|Title||The Americans with Disabilities Act Overview|
|Preview||The Americans with Disabilities Act Overview|
The Americans with Disabilities Act Overview
How does the Americans with Disabilities Act of 1990 (ADA) affect the employment practices of a Christian school? The law was amended in 2008 and implementation of the ADA Amendments Act began on January 1, 2009. This article includes the original explanation and the updated as of 2009 information.
The employment provisions of the Americans with Disabilities Act (Public Law No. 101-336, 42 USC § 12101 et seq.), took effect on July 26, 1992. Employers who have employed 15 or more full- and part-time employees for at least 20 weeks in the current or preceding year are subject to the ADA. (Some state disability laws could even apply to organizations that employ a small number or employees.)
Title I of the act is of particular importance to Christian schools since it prohibits discrimination in employment against a qualified individual with a disability because of that person's disability. Job applications procedures, hiring, advancement, discharge, compensation, training, and other terms and conditions and privileges of employment are covered (42 USC § 12112[a]). The ADA provides that persons with disabilities have the same enforcement remedies available to them as all other minorities under Title VII of the Civil Rights Act of 1964, including suits for injuctive relief, reinstatement, and back pay. The ADA also provides for an award of attorney's fees and litigation expenses, including costs of experts and exhibit preparation, to parties who prevail in any action or administrative proceeding.
The Equal Employment Opportunities Commission (EEOC) enforces the ADA. Individuals have up to 300 days to file a complaint with the EEOC when they suspect employment discrimination.
When Congress was lobbied to pass the ADA, proponents particularly stressed that the legislation would help disabled people to qualify for existing jobs. In fact, the ADA covers both job applicants and existing employees. In the ensuing years, it turns out that much of the litigation over the ADA has involved current employees who have been injured on or off the job and then sought job accommodations from their employers. While this article will focus particularly on new job applicants, be aware that existing employees may also ask for reasonable accommodations under the ADA.
What Constitutes a Disability Under the ADA?
The ADA broadly defines a disability, but it does not set forth a specific statutory list of impairments. The act is not intended to cover minor physical or mental impairments, but it is clear that it covers an individual who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such an impairment, or is regarded by others as having such an impairment.
To prove a substantial limitation in the major life activity of working, an employee must show that he or she is restricted significantly in the ability to perform either a class of jobs or a broad range of jobs in various classes compared with the average person with comparable skills, training, and abilities.
The EEOC guidelines point out that temporary, nonchronic impairments that do not last for a long time and that have little or no long-term impact usually are not considered "disabilities" under the ADA. On the other hand, temporary impairments may be disabilities if they limit at least one major life activity and meet the test for substantial limitation described above.
Examples of such major impairment would include but are not necessarily limited to the mentally retarded; paraplegics; the hearing or sight impaired; persons with orthopedic problems, epilepsy, lung disease, muscular dystrophy, or multiple sclerosis; the disfigured; HIV-positive individuals; persons with mental or emotional disorders; and the learning disabled.
It should be noted, however, that the ADA also explicitly sets forth conditions that people have that would not qualify them as being disabled. These include several specific sexual behavior identity disorders, compulsive gambling, kleptomania or pyromania, smoking, or psychoactive substance-use disorders resulting from current illegal use of drugs. Employers are permitted to act adversely regarding individuals who are currently engaging in the illegal use of drugs (42 USC § 12210[a]; 29 CFR § 1630.3).
ADA Amendments Act - Effective January 1, 2009
The new regulations do not substantively change the definition of physical or mental impairment, but they do affect what constitutes a "major life activity." Specifically, major life activities are those that "most people in the general population can perform with little or no difficulty." The ADAAA provides a non-exhaustive list of activities and major bodily functions that are examples of major life activities, adding a number of major bodily functions covered such as special sense organs, skin, and musculoskeletal, among others.
With respect to redefining "substantially limits" the EEOC essentially states what it is not rather than what it is. Specifically, the EEOC states that "an impairment is a disability... if it 'substantially limits' the ability of an individual to perform a major life activity as compared to most people in the general population." The new regulations then provide that the impairment does not have to prevent or significantly or severely restrict the individual from performing a major life activity, but must be more than a temporary, non-chronic impairment of a short duration that has little or no residual effects. This, the new definition of "substantially limits" simply states what it is not. The EEOC then provides a number of rules of construction to be used in evaluating whether or not an impairment substantially limits a major life activity.
Rules of construction for determining whether a substantial limitation exists [are listed below]:
1. The term "substantially limits" is to be viewed in favor of broad coverage of individuals and should not require extensive analysis.
2. Individuals with impairments that substantially limit a major life activity are not required to also show that they are limited in performing activities that are of central importance to daily life.
3. An impairment need not substantially limit more than one major life activity For example, individuals who have AIDS, and whose immune systems are substantially limited, are not required to further show that they are substantially limited in reproduction or any other major life activity.
4. Comparing an individual's limitation to the ability of most people in the general population utilizes a common sense standard rather than medical or scientific evidence. But this analysis would not foreclose individuals from demonstrating a substantial limitation by demonstrating their aptitude and showing a difference in their actual achievement and their expected achievement.
5. An impairment may substantially limit a major life activity even if it lasts or is expected to last fewer than six months. One question then, is how many months can the condition last and not be substantially limiting. The EEOC provides a hint in an example covering a lifting restriction that is expected to last for "several months or more" being substantially limited, which suggests that less than three months may be too short a time period for a limitation to be substantial.
6. The analysis should not focus on what an individual is able to do despite the impairment; rather, it should focus on how a major life activity is substantially limited.
The positive effects of mitigation measures may not be considered. Negative effects of mitigating measures may be considered in determining whether a substantial limitation exists. Mitigating measures include such things as:
They do not include ordinary eyeglasses or contact lenses.
7. An episodic impairment or one that is in remission is a disability if it would substantially limit a major life activity when active. Examples of such impairments include multiple sclerosis, asthma, cancer, hypertension, seizure disorders, and psychiatric impairments such as depression, bi-polar disorder, and post-traumatic stress disorder.
The EEOC has provided a list of impairments that it believes will consistently meet the definition of disability because of the impairment's characteristics. The list includes impairments such as
The EEOC make clear that this list is not exhaustive.
The new regulations provide a number of examples concerning impairments that may substantially limit an individual in a major life activity. The EEOC cites the following conditions as examples: asthma, high blood pressure, learning disability, panic disorder, anxiety disorder, hyperthyroidism, carpel tunnel syndrome, or certain types of mental impairments such as panic or anxiety disorders.
These are temporary non-chronic impairments of short duration with little or no residual effects, such as a sprained ankle or common colds.
Substantially Limited in Working
The regulations formerly provided that an individual was substantially limited in working if he was precluded from a broad range or a class of jobs. An individual will be viewed as substantially limited in working if the impairment substantially limits an individual's ability to perform, or to meet the qualifications for the type of work at issue. The "type of work at issue" includes the job the individual has been doing or the job for which the individual has applied, as well as jobs with similar qualifications or job-related requirements that the impairment would substantially limit the individual from doing.
Determining the type of work at issue includes comparing the work of an individual who is substantially limited in performing to the work most people with comparable training, skills, and abilities do. For example, a type of work could be driving commercial motor vehicles regulated by the DOT, assembly line jobs, or law enforcement jobs. Further, the relevant type of work could be determined by looking at the job-related requirement that an individual is substantially limited in meeting compared to most people performing such jobs.
The EEOC gives examples of job-related requirements that are involved in certain types of work such as repetitive bending, reaching, manual tasks, repetitive or heavy lifting, prolonged sitting or standing, or driving. Job-related requirements also would include work environments that involve high temperatures, high noise levels, high stress, or rotating or excessively long shifts. Finally, an individual's ability to obtain other employment will not preclude a finding that the individual is substantially limited in working.
"Perceived As" Disability
Individuals can prove that they are regarded as having a disability by showing they were discriminated against because of an actual or perceived physical or mental impairment. But an employer is no longer required to believe that the actual or perceived impairment substantially limited a major life activity to incur liability. Rather, if an employee can show a prohibited employment action occurred because of an actual or perceived impairment, then coverage is established.
A "perceived as" claim cannot be established if the impairment is transitory, i.e., has lasted less than six months and is minor. But if an employer believes the employee has an impairment that is not transitory and minor, (AIDS, for example), the employer has perceived the employee as disabled. More importantly, if an employer takes prohibited action against an employee based on that employee's symptoms or use of a mitigating measure-even if the employer does not know what the impairment is-the employer has perceived the employee as disabled.
The EEOC provides the example of an employer who refuses to hire an individual for a driving job because the employee takes anti-seizure medication. An employer who asks an employee whether he needs an accommodation, however, will not be viewed as having perceived the employee as disabled.
List the Essential Functions of the Job in the Job Description
Any employer covered by the ADA must address two levels of analysis whenever an individual with a disability applies for a position. The first level of analysis involves the issue of whether the prospective employee can perform the "essential functions" of the job, with or without accommodation. To address this issue, the Christian school must first define the essential functions of the job. It is helpful if the essential functions are listed separately as part of a job description.
Defining the essential functions requires a close analysis of the physical and mental requirements of each job and what functions are essential to perform that job. An essential function is one that if removed would fundamentally change the job. A job description might require a teacher to turn out the lights at the end of the day, meet with parents periodically, or turn in lesson plans at a specified time. Essential functions, however, identify the result to be achieved, not solely the manner in which a job is performed.
The EEOC has indicated that if it is analyzing an ADA complaint filed against an employer, it will give deference to the essential functions of a job if the employer has identified those essential functions in writing prior to the complaint being filed. Each school should analyze its existing job descriptions and qualifications to assure that any mental or physical requirements are, in fact, required by business necessity and are clearly articulated in the job description.
When preparing job descriptions, don't use selection criteria that "tend to screen out" a class of individuals with disabilities unless the criteria are shown to be job related and "consistent with business necessity."
Consider dividing your job description into sections, such as (a) general description of the job, (b) required personal spiritual qualities, (c) additional personal qualities, (d) essential functions, (e) supplemental functions, and (f) a chart showing the physical requirements needed to fulfill the essential functions of the job. The physical requirements chart in the teacher's job description could also be used for other employee positions in the school.
Once essential functions are defined in the job description, they should be identified at the time of the interview by handing the applicant a copy of the job description. The school may then ask the applicant whether he or she is able to perform those functions. School personnel cannot at this stage, however, inquire into an applicant's disability status, that is, the nature of the disability, prognosis, severity, etc. If an applicant indicates that he or she is not able to perform one or more of the essential functions, the school may then consider the second level of analysis—"a reasonable accommodation."
What Constitutes Reasonable Accommodation for a Disabled Applicant or Employee?
Once the disability is known and the applicant has made a request for accommodation, the school may then inquire into what accommodations the applicant believes would be necessary for him or her to perform the essential functions of the job in question.
This second level of analysis involves the school's deciding whether it can reasonably accommodate the request(s). In its guidelines the EEOC has defined reasonable accommodation to include "a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity."
The ADA allows an employer, once the necessity of accommodation has been determined, to decide whether that accommodation would impose an "undue hardship" on the operation of the business. The ADA and accompanying regulations require a case-by-case analysis of this reasonable accommodation issue. There is no set formula. For example, one may consider such things as the financial resources of the school, the number of employees, the expense to the school, the type and location of facilities, the type of operation, the structure and function of the workforce, and geographic separateness.
Reasonable accommodations may mean changing work hours, restructuring job requirements, acquiring new adaptive equipment or devices, moving facilities, offering alternative training formats, or making structural changes.
If your school is faced with having to decide whether it can reasonably accommodate the request of an applicant or employee, it is wise to contact an attorney who is familiar with the requirements of the ADA before you make a decision. A few hundred dollars spent on counsel at this stage could save you thousands of dollars if a lawsuit is filed later under the ADA.
ADA Amendments Act - Effective January 1, 2009
The EEOC now specifically states that employers must accommodate not only individuals with actual disabilities, but individuals with records of disabilities, although employers are not required to accommodate "perceived as" disabilities. Importantly, the positive and negative effects of mitigating measures may be considered when evaluating whether an individual needs an accommodation and whether an individual is a direct threat.
What Should Be Done to Make Job Applications Compliant with the ADA?
Christian schools should carefully review applications for employment to ensure that there are no questions whose answers might indicate that an applicant has a disability or a health problem. Questions should not be asked about the number of days absent from employment during the previous year, whether workers' compensation claims have been filed, or whether the person is currently using medication. Finally, the employment application itself should be printed in a large standard type, thus assisting an applicant who might have a sensory disability.
Christian school administrators should be careful during the interview process, since the ADA also applies to verbal preemployment inquiries. The ADA still applies even if school personnel become aware of the disability; for example, the prospective employee has a visible disability or has volunteered information regarding a disability. The school should develop a series of written questions to ask the prospective employee. The questions should relate to specific job skills and abilities required for the position. Questions, however, cannot be asked about the nature of the disability, the severity of the disability, the condition causing the disability, or any prognosis or expectation regarding the condition or disability. Also, school personnel cannot ask whether the individual will need treatment or special leave because of the disability.
How should a school deal with concerns about absenteeism during an interview? During the interview process before any offer of employment is made to the prospective applicant, the school should clearly delineate its absence policy, specifying the requirements for work attendance. These requirements should be clearly made known to the prospective employee. At that time school personnel can ask applicants whether they would have any difficulty in meeting the requirements or attendance expectations.
The following types of questions or requests are OK to ask an applicant:
(After explaining the essential functions and physical requirements of the job:) Are you able to perform the duties of the job for which you have applied, with or without reasonable accommodations?
(Only if requested of all job applicants in any broad job category:) Explain or demonstrate how you can perform the essential duties of the job.
Do you have the necessary background or certifications for the job (i.e., relevant training, experience, licenses)?
Do you need any accommodations to take a required entry test (a typing test, honesty exam, work performance test)?
Preemployment Medical Examinations
A Christian school covered by the ADA must not request a medical examination prior to the offer of employment to a prospective employee. A school may require a medical examination only after a conditional offer of employment has been extended to an applicant. Even in those cases, the medical examination must be uniformly required of all applicants for positions within certain designated job categories. A school also may request an examination (1) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job; (2) when a periodic physical examination to determine fitness for duty or other medical monitoring is required by medical standards or by federal, state, or local law; or (3) when voluntary medical examinations are part of an employee's health program. Questions regarding a prospective employee's health conditions that are not specifically related to fitness for performing the "essential functions" of the job constitute a violation of the ADA and should not be asked.
After receiving a medical examination report, administrators may inform supervisors of necessary work restrictions and first-aid requirements. Safety personnel may be informed if emergency treatment might be required.
Should a post-offer medical examination be conducted prior to the time that an employee starts to work and the results of the examination reveal a disability that will affect the employee's ability to perform the essential functions of the job, the school could withdraw the offer of employment. However, in doing so, the school would have to evaluate the second step as mentioned above, that is, whether or not reasonable accommodations can be made. No school should attempt to withdraw a conditional offer of employment without talking first with an attorney!
Medical Records Are Confidential
Christian schools should develop a medical records policy that comports with the requirements of the ADA's confidentiality requirements. This policy should state that the medical records will be kept in a separate location from personnel records. The policy should have steps that ensure the medical records will be treated as confidential with only limited access as permitted by the ADA.
ADA Amendments Act - Effective January 1, 2009
The EEOC has added a provision stating that qualification standards, employment tests, or other selection criteria based on a person's uncorrected vision is prohibited unless the employer can show that the standard, test or criteria is job related to the position for which it is required and is consistent with business necessity.
The ADA Requires an Interactive Process
One very important point is being made clear in a number of recent court cases: the ADA requires an interactive process between the employer and employee regarding possible accommodations. Recent court cases are showing the following: (1) employers that try to unilaterally make ADA decisions about individuals without engaging in the interactive process with the ill or disabled person are losing in court; (2) individuals who reject out-of-hand an employer's efforts at accommodation are losing their cases; and (3) employers that delay responding to requests for accommodation are losing if that becomes an issue in a court case. One company that refused to use the interactive process had to pay a multiple sclerosis sufferer $2.3 million. A sample of the new 2009 Inactive Questionnaire is at the end of this article.
Religious Issues and the ADA
The ADA does not prohibit a religious school from giving preference in employment to individuals of a particular religion. Religious schools may require all employees to conform to religious tenets (42 USC § 12113[c] and ).
You must hire a disabled applicant if (1) the applicant meets your religious requirements, (2) the applicant is the most qualified/best match for the position, and (3) the necessary accommodations do not constitute an undue hardship on the school.
Bottom line: You do not have to hire a person who fails any one of these three criteria.
The Americans with Disabilities Act is a complex, comprehensive, antidiscrimination statute. To protect your school from unnecessary financial liability, be sure to contact legal counsel familiar with the ADA requirements to ensure compliance with that act and with similar state statutes when making personnel decisions regarding disabled individuals.
Parts of this article were originally prepared by Attorney John L. Cooley with Cooley and Associates. It has since been updated several times and includes 2009 information from Fisher & Phillips.
EEOC Resources can be found at https://www.eeoc.gov/eeoc/history/ada25th/resources.cfm
New ADA Interactive Process Questionnaire
On January 1, 2009, the ADA Amendments Act [of 2008] will become law, fundamentally altering the landscape of disability law and the reasonable accommodation process. This questionnaire is designed for use after the Amendments Act goes into effect. At some point in the near future, the EEOC will publish new regulations impacting the reasonable accommodation process, which will likely require employers to modify this questionnaire.
This questionnaire should be used when an employee with a disability requests an accommodation, which could include a change to company policy or practice or some other job restructuring (modified work schedules, medical leave, reassignment, modifying equipment, etc.). While it is generally the responsibility of the employee to request an accommodation, there are some situations where an employer should start the interactive process as long as they know about the disability and the need for an accommodation. Either way, no "magic language" is needed from the employee.
As with any form, this questionnaire provides general guidance only. You should always consult with your labor and employment attorney before using this questionnaire for any particular fact situation.
INTERACTIVE PROCESS QUESTIONNAIRE
To: Dr. Healthcare Provider, M.D.
Please answer and return the following questionnaire to your patient within the time frame indicated. The questionnaire format is a guide, and we would appreciate a response to every question. We need your complete medical opinion, so please feel free to include a more detailed narrative response to any and all questions if needed to answer more fully. Thank you for your anticipated cooperation.
IMPORTANT NOTE TO HEALTH CARE PROVIDER: When answering these questions, please do not take into consideration any ameliorative effects of mitigating measures, such as medications, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.
1. Does Mr. Doe have a physical or mental impairment? Yes No
2. Does Mr. Doe's impairment substantially limit any major life activities? Yes No
3. If so, which major life activity or activities are limited? ______________________________ _____________________________________________________________________
4. For each major life activity that is limited by the impairment, please describe how Mr. Doe is restricted as to the condition, manner, or duration under which that activity can be performed, as compared to the way in which an average person in the general population can perform that activity: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
5. What is the duration or expected duration of Mr. Doe's impairment? _____________________ ______________________________________________________________________
6. Attached is a job description for the truck driver position. Please review the job description and assess whether Mr. Doe can perform all job functions: Yes No
7. If not, which job functions cannot be performed, and why not? _________________________ ______________________________________________________________________ ______________________________________________________________________
8. Please describe any reasonable accommodations that would allow this employee to be able to perform those job functions: ____________________________________________________________ ______________________________________________________________________ ______________________________________________________________________
9. If medical leave is one of the possible accommodations listed above, please provide an estimated duration for the leave: _____________________________________________
10. Would performing any of the job functions listed result in a direct safety or health threat to this employee or other people (co-workers, members of the general public, etc.)? Yes No
11. If yes, please describe
Printed Name and Address: __________________________________________________
[Editor's note: For more information, visit the website www.laborlawyers.com or contact Fisher & Phillips llp at 954-847-4705.]
Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.
Association of Christian Schools International
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