OhASIS HOME | Biosafety Information | Safety Manuals ||| Symposium Contents

Proceedings of the 4th National Symposium on Biosafety

Americans with Disabilities Act Issues Sarah Knowlton Office of Legal Counsel Centers for Disease Control and Prevention 1600 Clifton Rd, MS C05 Atlanta, GA 30333 404-639-3428

Breakout Session

AMERICANS WITH DISABILITIES ACT PUBLIC LAW 101-336 ENACTED JULY 26, 1990

TITLE I: EMPLOYMENT

TITLE II: PUBLIC SERVICES

TITLE III: PUBLIC ACCOMMODATIONS

TITLE IV: MISCELLANEOUS PROVISIONS

TITLE V: EMPLOYMENT

Applies to employers with 25 or more employees.

EXCEPTIONS:

• The United States
• Indian tribes
• Bona fide private membership clubs that are 501(c) organizations.

General Prohibition Against Discrimination:

No covered entity (employer, employment agency, labor organization, or joint labor-management committee) shall discriminate against a qualified individual with a disability because of the disability of such individual 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.

The ACT defines disability as:

• a physical or mental impairment that substantially limits one or more of the major life activities of an individual;
• a record of such an impairment; or being regarded as having such an impairment.

What is considered "Discrimination" under the ADA?

• Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability;
• Participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this title;
• Utilizing standards, criteria, or methods or administration that have the effect of discrimination on the basis of disability or that perpetuate the discrimination of others who are subject to common administrative control;
• Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;
• Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
• Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;
• Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or class of individuals with disabilities unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and
• Failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant.

What does "reasonable accommodation" mean?

• Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
• Job restructuring, part-time, or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

What is an "undue hardship" on an employer?

An action requiring significant difficulty or expense, when considered in light of the following:

• The nature & cost of the accommodation needed;
• The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
• The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities, and
• The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility of facilities in question to the covered entity.

What about qualification standards?

Qualifications standards must be jb-related and consistent with business necessity. Such standards may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.

Americans with Disabilities Act Issues Breakout Session
Rapporteur: James A. Alford, Jr. Manager, Administrative Services Howard Hughes Medical Institute University of Michigan , Room 4544 MSRB-I Ann Arbor, MI 48109 313-747-4763

Sarah Nolton led our discussion on ADA yesterday and she did an excellent job. She also did an excellent job in the breakout session where we had some real lively discussions.What I am going to do today is to go over some of the key points of our discussions from the breakout session. I will try to give you some bullets you can take home and use as you run into Americans with Disabilities Act (ADA) situations.

The first thing to consider is the employment process. The ADA prohibits discrimination in all employment practices including job application procedures, hiring, advancement, compensation, training, termination, and all other terms, conditions, and privileges of employment. It applies to recruitment, advertising, layoff, leave, benefits, and all other employment related activities. The big questions typically asked, the question we had yesterday and I know it has crossed your minds is, "What is considered a qualified applicant? Or, when must you hire or accommodate an applicant with a disability?"

A qualified applicant is an individual who meets legitimate skill, experiences, education, and other requirements of a position and who can perform the essential functions (and I underline "can perform the essential functions") of the position, with or without reasonable accommodation. You are not required to give preference to a qualified applicant with a disability. You should select the most qualified applicant available and then make hiring and promotion decisions based on reasons unrelated to the existence or consequence of any disability.

Essential function is then defined as the basic job duties that an employee must be able to perform. To identify essential functions, consider whether the reason a position exists is to perform that function. The second step is to determine the degree of expertise needed to perform the essential function. If essential functions can not be determined or is not the reason the job exists, are there present employees among whom the non-essential function could be redistributed? Redistribution of non-essential functions of a job could be considered reasonable accommodation.

A job description is recommended for each regular, full, or part time position which fully describes the essential function of that position. To more easily comply with ADA, it is important for job descriptions to include valid evidence of the essential functions of the position and also include any specialphysical requirements or working conditions that might prevent persons with disabilities from performing the job.

As an example, we talked about safety devices, such as the requirement for face masks in some jobs. Should a person have pulmonary problems or claustrophobia the wearing of such a device could present problems. Both of those problems could and should be considered under ADA, so if a face mask is required be sure that it is included in the job description.

When you advertise a job it is important that you do not overstate the requirements of the job being advertised. Include only the essential functions of the position. Overstating the position will not relieve you of responsibility under ADA, since only the essential functions are considered.

The applicant is responsible for letting you know of any disabilities for which he or she would need accommodation. If the applicant does not disclose this information during the employment process and you subsequently find that you cannot reasonably accommodate the individual's needs, you can retract any offer of employment.

You cannot make pre-employment inquiries either on the application form or during the interview, as to whether or to what extent and individual is disabled. You can however, ask the job applicant whether he or she can perform a particular job function.

Employees who become disabled and are unable to perform the essential functions of the original job also need to be evaluated under ADA for accommodation purposes. Employers are not required to lower the quality or quantity standards in order to make those accommodations. Reasonable accommodation of current employees might include job restructuring, modifying work schedules, acquiring or modifying equipment, modifying training programs, or reassigning the employee to an open position for which he or she is qualified.

Substance abuse was another issue that came up during our discussions. Current abusers of illegal drugs or alcohol are not covered under ADA regulations. However, former users who are in recovery programs are covered.

A few do's and don'ts during the interview process. First the don'ts. Do not ask marital status, age, family responsibilities, if the applicant is pregnant or intends to become pregnant, religious preference, sexual orientation, anything concerning previous Worker's Compensation Claims, random or open ended questions about an applicant's disability. Do not ask if the applicant is disabled, or if he or she is associated with a disabled person. If the applicant appears to be disabled, do not refer to the disability by name, do not ask about the severity or nature of the disability, nor questions about the applicant's ability to travel to and from work.

You can ask the applicant to describe or demonstrate how he or she will be able to perform the essential job related functions required by the position. You can ask about attendance records. You can ask about reasons for leaving the previous position. You can have the applicant describe the types of personalities that they enjoy working with as well as those they do not enjoy. You can ask them about availability for overtime.

In conclusion, select the most qualified applicant available and make employment decisions based on the ability to perform the essential functions of the job. Second, consider hiring a qualified disabled applicant if he or she can perform the job with reasonable accommodation. Third, it is the responsibility of the employee or prospective employee to request accommodation. Document all requests for accommodations and what was done or could not be done to accommodate the employee or applicant. Fourth, reasonable accommodation is determined by the question of "undue hardship". Undue hardship determination is partially dependent on the size of the firm or institution making the employment decision. If you are unsue, you should consider professional help to make the decision of what is reasonable accommodation. Fifth, you are not required to lower the standards of quality or quantity to make a reasonable accommodation.

Recovering substance abusers are protected under the ADA. However, you can refuse to hire an applicant who is currently using illegal drugs. You may discipline or dismiss current employees who possess, use, or sell illegal drugs or unauthorized alcohol on company time or premises. Testing for the use of illegal drugs is permissible under the ADA.

Employers should review and revise all job descriptions to insure they identify the essential job functions. Job descriptions should be on file for every existing position. Omit all references to non-essential or marginal job functions from job requisitions, postings, and advertisements.

Finally and this is probably the most important discussion we had during our breakout session and that is, make clear decisions about whether a problem with an employee is an ADA reasonable accommodation question or a performance problem. Each concern needs to be evaluated on a case by case basis.

Symposium Contents

---

Office of Health and Safety, Centers for Disease Control and Prevention, 1600 Clifton Road N.E., Mail Stop F05 Atlanta, Georgia 30333, USA Last Modified: 1/2/97
Send us your Comments.