AMERICANS WITH DISABILITIES ACT
PURPOSE: To inform County Departments and to comply
with the requirements of the Americans with Disabilities Act (ADA).
SCOPE: This policy applies to all County Offices and
Employees
POLICY STATEMENT: The Americans with Disabilities
Act (ADA) requires businesses to take specific steps to ensure that
individuals with disabilities do not experience discrimination in the
employment process. In addition, the ADA provides that an individual
with a covered disability shall not be denied access to public programs,
activities or services.
The focus of this EPP will be the requirements under Title I, the employment
section, of the ADA. All state and local government agencies are covered
whether or not they receive federal funds. Employers with 25 or more
employees will be covered by the Act effective July 26, 1992. The Equal
Employment Opportunity Commission has been granted enforcement authority
for the employment provisions of the Americans with Disabilities Act.
All supervisors of Clackamas County should become familiar with the
provisions of the Act and are expected to adhere to it when making employment
decisions.
I. DEFINITION
Disability under the Act is defined as:
A. A physical or mental impairment that substantially limits a major
life activity;
B. A record of impairment; or
C. Being regarded as having such an impairment.
Under this definition, a physical or mental impairment is not a disability
unless its severity is to the extent that it substantially limits
one or more major life activities such as walking, seeing, hearing,
speaking, working, etc. Also included in the definition is anyone
who has a record of or has been misclassified as having a mental or
physical impairment which substantially limits one or more major life
activities. The final inclusion under the term disability are those
who are regarded as having a covered impairment. This means that the
impairment itself may not substantially affect a major life activity;
however, if others view the impairment as substantially affecting
a major life activity, then the person with the impairment is covered.
The Act also specifically excludes an individual who currently uses
illegal drugs from coverage. However, someone who has successfully
completed a supervised drug rehabilitation program or has otherwise
been rehabilitated and no longer uses illegal drugs may be covered
under the Act.
II. OBLIGATIONS UNDER THE ACT
A. Prohibition of Employment Discrimination
Discrimination based on a person's disability with respect to any
term, condition, or privilege of employment including hiring is prohibited
under the Act. Included under this would be the following:
1. Classifying disabled applicants or employees in any way that
adversely affects their opportunities or status.
2. Participating in any arrangement with another organization that
has the effect of discriminating against disabled applicants or
employees. This would include entering into service contracts or
collective bargaining agreements when such contracts include arrangements
which discriminate against a particular group of applicants or employees.
3. Using standards or methods that have the effect of discriminating
or perpetuating discrimination.
4. Denying equal jobs or benefits because of a relationship or
association with a disabled person. This would include the situation
of not hiring a person who has a sick dependent that would tap benefit
resources or refusing to hire someone who is known to do volunteer
work with someone who is disabled such as a person who has AIDS,
epilepsy, etc.
5. Refusing to make reasonable accommodation unless the accommodation
would impose undue hardship. Also denying employment opportunities
to an otherwise qualified individual with a disability to avoid
making a reasonable accommodation would be prohibited.
6. Using standards or tests that tend to screen out disabled individuals
unless the tests are job related and consistent with business necessity.
7. Failing to select and administer tests in the most effective
manner to ensure that the results accurately reflect skills, aptitude,
etc. An example of this would be a situation where the standard
recruitment procedure for a position includes a written test. If,
due to a disability, as defined under the Act, someone could not
read the instructions and questions, then the test should be read
to them.
8. Denying health insurance benefits to a person covered under
the Act.
B. Reasonable Accommodation
As an employer, we have an obligation to make reasonable accommodations.
An employer cannot base an employment decision on an individual's
need for reasonable accommodation. Reasonable accommodation includes
making physical modifications to the facilities and providing equipment
to assist in the performance of job duties. Also non-physical accommodations
such as job restructuring, modifying work schedules, and reassignment
to vacant positions would be included in types of accommodations.
If an applicant or employee discloses a disability and requests accommodation,
a dialogue should take place with the applicant or employee to determine
what would be an appropriate and reasonable accommodation.
In determining what is reasonable, the standard "undue hardship"
is used. Undue hardship refers to an action that is unduly costly,
extensive, substantial, disruptive, or that would fundamentally alter
the nature of the program. When considering cost of an accommodation,
the employer cannot consider a cost that is borne by another agency
or organization. In some instances a disabled person may already have
equipment which could be used at the work site or may have access
to grants from another agency to purchase such equipment. Also, if
two options for accommodation are available, it is the employers right
to choose the least expensive option. However, advancement of the
person on the job and future needs as the person develops in the position
should be taken into consideration when determining what is an appropriate
and reasonable accommodation. The accommodations made should not limit
an employee's opportunities for advancement. (For further information
on providing a reasonable accommodation refer to Attachment A.)
C. Employment Related Physical and Psychological Examinations
Under the Americans with Disabilities Act, any pre-offer physical
or psychological examination is prohibited.
A job offer can be made on the condition that the applicant pass
a physical and/or psychological examination if all entering employees
in the same job category are subject to such an examination and/or
inquiry regardless of disability. The job offer must first be made
and it is essential to clearly state that the offer is contingent
on the results of the exam. Under any circumstance, an examination
must meet the test of job relatedness and be consistent with business
necessity. This would also be the criteria for any post-employment
exams. In order to utilize employment related physical and psychological
exams as an employment criteria, an assessment of the position must
first be made by an approved agency. (See EPP #24 for further information
on employment related physical/psychological exams.) Physical agility
tests which may be used in screening for law enforcement positions
are not considered physical exams. Any physical/psychological exam
beyond this must meet the above criteria.
Medical inquiries must be made on separate forms from other application
materials. Medical information must also be kept confidential and
separate from other employee files. It will be critical that results
of physical/psychological exams and drug testing be accessible only
to individuals on a need-to-know basis. Results of employment related
physical and psychological examinations must be forwarded to the Risk
& Benefits Division where they will be maintained separate from
the employee's personnel file and secured with restricted access.
Departments may not retain copies of any employee medical information
under any circumstances. (See EPP #42 –
Employment Records.)
D. Pre-Employment Inquiries/Determination of Essential Job Functions
An employer may inquire as to an applicant's ability to perform essential
job related functions. Further, an employer may ask an applicant to
describe or demonstrate how, with or without reasonable accommodation,
the applicant will be able to perform essential job related functions.
Determining essential job functions requires an analysis of the position
to determine what functions are essential as a matter of business
necessity. Determining essential functions of a position should
be completed before a recruitment is opened for a position. Those
fundamental or essential job functions should then be documented on
various instruments including position classification questionnaires,
classification specifications, recruitment matrixes, and job announcements.
A job function may be considered essential for any of several reasons.
The primary reasons are as follows: 1) the reason the position exists
is to perform that function; 2) there is a limited number of employees
available among whom the performance of that job function can be distributed;
and/or 3) the function is highly specialized so that the incumbent
in the position is hired to perform that particular function. Some
ways to substantiate this are through the amount of time spent performing
the function and the consequences of not requiring a person in the
job to perform that function.
For example, if lifting 50 pounds is an essential function of a position,
it would be appropriate to ask an applicant, "Can you lift 50
pounds ten times an hour?" However, it would be inappropriate
to inquire, "Do you have any disabilities which would prohibit
you from lifting 50 pounds at a time?" The first manner of inquiry
does not solicit information as to why the person may not be able
to perform the function, merely if they are able to perform an essential
function of the position. Note that if the inquiry is being made about
lifting, then it should be an essential function of the job. Inquiries
or assessments involving physical standards must first be approved
by an appropriate medical agency based on job requirements and business
necessities. If the function can be eliminated or removed from the
job then the function is probably not essential and inquiries on the
subject should be avoided as they cannot be used as a basis for screening
out otherwise qualified disabled applicants.
E. Alcohol and Illegal Drug Usage
Current use of an illegal substance is not considered a disability
under the Act. However, if someone currently uses illegal drugs and
has another covered disability, that person would be covered under
the Act based on the other covered disability. Under the ADA, an employer
still has the right to prohibit the use of alcohol or illegal drugs
at the work place and may still prohibit employees from being under
the influence of alcohol or illegal drugs at the work place. A drug
user or alcoholic may be held to the same qualification standards
for employment or job performance and behavior standards as other
employees. If someone's substandard work performance is related to
alcohol or illegal drug usage, that person may still be disciplined
for the work performance and held to the same standards as other employees.
F. Positions Involving Food Handling
The ADA recognizes that persons with certain communicable diseases
should not be employed in positions involving food handling. The Secretary
of Health and Human Services has the responsibility for maintaining
a list of diseases which are transmitted through the handling of food.
An employer may refuse to assign or may discontinue assigning an individual
with such a disease, to a job which includes food handling.
G. Prohibition Against Retaliation and Coercion
Threatening, coercing, intimidating or otherwise interfering with
someone's rights under the Act is prohibited. The ADA specifically
protects from retaliation individuals who oppose any act made unlawful
by the ADA. In addition, anyone who makes a charge, testifies, or
participates in any investigation covered under the ADA is protected
from retaliation, intimidation and harassment.
H. Physical Barriers
New buildings must be built so that they are readily accessible to
disabled individuals. Architectural barriers must be removed from
existing buildings if such removal is "readily achievable."
Readily achievable is a standard which allows organizations to determine
if the changes can be made without great difficulty or expense. If
a facility is undergoing renovation, then the renovated area must
be made accessible.
Another aspect of being accessible to disabled individuals is providing
special phone service for the hearing impaired. County departments
should be accessible to hearing impaired individuals. Numbers for
phone lines for the hearing impaired should be published in local
phone directories.
In all instances, the Department of Employee Services is available
to assist departments in working through individual issues surrounding
ADA such as determining what reasonable accommodation would be for
a particular position, defining the essential functions of a position,
or determining appropriate pre-employment inquiries.
III. SUMMARY OF THE ADA
A. The Act was adopted to ensure that individuals with covered disabilities
do not experience discrimination in the employment process. In addition,
it seeks to ensure that individuals with covered disabilities are
not denied access to public programs, activities or services due to
a qualified disability.
B. Disability is defined under the Act as: a) a physical or mental
impairment that substantially limits a major life activity; b) a record
of impairment; or c) being regarded as having such an impairment.
C. Prior to opening a recruitment, the position should be reviewed
to determine essential job functions and to ensure standards for the
position are job related and consistent with business necessity.
D. Pre-employment inquiries may not address an applicant's disabilities
in any way. Pre-employment inquiries must be limited to the applicant’s
ability to perform essential job related functions without inquiring
as to why the person may or may not be able to perform those job functions.
E. An applicant or employee may only be requested to undergo an employment
related physical after a job offer has been made. The job offer must
first be made and it should be contingent upon the applicant's successful
completion of an employment related physical.
F. Medical records and results of employment related physicals must
be kept separate from other applicant and employee files. Departments
should never retain copies of medical records or employment related
physical or psychological examinations.
G. If an applicant or employee initiates a discussion regarding reasonable
accommodation, the employer should discuss with the applicant/employee
what reasonable accommodation can be made. In all instances the Department
of Employee Services should be consulted to discuss what would constitute
appropriate and reasonable accommodation in any particular situation.
H. Threatening, coercing, intimidating, or otherwise interfering
with someone's rights under the Act is prohibited.
INTRANET/INTERNET LINKS
County Ordinance (http://www.co.clackamas.or.us/about/code/Title2.pdf)
Job Accommodation Network (www.jan.wvu.edu)
Attachment
Attachment A
PROCESS FOR PROVIDING REASONABLE ACCOMMODATION
The process of identifying if, and to what extent, a reasonable accommodation
is required should be flexible, and involve both the employer and the
individual with the disability. Determinations as to a particular individual's
qualifications and any potential accommodation must necessarily be made
on a case-by-case basis.
To determine the appropriate reasonable accommodation, it will be necessary
for the employer to initiate an interactive process with the qualified
individual once the individual has disclosed a disability or requested
accommodation. This interactive process is helpful as the individual
seeking the accommodation may not be familiar enough with the employer's
equipment or work site to suggest an appropriate accommodation. Also
the employer may not know enough about the disability or its limitations
on the job at issue to suggest an accommodation. The Equal Employment
Opportunity Commission suggests that an employer faced with a request
for a reasonable accommodation from a qualified individual with a disability
take the following analytical approach:
1. Prior to opening a recruitment for a position, analyze the job
to determine its purpose and essential functions. These must be documented
on the classification specifications.
2. Consult with the disabled individual to ascertain the precise
job-related limitations imposed by the disability and how those limitations
can be overcome.
3. With the disabled individual's assistance, identify potential
accommodations and assess the effectiveness of each in enabling the
individual to perform the essential functions of the job.
4. Consider the disabled individual's accommodation preferences and
select and implement the accommodations most appropriate for both
the employee and the employer.
"UNDUE HARDSHIP" EXCEPTION FROM REASONABLE
ACCOMMODATION
The failure to provide reasonable accommodation may be justified where
the covered entity can demonstrate that the accommodation would impose
undue hardship on the operation of its business. This must be determined
on a case-by-case basis, since what may pose an undue hardship for one
employer may not pose a hardship for another employer or in another
setting.
"Undue hardship" is defined as any action requiring significant
difficulty or expense, taking into account such factors as:
• The nature and cost of the accommodation required. When considering
cost of an accommodation, the employer cannot consider a cost that
is borne by another agency or organization.
• The overall financial resources of the facility involved
in the provision of the accommodation.
• The number of persons employed at the facility.
• The effect of the accommodation on expenses and resources.
• The impact of the accommodation on the operation of the facility.
• The overall financial resources of the covered entity.
• The overall size of the covered entity's business with respect
to the number of employees.
• The number, type, and location of its facilities.
• The type of operation of the covered entity, including the
composition, structure, and function of its work force.
• The geographic separateness of the facility.
• The administrative or fiscal relationship of the facility
to the covered entity.
All of these factors should be considered in determining whether providing
an accommodation would impose an undue hardship on the covered entity.
The weight given to each factor will vary depending on the facts of
the particular situation.
The Department of Employee Services is available to work with departments
on particular incidents of providing accommodation. Also the Job
Accommodation Network, 1 800-526-7234 or www.jan.wvu.edu,
provides a free service to employers to assist in finding appropriate
accommodation on a case-by-case basis.
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