Module 1: Legislation and Policies
What Laws (Might) Apply to My Situation?
Americans with Disabilities Act (ADA) and the Rehabilitation Act
Title I of the American’s with Disabilities Act (ADA) is the principle piece of legislation that deals with workplace accommodations. It was based on Section 501 of the Rehabilitation Act of 1973, amended in 1992, which applies to Federal employees. The ADA is not "affirmative action" requirements; it does not require employers to hire people with disabilities. However, it does require employers to give people with disabilities an equal opportunity to apply and interview for a job, participate in training, and have comparable pay and benefits, all without harassment.
To be covered under these laws, the following criteria must be met:
- Employer - any public employer (e.g. public school system) or a private employer with 15+ employees, even if those employees are spread out across several locations.
- Employee with disability – under the ADA definition of disability, he or she must be
significantly restricted in his or her ability to perform a major life activity (e.g., caring for oneself, walking, speaking), have a history of such an impairment, or be perceived as having an impairment. If an individual is able to use a “mitigating measure" such as medication, glasses, or a prosthesis that sufficiently reduces the effect that the condition has on life activities, he or she might not be considered a person with a disability. Note that the ADA does not generally apply to people who have only a short-term condition (e.g., broken leg, pregnancy), and it does not cover some behavioral disorders (e.g., current illegal drug or alcohol use).
- "Qualified individual" – the employee must have the skills, education, etc. needed to perform the “essential job functions" (usually listed in a job description). A company is not required to create new employment positions just to accommodate and individual. The employee can be full-time, part-time, or sometime temporary.
Once it is determined that an employer and employee or applicant are covered under the ADA, the legislation requires that they engage in an "interactive process" to negotiate accommodations. Accommodations may include changes to work schedules or policies, job restructuring, strategies for performing the work in other ways, environmental accommodations, or the use of technology.
- A professor is allowed to adjust his class schedule and teach an evening class so that he can go to a medical appointment one morning a week.
- A teacher with low vision trades lunch room monitoring duty for another school service with another teacher.
- A teacher who is deaf is provided with an interpreter at in-service meetings.
- A ramp is added to the school entrance closest to a teacher who uses a wheelchair so that she will be able to exit easily in an emergency.
- An electronic job application is provided to an applicant who can not fill out forms by hand.
- A teacher with a learning disability uses an electronic dictionary to help check homework.
There are two exceptions for when a reasonable accommodation may not be provided or when a qualified person may not be employed.
- "Undue Hardship" ("Undue Burden" in the Rehabilitation Act and other Titles of the ADA) - significant difficulty or expense incurred in making an accommodation. Factors that might be considered in determining whether undue hardship can be claimed include the nature and cost of the accommodation, the overall financial resources of the employer, and the impact of the accommodation on the operation of the facility.
- A teacher at a large, public university requests that a restroom be made accessible. Since overall financial resources are considered, not simply whether the university has money set aside for this change, a claim of undue hardship based on financial reasons would be difficult to support.
- A high school teacher requests a schedule change due to problems arranging accessible transportation. Since the school has set hours, the impact of this accommodation may not make it possible and undue hardship could be claimed.
- "Direct Threat" – significant risk of substantial harm to self or others. This determination must be based on the employee’s current ability to safely perform the essential functions of the job, based on objective evidence and reasonable medical judgment. It must be determined on a case-by-case basis and not be based on generalizations or unfounded fears.
- Although a chemistry lab might be a dangerous place to have a seizure, a school cannot simply ban all people with epilepsy from teaching these classes. Many people with epilepsy have their condition controlled by medication and have not had a seizure in years. A determination must be made on a case-by-case basis.
Title I of the ADA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). The Department of Justice may file lawsuits in federal court to enforce the ADA, and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails.
For more information:
Department of Justice ADA Enforcement - http://www.ada.gov/enforce.htm
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