The Role of Vocational Rehabilitation in Relation to the ADA November 28, 2012 Peggy Anderson State...

The Role of Vocational Rehabilitation in Relation to

the ADANovember 28, 2012

Peggy AndersonState Coordinator, Business Relations Program, Alabama

Department of Rehabilitation ServicesChristy Dunaway

Executive Director, LIFE of MississippiTrish Farmer

Program Manager of Employment Services, Tennessee Department of Human Services

Jointly developed by the NET - Southeast, Southeast ADA Center and theSoutheast TACE Region IV

Hosted by the Burton Blatt Institute - Southeast, a partnership between theSoutheast ADA Center, part of the ADA National Network, and the Southeast

TACE Region IV

Hosted by: Burton Blatt Institute – Southeast, a partnership between the Southeast ADA Center and Southeast TACE Region IV.

Funded by NIDRR Grant # H133A110021 & # H264A080021. © 2012

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• Americans with Disabilities Act and its amendments:

• What do we need to know?

• What’s the best approach in addressing compliance?

Foundational Information



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What kind of law is this?It’s important to know the difference

between an affirmative action law and a law that only prevents discrimination

• ADA is a law that prevents discrimination• It is NOT a law that requires affirmative action

outreach like Section 503 of the Rehab Act which covers Federal contractors

• So what’s the difference?• Affirmative action law has enforceable quotas• Anti-discrimination laws simply mandate non-

discriminatory practices



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What about YOUR role?It is imperative that we, as rehabilitation professionals, are

clear about what we should and should not do as advocates for persons with disabilities in light of ADA.

• We are not in the business of compliance• We do not “turn in” those who appear not to be non-

compliant• We have no oversight for enforcement• We should be knowledgeable of ADA (our businesses

customers are and expect us to be)• We should function as a resource link and educator on the

law’s application• We should teach our consumers their options if they

suspect non-compliance



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• Who is covered?

• Who is protected?

• Who is required to comply?

Americans With Disabilities Act (ADA)



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• Employers with 15 or more employees• Employment agencies• Labor organizations• All aspects of employment, including

Application and interview Essential job functions Benefits and privileges of the job Job sponsored recreational activities

ADA Covers



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• Religious organizations

• American Native Indian organizations

• Private clubs

ADA Does NOT Cover



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Qualified Individuals with a Disability

“Qualified” in this context means that the individual:

1. Meets the skill, experience, education and job-related requirements of the job.

2. Can perform the essential functions of the job with or without a reasonable accommodation.

ADA Protects



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Qualified Individuals with a Disability“Disability” in this context means that the individual:

1. Has a mental or physical impairment that substantially limits one or more major life activities.

2. Has a record of that type of impairment.

3. Is regarded as having a mental or physical impairment that is not minor and transitory.

Note: If person fits only within last category, they are not eligible for reasonable accommodation.

ADA Protects (Cont’)



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These impairments almost alwayssubstantially limit a major life activity.Deafness Autism HIV

Blindness Cancer Schizophrenia

Intellectual Disability Cerebral Palsy

Muscular Dystrophy Missing Limbs

Diabetes Major Depressive Disorder

Mobility (wheelchair) Epilepsy

PTSD OCD MS

EEOC Impairments



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A “major life activity” can be identified as any of the following:

Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting and working.

Major Life Activities



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Major bodily functions include:

Immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions, as well as individual organs within a body system.

Major Bodily Functions



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Disability Related Questions And Medical Examinations

• Disability related question: A question likely to elicit information about a disability.

• Medical Examination: A procedure or test seeking information about impairments or health.

• Does not include: Test for current use of illegal drugs Test for physical fitness or agility Polygraph test



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Before Job Offer

Under provisions of the ADA, prior to any job offer, employers may NOT:

1. Ask Disability Related Questions during the interview process.

2. Require Pre-Employment Medical Examinations.



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After Job Offer But Before Employment Begins

Disability related inquiries/medical exams are O.K. if:1. All employees entering job category are

asked/examined.2. Information obtained is treated confidentially and kept

in separate secure files.

Withdrawal of job offer due to disability is O.K. if:1. No reasonable accommodation can be provided.2. Rejection reason is job-related and necessary for

business operation.



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• Voluntary medical exams as part of Employer’s Wellness programs are permitted.

• Other medical exams and disability related inquiries must be job-related and necessary for business operation.

• This standard is met when examination/inquiry is triggered by Employer’s reasonable belief that:

1. Employee’s ability to perform essential job functions are impaired by a medical condition.

2. Employee poses a direct threat to self or others due to their medical condition.

After Employment Begins



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Types Of Discrimination Prohibited By ADA

Discrimination against a qualified individual with a disability on the basis of the disability in employment actions such as:

Hiring Job Assignment

Firing Benefits

Leave Layoff

Recruiting Promotions

Application Training



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Types Of Discrimination Prohibited By ADA (Cont’)

• Harassment due to disability.

• Retaliation for exercising rights under ADA.

• Discrimination due to the reasonable accommodation needed.



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The Mandates Around Reasonable Accommodation

• What does ADA say about this?

• Ambiguity that comes with safety

• Emergency preparedness

• What is an Undue hardship?



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• Any change in the work environment or way things are done that enables a person with a disability to enjoy equal employment opportunity

• Must be provided to qualified individuals unless it poses an undue hardship.

A Reasonable Accommodation is:



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• Modification to the job application process

• Modification to the work environment or the manner under which the position held is customarily performed

• Modification that enables an employee with a disability to enjoy equal benefits and privileges of employment

Reasonable Accommodation Means:



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• The specific requirements of the job

• The particular needs of the employee or applicant

• The extent to which modifications or aids are available without causing undue hardship

Reasonable Accommodations are Dependent on:



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• Flexible work schedules

• Providing qualified readers or interpreters

• Adjustment or modifications of examinations, training materials or policies

• Rearranging workspace to accommodate necessary equipment

• Reassignment to vacant positions

Reasonable Accommodations can Include:



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• Review the particular job and determine its purpose and the essential functions

• Consult with the individual with a disability to determine his or her need for accommodation

• Identify potential accommodations in consultation with the individual

• Should alternatives be discovered in the accommodation process, consider the preference of the individual and select the method that best serves both the individual and the employer

Determining Reasonable Accommodations



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Reasonable Accommodations and Safety on the Job

• Issues of safety should be determined individually and not based on stereotypical ideas of what “might be dangerous” for an individual with a disability.

• Constructive dialogue between employer and employee will resolve most issues and concerns.



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Emergency Preparedness• First step is to identify and address the safety needs of

ALL employees, including those with disabilities. Is there an emergency plan in place, including evacuation, for everyone?

• Many times all it takes is a plan in place. Practice the plan, to remind everyone.

• Sometimes an alteration to the work environment or a specialized piece of equipment may be needed.

• A discussion with local first responders can shed light on what may be the best plan. It will also make them aware of what to expect at that location in case of an emergency.



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Undue Hardship• The ADA was NOT intended put anyone out of business• Rather to offer employers a valuable pool of employees.• To determine if a business will experience an undue

hardship in hiring an individual with a disability, an INDIVIDUALIZED ASSESSMENT is required.

• The needs of the employees should be considered, as well as the size of the business, overall financial resources, etc.

• Other resources should be considered, i.e., Vocational Rehabilitation or the individuals personal equipment, if the needed accommodations are too expensive for the employer to handle.



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Examples of Accommodations that are NOT REASONABLE

(undue Hardship) • Placing an applicant with a disability in a job for which

he/she did not specifically apply

• Placing an individual with a disability into a job if doing so would create a direct threat to the health or safety of the individual or others

• Maintaining the salary of an employee reassigned from a higher-paying job to a lower-paying job, if the employer does not do so for other employees



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• Eliminating essential functions of the job

• Lowering production standards

• Providing personal use items (e.g. prosthetic limb, eyeglasses, hearing aids, wheelchair, hot pot or refrigerator)

• Creating a job

• Promoting an employee

• Bumping another employee from his/her job

Accommodation that are NOT REASONABLE



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Disclosure & Discussion of Disability

• An appropriate way to address disability & employment

• An effective way to disclose disability in job seeking activities

• Implications tied to the ADA



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Disclosure of Disability(in consideration of ADA guidelines)

• If you are referring…..need permission from candidate

• Disclose only what is needed to reflect: Qualified or able to perform essential functions of

the job according to standards Accommodation needs & justification for those

needs Safety in the workplace

• Employer must keep disability information confidential and disclose only to those who must know.



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Disclosure of Disability• Suggestions for deciding whether or not to

disclose disability-specific information

• Effective techniques in disclosure for rehabilitation professionals to consider when representing individuals with disabilities to potential employers

• Critical to help consumers understand options and choose wisely



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ADRS Proprietary Material

When might it be appropriate to disclose or discuss disability?

1. If the disability is visible or perceived by the employer, or

2. If the disability limits the individual in performance of job tasks or compliance with employer policies, or

3. If the disability appears to limit the individual in performance of job tasks or compliance with employer policies.



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When is it not necessary to disclose disability?

1. If the disability is NOT visible

2. If the disability does not limit the individual in performance of essential job tasks or compliance with company policies

3. If accommodations are not necessary for performance of job tasks, meeting standards or having access to company benefits

4. If there are no safety risks



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DISCUSSING DISABILITY:Practical Tips or Techniques

1. Discuss Simply (No Labels)

2. Ask what’s know

3. Clarify Misconceptions

4. Give brief, general facts first

5. Then give specifics facts about the person

6. Highlight abilities

This really needs to be role played after a demo



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Another way to look at this…• Disability factors to consider before an interview:

How will the disability affect the person’s ability to do the job?

Will the individual need any accommodations in the application or interviewing process?

Will there be a need to review any job modifications or accommodations?

• If the answer is yes to any of these, it will be necessary to disclose disability related factors.

• If possible, have the individual bring up the disability and help the employer see how the job will be done



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After disclosure…….

• Always follow-up.

• Find out how the participant came across

• Find out if the employer has any concerns about the impact of disability

• Deal directly with any misperceptions or concerns….and there are some very effective ways to do this.



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How to deal with misperceptions about a disability that has been disclosed:

• Listen fully to the concern

• Qualify the concern

• Acknowledge the concern

• Convert the concern to a question

• Give specific facts about the disability

• Make your “point”

• Check to see if the employer understands and agrees

(Requires role-play)



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Tips on preparing your consumer for disclosure:

• Evaluate how the individual comes across when discussing disability

• Determine his/her knowledge about unique needs related to disability

• How does the individual treat concerns or beliefs about disability?

• Use existing resources to help consumer become more knowledgeable about his/her disability and accommodations

• Use JAN website for info to share w/ consumer



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Suggestions to apply what you’ve learned:

• Select a disability for individuals that you work with routinely

• Find a partner aware of these best practices

• Role play the disclosure techniques for a consumer with that disability as previously described

• Once completed, reverse roles

• Ask for feedback



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The Americans with Disabilities Act of 1990 (ADA) as Amended by ADA Amendment Act of 2008 (ADAAA) - Wrap up

• Other titles and who enforces them

• The reason we bring these up is because…

• List of resources/effective web links



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Title 1 - Employment

• Enforced by U.S. Equal Employment Opportunity Commission (EEOC).

Field offices located in 50 cities.

For appropriate EEOC field office, contact:

(800) 669-4000 (voice) (800) 669-6820 (TTY)

www.eeoc.gov

http://www.eeoc.gov/



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Title II – State and Local Government ServicesProgram and Service Areas, Public Education,

Employment, Recreation, Transportation, Health Care, Social Services, Courts, Voting and Town Meetings.

Effective communication is required

Enforced by U.S. Department of Justice, Washington, D.C.(800) 514-0301 (Voice)(800) 514-0383 (TTY)

www.ada.govAdditional enforcement through private lawsuits in Federal

Court

http://www.ada.gov/



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• Requirement: Access to city buses and public rail transit (e.g. subways, commute rails, Amtrak)

• Effective communication is required• Enforced by U.S. Department of Transportation

Washington, DC (888) 446-4511 (voice/relay)

www.fta.dot/ada

Title II - Public Transportation

http://www.fta.dot/ada



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• Requirement: Prohibits exclusion, segregation and unequal treatment.

• Effective communication.

• “Readily Achievable Barrier Removal” defined as easy and cheap.

Title III - Public Accommodations



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• Most private businesses and nonprofit service providers.

• Privately operated entities offering courses and examinations.

• Privately operated transportation.

• Commercial facilities.

Title III - Public Accommodations (part 2)



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Private entities that own, lease, lease to or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors’ offices, homeless shelters, transportation depots, zoos, day care centers, funeral homes, recreational facilities including sports stadiums and fitness clubs.




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• Transportation services provided by private entities.

• Enforced by: U.S. Department of Justice

Washington, DC(800) 514-0301 (voice) (800)514-0383 (TTY)www.ada.gov


http://www.ada.gov/



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• Additional enforcement through private lawsuits in Federal court.

• Allows IRS tax credits or deductions for providing access.




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• Requirement: Telephone and television services should be accessible for persons with sensory and speech disabilities.

• Federally funded public service announcements must be closed captioned.

• Enforced by: Federal Communications Commission, Washington, DC(888) 225-5322 (voice) (888) 835-5322(TTY)www.fcc.gov/cgb/dro

Title IV - Telecommunications

http://www.fcc.gov/cgb/dro



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Title V - Miscellaneous Provisions

• Extends coverage to Congress and Legislative agencies.

• Protection from retaliation and harassment for seeking your rights and assisting others in seeking their rights.

• Provides that any law providing greater protection for people with disabilities takes precedence



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• Southeast ADA Centerwww.adasoutheast.org

(800) 949-4232• U.S. Department of Justice

Washington, D.C. (800) 514-0301 (Voice) (800) 514-0383 (TTY) www.ada.gov• Job Accommodation Network (JAN)

www.jan.wvu.edu(800) 526-7234 (Voice)(800) 781-9403 (TTY)

Additional Resources

http://www.adasoutheast.org/

http://www.ada.gov/

http://www.jan.wvu.edu/



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*Open Discussion &

Questions



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THANK YOU!



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Contact InformationPeggy Anderson

State Coordinator, Business Relations Program, Alabama Department of Rehabilitation Servicesemail: [email protected]

Christy DunawayExecutive Director, LIFE of Mississippi800-748-9398 email: [email protected] orChristine Woodell – [email protected]

Trish FarmerProgram Manager of Employment Services, Tennessee Department of Human Servicesemail: [email protected]

mailto:[email protected]




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Education CreditsCRCC Credit - (1.0)Approved by Commission on Rehabilitation Counselor

Certification (CRCC) • By December 8, 2012, participants must score 80%

or better on a online Post Test and submit an online CRCC Request Form via the MyTACE Portal.

My TACE Portal: TACEsoutheast.org/myportal



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The Webinar is hosted by the Burton Blatt Institute (BBI) - Southeast, a partnership between the Southeast ADA Center and Southeast TACE Region IV.

Phone: Southeast ADA (404) 541-9001 [voice/tty]Southeast TACE (866) 518-7750 [voice/tty]

Email: [email protected]@law.syr.edu

Web:TACEsoutheast.orgADAsoutheast.org

Office Hours: Monday - Friday, 9:00 a.m. to 5:00 p.m. [Eastern Time]

Questions or Help Contact Us:

http://bbi.syr.edu/

http://adasoutheast.org/

http://tacesoutheast.org/




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DisclaimerThe information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute (BBI) at Syracuse University does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials.

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The Role of Vocational Rehabilitation in Relation to the ADA November 28, 2012 Peggy Anderson State...

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