Presented by Alabama Department of Rehabilitation Services
Incorporates Supreme Court rulings & EEOC Technical Assist. Fy’99/00

ADA UPDATES
Definition of disability
“mitigating measures”
Review of “qualified”
Clarification on reasonable accommodations
Updates on undue hardship
Still case-by-case decisions

DEFINITION OF DISABILITY - UPDATED
“Disability” must take into consideration whether the person is substantially limited in a major life activity WHEN USING A MITIGATING MEASURE.
A person w/ no substantial limitation in any major life activity when using a mitigating measure DOES NOT meet the ADA definition of disability.
Look at condition at time of discrimination

MITIGATING MEASURES (MM) (Supreme Court Rulings)
Medications, assistive devices or prostheses
Eliminate or reduce effects of impairment
Does not automatically exclude or include
Mm could be compensating behavior (cb)
In use at time of discrim.

ISSUES EEOC ADDRESSES WITH MM OR CB
Does mm/cb fully or partially control symptoms
Symptoms prior to use of mm/cb to determine major life activity affected
How well mm/cb controls or compensates symptom or limitation (all the time/some time?)
Do any lim. Remain, even w/ use of mm/cb (and do they affect major life activity)
How long mm/cb in use
Effectiveness of mm/cb must be fact, not speculation
Does mm/cb cause any lim. In performing major life activity (e.g. Med.side effects)

EEOC ACCOM.UPDATES (March ‘99)
The following summarize the March, 1999 updates in the EEOC Enforcement Guidance: R.A. & Undue Hardship Under the ADA
Publication is available at the EEOC website at eeoc.gov, drilling down to the ADA site

UNREASONABLE MODS. OR ACCOMMODATIONS
Do not have to eliminate essential functions
Do not have to lower production standards
Do not have to accom. For personal use items
ACCOM. MUST BE EFFECTIVE, meaning...
Enables ind. To perform essential functions
Enables applicant to participate in process
Allows employee = oppty. To enjoy benefits of employment

UNDUE HARDSHIP
Significant difficulty or expense
Financial difficulty
Unduly extensive, substantial, disruptive
Alter nature or operation of business
Case-by-case

HOW TO REQUEST ACCOMMODATION
Let employer know an adjustment or change is needed for reason related to medical condition
Need not mention ADA
Need not use phrase “R.A.”
Can use plain english
Note: Employer should determine if med. cond. meets ADA def. of disability
Someone else may request accom. On behalf of ind.
Request does not have to be in writing
Employer can ask for written request or use form & documentation

WHEN TO REQUEST AN ACCOMMODATION
Any time during application or employment
When employee knows there’s a workplace barrier due to disability affecting application, performing job or accessing benefits
Employee encouraged to request accom. Before performance suffers
Ada does not preclude employee accom. Request after hire 

WHAT TO DO AFTER REQUEST FOR ACCOMMODATION
Engage in informal process - clarify needs & i.d. accom.
O.k. to discuss nature of dis. & func. Lim. In order to i.d. effective accom.
Employee needs to describe probs. Posed by workplace barrier
Listen to employee ideas for accommodations
Use expert resources to i.d. possible accom.
Failure to engage in dialogue could liable employer

DOCUMENTATION OF DIS. & R.A. NEED
O.k. To require dis.doc. &/or need when dis. Is not obvious
Ask for reas. Doc. About dis. & functional limitations
Reas. Doc.= only that required to estab. Dis. & need for accom;  no doc. Allowed for unrelated dis./need (e.g. Not entire medical record)
Employer entitled to know ind. Has an ada covered dis.
If > 1 dis., can only ask for doc. Of the dis. Needing to be accommodated
Can request doc. From approp. Health/rehab.prof.
Specify type of info.sought on dis.,func.lim., accom.need
Can ask employee to sign limited release
Tell employee why info. Is being requested
Can ask why dis. Necessitates a specific accom.
If employee (w/out obvious dis.) Refuses to prov. Doc., s/he is not entitled to accom.
Can require employee to use health prof.of your choice if ind.provides insufficient info to substantiate dis. Or R.A.
Explain why doc. Is insufficient
Allow employee to provide missing info in timely manner
Med.exam must be job related
Cannot ask for doc. When dis. & need for accom are obvious or if ind. Has already provided sufficient info.

SELECTION OF ACCOMMODATION
Employer chooses
Selection must be effective
Do not have to show undue hardship to prov. The less expensive accom.
Give primary consideration to preference of ind.
Cannot require qualified ind. W/ dis. To accept accom.
If employee refuses accom. Offered, may no longer be qualified

RESPONDING TO ACCOM.
Handle expeditiously
Engage in dialogue asap
Unnecessary delays can result in violation of ada
Maintain confidentiality

R.A. & APPLICANTS
Can tell applicant hiring process & ask if they will need accom.
During process/before cond. Offer, may not ask if accom. Is needed, unless dis. Is known (i.e. obvious or disclosed) and it appears accom is needed to perform job functions
After cond. Offer, employer may ask about accom. Need if all other applicants in class were asked
Must provide R.A. to qualified applicant even if unable to do so on the job (unless hardship)
Assess R.A..needs in app.process separate from R.A. for job

R.A. & BENEFITS
Trng./svcs/parties or social functions 
Consider R.A. for above
Equal access to info commun. In workplace (posters, bb, etc)
Accom. For in-house trng & by outside entity...& on premises or elsewhere (specifiy in contract who has responsibility for accom.)

R.A. & JOB PERFORMANCE
Job Restructuring
Reallocate/redistribute marginal functions
Alter when/how function (essential/marginal) is performed
Can assign other marginal functions to replace those removed
Leave
Not required to provide paid leave beyond that for simililarly situated ind.
Can require employee to exhaust accrued leave before using unpaid leave
Reasons for leave as R.A.:
– Med. Treatment
– Recuperation  (cont’d)
– Repairs for adaptive devices
– Avoiding temporary adverse conditions in the workplace
– Training service animal
– Training for braille or sign language

R.A. & “NO-FAULT” LEAVE POLICY
Relates to co. Policy to auto. Term. Employee on leave for certain period of time vs. Dis. Employee who exceeds limit
Auto. Term. Not permitted
Must mod. Policy to accom.
– Unless  there’s another accom. Enabling perf. Of essen.func.,or
– Granting add.leave=undue hard.

HOLDING JOB OPEN
This must be considered as an R.A. option
Employee w/ dis.on leave as an R.A. entitled to return to same position unless holding it is undue hardship
If unable to hold  position, consider vacant equiv.job for which employee is qualified
If equiv.vacant position not avail.,consider vacancy at lower level
Continued leave not req. If above options don’t exist
Cannot penalize employee for work missed during this leave
Can prov.alt.accom. In lieu of leave (e.g.light duty)

MODIFIED OR PART TIME SCHEDULE
Adjusting arrival/departure times
Periodic breaks
Altering when functions are performed
Must consider, even if not provided to other employ
Time during which essen.func. Is performed may be critical & affects consideration of this accom.
Consider reassignment to vacant position in lieu of this accom.

MODIFIED WORKPLACE POLICIES
Only required for consideration for employee with disability
In some instances, refusal to mod.policy (leave or attendance) could constitute disparate treatment and failure to accommodate

REASSIGNMENT
First consider accom. That would allow employee to remain in current job
Consider for employee who cannot perform essen.func. Of current position
This option is a “last resort”
Must be qual. For new position
No obligation to assist ind. To become qualified for vacancy
“vacant”= avail. At time of R.A. request or becoming avail. W/ in reas. Amt. Of time
No bumping required
Does not include promotion
Avail. To probationary emp. Unless orig.essen.func.not perf
Must offer, even if co. Doesn’t allow any other employees to transfer from 1 slot to other
Consider reassign. Beyond jobs w/ in office, branch, etc. Employee resp. For relocation
Must inform employee about vacant positions expeditiously
Need not compete for vacancy

MISC. R.A. ISSUES
Duty to provide r.a. is ongoing
Do not have to change a supv.as a R.A. but methods of supervision may be altered
Consider “work at home” only if effective & not hardship. Ask if essen.func.can be perform. & include employers ability to supervise & review equip.needs
Don’t withold discipline or term. Of dis.emp. If a conduct rule was violated
Medications:
– no obligation to monitor use
– for those who fail to take meds, obtain med.treatment,or use assist.device, s/he still req. to perf. essen.func.
– not qual. if posing direct threat
– consider R.A. for side effects of meds.

“BRINGING UP” R.A.
If employee has not asked for accom, employer generally not obligated to ask
Employer should discuss R.A..if:
– knows employee has disability
– knows employee has workplace problems due to disability
– knows dis. prevents employee from requesting R.A.
Cannot disclose if employee is receiving accom. But can advise coworkers of policies for employees experiencing difficulties in workplace
Employee with dis. May voluntarily disclose

UNDUE HARDSHIP
Generalized u.h. conclusions not sufficient
Must be based on ind. Assess.
U.h. is based on net cost
Consider outside funding
Look at avail.tax credits/ded.
Ask employee if s/he can assist w/ cost of accom.
Cannot base on fears/prejudices toward dis. Or on negative impact on morale
May occur if R.A. is unduly disruptive to other employee’s abiliity to work
May occur if employee cannot provide fixed date of return from leave;  approx.date okay
No hardship because the R.A. violates collec.bargaining agreement. Must negotiate a variance to agreement.