aspects of employment; the duty is ongoing and may arise any time a persons disability or job changes, unless the accommodation causes an undue hardship to the employer. An employment opportunity cannot be denied to a qualified applicant or employee because of the need to provide reasonable accommodation. According to the ADA, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of providing the accommodation or paying that portion of the cost which would otherwise constitute an undue hardship for the employer. -- Who is Likely to Need an Accommodation for a Cognitive Disability? -- "Cognition" refers to "understanding", ability to comprehend what you see and hear, and to infer information from social cues and "body language". People with these impairments may have trouble learning new things, making generalizations from one situation to another, and expressing themselves through spoken or written language. Cognitive limitations can arise at any age but those encountered in people of employable age are very likely to have existed since childhood; in this case the limitation may have affected life experience as well as school learning. In the past, hundreds of thousands of these individuals have ended up on welfare, but in recent years a number of major service industries, - hotel chains, supermarkets, banks, fast food chains, retail stores - have found that it pays to accommodate employees with cognitive support needs. Since the pattern of need for supports is highly individual, it is important to take time to get acquainted with the applicant or employee and to structure one's approaches accordingly. Cognitive limitations of varying degrees can often be found in people who have been classified in school as learning disabled, mentally retarded, autistic, multiply handicapped, or who have been diagnosed as having a head injury or Down Syndrome. It is important, however, not to approach an individual with any preconceived notions as to his or her specific capabilities. Not everyone who is slow speaking is cognitively impaired. -- What Considerations Might be Important in the Job Application and Interview Process? -- Individuals with cognitive disabilities may require help in the job application and interview process. Some easy accommodations to make during these processes could include: * Simplifying and minimizing wording on the job application; * Clarification and assistance in completing information needed on the job application; * Conducting a verbal interview to obtain job application information that may be more complex in nature and difficult to put in writing; * Describing job requirements clearly, concisely and simply; showing the person the job; * Adjusting length of interview to maximize applicants ability to remain attentive and decrease stress level; * Interviewing in a quiet, informal, distraction-free environment; * Using multiple formats to advertise job postings, such as newspaper and radio advertising. -- What About Job Training and Performance Considerations? -- Individuals with cognitive disabilities may have directly relevant work experience, but sometimes they may need to be taught their specific job. In this case, the reasonable accommodation needed may be to have added assistance in job training. Such an accommodation could mean that the employer or supervisor: * spend additional time in training the new employee; * break job tasks down into smaller steps which are more clearly defined; * use very clear and basic language to provide job instructions; * develop a set routine in a job; * develop a consistent work sequence; * allow the employee to use alarm watches or timers; * develop pictures or diagrams showing job sequence to assist in learning tasks; * teach the employee with the disability how to follow the example of co-workers to learn work routines and appropriate work behaviors; * encourage co-worker involvement in ongoing support, if needed. It is most helpful if the employer or supervisor takes time to orient the employee to company rules as presented in the basic orientation training or company handbook; being clear about the expected level of quantity and quality of work, and the method of performance appraisal should be a part of this discussion. The ADA's mandate to accommodate includes all aspects of employment. Another potential accommodation for a person with cognitive support needs may be assistance in fitting in with co-workers. Once hired and in the job, the employee might need added assistance to be included in company social events, participate in in-service training, and to be considered for job advancement and promotional opportunities. Some other such supports to consider may include: * developing a transportation network to aid the employee in attending social activities; * facilitating relationships with co-workers; * ensure accessibility of in-service training activities; * investigating other jobs for promotion potential; * maintaining an open relationship with the employee regarding performance and work behavior expectations. -- Are There Other Possible Considerations in Working with People with Cognitive Disabilities? -- The ADA encourages the reasonable accommodation process to be an informal, interactive process which starts with the employer and the person with the disability jointly exploring what the best accommodation might be to support the individual. In the case of a person with cognitive disabilities, it might also be desirable to involve in this process someone who can serve as an advocate and assist in communication, such as a job coach, family member, or rehabilitation counselor. The potential employee should, to the maximum extent possible, be central in these discussions. Individuals with cognitive disabilities who aspire to enter the job market generally have some sense of their own limitations. In fact such a sense is usually a positive indicator of success; at the same time the individual is likely to be sensitive to the stigma attached to his or her limitations and eager not to be identified as "retarded" or "stupid". The initial encounter is therefore very important. Creating an atmosphere of acceptance and trust at the outset does not prejudice the outcome in either direction. While an individual with a cognitive disability may require support in the other areas mentioned below, it is important to check with a particular individual regarding the level of support that applicant or employee may need. Special considerations may include: * not speaking in so simple (or loud) and basic a manner as to offend the individual; * assigning and matching jobs that appropriately challenge and engage the individual; * speaking directly to the individual regarding matters of concern; * encouraging natural social relationships with co-workers; * when using adaptations, job modifications or other supports, making sure the individual with the disability is included in deciding which kinds of aids will be useful. -- Where Can I Find Resources to Assist in the Accommodation Process? -- A possible resource for both the employer and potential accommodation for the individual with a disability may be using supported employment and job coaching to assist the potential employee in the job application process, learning the tasks of the job, sustaining and progressing in the job, facilitating use of existing resources in the job, and moving to expanded job responsibilities, new career opportunities when possible, and serving as a human resources consultant. Additional contact information on national resources and resources in your area are listed below. -- Resources -- National and State Resources to gain further information about accommodations for persons with cognitive support needs are: ADA Regional Disability and Business Technical Assistance Center Hotline - (800) 949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice); (800) 800-3302 (TTY); or (800) 666-EEOC (publications). State Offices of Vocational Rehabilitation, The Association of Persons in Supported Employment (APSE), 5001 West Broad Street, Suite 34, Richmond, VA 23230, phone (804) 282-3655. The Arc, 500 East Border Street, Suite 300, Arlington, Texas 76010, (817) 261-6003 (voice) or (817) 277-0553 (TDD). This publication has been developed by Susanne M. Bruyere, Ph.D., C.R.C., Director, and Thomas P. Golden, Training Coordinator, Program on Employment and Disability at the School of Industrial and Labor Relations, Cornell University, Ithaca, New York 14853-3901, 607/255-7727 (voice) or 607/255-2891 (TTY). The authors would like to gratefully acknowledge the helpful suggestions made by Dr. Elizabeth Boggs, in the development of this publication. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- WORKING EFFECTIVELY WITH PERSONS WHO ARE DEAF OR HARD OF HEARING Who is Considered Deaf or Hard of Hearing? Hearing loss affects between 21 and 28 million Americans (about 10% of the U.S. population). The loss may range from mild (difficulty with or inability to hear soft sounds) to profound (difficulty with or inability to hear loud sounds). Generally speaking, this group can be divided into persons who are either hard of hearing or deaf. Persons who are hard of hearing represent roughly 20 to 22 million people. The term "hard of hearing" refers to a hearing loss from 25dB (mild loss) to 90dB (severe loss). An individual with this degree of loss frequently communicates using a combination of strategies that rely on residual auditory ability enhanced by a hearing aid or assistive listening device and often supplemented through lipreading or other visual means. Deafness is a low prevalence condition, affecting approximately one and a half-million persons. The term "deaf" refers to a hearing loss greater than 90dB (profound hearing loss). Persons are considered "deaf" if their hearing loss is such that they are unable to hear or understand speech and must rely on vision for communication. Persons who are deaf in the United States, especially those who are born deaf or lose their hearing at an early age, generally prefer to communicate using American Sign Language through sign language interpreters, or through reading, writing, or other visual means. Persons who are deaf and lose their hearing later in life, sometimes referred to as "late deafened", may have different communication preferences and rely on residual hearing, lipreading, captioning, or perhaps English based sign language. What is the Impact of Hearing Loss at Work? Research on the employment of workers who are deaf or hard of hearing indicates that on-the-job communication can be affected by the following factors. * Lack of notetakers/assistive listening devices for meetings. * No sign classes for hearing workers. * No professional interpreters are made available as needed for job interviews, performance reviews, group meetings, and other situations. * Co-workers have difficulty communicating with them. * Supervisors have difficulty communicating with them. * Poor (non-professional) interpreters are used. * Written notes and company memos are often expressed in a level of English inappropriate to the reading abilities of particular deaf and hearing workers. Consequently, employers often need to be prepared to make accommodations for employers who are deaf or hard of hearing in activities requiring communication. Examples of these activities include following detailed instruction, teamwork, adapting to change, or interacting with co-workers and supervisors. What Types of Jobs Do Persons Who are Deaf or Hard of Hearing Have? Persons who are deaf or hard of hearing can perform the majority of jobs available. However, there are factors that create communication barriers that can limit their participation in the workplace. These factors include physical and environmental barriers such as noise, light level within a room, and distance from a speaker. Attitudinal barriers are also factors that can limit participation of persons who are deaf or hard of hearing. They include stereotyping, ignorance, and focus on disability (limitations) rather than ability (strengths). With few exceptions, persons who are deaf or hard of hearing, if given appropriate training and accommodations, have the same range of job options as any other person. There are indeed no jobs that are just for persons who are deaf or hard of hearing; they are employed in as diverse range of jobs as people who hear. In recent years, several persons who are deaf or hard of hearing have been successful in high profile jobs that require excellent communication skills, e.g., screen actors and President of the United States. Given their capabilities and provision of appropriate accommodations, persons with hearing losses can be productive employees in most any job. Persons who are deaf or hard of hearing have been successful as... architects mechanics artists merchants computer programmers physicians postal workers corporate managers psychologists lawyers entrepreneurs salespersons financial consultants teachers telecommunications technicians judges Success on the job depends to a large degree upon the skill and attitudes of the worker as well as the willingness and ability of the employer to identify and resolve communication barriers encountered in the workplace. Appropriate accommodations may be implemented in all phases of employment, from participation in the selection process to training and advancement once an employer learns an applicant or employee is deaf or hard of hearing and in need of an accommodation, the employer may be required by the Americans with Disabilities Act to provide the needed accommodation. Accommodating the Person Who is Deaf or Hard of Hearing During the Employee Selection Process During the selection process, employers must determine if the deaf or hard of hearing applicant is capable of performing the essential functions of the job. It is critical to obtain an accurate picture of the applicant and his or her background, skills, and abilities to do the job. Typically this process involves two steps: screening written job applications and interviewing prospective applicants. Some applicants who are deaf or hard of hearing may have difficulty in reading and comprehending written applications, especially those that are heavily nce and work behavior expectations. -- Are There Other Possible Considerations in Working with People with Cognitive Disabilities? -- The ADA encourages the reasonable accommodation process to be an informal, interactive process which starts with the employer and the person with the disability jointly exploring what the best accommodation might be to support the individual. In the case of a person with cognitive disabilities, it might also be desirable to involve in this process someone who can serve as an advocate and assist in communication, such as a job coach, family member, or rehabilitation counselor. The potential employee should, to the maximum extent possible, be central in these discussions. Individuals with cognitive disabilities who aspire to enter the job market generally have some sense of their own limitations. In fact such a sense is usually a positive indicator of success; at the same time the individual is likely to be sensitive to the stigma attached to his or her limitations and eager not to be identified as "retarded" or "stupid". The initial encounter is therefore very important. Creating an atmosphere of acceptance and trust at the outset does not prejudice the outcome in either direction. While an individual with a cognitive disability may require support in the other areas mentioned below, it is important to check with a particular individual regarding the level of support that applicant or employee may need. Special considerations may include: * not speaking in so simple (or loud) and basic a manner as to offend the individual; * assigning and matching jobs that appropriately challenge and engage the individual; * speaking directly to the individual regarding matters of concern; * encouraging natural social relationships with co-workers; * when using adaptations, job modifications or other supports, making sure the individual with the disability is included in deciding which kinds of aids will be useful. -- Where Can I Find Resources to Assist in the Accommodation Process? -- A possible resource for both the employer and potential accommodation for the individual with a disability may be using supported employment and job coaching to assist the potential employee in the job application process, learning the tasks of the job, sustaining and progressing in the job, facilitating use of existing resources in the job, and moving to expanded job responsibilities, new career opportunities when possible, and serving as a human resources consultant. Additional contact information on national resources and resources in your area are listed below. -- Resources -- National and State Resources to gain further information about accommodations for persons with cognitive support needs are: ADA Regional Disability and Business Technical Assistance Center Hotline - (800) 949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice); (800) 800-3302 (TTY); or (800) 666-EEOC (publications). State Offices of Vocational Rehabilitation, The Association of Persons in Supported Employment (APSE), 5001 West Broad Street, Suite 34, Richmond, VA 23230, phone (804) 282-3655. The Arc, 500 East Border Street, Suite 300, Arlington, Texas 76010, (817) 261-6003 (voice) or (817) 277-0553 (TDD). This publication has been developed by Susanne M. Bruyere, Ph.D., C.R.C., Director, and Thomas P. Golden, Training Coordinator, Program on Employment and Disability at the School of Industrial and Labor Relatxamples of accommodations that could facilitate communication in a variety of situations: Face to Face Situations * ensure that the office and/or work environment is adequately lighted * consider placing the worker in a quieter environment if environmental noise interferes with communication * arrange the work station in a way that the worker can readily see when someone is entering their office or work-site * use assistive listening devices when needed * use interpreters (oral and/or sign) when needed * be aware of your personal habits that may serve as barriers to comfortable speechreading. Examples include hands in front of mouth, not directly facing employee, and chewing while talking * encourage co-workers and supervisors to learn sign language by offering training classes Interactive Distance Communication Situations * ensure the availability of Text Telephones (TTs, also commonly referred to as TDDs or TTYs), amplification devices, or other appropriate assistive listening devices (ALDs) to help facilitate communication between other employees or customers * use state telecommunication relay services, where an intermediate person receives verbal information and types it to the person using a TT. The þ800þ toll free phone numbers for these services are listed in local phone directories * consider E-mail for intra and interoffice communication * provide visual or tactile pagers for communication, instructions, and as an alerting system * share information via networked computers * use computer notetaking * try FAX machines for intra or interoffice, or customer communication * provide visual and auditory alerting devices on telephones and fire alarm systems Group Situations * ensure that all rooms used for meetings or training are adequately lighted * utilize assistive listening devices such as FM, infrared, loop systems, and/or closed-captioning decoders in meeting and training sessions * try real-time captioning for meetings and training sessions (simultaneously captioning as speaker speaks) * caption video training materials * use professional interpreters (oral and/or sign) when needed * use notetakers in meetings and groups * consider "communication cops" at meetings (one person who monitors the meeting to ensure that only one person speaks at a time) * provide mentors and coaches Performance Evaluations Performance evaluations are typically based upon a written review coupled with a face-to-face interview. If reading ability necessitates extra time, provide workers with written information in advance. Since barrier-free communication is critical, use multiple strategies as necessary to ensure success. Multiple strategies include use of professional interpreters (sign or oral), computers, ALDs, and other appropriate strategies. Resources Prior to contacting any of the following resources, it is important to remember that the person with the most information and experience regarding needed workplace accommodations is the job applicant or worker. Ask the individual to tell you what accommodation(s) work best for that person in face-to-face, interactive distance, and group communication situations. If additional information or assistance is needed, consult the following resources. University Resources University of Arkansas RRTC for Persons who are Deaf or Hard of Hearing, 4601 West Markham, Little Rock, AR 72205, 501/686-9691 V/TT Northern Illinois University RRTC for Persons who are Traditionally Underserved, Department of Communicative Disorders, DeKalb, IL 60115, 815/753-6520 V/TT Job Accommodations Network, West Virginia University, 809 Allen Hall, P.O. Box 6123, Morgantown, WV 26505-6123, 800/526-7234 V/TT Gallaudet University, National Information Center of Deafness, 800 Florida Avenue, NE, Washington, DC 20002, 202/651-5051 V/TT National Technical Institute for the Deaf, National Center on Employment of the Deaf, 1 Lomb Memorial Drive, Rochester, NY 14623, 716/475-6205 V/TT Consumer Organizations National Association of the Deaf, 814 Thayer Avenue, Silver Spring, MD 20910, 301/587-1789 TT, 301/587-1788 V Self Help for Hard of Hearing People, Inc., 7800 Wisconsin Avenue, Bethesda, MD 20814, 301/657-2249 TT, 301/657-2248 V Association for Late-Deafened Adults, P.O. Box 641763, Chicago, IL 60664, 312/604-4192 TT Professional Organizations American Deafness and Rehabilitation Association, P.O. Box 21554, Little Rock, AR 72225, 501/663-7074 V/TT American Speech-Language-Hearing Association, 10801 Rockville Pike, Rockville, MD 20852, 800/638-8255 V/TT Registry of Interpreters for the Deaf, Inc., 8719 Colesville Road, Suite 310, Silver Spring, MD 20910, 301/608-0050 V/TT Regional/State Resources ADA Regional Disability Business Technical Assistance Center Hotline, 800/949-4232 V/TT State Vocational and Independent Living Rehabilitation and/or State Office or Commission for the Deaf, listed in local phone books and directory assistance This publication was developed by the University of Arkansas Research and Training Center for Persons who are Deaf of Hard of Hearing. The Centerþs mission is to develop a coordinated, advanced program of rehabilitation research and training to professional service providers to enhance the rehabilitation outcomes of persons who are deaf or hard of hearing. This center is funded by the National Institute of Disability Rehabilitation Research. For more information write to: University of Arkansas Research and Training Center for Persons who are Deaf or Hard of Hearing, 4601 West Markham Street, Little Rock, AR 72205, 501/686-9691 This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. BruyŠre, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. OTHER TITLES IN THIS IMPLEMENTING THE ADA SERIES ARE: * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Working Effectively with People who are Blind or Visually Impaired * Working Effectively with Employees who have Sustained a Brain Injury * Workplace Accommodations for Persons with Musculoskeletal Disorders * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Working Effectively with People with Learning Disabilities * Accommodating the Allergic Employee in the Workplace * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Causes of Poor Indoor Air Quality and What You Can Do About It * The Americans with Disabilities Act of 1990 and Injured Workers For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- EMPLOYMENT CONSIDERATIONS FOR PEOPLE WHO HAVE DIABETES -- What is Diabetes? -- Diabetes mellitus results from the body's inability to use food effectively for energy, resulting in elevated blood sugar levels. Either the pancreas does not produce adequate insulin or the body cannot use the insulin effectively. There are two kinds of diabetes: Type I, appropriately called insulin-dependent diabetes (formerly called juvenile onset); OR Type II, known as non-insulin-dependent (formerly called adult onset diabetes). The title is not entirely accurate, since some Type II persons with diabetes must take insulin injections. Type I diabetes represents only 10% of the 13,000,000 Americans with diabetes and is considered the more serious type. Once diagnosed, persons with diabetes Type I must monitor their blood sugar daily. Persons with diabetes Type II, representing the other 95% of those with the condition, can control the disease with weight control, appropriate diet, and exercise. Many, but not all, take oral medication. Half the people with diabetes do not know they have the condition. This may be dangerous since diabetes can lead to complications such as kidney problems, decreased vision, and foot disease, particularly if not well controlled. Employers may offer diabetes detection and education programs, using the resources of the local American Diabetes Association. This can alert employees to the symptoms of diabetes and encourage them to be tested so they can control the disease appropriately. Diabetes cannot be cured, but it can be controlled. The person with diabetes needs to take responsibility for maintaining a good diet, exercising, and seeking appropriate medical care. Those who take good care of themselves can be healthier than other employees simply because they are knowledgeable about and participate in a healthy life-style. -- Diabetes and the Americans with Disabilities Act (ADA) -- The ADA defines disability in several ways, one of which is, "Someone who is regarded as having an impairment." Diabetes is not well known or understood by many employers. Many people with diabetes live and work successfully for years without negative impact on their work. Because their condition does not impact their ability to do their job, they may choose to not make their employer aware of their condition. Fear of discrimination keeps many employees with diabetes quiet. In what areas might employers discriminate? As with any disability, the potential to discriminate exists at any point in the employment process. Examples: * A nurse sent her resume to 16 institutions, and in her cover letter mentioned her diabetes. She had only two responses, and no job offer. * A man with diabetes initially hired to run a shipboard boutique was rejected by the company doctor because a diabetic woman passenger slipped into a coma 20 years ago and died, setting a precedent. * An airline employee was forced to take two 10-minute breaks rather than one 20-minute break, during which time she had to test her blood sugar, take insulin, and eat. The change in her break schedule was insufficient time to complete the tasks required to maintain good diabetic control. These situations reflect the fear and misunderstanding surrounding this condition. As with any other disability, employers are required by ADA to look at the actual limitations, not perceived limitations. -- Workplace Implications of Diabetes -- Despite good monitoring of diet, medication, and exercise, some people with diabetes may experience insulin reactions caused by hypoglycemia (low blood sugar). Insulin reaction can be caused by not eating at appropriate times, irregular working schedules, and/or change in exercise level. A person experiencing hypoglycemia may become suddenly weak, shaky, or faint. Many people with diabetes recognize these symptoms and will immediately drink orange juice or eat something high in sugar. It only takes a few minutes for the persons blood sugar to return to normal. The American Diabetes Association states, "Diabetes as such should not be a cause for discriminating against any person in employment. People with diabetes should be individually considered for employment weighing such factors as the requirements or hazards of the specific job, the individuals medical condition, and their treatment regimen (diet, oral hypoglycemic agents, and insulin). Any person with diabetes, whether insulin-dependent or non-insulin-dependent, should be eligible for any employment for which he or she is otherwise qualified." -- What Types of Jobs Do People with Diabetes Do? -- There are very few restrictions for people with well controlled diabetes. Some laws prohibit people with insulin-treated diabetes from serving in the armed services and in jobs involving interstate driving and as pilots. Local laws may prohibit people with diabetes from serving on a police force. This continues to be a problem and the American Diabetes Association recommends each situation be considered on a case by case basis, even though a lawsuit was filed against the Maryland-National Capitol Park Police after which an officer with diabetes was reinstated. Problems may occur with those who cannot maintain blood sugar control, and consequently they should not work in dangerous areas. However, since this is quite uncommon, the employee, based on his or her experiences, should generally make this decision, not the employer. Diabetes is a highly individualized condition. Ideally, the employee, his or her doctor, and the employer work together to ensure success. -- Performance Management -- For the most part, people with diabetes should need no special treatment from their supervisors. An understanding of the condition and the possible need for regular work schedules and meal breaks is usually helpful and appreciated. Living successfully with diabetes means that a person must be self-disciplined, self-aware, and self-responsible, all valued characteristics in many jobs. -- Enhancing Productivity on the Job -- The Americans with Disabilities Act requires employers to "reasonably accommodate" the limitations imposed by a persons physical or mental disability. Reasonable accommodation is defined as modification or adjustment of a job, employment practice, or the work environment that makes it possible for a qualified person with a disability to be employed. The law states that the employer needs to accommodate from the first contact with the person with the disability, during the application process, on the job, in training, on the worksite, and when considering promotions and layoffs. If job duties change, new accommodations may need to be made. The ADA requires an employer to accommodate unless doing so would cause the employer an undue hardship. If we think of accommodations as "productivity enhancements" similar to others made in the workplace, they become part of the cost of doing business. If that cost is an undue burden, however, the employer may offer the person with the disability an opportunity to provide the accommodation or assist in finding resources to pay for it. The ADA requires that employers only accommodate known disabilities. Some people with diabetes do experience complications such as vision loss. Visual impairment due to diabetes may be quite gradual, and the vision may fluctuate from day to day. If the diabetes has resulted in visual loss, accommodations can be made. Low vision aids may prove useful. The employees eye care professional may suggest magnification, appropriate lighting, or large print materials. The employee may want to contact a local resource center for people who are blind or visually impaired for a low vision assessment on the job to find useful aids. In some cases of diabetes, despite ones best efforts at maintaining good blood sugar control, the condition will progress. Ones vision loss may be great enough that the person will need to learn alternative ways of performing activities. The employee may need to take a leave of absence to attend a formal program of vocational rehabilitation, where he or she will learn new ways to perform job duties. Vocational rehabilitation training will teach the person how to get around safely (perhaps with a white cane), use adaptive equipment, and perhaps perform job tasks in a somewhat different manner. -- Training and Promotion -- For most people with diabetes, the employer should have no concerns about training and promotion. If the employees diabetes has caused significant functional limitations, and if training activities are planned, consult the employee about possible accommodations needed in the training environment. These may include: * regular testing of blood glucose levels and meal breaks * training materials put into alternative formats such as large print * having another trainee copy his or her notes if training is conducted in a darkened room Employers should assume that people with diabetes have the same career goals and aspirations as any other employee. A persons diabetes should play no part in decisions about transfers and promotions. Concentrate only on the appropriateness of the persons skills for a new position and determine if reasonable accommodations are needed. Capitalize on the person's strengths and accommodate limitations to gain greatest productivity from the employee. -- Resources -- ADA Regional Disability and Business Technical Assistance Center Hotline (800) 949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TTY), (800) 666-EEOC (publications) American Diabetes Association, National Service Center, 1660 Duke Street, P.O. Box 25757, Alexandria, VA 22314, (703) 549-1500 If visual functioning is affected by diabetes, the employee or employer may wish to contact the local office of the state Commission (or Services) for the Blind and Visually Impaired. Look in your telephone directory under state services. This publication was developed by Mary B. Dickson, President of Creative Compliance Management, a human resource consulting and training firm whose mission is to maximize human potential in the workplace. She is the author of Supervising Employees with Disabilities: Beyond ADA Compliance, published in 1993 by Crisp Publications, Inc. For more information, write to: 13629 SE Grant Court, Portland, OR 97233, or call (503) 255-9318. Significant assistance was provided by: Beth Ruml, RN, MSW, CDE (Certified Diabetes Educator), Portland, Oregon Frierson, James G. Employers Guide to the Americans with Disabilities Act, Washington, DC: The Bureau of National Affairs, Inc., 1992. Materials provided by the American Diabetes Association. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- WORKING EFFECTIVELY WITH INDIVIDUALS WHO ARE HIV-POSITIVE Are HIV-Positive Persons or Those Diagnosed with AIDS Considered to Have a Disability? Yes, as the U.S. Congress, the Equal Employment Opportunity Commission, and the courts have indicated, those who are known or perceived to be infected with the human immunodeficiency virus (HIV) meet the definition of disability under The Americans with Disabilities Act of 1990 (ADA). This is due to the fact that HIV infection is a substantially limiting impairment. Anti-discrimination provisions also apply to caregivers and/or those who have a relationship or association with those with HIV infection. What Can an Employer Ask About the Medical Condition of an HIV-Positive Person? Employers may not ask job applicants about the existence, nature or severity of a disability. Nor can an employer require any applicant to undergo a medical examination. Thus, an employer cannot ask applicants if they have HIV infection, AIDS, or any opportunistic infection associated with AIDS. Nor can an employer require any applicant to take an HIV antibody test because that is a medical examination. However, applicants may be asked about their ability to perform specific job functions. Under the ADA, an employer may ask individuals whether they have HIV infection or AIDS only after extending a conditional offer of employment. However, questions must be asked of all individuals entering a job category, not just an individual suspected of HIV infection. If a conditional job offer is withdrawn because of the results of such examination or inquiry, an employer must be able to show that: * the reasons for the exclusion are job-related and consistent with business necessity, or the person is being excluded to avoid a "direct threat" to health or safety; and that * no reasonable accommodation was available that would enable this person to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship. Information that an individual has HIV infection will rarely justify withdrawal of the job offer. In many cases, HIV infection and AIDS will not interfere with the individual's ability to perform the essential job functions. Moreover, the individual is entitled to a reasonable accommodation to permit performance of essential job functions. Since the mere fact that an individual has HIV infection will almost never justify revoking a job offer, employers may want to consider whether it is advisable to make such inquiries. Similarly, employers may not want to conduct HIV testing because the results alone will not justify revocation of a job offer. Once an employer obtains such information, it must be kept confidential and the employer could be held liable if there is any breach of confidentiality. Asking current employees whether they have HIV infection or AIDS, or requiring employees to take an HIV antibody test, will rarely be permissible under the ADA, unless the employer can show that such inquiries or testing is job-related and consistent with the employers' business necessity. What is Reasonable Accommodation? The critical concept in the employment provisions (Title I) of the Americans with Disabilities Act of 1990 (ADA) is that of "reasonable accommodation". Reasonable accommodation is any mdification or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate in and enjoy an equal employment opportunity. The employerþs obligation to provide a reasonable accommodation applies to all aspects of employment; the duty is ongoing and may arise any time a personþs disability or job changes. An employer is not required to provide an accommodation that will impose an undue hardship on the operation of the employer's business. An employment opportunity cannot be denied to a qualified applicant or employee solely because of the need to provide reasonable accommodation. If the cost of the accommodation would impose an undue hardship on the employer, the employer should determine if financial or technical assistance is available elsewhere, or the individual with a disability should be given the option of paying that portion of the cost which would otherwise constitute an undue hardship for the employer. Since estimates show as many as 1 in 250 Americans is infected with HIV, accommodation in the workplace for infected individuals who can continue to work makes economic, as well as common sense. Since these individuals' presence in the workplace poses no threat of transmission, their experience on the job is an asset to be retained. In addition, even those HIV-infected individuals who develop full-blown AIDS are able to remain productive members of the workforce for extended periods. These working years are increasing due to new treatments being introduced for HIV infection. What Types of Accommodations Should be Considered for HIV-Positive Employees? It is helpful if employers have established policies on non-discrimination for persons with life-threatening illnesses. These policies should emphasize that employees with illnesses such as cancer, AIDS, and heart disease may wish and be able to work a regular or modified work schedule. Most people infected with HIV do not show any symptoms of disease for many years after infection. If the HIV-positive employee eventually becomes unable to perform essential functions, the employer must consider whether reasonable accommodation will permit him/her to do so. Examples include: * Flex-time to allow for medical appointments, treatment and counseling; * Auxiliary aids and services, for example, large print for someone with AIDS who has developed a vision impairment; and * Additional unpaid leave. Which Employee Records Require Confidential Handling? As previously mentioned, the ADA imposes very strict limitations on the use of information obtained from medical inquiries and examinations, including information relating to a person's HIV infection/AIDS. All such information must be collected and maintained on separate forms, in separate medical files, and must be treated as a confidential medical record. This information cannot be stored in an employee's personnel file. There are only five situations in which medical information may be shared with others. This includes: sharing medical information with supervisors and managers about necessary restrictions on the work or duties of an employee, and necessary accommodations; first aid and safety personnel if the disability might requireemergency treatment; government officials investigating compliance with the ADA; state workers' compensation offices or "second injury" funds; and insurance companies. What if the Employer Feels that the Person who is HIV Positive Poses a Direct Threat to Health or Safety of Others, or Themselves? The ADA does not require an employer to hire or retain an individual whose disability poses a "direct threat" to the health or safety of others or to him/herself. Direct threat means that an individual poses a "significant risk of substantial harm" to self or others, and covers concerns about transmission of infectious diseases, including HIV infection. A direct threat determination must be done on an individualized basis, assessing both the individual with a disability, his/her essential job functions, and the workplace. The assessment of risk must be based on current, objective medical or other factual evidence. "A speculative or remote risk will not constitute a direct threat". If a direct threat is identified, the employer must determine whether a reasonable accommodation will eliminate or reduce the risk so that it is below the level of a direct threat. Medical and public health authorities have established that HIV infection cannot be transmitted through casual, social contact as exists in the vast majority of jobs and workplaces. Nor is HIV infection transmissible through food or food handling. As a result, HIV transmission in the workplace will rarely constitute a direct threat and thus can only rarely be the basis for firing or refusing to hire an individual with HIV infection. An employer who treats a person with HIV infection or AIDS differently because of concerns that the individual may have tuberculosis and may infect others will violate the ADA. The mere fact that a person has HIV infection or AIDS does not mean the person has tuberculosis or any other impairment. Thus, it would be discrimination to refuse to hire a person with HIV infection because of concerns that the person might have active tuberculosis, or might develop tuberculosis in the future. Neither of these scenarios constitute a direct threat under the ADA because they are based on speculation. Employees who are HIV-positive or have AIDS, as determined by a physician, may require the employee to be removed, temporarily or permanently, from environments dangerous to his/her own health. For example, a worker with immune system compromise in a child-care center may need temporary removal from exposure to children who have received live polio vaccine within 30 days, or have measles, as recommended in 1993 by the Centers for Disease Control and Prevention. The employer has the burden of proving that an individual's employment poses a direct threat. It is important that appropriate medical or public health resources and expertise be sought by the employer to assist in such accommodation decisions. Does The ADA Affect the Employer's Choice of Insurance Benefits Where Coverage of HIV-Positive Persons is Concerned? Employees with HIV infection/AIDS must be given equal access to whatever insurance or benefit plans the employer provides. An employer cannot fire or refuse to hire an individual with HIV infection/AIDS because the individual may increase the employer's future health care costs. Similarly, an employer cannot fire or refuse to hire an individual because the individual has a family member or dependent with HIV infection/AIDS that may increase the employer's future health care costs. However, universal preexisting condition clauses are permissible. The EEOC has published guidance on health insurance plans that single out HIV infection, or any other disability for different treatments. Health plans that exclude coverage of HIV infection or place a lower cap on HIV as compared with other disabilities may violate the ADA if the employer cannot justify the differences in coverage. Where Can I Find Resources to Assist in Accommodating the HIV-Positive Employee and Provide General Education on HIV to Our Workplace? Workplace education which emphasizes that HIV and AIDS are not transmitted by casual contact may allow such an employee to be accommodated within a supportive atmosphere. It will also serve to reassure co-workers that they are not at risk and thus help preserve workforce productivity. The following are some possible resources to assist in the design of training for supervisors and co-workers or in the identification of an accommodation for a particular individual. The U.S. Department of Health and Human Services Centers for Disease Control and Prevention provides: National AIDS Hotline for education, information, and referrals: 800-342-AIDS. For Spanish access, 800-344-SIDA; or for deaf access, 800-AIDS-TTY. Business Responds to AIDS Resource Service. Information, materials, and referrals for employers on national, state, and local resources on HIV/AIDS in the workplace. Includes small-business guidelines, sample Workplace Policy on Life-Threatening Diseases and Disabilities, information on the Americans with Disabilities Act, workplace policy and education, and resources. Call 800-458-5231. Others: ADA Regional Disability and Business Technical Assistance Center Hotline - 800-949-4232 (voice/TTY). The Equal Employment Opportunity Commission helpline: 800-669-4000 (voice); 800-800-3302 (TTY); or 800-669-EEOC (publications-voice). National Leadership Coalition on AIDS, 1730 M Street, NW, Suite 905, Washington, DC 20036, 202-429-0930. Job Accommodation Network: 800-JAN-7234 (US outside West Virginia), 800-JAN-INWV (inside West Virginia), 800-JAN-CANA (throughout Canada). This informational brochure has been prepared by staff of the School of Industrial and Labor Relations, Cornell University. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- WORKING EFFECTIVELY WITH PEOPLE WITH LEARNING DISABILITIES What are Learning Disabilities and Attention Deficit Hyperactivity Disorder? Learning disabilities and attention deficit hyperactivity disorder are related but different disabilities. Both are neurological in nature. A learning disability may make it difficult for a person to receive information from his or her senses, process it, and communicate what s/he knows. The learning disability frequently causes severe difficulty in reading, writing, or mathematics. Many celebrities such as Susan Hampshire, Dexter Manley, Greg Louganis, Nelson Rockefeller have made public statements about their learning disabilities. Attention deficit hyperactivity disorder (often shortened to attention deficit disorder or ADD) may make it difficult for an employee to sit calmly and give a task his or her full attention. Both learning disabilities and attention deficit hyperactivity disorder (LD and ADD) affect 3 to 10% of the American work force. LD and ADD have been publicized extensively. Many students are diagnosed with these disabilities. As a result, today's employer often finds applicants and current employees who state that they have a LD or ADD. These workers are often intelligent, creative and productive. Hyperactivity, properly channeled, can enable the worker to finish projects swiftly. However, s/he may need reasonable accommodation to share his or her talents with employers. Is There a Connection Between The Americans with Disabilities Act and People with Learning Disabilities or Attention Deficit Disorder? The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities. The term disability under the ADA refers to a person with "a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, b) a record of such an impairment or, c) being regarded as having such an impairment." Job applicants who have been through special education may not be discriminated against based on a school record of a disability. Employers may not discriminate against applicants with LD because of fears that they cannot read. Both LD and ADD are considered physical or mental impairments. The term "Specific Learning Disabilities" is cited in the EEOC regulations implementing the employment provisions of the ADA (29 C.F.R. Part 1630). Frequently LD and ADD substantially limit one or more major life activities of the individual. Major life activities refers to functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. LD and ADD can affect all of these activities with the exception of breathing. But the impairment must be substantial. For example an employee whose auditory perception difficulty caused them to be unable to learn from lectures would be substantially limited. The inability to take excellent notes of a highly detailed, eight-hour technical discussion would not constitute a substantial impairment. An individual's limitations must be caused by learning disability. Thus, an employee who is unable to read or write because he or she was never taught these skills and not because of a learning disability, would not be an individual with a disability under the ADA. How Can a Person with LD and ADD be Accommodated? Job accommodation begins with an examination of whether any adjustments or modification in the work environment or in the way things are customarily done are necessary to enable an individual with a disability to perform the essential functions of a particular job. Some people with LD and ADD do not need accommodation, because they have developed helpful strategies and made a good match between the job and themselves. Some people with ADD control their symptoms with medication. However, a learning disability may interfere with the ability of the person to perform the essential functions of the job. In that case, the employer may need to accommodate the employee. The employee is your partner in job accommodation. First, ask them what they need to be the most productive. For example, what is the best way for you to communicate with them? In writing? Speaking? Both? If they need to learn a new process, do they prefer you to tell them, show them, or give them a manual? Flexibility and patience are crucial. A typical but hypothetical story involves "Diedre", a writer for a major national corporation. She had mild dyslexia which caused her to reverse letters, words, and numbers. She was also hyperactive due to ADHD. Her coping strategy was to take breaks and walk once around the block. When she was wrestling with a tough writing problem, she took longer walks, since her hyperactivity made it difficult for her to think clearly about creative problems while sitting still. Despite these challenges, she produced more work than her coworkers. Her supervisor, John, gave her the most complicated writing assignments he had. When John left for another job, Tom took over. Tom was concerned about Diedreþs "typos." John had simply made the changes required and never bothered Diedre about it. In addition, Tom objected strongly to Diedre being "away from her desk." Diedre and Tom came into frequent conflict over these issues. After a month of difficulties, Diedre disclosed her learning disability to Tom through a memorandum that included medical documentation. Tom did not believe her. She appealed to Tom's boss who ignored the situation, refusing to meet with her or answer he memos. Tom's apparent reluctance to accommodate Diedre's disability could be discriminatory under the ADA, unless the company could prove that providing the accommodation (which had been given to Diedre before) would result in undue hardship on the operation of the business. In this story, Diedre did not pursue a complaint and was laid off one year later. Interestingly enough, Diedre was soon earning more than her old salary as a freelance writer. John, the first manager, never realized he was accommodating her disabilities. He felt he was simply doing what was necessary to help his employee be productive. What are Some Accommodations for specific aspects of LD and ADD? * The employee has difficulty with visual perception (seeing). This employee needs neat and well organized surroundings. Color coded files may help to distinguish similar objects from each other. Some software has graphic symbols that refer to different operations but look alike. In that case, your system manager may be able to change the icons. * The employee has difficulty reading. This employee often "reads" printed matter by using "talking" computers and calculators. Another individual might read to them. They use tapes. They usually prefer verbal rather than written instructions. For people who read slowly, allow extra time. Let them know about the most important items to read. Tape written communications. Highlight pertinent information. Graphic presentations such as diagrams and flow charts may assist. * The employee has difficulty with auditory perception (hearing). This employee hears inaccurately and often can not understand a person who is speaking when there is background noise. Catch their eye before beginning the conversation. Talk to them in quiet places. Ask them to repeat what you said. If they take notes, allow them to finish writing before you continue talking. The supervisor must be sure the employee understands. * The employee has difficulty writing. This employee may find working with the supervisor on and outline of the assignment to be helpful. Computers can be crucial. Software which checks spelling and grammar is useful. Arrange to have someone proofread their work. * The employee does not manage their time well. Many LD and ADD employees lack an inner sense of time. The LD or ADD employee may come in late and work past breaks and quitting time. They have difficulty with deadlines. Consider flextime, unless coming in on time is essential to your work. Offer to remind them before deadlines. Buzzers, computer software with þreminderþ features, and detailed scheduling are common ways to resolve these difficulties. The employee who comes in late but leaves on time may have a motivational problem. * The employee is easily distracted. Some employees, particularly with ADD, are not able to shift their attention at will. They may have extreme difficulties in an open space environment and need quiet to concentrate on their work. Accommodations have included allowing the employee to work at home on occasion, providing a private space, providing a quiet location, and allowing the employee to work at night and on weekends in return for time off during the busier days. These employees may find interruptions particularly problematic. Allow them to turn the telephone off and return calls later. * The employee is restless. Hyperactivity can make it difficult for some employees in sedentary jobs to stay at their work station. Usually, frequent short breaks solve this problem. Hyperactivity can be an advantage enabling the employee to work long hours and sustain an energetic pace. How Can Employers Assist in the Advancement of People with Learning Disabilities and Attention Deficit Disorders in the Workplace? People with learning disabilities and attention deficit disorders have the same desire and skills for promotions as your other employees. Sometimes, a person who is an excellent candidate for promotion will refuse it, because they are concerned about the reading and writing demands. In this case, accommodation can enable the employer to gain an excellent manager or supervisor. Care should be taken to assure that promotional examinations do not screen out employees with learning disabilities. People with LD and ADD often make excellent leaders. Their creativity and problem solving capacities can add tremendously to the bottom line of your company. Resources Learning Disabilities Association of America 4156 Library Road Pittsburgh, PA 15234 (412) 341-1515 Presidentþs Committee on Employment of People with Disabilities 1331 F Street, N.W. Washington, DC 20004 (202) 376-6200 Job Accommodation Network West Virginia University P.O. Box 6080 Morgantown, WV 26506-6080 (800) 526-7234 National Center for Law and Learning Disabilities P.O. Box 368 Cabin John, MD 20818 (301) 469-8308 The Equal Employment Opportunity Commission helpline: 800-669-4000 (voice); 800-800-3302 (TTY); or 800-669-EEOC (publications-voice). ADA Regional Disability and Business Technical Assistance Center Hotline: 800-949-4232 (voice/TTY). Dale S. Brown is the author of "Steps to Independence for People with Learning Disabilities". She has written over 100 articles on various aspects of employing people with learning disabilities. In 1994, she was selected by the International Jaycees as one of Ten Outstanding Young Americans, to honor her work as a leader in the self-help movement for people with learning disabilities. She would like to thank the following people for their assistance reviewing this document: Patricia Latham, JD, Founder and President, National Center for the Law and Learning Disabilities. Larry B. Silver, M.D., Author, "The Misunderstood Child, Dr. Larry Silverþs Advice to Parents on Attention-Deficit Hyperactivity Disorder". This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. BruyŠre, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. OTHER TITLES IN THIS IMPLEMENTING THE ADA SERIES ARE: * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Working Effectively with People who are Blind or Visually Impaired * Working Effectively with Employees who have Sustained a Brain Injury * Workplace Accommodations for Persons with Musculoskeletal Disorders * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Working Effectively with People with Learning Disabilities * Accommodating the Allergic Employee in the Workplace * Working Effectively with People who are Deaf or Hard of Hearing * Causes of Poor Indoor Air Quality and What You Can Do About It * The Americans with Disabilities Act of 1990 and Injured Workers For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- EMPLOYING AND ACCOMMODATING WORKERS WITH PSYCHIATRIC DISABILITIES The ADA and Individuals with Psychiatric Disabilities -- Some people are surprised to learn that the ADA covers individuals with psychiatric, as well as physical, disabilities. This is consistent with Sections 503 and 504 of the Rehabilitation Act of 1973, the federal nondiscrimination statute which preceded the ADA. ADA coverage is limited to individuals with "physical or mental impairments" that "substantially limit one or more major life activities." The ADA also protects from discrimination individuals with a record of a disability and individuals regarded as having a disability. Thus individuals who do not currently have a physical or mental impairment that substantially limits one or more major life activities would still fall within the scope of ADA coverage if a covered entity discriminates against them based on a record of a disability or if they are regarded as being disabled. Individuals with psychiatric diagnoses such as major depression, bipolar disorder (formerly called manic-depressive illness), and schizophrenia may be covered, depending on how the condition affects their functioning. Individuals with other psychiatric conditions (such as anxiety, personality, dissociative, or post-traumatic stress disorders) may also be included in the ADA definition. The ADA does not usually cover impairments that do not last for a long period of time and that have little or no long term impact on the individual. For example, individuals with mild or short-term mental health problems usually will not meet the ADA's definition of disability. There is much debate about preferred terminology for referring to individuals with psychiatric disabilities. Some commonly used terms are "the mentally ill," "person with a psychiatric disability," "mental health consumer," and "psychiatric survivor." However, we will use the term "person with a psychiatric disability" here because it emphasizes work functioning rather than medical symptoms or social identity. Popular Misconceptions About People with Psychiatric Disabilities There are many prevalent myths about individuals with psychiatric disabilities that reinforce negative, inaccurate stereotypes. Myth #1: Mental illness is uncommon. The most recent estimates by the federal government indicate that 3.3 million American adults -- approximately 2 percent -- have a serious mental illness. Myth #2: Mental illness is the same as mental retardation. The two are distinct disorders. A diagnosis of mental retardation is chiefly characterized by limitations in intellectual functioning, as well as difficulties with certain skills of daily life. By definition, mental retardation begins before the age of 18. In contrast, the intellectual functioning of persons with psychiatric disabilities varies as it does across the general population. The symptoms of mental illness may include emotional disturbances, disordered thinking, or perceptual difficulties. Mental illness may develop at any age, from childhood through later life. Bipolar disorder and schizophrenia have a high rate of onset during early adulthood. Therefore, many individuals with psychiatric disabilities enter or complete college before first experiencing symptoms. Myth #3: People with psychiatric disabilities are likely to be violent. Upon learning that an applicant has a history of psychiatric treatment, some employers may expect that the individual is likely to become violent. This myth is reinforced by portrayals of people with mental illnesses in movies, television, and the news media as frequently and randomly violent. According to a recent scholarly review of research literature "none of the data give any support to the sensationalized caricature of the mentally disordered served up by the media." 1 Myth #4: Recovery from mental illness is not possible. For many decades, people with mental illnesses were separated from the rest of society through institutionalization in mental hospitals. Mental illness was thought to be permanent and untreatable. Public policies began shifting in the late 1950s and early 1960s as we realized that hundreds of thousands of American citizens were being confined unnecessarily. Medications were discovered that helped to alleviate the symptoms of mental illness, and there was a gradual evolution toward the provision of treatment and rehabilitation services in the community. Long-term studies have shown that the majority of people with mental illnesses show genuine improvement over time and lead stable, productive lives. The success of prominent figures with mental illnesses has helped to inform the public that healing and recovery are indeed possible. Two well-known mental health advocates are Patty Duke (who frequently speaks about her own experience with bipolar disorder) and William Styron (who wrote the autobiographical book Darkness Visible about living with major depression). Myth #5: People with psychiatric disabilities cant tolerate stress on the job. This myth over-simplifies the rather complex human response to stress. People with a variety of medical conditions - including cardiovascular disease, multiple sclerosis, and psychiatric disorders - may find their symptoms exacerbated by high levels of stress. But the sources of personal and job-related stress vary substantially from individual to individual. Some people find an unstructured schedule to be very stressful, while others struggle with a regimented work flow. Some people thrive on public visibility or high levels of social contact, while others need solitude to focus and be productive. Of course, workers with psychiatric disabilities vary, too, in their responses to stressors on the job. All jobs are stressful in some regard. Productivity is maximized when there is a good match between the employees needs and his or her working conditions - whether or not the individual has a psychiatric disability. How will employers know if current workers or applicants have psychiatric disabilities? Psychiatric disabilities are generally not apparent. Further, the ADA prohibits employers from asking applicants if they have psychiatric disabilities before making a job offer. Examples of pre-employment questions not allowed under the ADA include the following: Have you ever been hospitalized? Have you had a major illness in the last five years? Have you ever been treated by a psychiatrist or psychologist? How many days were you absent from work because of illness last year? Are you taking any prescribed drugs? In order to determine whether applicants are qualified, the screening process should clarify the essential functions of the job, then seek evidence that the potential employee has the needed skills, work experience, education or other qualifications. Given these guidelines, employers are unlikely to know if an applicant has a psychiatric disability unless he or she chooses to discuss it. For example, a worker might decide to disclose that he/she has a disability in order to request a workplace accommodation. But most workers with psychiatric disabilities don't require accommodations. Applicants and employees are often deterred from discussing their disabilities with employers by the very severe stigma associated with psychiatric disorders in our society. Disclosure is a personal decision on the part of the worker that involves many factors including trust, comfort with others in the workplace, job security, and the perceived open-mindedness and support of the immediate supervisor. How might psychiatric disabilities affect an individuals functioning in the work place? It is impossible to generalize about the characteristics of all people with psychiatric disabilities. When asked how their mental illness affects their functioning on the job, some workers with psychiatric disabilities cite difficulty maintaining concentration. Workers who take medications to control their psychiatric symptoms may experience side effects such as hand tremors, excessive thirst, or blurred vision. Some individuals report difficulty in focusing on multiple tasks simultaneously, particularly amid noise and distractions. Of course, the strengths and weaknesses of each applicant or employee must be assessed individually, regardless of the presence of a disability. The workers ability to perform a job will depend on his or her work experience, training, and skills, not merely the presence or absence of a psychiatric diagnosis. What types of accommodations might be helpful for workers with psychiatric disabilities? Good management practices will produce many of the workplace accommodations needed by people with psychiatric disabilities. Like all employees, workers with psychiatric disabilities may benefit from supervisors who: * approach each employee with an open mind about his/her strengths and abilities, * clearly delineate expectations for performance, * deliver positive feedback along with criticisms of performance in a timely and constructive fashion, * are available regularly during the workday for consultation with employees, * demonstrate flexibility and fairness in administering policies and work assignments. In addition to high quality supervision, some workers with psychiatric disabilities may benefit from one or more of the following accommodations: * schedules which incorporate flex-time, * part-time positions or job sharing, * time off for scheduled medical appointments or support groups, * the use of break time according to individual needs rather than a fixed schedule, * physical arrangements (such as room partitions or an enclosed office space) to reduce noise or visual distractions, * extending additional leave to allow a worker to keep his or her job after a hospitalization, * allowing workers to phone supportive friends, family members, or professionals during the work day, * joint meetings between the employer, supervisor, and job coach or other employment service provider. Conclusion One of the ADA's primary goals is to promote equal employment opportunity for people with disabilities. Achieving this goal requires employers to move beyond stereotypes and to assess the qualifications and performance of workers with psychiatric disabilities on an individual basis. Employees with psychiatric disabilities can bring unique skills and sensitivities that significantly add to the quality and diversity of the workplace. Where can I obtain additional information? There are a number of resource organizations which can provide helpful information on accommodations and other considerations in working with individuals with psychiatric disabilities. Some of these are (in alphabetical order): ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Bazelon Center for Mental Health Law, 1101 15th Street, NW, Suite 1212, Washington, DC 20005, (202) 467-5730. Center for Mental Health Services, Community Support Program, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301) 443-3653. Center for Psychiatric Rehabilitation, Boston University, 730 Commonwealth Avenue, Boston, MA 02215, (617) 353-3550. Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). National Alliance for the Mentally Ill, 2101 Wilson Boulevard, Suite 302, Arlington, VA 22201, (703) 524-7600. National Empowerment Center, 130 Parker Street, Lawrence, MA 01843, (800) POWER-2-U. National Mental Health Association, 1021 Prince Street, Alexandria, VA 22314, (703) 684-7722. Presidents Committee on Employment of People with Disabilities, 1331 F Street, NW, Washington, DC 20004, (202) 376-6200 (voice), (202) 376-6205 (TDD). Thresholds National Research and Training Center on Rehabilitation and Mental Illness, 2001 North Clayburn Avenue, Suite 302, Chicago, IL 60614, (312) 348-5522. U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). Washington Business Group on Health, Employers Resource Center on the ADA and Workers with Psychiatric Disabilities, 777 North Capitol Street, NW, Suite 800, Washington, DC 20002, (202) 408-9320 (voice), (202) 408-9333 (TDD). 1 Monahan, John. "Mental Disorder and Violent Behavior: Perceptions and Evidence". American Psychologist, April 1992, Volume 47, Number 4, p. 519. This publication was produced by Laura L. Mancuso, M.S., C.R.C., 946 West Campus Lane, Goleta, CA 93117, (805) 685-9077. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- WORKING EFFECTIVELY WITH EMPLOYEES WHO HAVE SUSTAINED A BRAIN INJURY -- What is a Brain Injury? -- The brain is a complex organ, the focal point of our capacities to: think; receive, understand language and respond; remember; feel and express emotions; and more. The brain is protected by the bones of the skull and by an intricate system of membranes, fluids and blood vessels. But, like anything else, the brain can be damaged. Brain injury often results from a trauma to the head and/or brain. Traumatic brain injury can result from a bump to the head such as in a motor vehicle crash. Other conditions that can result in a brain injury include: heart attacks, aneurysms, chemical and drug reactions, lung problems, infections, lack of oxygen to the brain, and a variety of other causes. In most cases, an injury sustained as a result of one of these mechanisms will result in an increased need for support in the following areas: physical capacities (the way we move and manipulate things); behavioral and emotional capacities (the way we act, tolerate, and feel); and cognitive capacities (the way we think and process information). A brain injury is different from many other disabilities because the onset of the injury can be traumatic and occur suddenly. Everyday people, like you and your family, are susceptible to brain injury at any time. This brain damage can result in permanent, irreversible damage which can effect tasks and things you have typically done in the past with great ease. There is no cure for brain injury and prevention is the best option for minimizing its occurrence. -- Implications of the ADA for Individuals Who Have Sustained a Brain Injury -- The Americans with Disabilities Act guarantees the rights of individuals with disabilities. The Employment Provisions (Title I) hold interesting implications for individuals who have sustained a traumatic injury such as a brain injury. In most cases, recipients of a brain injury have held employment prior to their injury. Following a period of rehabilitation to increase capacities often effected by the injury, that employee may desire to return to his/her prior position, be reassigned, or develop their career path in other ways. For those individuals who sustain a brain injury prior to establishing a work history, the ADA still holds the same rights of access to their communities and employment. If a person who has sustained a brain injury applies for a job with your company, reviewing their past education and experience will let you know if they are minimally qualified. Having previously identified essential job functions will also assist you in determining whether or not the individual is qualified, with or without a reasonable accommodation. If an employee sustains a brain injury after having been at work, the same strategies will assist you in determining this person's current qualifications for re-employment. In cases of re-employment, involvement of the employer in the rehabilitation process is critical. You will be able to play a large role, given the employee permits your involvement, in assisting the rehabilitation team in knowing exactly what that employee was like prior to his/her injury, what their job entailed, and what essential job functions he/she will be required to perform upon returning. -- Accommodating an Applicant or Employee Who Has Sustained a Brain Injury -- Employee Selection Process: As in all applicant cases, your main priority, regardless of disability, should be to determine whether an applicant has the necessary skills, experience, education, or other background to successfully perform the essential functions of the job. Your first step is going to be to determine what are the components in applying for, obtaining, maintaining a job, and being promoted within your company. Once you have clearly identified the different human resources activities an applicant or employee must go through, you will be able to determine possible accommodations along the way which may make the process more accessible for a wider variety of applicants/employees. However, the reasonable accommodation obligation applies to an individual as the need arises. The ADA does not require you, as an employer, to make general adjustments and modifications for a wide variety of employment situations. When you advertise an open position, make sure the qualifications required and application directions are stated clearly and concisely. This will assist an individual who may have cognitive support needs in processing the information, allowing him/her to make a clear decision as to whether or not s/he may minimally qualify for the job. The first rule of thumb when attempting to determine ways to increase the accessibility of human resources policies and practices within your company and accommodate an individual who has sustained a brain injury, is to recognize that not all brain injuries result in the same support needs. For example...one individual may have no difficulty reading an application form, while another may have a vision problem resulting from their brain injury which affects their ability to read. Ask the individual how s/he would prefer to meet the requirements of a given process. For example, if a right-handed applicant has limited use of his/her right arm as a result of the brain injury some strategies may include: * Allow the person to take the application home and have assistance filling it out; * Mail the application to the candidate who requests it; * Offer the services of someone in the office to assist in completing it. Some effective human resources strategies to use when interviewing with an applicant who has sustained a brain injury include: * Give clear concise directions; * Ask if s/he has an aide or assistant who might make the interview process more comfortable and aid him/her in presenting their skills and qualifications for the job; * Follow-up spoken communications (phone calls, dialogues, etc...) with written communication to assist a person who may have memory support needs (i.e. directions, appointment times, etc...); * Make sure your interviewing site is accessible to aid the individual who may have physical support needs resulting from his/her injury. When you are conducting an interview be yourself. Disability does not mean inability. Treat the applicant who has sustained a brain injury as you would any other applicant. To increase your comfort level and accommodate the potential support needs of the applicant who has sustained a bran injury be mindful of: Speaking clearly and concisely; * Repeating a statement that an applicant has told you is unclear or unintelligible; * Decreasing distractors in the room (i.e. phone calls, interruptions, etc...); * Doing a walk-through or a tour to make sure it is accessible, prior to interview; * Decreasing the number of introductions made or reassure the applicant that s/he will meet quite a few people and it may take some time to get to know them all; * When explaining tasks or jobs, breaking down each into steps which may be easier to remember or sequence. (Remember, not all applicants will need these accommodations; don't forget to ask the applicant what may assist him/her). Enhancing Productivity on the Job: Why do we use a chair to reach dishes on a high shelf? Why do we use automatic pencil sharpeners? Why do we use ergonomically designed office chairs? Simply put, these adaptations make a task easier and may save time. These are examples of simple accommodations we make to be more productive and ease our workload. The ADA asks employers to reasonably accommodate the limitations imposed by a disability. Reasonable accommodation is defined as modification or adaptation of a job, employment practice, or work environment that makes it possible for a qualified person with a disability to be employed. The law states that employers must make accommodations from the first point of contact with a person with a disability including: the application screening process; on the job; in training; on the worksite; and when considering promotions and layoffs. If job duties change, new accommodations may need to be made. The ADA requires an employer to accommodate unless doing so would cause an undue hardship. If an employer finds that the cost of an accommodation would impose an undue hardship and no funding is available from another source, an applicant or employee with a disability should be offered the option of paying for the portion of the cost that constitutes an undue hardship, or of providing the accommodation. Selecting an Accommodation: The employee candidate who requests an accommodation has lived and perhaps worked while having the disability. He/she may already have identified what accommodations work best for him/her. Given that support needs are individualized based on the severity of a brain injury, so must the accommodation. The process of identifying and selecting an accommodation should be a dialogue between the employee and the employer. The accommodation may be able to be provided using easily identified supports (low tech) or may require the use of more intensified and expensive supports (high tech). Identifying an accommodation for an individual who has sustained a brain injury could potentially include a variety of support strategies including: memory log books; wheelchair-accessible facilities; job sharing or modified shortened work schedules; job checklists and cues; tools to assist the person in tracking while reading such as a ruler or piece of paper with a window cut in it; smaller job steps to improve sequencing; raised desks or tables to allow for a wheelchair; Telecommunication Device for the Deaf if the person has difficulty with speech or hearing; ramps; handrails; computer keyboard guards; to name only a few accommodations. Tips for On-The-Job Training: All employees, regardless of disability, need the same introduction and orientation to a job and initial training. Determining the learning style of any new employee is a good human resources practice which maximizes inservicing and training provided. Ask the employee whether s/he learns best from strictly verbal instruction, or a combination involving hands-on, written, and verbal instruction. Any new employee has his/her own unique way of setting up a work station or organizing job tasks and supplies. Allowing the employee with a brain injury this flexibility can promote increased performance as long as job quality and quantity is not negatively affected. In some cases, individuals with more severe disabilities may be represented by a rehabilitation agency or employment program which provides specialized support and technical assistance to employers surrounding the employment of people with disabilities. Although these services can benefit the employer, they should not take the place of internal training, orientation, inservicing, and promotional strategies and techniques utilized by your company. The key to successful on-the-job training is integrating, investing, and involving the new employee to the greatest degree possible without stigmatizing the person who may have sustained a brain injury or any other disability. -- Resources -- There are a number of resources that can assist employers and people who have sustained a brain injury. It is important to remember to begin all discussion of accommodation with the employee. If additional information is needed, consult the following organizations: ADA Regional Disability and Business Technical Assistance Center Hotline - (800) 949-4232. Equal Employment Opportunity Commission, 1801 L Street NW, Washington, DC 20507, (800) 669-4000 (voice); (800) 800-3302 (TTY); or (800) 666-EEOC (publications). Ability Magazine / Jobs Information Business Service, 800/453-JOBS, 11682 Langley, Irvine, California 92714 Provides an electronic classified system which allows employers to recruit qualified individuals with disabilities and people with disabilities to locate employment opportunities. Through magazine, provides information on locating qualified readers, interpreters, personal assistants and assistive devices, and overcoming architectural, communications, and transportation barriers, performing job analysis, job modification, and job restructuring. Association for Persons in Supported Employment (APSE), 800/282-3655, 5001 West Broad Street, Suite 34, Richmond, Virginia 23230 International association which can provide resources and information on how to utilize subsidized supported employment programs. Association also provides referral to state chapters which can then provide referral to local supported employment programs in your locality. Job Accommodation Network (JAN), 800/526-7234, West Virginia University, Allen Hall, Morgantown, West Virginia 26506-6123 Employers talk with Human Factors Consultants about an individual with a disability (not limited to brain injury). The consultant will search JAN's database for information related to the functional requirements of the job, the functional limitations of the employee, environmental factors, etc. The search will provide information about similar situations, names and addresses of appropriate resources. National Head Injury Foundation, Inc., 202/296-6443, 1776 Massachusetts Avenue, NW, Suite 100, Washington, DC 20036-1904. Provides informational services and resources on traumatic brain injury. Offers employment-related publications on vocational rehabilitation, job seeking skills, job placement, return-to-work and employment issues, and adaptive work behaviors for victims of brain injury. Local associations can be accessed for local information. State Vocational Rehabilitation Office State agency which provides vocational rehabilitation services to individuals with disabilities. Services can include: counseling, advocacy, job training, job placements, and a variety of additional support services including continuing, adult and post-secondary education. For the Office of Vocational Rehabilitation Services in your State, consult a phone directory. This publication was developed by Thomas P. Golden, M.S., Coordinator for Community Rehabilitation Programs and Supported Employment Personnel Training at the Program on Employment and Disability at Cornell University, Ithaca, New York, (607) 255-7727. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The 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 Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with Employees who have Sustained a Brain Injury * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Accommodating the Allergic Employee in the Workplace * Workplace Accommodations for Persons with Musculoskeletal Disorders * Working Effectively with People with Learning Disabilities * Working Effectively with People who are Deaf or Hard of Hearing * The Americans with Disabilities Act of 1990 and Injured Workers * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Working Effectively with People who are Blind or Visually Impaired For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- End of Document