americans with disabilities act amendments act prese… · americans with disabilities act...
TRANSCRIPT
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Americans with disabilities act amendments act
The ADAAA
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This training is designed to provide general information about the subject matter covered. Neither TAC nor the
trainers are engaged in rendering legal advice. If you need legal advice, TAC recommends that you seek the
services of a competent attorney who is familiar with your specific situation.
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U.S. Department of Justice
EEOC
ADA was effective July 26, 1992
Amended 2008
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“No covered entity shall discriminate against a qualified individual on the basis of disability in
regard to job application procedures; the hiring, advancement, or discharge of employees;
employee compensation; job training; and other terms, conditions, and privileges of employment”
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Who’s covered?ADAAA applies to all local
government employers with 15 or more employees.
Employees who meet the definition of “qualified individual
with a disability” who, with or without a reasonable
accommodation, can perform the essential functions.
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Key Changes
Expands the definition of disability.• Employee now only has to prove the
condition “substantially limits them”
Introduces 9 rules of construction.• You must use the 9 rules of
construction to determine whether an impairment substantially limits a major life activity
• The term “substantially limits” will now be broadly interpreted
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Key ChangesMore activities added
to the list of “major life activities” that create a disability when people cannot perform them
A new category of major life activities was
added to include “major bodily
functions”
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Key Changes
A health condition that amounts to a disability now counts as a disability even if the individual
takes medicine or uses a device that limits the disability’s impact (hearing aids, insulin, drugs, etc)
A medical condition may still qualify as a disability even if it is episodic or in
remission.
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Key Changes
Makes it much easier for employees to sue under the “regarded as” section• If an employer wrongly considers an
employee or applicant as disabled when they are not—they can sue and win, even if the impairment that caused them to view them as disabled was not a disability.
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What’s makes a “qualified individual”?
ADAAA states than an individual with a disability is qualified when:
• They satisfy the requisite skill, experience , education and other job related requirements of the position
• with or without reasonable accommodation
• and can perform the essential functions.
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Regulations state the term “major” does not create a demanding standard for disability
and should not be interpreted strictly.
• A physical or mental impairment that “substantially limits a major life activity” of an individual
• A record of such an impairment• Being “regarded as” having such an
impairment
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PurposeTo “reinstate a broad scope of protection” by expanding the definition of the term “disability to include many types of impairments that were originally left out of the ADA.
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includes anyPhysiological disorder or condition, or anatomical loss affecting one or more body systems such as:NeurologicalMusculoskeletalSpecial sense organsRespiratory(including speech organs),
CardiovascularReproductive
DigestiveGenitourinaryImmuneCirculatoryHemicLymphatic
SkinEndocrine
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includes any Mental or psychological disorder such as:Intellectual disability (formerly termed “mental retardation,”
Organic brain syndrome,
and specific learning disabilities.
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Caring for oneselfPerforming manual tasksSeeingHearingEatingSleepingWalkingStanding
SittingReachingLiftingBendingSpeakingBreathingLearningReading
ConcentratingThinkingCommunicatingInteracting with othersWorking
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Functions of the immune systemSpecial sense organs and skinNormal cell growthDigestiveGenitourinaryBowelBladderNeurological
BrainRespiratoryCirculatoryCardiovascularEndocrineHemicLymphaticMusculoskeletalReproductive functions
* Includes the operation of an individual organ within the body.
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A history of a mental or physical impairment that substantially limits a major life activity, or has been misclassified as having such an impairment.
Employers are required to provide a reasonable
accommodation if needed and if related to
the past disability.
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The primary focus in an ADAAA case should be if the employer complied with their obligations under the ADAAA
and if discrimination occurred, not if the individual
meets the definition of disability.
No extensive demand analysis to determine if disabled.
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Check your policies
Review job descriptions to ensure regulatory compliance
Train supervisors to comply
Assure interactive process in place with documentation
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The ADAAA and steps to the interactive process:
Reasonable Accommodation under the ADAAA
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Step 1 Step 2 Step 3
Step 4Step 5Step 6
Step 7 Step 8
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Gather necessary documents: ChecklistEmployee questionnaireMedical provider questionnaireJob description
Please have your county attorney or legal counsel review these documents before use
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The disability comes to the attention of the manager or supervisor through observation or request
Step 1
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Question One
True or False –
Employees must ask for an accommodation.
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Identify the essential and non‐essential functions of the job
Step 1 Step 2
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Does this position exist to perform this
function?
Can this function be performed by other employees in the department?
Would taking this function from the job fundamentally change
the job?
Would there be significant
consequences if this function is not performed?
Is special expertise or judgment required?
Is special training or education required?
Is a license or certification required?
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Only essential functions may be used in determining reasonable accommodation
Only essential functions must be reasonably accommodated
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Step 1 Step 2Step 3
Consult with the employee to identify any job‐related limitations and complete the employee questionnaire
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Caring for oneselfPerforming manual tasksSeeingHearingEatingSleepingWalkingStanding
SittingReachingLiftingBendingSpeakingBreathingLearningReading
ConcentratingThinkingCommunicatingInteracting with othersWorking
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Have the employee sign the Employee Questionnaire!
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Question TwoWhich of the following is an example of a major life activity under the ADAAA?
A. Bending
B. Concentrating
C. Interacting with Others
D. All of the Above
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Step 1 Step 2 Step 3
Step 4Provide the medical questionnaire to the employee to seek documentation of functional limitations from the medical provider.
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The Genetic Information Nondiscrimination Act of 2008 (GINA)prohibits employers and other entities covered by GINA Title II fromrequesting or requiring genetic information of an individual or familymember of the individual, except as specifically allowed by this law.To comply with this law, we are asking that you not provide anygenetic information when responding to this request for medicalinformation. 'Genetic Information' as defined by GINA includes anindividual's family medical history, the results of an individual's orfamily member's genetic tests, the fact that an individual or anindividual's family member sought or received genetic services, andgenetic information of a fetus carried by an individual or an in‐dividual's family member or an embryo lawfully held by an individualor family member receiving assistive reproductive services.
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Step 1 Step 2 Step 3
Step 4Step 5
Consult with the employee to identify possible accommodations.
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Step 1 Step 2 Step 3
Step 4Step 5Step 6
Employee and manager or supervisor research possible accommodations and discuss options
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Question Three
True or False –
The accommodation that the employee asks for is always the best accommodation to give
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Step 1 Step 2 Step 3
Step 4Step 5Step 6
Step 7Implement the accommodation that is most reasonable for both the employee and the employer.
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Determination should be based on:
Nature and cost of accommodation
Overall financial resources and number of persons employed
Facility specifics if part of a larger entity
Type of Operations
Impact on Operations
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Step 1 Step 2 Step 3
Step 4Step 5Step 6
Step 7Step 8
Document the process!
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Question Four
Buying a new police car that sits higher off the ground is an undue hardship for the county.
A. Always true
B. Sometimes true
C. Never True
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This training is designed to provide general information about the subject matter covered. Neither TAC nor the
trainers are engaged in rendering legal advice. If you need legal advice, TAC recommends that you seek the
services of a competent attorney who is familiar with your specific situation.
![Page 45: Americans with disabilities act amendments act Prese… · Americans with disabilities act amendments act The ADAAA. This training is designed to provide general information about](https://reader034.vdocument.in/reader034/viewer/2022050108/5f45d2f17fd225275c49caeb/html5/thumbnails/45.jpg)
Request for Information from Medical Provider
________________, who is an employee of _________________, has requested a reasonable accommodation under the Americans with Disabilities Act (ADA). In response to that request, we are seeking specific information as detailed below. Please provide the requested information only – please do not send copies of medical records. The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Note: The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. 1. Does the employee have a physical or mental impairment? Yes No 2. What is the impairment? _________________________________________________________________ 3. What is the expected duration of the impairment?
Permanent Temporary (please explain)
______________________________________________________________________________________________________________________________
Chronic (please explain)
______________________________________________________________________________________________________________________________
Episodic (please explain)
______________________________________________________________________________________________________________________________
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
ADAAA EMPLOYEE QUESTIONNAIRE
This questionnaire should be used when an employee with a disability requests an accommodation, which could include a change to county 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.
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
ADAAA MEDICAL PROVIDER QUESTIONNAIRE
This questionnaire should be used when an employee with a disability requests an
accommodation, which could include a change to county 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.
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Helpful Human Resource Links
Site Hyperlink
EEOC www.eeoc.gov
EEOC Retaliation Guidance https://www.eeoc.gov/eeoc/newsroom/release/8-29-16.cfm
EEOC Guidance (ADAAA) http://www.eeoc.gov/policy/docs/accommodation.html
EEOC Publications https://www.eeoc.gov/eeoc/publications/index.cfm
EEOC Facts About Retaliation https://www.eeoc.gov/laws/types/retaliation.cfm
Job Accommodation Network http://askjan.org/
Texas Workforce Commission http://www.twc.state.tx.us/
Texas Association of Counties www.county.org
DOL Posters Page https://www.dol.gov/whd/resources/posters.htm
FMLA Forms https://www.dol.gov/whd/fmla/2013rule/militaryForms.htm
Code of Federal Regulations http://www.dol.gov/dol/cfr/Title_29/Chapter_V.htm
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
MEDICAL PROVIDER QUESTIONNAIRE
To: ________________________________________________________
Name of Employee: _________________________________________
Job Evaluated: ______________________________________________
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.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting or requiring
genetic information of an individual or family member of the individual, except as
specifically allowed by this law. To comply with this law, we are asking that you not
provide any genetic information when responding to this request for medical
information. ʹGenetic Informationʹ as defined by GINA includes an individualʹs
family medical history, the results of an individualʹs or family member ʹs genetic
tests, the fact that an individual or an individualʹs family member sought or received
genetic services, and genetic information of a fetus carried by an individual or an in‐
dividualʹs family member or an embryo lawfully held by an individual or family
member receiving assistive reproductive services.
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
1. Does ________________have a physical or mental impairment? Yes No
If so, please state the type of impairment:
____________________________________________________________________________
____________________________________________________________________________
2. Does ____________________’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 ___________________________ 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 _____________________’s
impairment? __________________________________________________________________
6. Attached is a job description for the ________________________ position. Please
review the job description and assess whether __________________________ can
perform all job functions: Yes No
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
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:
which job function(s) would pose such a threat:
__________________________________________________________________
__________________________________________________________________
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
the direct safety or health threat posed:
__________________________________________________________________
__________________________________________________________________
any reasonable accommodations that would eliminate the direct safety or
health threat, or reduce it to an acceptable level:
__________________________________________________________________
__________________________________________________________________
_________________________________ __________________________ ____________
Signature Title Date
Printed Name and Address:
__________________________________
__________________________________
__________________________________
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
EMPLOYEE QUESTIONNAIRE Name of Employee: _________________________________________
Job Evaluated: ______________________________________________
Date: ______________________________________________________
Please answer the following questionnaire.
1. Do you have a physical or mental impairment? Yes No
If so, please state the type of impairment: ____________________________________________________________________________ ____________________________________________________________________________ 2. Does your 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 you are 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:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
5. What is the duration or expected duration of your impairment?
__________________________________________________________________
6. Attached is a job description for your position. Please review the job description
and assess whether you 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 you 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 you or other people (co-workers, members of the general public, etc.)?
Yes No
11. If yes, please describe:
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TEXAS ASSOCIATION OF COUNTIES – Sample Form
which job function(s) would pose such a threat:
__________________________________________________________________
__________________________________________________________________
the direct safety or health threat posed:
__________________________________________________________________
__________________________________________________________________
any reasonable accommodations that would eliminate the direct safety or
health threat, or reduce it to an acceptable level:
__________________________________________________________________
__________________________________________________________________
_________________________________ __________________________ ____________
Signature Title Date
Printed Name, Position, Department:
__________________________________
__________________________________
__________________________________
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4. Does the impairment affect a major life activity? (Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and the operation of a major bodily function such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems).
Yes No
5. Does the impairment substantially limit one or more major life activity? Yes No 6. Does the employee have any functional limitations resulting from the
impairment? Please describe: _________________________________________________________________
_________________________________________________________________ 7. Please refer to the attached description of the employee’s job that contains a list of
essential job functions. How does the functional limitation impact the employee’s ability to perform the essential functions?
_________________________________________________________________
_________________________________________________________________ 8. Do you have any suggestions for possible accommodations that will enable the
employee to perform the essential functions? Please describe: _________________________________________________________________
_________________________________________________________________ 9. How would your suggested accommodation enable the employee to perform the
essential functions? _________________________________________________________________ _________________________________________________________________ Please return this form to: _____________________ _____________________ _____________________