Disability Guidelines Statement regarding the Americans with Disabilities Act (ADA)

 

I. Introduction and Definitions:

Title I of the Americans With Disabilities Act of 1990 prohibits discriminatory hiring and personnel practices against qualified individuals with disabilities, and requires employers to make "reasonable" efforts to accommodate individuals' mental or physical impairments, as long as the accommodations do not present undue hardship. The University of North Dakota practices a policy of nondiscrimination regarding compliance of ADA Title I, prohibiting discrimination against people with disabilities in employment for all of its employees - faculty and staff.

Physical Impairment: Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body systems.

Mental Impairment: Any mental or psychological disorder, such as ... organic brain syndrome, emotional or mental illness....

Qualified Individual: The ADA defines a qualified individual with a disability as a person who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires and who has:

(A) a physical or mental impairment that substantially limits one or more of the major life activities (the ability to perform such functions as caring for oneself, executing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working) of such an individual;

(B) a record of such an impairment; or

(C) is regarded as having an impairment.

There are three different ways in which an individual may satisfy the definition of "being regarded as having a disability":

* The individual may have an impairment which is not substantially limiting but is perceived by the employer or other covered entity as constituting a substantially limiting impairment.

Example, physical impairment: An employee with controlled high blood pressure is reassigned to less strenuous work because the employer fears that he or she will suffer a heart attack;

Example, mental impairment: A person whose depression does not impose a substantial limitation,but who is denied a promotion because an employer fears that stress will cause a relapse or will exacerbate the problem;

* The individual may have an impairment which is only substantially limiting because of attitudes of others toward the impairment;

Example, physical impairment: An employee who is discriminated against on the basis of a prominent scar or disfigurement or because he or she has a nervous condition that causes an involuntary jerking of the head;

Example, mental impairment: A person with a mental illness whose opportunities are limited by stigma, stereotyping, or attitudes rather than actual performance and which impede on that person's abilities to perform specific functions or activities; or

* The individual may have no impairment at all but is regarded by the employer as having a substantially limiting impairment;

Example, physical impairment: An employee who is fired because it is falsely rumored that he or she is infected with the AIDS virus;

Example, mental impairment: A person may experience discrimination because of personality traits or physical characteristics but is treated as if he or she has an emotional or mental illness or impairment.

Reasonable Accommodation: The ADA definition states that a qualified individual with a disability can perform the essential functions of the job with or without reasonable accommodation. Not all individuals will need to be reasonably accommodated, and for those with such a need, this can be flexible, worked out on a case- by-case basis by:

* Analyzing the job involved and determining its essential functions;

* Consulting with the qualified employee or applicant to ascertain the individual's precise job-related limitations and how they can be overcome with reasonable accommodation;

* Identifying potential accommodations and assessing the effectiveness of each;

* Considering the individual's preferences and selecting the accommodation most appropriate for the employer and the individual. If more than one accommodation would meet the employee's needs, the employer retains the "ultimate discretion" to choose the option that would be less expensive or easier to implement.

As long as the accommodation is effective, it does not need to be the best accommodation possible. Employers need only to accommodate the known limitations of a qualified individual with a disability. Employees must indicate that they need an accommodation. In general, a reasonable accommodation is an adaptation to a program, facility, or work place that allows an individual with a disability to participate in the program or service or perform a job. Examples of reasonable accommodation options include:

* Make existing facilities readily accessible to and usable by disabled individuals;

* Allow flexible use of leave time;

* Allow extra time to complete work activities;

* Permit longer or more frequent work breaks when needed;

* Restructure job duties to focus on the primary or essential functions of the job;

* Exchange problematic marginal job duties with another employee (the employer would not have to reallocate the essential functions of the job);

* Establish job sharing opportunities;

* Permit a person with a disability to provide equipment, aids, or services that the employer itself is not required to provide (for example, a guide dog);

* Provide qualified readers or interpreters when providing such does not essentially result in the reader performing the employee's duties (Colman v. Darden).

II. ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

Under ADA, an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer even if it intends to look at the answers or results only at the post-offer stage. The employer may ask a variety of questions to evaluate whether an applicant is qualified for the job, including:

* Employers may ask about an applicant's ability to perform specific job functions including whether applicants can perform job functions "with or without reasonable accommodations."

* Employers may ask about an applicant's non-medical qualifications and skills, such as education, work history, and required certifications and licenses.

* Employers may ask applicants to describe or demonstrate how they would perform job tasks as long as all applicants are asked to do this, or

* If other applicants are not asked to do this, when an employer reasonably believes that the applicant will not be able to perform a job function because of a known disability. A known disability may be obvious (use of a wheelchair) or an applicant's voluntary self-disclosure that s/he has a hidden disability.

* Employers may ask whether an applicant will need reasonable accommodation for the hiring process.

* Employers may request reasonable documentation about an applicant's disability if the applicant requests reasonable accommodation for the hiring process. This may include documentation from an appropriate professional concerning the applicant's disability and functional limitations.

* Employers may ask applicants whether they will need reasonable accommodation to perform the functions of the job under the following conditions:

1. The employer believes the applicant will need reasonable accommodation because of an obvious disability;

2. The employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or

3. The applicant has voluntarily disclosed to the employer that s/he needs reasonable accommodations to perform the job.

* Employers may ask whether an applicant can meet the employer's attendance requirements. Employers may not ask how many days an applicant was sick because these questions relate directly to the severity of an individual's impairments.

* Employers may ask applicants about their arrest (under limited conditions) or conviction records

* Employers may ask about an applicant's impairments only if the particular question is not likely to elicit information about whether the applicant has a disability.

* Employers may ask applicants about their ability to perform major life activities only if they are specifically related to the ability to perform the job functions.

* Employers may ask applicants about current illegal drug use. Employers may ask about prior illegal drug use provided that the particular question is not likely to elicit information about a disability.

* Employers may ask applicants about their lawful drug use if the employer is administering a test for illegal use of drugs and the applicant tests positive. Employers may not ask applicants about their lawful use of drugs if the question is likely to elicit information about a disability.

* Employers may give psychological tests as long as they are not medical. Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment such as those listed in the American Psychiatric Association's most recent Diagnostic and Statistical Manual of Mental Disorders (DSM). If a test is designed to measure only such things such as honesty, tastes, or habits, it is not medical. 

Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as it is done for all entering employees in that job category. If the employer rejects the applicant after a disability-related question or medical examination, it will be scrutinized whether the rejection was based on the results of that question or examination. If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is "job related and consistent with business necessity." If an individual is screened out for safety reasons, the employer must demonstrate that the individual poses a "direct threat." This means that the individual poses a significant risk of substantial harm to him/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation.

III. Procedure or Referral Process for ADA Reasonable Accommodation

* A qualified individual with a disability must identify the need for an accommodation with his/her supervisor. Employers need only accommodate the known limitations of a qualified individual.

* The individual requesting reasonable accommodation will fill out the "ADA Disability Accommodation Request Form" describing the need for accommodation and the accommodation requested. Forms are available from the Affirmative Action Office or on-line at http://www.und.nodak.edu/dept/aao.

* The individual requesting reasonable accommodation will then submit the form to his/her supervisor. Both the employee and the supervisor/department head are to sign the form.

* The "ADA Disability Accommodation Request Form" is to be sent to the Affirmative Action Office upon completion. The Affirmative Action Office will oversee all accommodation requests. Referrals may be made to specialists who can evaluate work environments and technology needs.

* Medical information may be needed to determine if the employee has a disability covered by the ADA and is entitled to an accommodation, and if so, to help identify an effective accommodation. Medical inquiries related to an employee's disability and functional limitations may include consultations with knowledgeable professional sources, such as occupational and physical therapists, rehabilitation specialists, and organizations with expertise in adaptations for specific disabilities. All documentation will be kept confidential and separate from personnel files. The Affirmative Action Office will be the office of record for ADA- related documentation.

* A meeting may be necessary to discuss the accommodation between the supervisor, ADA Coordinator (Affirmative Action Officer) and the employee. Other appropriate individuals may be requested to attend the meeting such as a physician, appropriate health care or service provider, safety or health officer, co- workers, etc.

* Determination will be made as to whether an accommodation is needed and what accommodation can be made based on the above information.

* If an employee is exhibiting unsafe behavior, appropriate action will be taken consistent with University policies.

IV. Mental/Emotional Disabilities, Learning Disabilities, or "Hidden" Disabilities or Impairments

Requests for reasonable accommodation that involve mental/emotional, learning, or "hidden" disabilities or impairments normally will require specific medical or assessment documentation to establish the disability and the reasonableness of the accommodation requested.

Information requests or documentation may include

* The nature, severity, and duration of the impairment;

 * The activity or activities that the impairment limits;

 * The extent to which the impairment limits the individual's ability to perform the activity or activities; and/or

Why the individual requires reasonable accommodation or the particular reasonable accommodation requested, as well as how the reasonable accommodation will assist the individual to perform the essential functions of the job.