DSB ADA & Employment Webinar, Part 1

DSB ADA & Employment Webinar, Part 1


Let’s introduce someone that’s very close to home to us – who’s been a previous employee – but now the Assistant Director of the Northwest
ADA Center Mell Toy and she’ll be on your left if you’re looking from the computer.
And we have Jeanette Silva who is a resume writer and also a job coach and
she has her own business called J Silva – no – Silva Resume Services (excuse me) and
she’ll be talking after Mell about disclosing your disability in an
interview and some other related – you know – job search related activities. So I
will let them start the presentation and thank you for coming.
MT: my name is Mel Toy. I use she her hers pronouns. And like Lisa Wheeler said I’m from the Northwest
ADA Center and very happy to be here to present to you all today on Title 1 of
the Americans with Disabilities Act (ADA) and reasonable accommodations in the
workplace. And I do have a PowerPoint that i’m hoping will be projected to everyone.
More on that later. Next slide please. Just a quick plug for
the Northwest ADA Center. We’re housed under University of Washington Center
for Continuing Education also called CCER. We have our main office in Mountlake
Terrace Washington we have employees and affiliates in Alaska, Idaho, and Oregon.
Those are the four states that we serve. We’re grant funded by the National
Institute on Disability, Independent Living and Rehabilitation Research – which
we call NIDILRR. We provide technical assistance which is free to anyone
who calls or emails us. And when we give information we are supposed to give
information that’s unbiased and pure information from ADA literature and
what’s been interpreted by the courts and so forth. So…
CALLER: Can you give us that phone number please? MT: Sure, I was going to go over
that the end, but I can give it up now. It is 800-949-4232.
SANDRA: If anybody has any questions we will have a segment towards the end.
We also ask to you please keep yourself muted during the presentation, because the
speakers only have 45 minutes to get their content out. So if everybody could
please stay in mute. If you have any questions or if you have any sound,
issues type it in the message box if you’re on the computer and we will get
to you. Thanks.
MT: Okay. Thank you for that. So going back to the technical assistance that we
provide. It’s supposed to be unbiased objective information. So if an
employment situation – if an employee wants to call us with concerns about a
situation they’re facing in their job we would give unbiased – not legal – advice to
that person about where they stand with the ADA. And then if, let’s say a
couple hours later, we were to receive a phone call from the employer in that
situation, again, we would have to give unbiased – not legal – information to that
employer. And your calls are confidential. So we wouldn’t be able to say “Oh you’re
that employer we’ve heard so much about. Well, your employee just called us a
couple of hours ago.” We would not be allowed to to do that. So your calls are
confidential. We give unbiased information. We don’t
give out legal advice, although we can refer you to legal resources and we do
not do any advocacy either. Sometimes people want us to
come to their meetings at work. We can’t do that. But we can refer the person to
advocacy groups. We also do training and that’s example of what I’m doing today.
We create materials that take legal jargon about the ADA and try to put it
into more plain talk with specific examples. And if you were to go to our
website you would find a web page called Fact Sheets where we have multiple
documents there for anyone to read through, print out, distribute, disseminate
out on the most popular topics and questions that we get at the Center
including employment, service animals, parking, etc. We get a lot of questions
about those topics. We do your personal project and we also attend public
awareness events.
CALLER: Could you give the phone number again please?
MT: And I’ll go over our contact information at the very end. I’ll give out the phone number and
our email address and maybe we can leave that slide up for the rest of the time, too.
CALLER: Well the reason I’m asking for the phone number at this time is because I’m
on a cordless phone and the battery might not survive the full two hours.
MT: The phone number is 800-949- 4232.
CALLER: Okay thank you MT: Alright here is a slide showing a person
in a wheelchair using a headset and looking at a laptop computer and it is
our disclaimer statement. The Northwest ADA Center is funded under a grant from
the Administration for Community Living (ACL) NIDILLR grant. However these contents do not necessarily represent the policy of the
ACL, and you should not assume endorsement by the Federal Government.
Now, let’s get into it. There are 5 Titles of the ADA (Americans with
Disabilities Act). Title 1 is employment. Title 2 is public services, also called
state and local government programs. Title 3 is public accommodation,
which some people refer to as businesses that are open to the public.
Title 4 is telecommunication and Title 5 is miscellaneous. Next slide
please. Title 1 is our focus for the next 40
minutes or so and that has to do with employment. And we’ll begin answering the
questions: Who enforces this title? Who’s protected by it? Who must comply? What are the employees responsibilities? What are the employers responsibilities? What is
the complaint process? And we have a photo of a person sitting in a
wheelchair with a split head set, looking at a computer, sitting at an office desk.
Next slide please. So the question who enforces Title 1 of the ADA? Does
anyone have any guesses out there?
CALLER 2: Equal Employment Opportunity Commission?
MT: Yes! The next slide. That is correct! So the US Equal Employment Opportunity Commission, also
called the EEOC, enforces Title 1 of the ADA. The EEOC wrote Title 1 of the
ADA, and they’re the ones enforce that. And we have a photograph of a
person surrounded by flowers with their hands up as if they were picking flowers. They’re wearing a short sleeve shirt and dark tinted glasses. Next slide please. All right. So who is protected under the
ADA? There is a definition for a person with a disability. And, I think when the
disability is obvious – if it’s a sensory disability or physical disability – it’s
pretty clear that this individual is going to have protections under the ADA,
and all the 5 titles that I mentioned earlier. Where it’s not clear is when
person has a condition and it’s not, you’re not sure, is that really a
disability or not. So I’ve created 2 lists. And the list on the left is a
group of people and if you’ll just picture… This group of people consists of someone
who has a history of cancer someone, who has a cosmetic disfigurement, someone who has dyslexia, and someone who has a family member with a disability. So
that’s group number one. And in the second group we have: someone who’s
left-handed, someone who has a gambling compulsion, someone who cannot read
because they dropped out of school, and someone who is using illegal drugs. So
which of the two groups do you think has protections under Title 1 of the ADA?
AUDIENCE: Group one.
MT: Group 1 is correct. So we hit next slide. We strike out the second group. So
a history of an impairment could rise to the definition under the ADA of a
person with a disability who would have protections under Title 1. A person who
has a cosmetic disfigurement – even if they don’t have any functional
limitations, day-to-day limitations based on their cosmetic disfigurement – they
would still qualify as a person who has protections because of how they’re
perceived by the public and the discrimination they may face. A person
who has dyslexia has a learning disability so they could definitely be
protected. And if you yourself do not have a disability, but you have a family
member with a disability, you could be protected under the ADA because… Think
about if you go in for a job interview and it comes out that you have a kid
with a disability, employers might say “I don’t want to hire this person because
they might be gone all the time.” So the ADA is to protect people in that
situation. And then the column that strike – that’s been stricken… Someone
who’s left-handed: that’s considered a characteristic, like being having red
hair. Someone who has a gambling compulsion. Someone who cannot read
because they dropped out of school is due to education, not covered by the ADA.
And illegal drug use is an interesting one. We got a lot of questions about this
one. If you are actively using illegal drugs you do not have protections
under the ADA. However, if you decide to quit, and you enroll
yourself in a rehab treatment program, and you’re following your treatment care
plan, then you have protections under the ADA. So as long as you’re not actively
using. If you have a history of illegal drug use, but you have stopped using
drugs, you would be protected under the ADA. Next slide. So who are the covered
entities of Title 1? I have a list here, and one of these one of these lines does
not belong on this list. So can you figure out which one it is? Here’s the
list: private employers with 15 or more employees. State and local governments.
Employment agencies. Labor unions. Joint labor-management committees. Federal
agencies. Which one does not belong in this list? Which one does not – is not –
subject to the ADA? Any guesses? Okay, there was a guess for labor unions. Anyone else? Let’s hit next slide. So it’s… Federal agencies! They do not have to
comply with the ADA.
[CROWD MURMURING] MT: I’m hearing “What?” I’m hearing some murmurs from the crowd. Okay, so this is something that kind of surprises people. It surprised me,too. Why
don’t federal agencies have to comply with the ADA? It’s because federal
agencies have to comply with an earlier law it came out almost two decades
before the ADA of 1990. It’s the Rehab Act. So federal agencies, they were
scrutinized and had oversight to ensure that they were not – that all their
policies were non-discriminatory well before the ADA came out. So they were
already under scrutiny before the ADA. So in fact everyone else had to catch up, in
a matter speaking, with the federal agencies. So technically, federal agencies
do not have to comply with the ADA; they have to comply with a different
law, called the Rehab Act, which is very, very similar to the ADA in a lot of ways. It’s only a few little differences. So you’re thinking that “federal agencies,
yeah, they better you know practice non-discrimination in their employment
practices.” You’re right on the money. It’s just splitting hairs at this point. But technically federal agencies do not have to comply with ADA and the rest of the list do. Oh okay, so the next slide. Here we have a picture of people sitting at long
conference row tables. They’re all looking the same direction and there’s a
close-up of three individuals. One in the foreground is wearing dark-tinted
glasses and has their hands on a Braille book and is smiling. We talked about
employee rights under the ADA in a general sense. There are four employee
rights. And the first one is, if you … The first one is request a
reasonable accommodation. So employees have the right to request a reasonable
combination when they’re an individual with a disability. And the next one: they have
protection from discrimination based on their disability in employment settings.
And the next: freedom from harassment based on their disability in an
employment setting. And last one: protection from retaliation if they
choose to exercise their rights under the ADA. So, for example, if a person with
a disability decides to make a request for a reasonable accommodation, they
cannot be retaliated against in terms of termination or some type of penalty
based on that. Okay, let’s go to the next slide. So think about what is an example of a reasonable
accommodation? If someone came to you and said what’s a reasonable accommodation
what springs to mind? Is it installing a ramp? How about modifying a restroom? Providing a sign language interpreter
for someone who is deaf? Providing a reader for someone who is blind? Providing
written materials and alternative format, such as large print or Braille? Providing time off for someone who needs treatment for a disability? And the
answer is: all of those. The ADA recognizes all of those as examples of
reasonable accommodation. The ADA does not give an exhaustive list of
reasonable accommodations, but it does give a definition in a very broad sense. Let’s look at the next slide. So, according to the ADA, a definition of
reasonable accommodation is any change or adjustment to a job, the work
environment, or the way things usually are done that would allow a qualified
individual with a disability to perform the essential functions of the job. And essential functions is underlined. And we have on this slide a picture of a person
sitting in an office chair with their hands on Brailler. The person has
turned slightly to look at the camera. They’re wearing dark tinted glasses in
their office. So the ADA is very broad in its definition of a reasonable
accommodation. It gives the employer and the employee room to play with all the
different options that could work for that individual. So it’s not always about
some very expensive piece of technology to accommodate the person. It could be
something very low cost – like just changing a work schedule. What’s
important here in this definition (which we’ll talk about next) is that phrase
essential functions – essential functions of the job. So we’ll go the next slide. What are essential job functions? These
are the basic job duties that an employee MUST be able to perform with or
without reasonable accommodation. It’s the core set of duties or tasks. It’s the
reason the job exists in the first place. And it’s going to depend on things like:
How frequently the task is performed or expected to be performed? How important
that task is to the job? And how many people in the work group can perform
that task? It’s not always clear what your essential job functions are. Have you ever received a list of your essential..”these are the essential
job functions!” I’ve never gotten one. You get things like a job announcement that hints at it. You get a job description that might be even more helpful. But it’s
really, really important when talking to your employer – thinking about reasonable
accommodation – what are the essential job functions? And if you have a situation go
down in your employment – in an Employment Practice – when the EEOC is called to
investigate that’s one of the questions they’re going to ask: what are what were
the essential job functions? Next slide. When can you ask for a reasonable
accommodation? Do you have to wait until you’re employed? Do you have to wait until
you sorta proven yourself as an employee? When can you ask for a reasonable
accommodation? So can you ask for one as you’re trying to complete the job
application? That’s a pretty early on in the employment process. Can you ask for
an accommodation then? What about if you’re being scheduled for the job
interview? In order to participate in the job interview? You feel like you need an
accommodation, can you ask for one then? I’m hearing some yeses. How about once you’ve
accepted the position? Okay, I’m hearing some yeses. How about after several years of
employment? You’ve never asked for an accommodation. You’re seven years into
your job and you feel like now is it time to ask for a reasonable
accommodation. Can you do that? I’m hearing a “no”. Okay, so the answer is: all of the above. So at any time in the employment process the person with a
disability can ask for a reasonable accommodation. So, that includes
application, interview, before you get the job, before you show up for work the
first day, on your first day, on your 900th day on the job. You can ask for a
reasonable accommodation at any time. Next slide. And that’s because ADA
applies to all aspects of employment. Here we have a photo of a person in a
dark business suit and tie using a dog guide as they’re traveling inside by a
stack of legal books library. So the ADA applies to all aspects of employment
that includes job announcements, advertisements, job application
procedures, hiring, firing, training, pay, promotion, benefits, and leave. It’s just
easier to say it applies to all aspects of employment from start to finish. Next slide. So the question becomes how do you request a reasonable accommodation? You
can request one verbally or in writing Which one do you think we’re going
to strongly suggest?
AUDIENCE: Writing. MT: Writing. So it’s always good to have a track record; have things in black and white; and have it in writing. So you can email
your employer or your supervisor the reasonable accommodation request. That’s what we would suggest that you do. Here’s a myth: people think they have to
use the words reasonable accommodation for it to be a reasonable accommodation. You don’t have to say those words, but you do have to state your request in
such a way that you let the employer know this is not just something – you know
like on a whim – that I want this change to my work environment or to my work schedule
etc. This is something that I need based on a medical condition. This is something
I need based on a disability. Now having said that, you don’t have to go into a
lot of detail. You just have to let the employer know that this is an ADA type of
request as opposed to other requests that they receive from all the other
employees that they have. So, if you’re asking for a desk that goes up and down
so you can stand in your workstation… Your coworker might have asked for the
same desk – but your coworker doesn’t have a disability. Employer’s not going to know
necessarily that you have a disability until they know, right? So you do have to
somehow add that piece to your reasonable accommodation request. But you
don’t have to say, (robotic voice) “This is a reasonable accommodation request.” You can if you
want to, but you can phrase it however you want as long as you add that medical
piece to it. And the last bullet on this slide: you don’t have to disclose your
disability. And that’s true at any time during the employment process. There was a photo on that slide of a person sitting down using a Braille
note-taking device with a refresh-able Braille display. Okay next slide. This is
a biggie; this one we get questions on a lot. I just fielded a question on this
yesterday. “Can an employer ask me for a doctor’s note? So I asked for a reasonable
accommodation. I tie it to a medical need without giving away too much to my
private, sensitive information. And the employer’s coming back at me and saying I
really need a doctor’s note. Can they do this? The answer is: yes, they can. You have
the right to request a reasonable accommodation at any time during the
employment process. The employer has a right to ask you for medical
verification of the medical necessity only if your disability is not obvious. So if you’re a person and you have an obvious disability – you’re in a wheelchair; it’s
obvious that you use an alternative communication strategy or device; you’re
totally blind and that’s obvious; then there’s no need for an employer to go to
your doctor to verify that. It’s if your disability is not obvious, that they may
need to do that. And they have the right to do that, under that situation. Now, the
note can come from a licensed medical provider; doesn’t necessarily have to
come from your doctor. Sometimes your doctor is not the person to ask, in some cases. Sometimes it’s a nurse or maybe it’s a rehab
specialist or maybe it’s your VR counselor it’s going to be the best
person. So the ADA allows for that. The employer is not — the employer should
not be requesting your whole medical file; they’re not privy to that. So it’s
not, “Oh, I need your complete medical history and all your prescribed
medications.” No, no, no, no, no. It’s only what’s needed to substantiate the reasonable
accommodation request. So a note from your doctor / medical provider / rehab
professional / etc. should only state the nature of your disability. It should not
mention any specific diagnosis. It should mention the duration of the disability –
if its permanent or temporary. The severity and any specific tasks that are
impacted by the disability or disabilities which would warrant the
accommodation. Okay, let’s go to the next slide. Okay, so I really wanted to pull
out the job interview phase of the employment process because we get a lot
of questions about: what questions can be asked of me at a job interview?
What’s illegal to ask at a job interview? So I really wanted to make it clear that
up until this point, we’ve been talking about your rights and the procedure and
so forth. Pretty much applies to all areas of employment. But now we’re going
to get into some specifics about the job interview phase itself. So in the next
slide… Let’s talk about questions that are off limits legally. Off limits during
the job application and interview stages. so this is what the ADA calls “the pre-
employment or pre-offer stage.” But I’m going to call it the “job application and
job interview stage”. And here we have a photo of a person
dressed in professional attire holding the long white cane and a portfolio and
shaking hands with someone across the table at a job fair. So the answer to
this question what’s off-limits during the job
application and interview stages is: Employers cannot ask disability related
questions before they make an offer of employment. Okay next slide. So here are
some specifics. And as I was looking these up, I was surprised. So as you hear
these, kind of be thinking about what is the pattern here – I think that’s helpful –
and we’ll compare this list of questions you cannot ask a job applicant versus
the next slide which will show questions that you can ask. And there’s going to be
some similarities, but also some differences. On this slide we have a
photo of two people wearing business suits the person on the left has a long
white cane and is holding a briefcase – excuse me – and the person on the right is
holding some papers looking and smiling at the other person. So what cannot be
asked before the job offer? The first one: How many days were you sick during your
last job? Can’t ask that. Not before you make the job offer, anyways.
So think about that. How many days are you sick during your last job? Next
question: What medications are you currently
taking? Employers cannot ask that before a job offer is made. Next question: How
often did you use illegal drugs in the past? You can’t ask that question. But
remember that question; remember that question for the next slide. Okay,
the next question you cannot ask: How much alcohol do you drink? Okay you guys
are laughing, but remember these questions. Because – well just remember these questions because they’ll come up when
in the next slide. And then the last one on this list of what cannot be asked: Do
you have any physical or mental impairment that would keep you from
performing the job? You see…so I think it’s obvious to a lot of you in this
room – from what I’m hearing – that yeah you shouldn’t be asking these questions and
why it’s because they’re trying to elicit disability information about the
person. And the ADA says you cannot do that before a job offer is made.
Ok, so y’all remember these questions because we’re going to move on to the
next slide. Here’s where things get kind of interesting. What can be asked? What
legally can be asked before a job offer is made. During the application and
interview stage, what can an employer ask you? And it would be legal? It would be
legal for them to ask you these questions: The first one: Are you able to
perform the essential functions of the job you are seeking with or without
accommodations? There’s that phrase again – essential functions of the job.
Ok the next one: Can you meet our attendance requirements? Ok, so they can ask you that. Next one:
How many days were you absent from your last job? Ohhh. Reminds me of
one of the soft limits questions from the previous slide – how many days were
you sick from your last job? This one is similar. But what’s what’s the difference
here? How many days were you absent from your last job? Why is that one ok to ask? It doesn’t mention sickness, right? So
employers can say, “Hey, I ask everybody how many days were they absent
from the last job. I need to know about their attendance rating.” And it doesn’t
have to do with disability whether that’s part of it or not.
Oo the ADA says, ok you can ask that question. But as soon as they say, “Well
how many of those days did you take off because you were sick?” Now we’re entering
into the off-limits territory. Okay the next question that they can ask
you. They can ask you: “Are you currently using illegal drugs?” Whereas before they
they couldn’t ask you “How often did you use illegal drugs in the past?” That they
couldn’t ask you. Now the ADA says you can ask a person “are they currently using illegal drugs?” This is a yes or no question rather than a quantitative question. And
it’s about illegal drug use today. Ok the next question that they CAN legally ask
you: “Do you drink alcohol?”
GUEST: Why do they ask that?
MT: They can ask that. They couldn’t ask you how much alcohol but they can
ask you that yes or no question do you drink alcohol to help them gauge if
you’re going to be the kind of employee they want. It’s a big investment on
their part and they have to make a decision. And they have to ask questions
to make that decision. And the ADA says, yes, the employer should be allowed to ask
questions to get at is this person the right fit for our company. Ok another
question that employers legally can ask an applicant is: “Have you ever been
arrested for driving under the influence of alcohol?” So a pattern definitely how
often they’re able to talk about sickness, absenteeism based on sickness,
anything about impairment – off limits. When it comes to quantifying and
behaviors from the past – probably off limits. If it’s a yes or no type question
about your behaviors today, it may be okay, legally, for them to ask.
On this slide we have two people facing each other the person
in the foreground is holding a piece of paper and the person in the background
wearing a button-down shirt and smiling. Next slide. Okay here’s a true or false
question we get sometimes at the ADA Center. People ask us so they say, “You
know, I went in for the job interview and the employer asked me to demonstrate my
ability to do X Y & Z. Can an employer ask me to demonstrate? So true or false?
The question is true or false. Before a job offer an employer can ask a job
applicant to provide a demonstration or description of how they would perform a
related – sorry – a specific job related task. And the answer is true. So the
example that’s given in the ADA literature is someone comes into the job
interview and they’re in a wheelchair. And the employer realizes this person’s
in the wheelchair. And they question if the person is going to be able to file
these papers – that’s going to be part of the job. That’s going to be essential job
function. We need the person who takes this job to be able to file these papers.
So they’re going to ask the job applicant who is using a wheelchair, “Can you
take these papers and file them in that bottom drawer”. And legally they can ask
the applicant to do that. AUDIENCE MEMBER: Can they ask me “Can I please see your ability to go to the restroom using the white cane? MT: Okay so the question was “Can a job
applicant – let’s say they show up to a job interview with a long white cane – and the
employer thinks “okay this is a person with a visual disability. I’m not sure if
this person’s gonna be able to safely travel in our work environment. Can they
ask the person to demonstrate their skills? What do you guys think? I think if you feel up to performing
that demonstration or describing how you would perform that, go for it. If
instead you want to answer to the effect something like “I would be able to
perform the essential functions of this job I’m applying for with an
accommodation.” I think that would be a fine response, too. Okay, so we’re going to
shift gears now.

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