Guide to the Americans With Disabilities Act

The University's policies are in compliance with both the substance and intent of the employment provisions (Title 1) of the Americans with Disabilities Act (ADA) of 1990 as well as with the provisions of Section 503 and 504 of the Rehabilitation Act of 1973.

Accordingly, in the application of its personnel policies, the University’s intent is to establish and sustain employment practices that do not discriminate against and/or have disparate or adverse impact upon disabled individuals on the basis of a disability.

This supervisor's guide is not a contract or University policy and is provided for informational purposes only. This guide may be changed at any time at the sole discretion of the University.

The President of the United States signed the Americans with Disabilities Act of 1990 (ADA) into law on July 26, 1990. Congress passed the ADA Amendments Act (ADAAA) in 2008. The act makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also prohibits discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications. The regulations for each of these areas are carefully detailed in the act’s five titled sections:

• Title I Employment
• Title II Public Services
• Title III  Public Accommodations
• Title IV Telecommunication Relay Services
• Title V Miscellaneous Provisions 

The purpose of this information is to explain the part of the ADA that prohibits job discrimination as covered by Title I of the act. This part of the act is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

What is covered

The ADA makes it unlawful to discriminate in all employment practices such as:

• Recruitment
• Leave  
• Hiring
• Benefits  
• Promotion
• Dismissal  
• Training
• Job Assignment  
• Layoff
• All other related activities  
• Pay

The act also prohibits an employer from retaliating against applicants or employees for asserting their rights under the ADA. The University’s compliance obligation began on July 26, 1992.

Who is covered

1. Title I of the ADA protects qualified individuals with disabilities from employment discrimination. To be protected under the ADA, an individual must have a physical or mental impairment that substantially limits one or more of the major life activities of such individual, must have a record of such an impairment, or be regarded as having such an impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, or working. An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. 

2. The expansion of the ADAAA emphasized that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

3. The ADA does not interfere with your right to hire the best-qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified applicant or employee because of his or her disability. Qualified is defined as:

   • satisfying job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job-related; and
   • be able to perform those tasks that are essential to the job, with or without reasonable accommodation.

The recruitment policies of the University apply under the ADA.

1. Defining essential job functions and SKAs: All University positions should have written job descriptions, which identify the essential functions of the position. While the ADA does not require the employer to have written job descriptions, the presence of them is seen as evidence of the position’s essential functions. Job descriptions are also required to outline the special skills, knowledge and abilities (SKAs) required to carry out the essential functions. Essential functions are the basic job duties an employee must be able to perform with or without reasonable accommodation. As the supervisor, you must carefully examine each of your positions to determine which functions or tasks are essential to performance. In identifying an essential function, you should focus on the purpose of the function and the result to be accomplished rather than on how the function is currently performed. Example: In a job requiring the use of a computer, the essential function is the ability to access, input and retrieve information. It is not essential that the employee enter information manually or read the information on the screen visually, since adaptive devices or computer software can enable a person without arms or with impaired vision to perform the essential functions of the job. In determining whether a function is essential to the position you should consider the following factors:
   
   1. Whether the reason the position exists is to perform that function;
   2. The number of other employees available to perform the function or among whom the performance of the function can be distributed;
   3. Whether the function is highly specialized and the incumbent is hired for the degree of expertise or skill required to perform the function.

2. The job description forms currently used to classify University positions will continue to be used. However, it is important that the duties you list are clearly labeled. Tasks and duties that meet one or more of the above three factors will typically support labeling them as "essential" functions. Duties or tasks not meeting the above test or which are not essential to the positions should be labeled "other duties." Your judgment as to which functions are essential along with the written job description become the University’s prime evidence of a position’s essential function. The University’s obligation to make reasonable accommodation is tied to the position’s essential functions.

3. Screening and interviewing under the ADA: The University policy of selecting the most qualified candidates for its positions still applies. The ADA does not force the employer to select an unqualified or lesser-qualified candidate simply because this individual has a disability.

   In screening applications, the supervisor’s assessment decisions must be job related. A candidate’s inability to perform the essential functions of a position, with or without reasonable accommodation, should form the basis for all review decisions. The supervisor’s assessment decisions should be documented for Talent Acquisition and a record should be retained for future reference.

   In interviewing candidates, it is unlawful under the ADA to ask an applicant whether they are disabled or about the nature or severity of a disability. The interviewer may ask applicants questions about their ability to perform job related functions as long as the questions are not phrased in terms of a disability. One may also ask applicants to describe or to demonstrate how, with or without a reasonable accommodation, they will perform job-related functions.

   It is important that the interview process be applied equally to all candidates and the questions pertaining to their ability to perform be asked of all candidates. Talent Acquisition offers an interviewing workshop for interviewers.

4. Preferential consideration of Disability Management referrals: Departments are required to consider employee applicants referred by DMS, prior to reviewing the applications of any external candidates and/or any employee who is not eligible for recall or lay-off preference. DMS and Talent Acquisition are responsible for coordinating the applicant referral process and ensuring the appropriate preferential sequence is followed.

It is a violation of the ADA for a hiring manager to refuse to select a qualified individual with a disability based merely on:

• the individual’s inability to perform a non-essential function of the position,
• the individual’s need for a reasonable accommodation, unless the accommodation would cause an "undue hardship" or is otherwise unavailable.

Employers are not required to offer preference in the competitive recruitment process to individuals with disabilities. However, in instances where the assessment is that an individual with a disability is substantially equally qualified with others without a disability then the selection decision may be made in compliance with state and federal affirmative action laws and employee career enhancement commitments.

Consistent with appropriate provisions of collective bargaining agreements and personnel policies, an employee with a disability may be given priority over other candidates as part of the interactive process. Disability Management Services will serve as the primary guide in this process.

Medical examinations: The use of medical examinations under the ADA is permitted, but under very specific circumstances, namely:

The offer of employment may be made conditional on the candidate’s successful completion of a medical examination. Human Resources must be informed prior to the start of recruitment when the department intends to require the successful applicant to undergo a medical examination. Such a requirement will become a part of the recruitment notice.

The physician conducting the medical examinations should be given a copy of the position’s essential functions, along with any required skills and abilities.

1. Medical examinations can be required only after an offer of employment has been extended.
2. The requirement of a medical examination must apply to all employees in the job group.
3. The results of the medical examination must be kept confidential and maintained in separate medical files.
4. Medical restrictions derived from the medical examinations must be job related.

1. Scope of the act: The ADA makes reasonable accommodation an affirmative obligation (unless the University can prove "undue hardship" or "threat to safety") in three areas: (1) permitting an employee to perform essential job functions, (2) testing and application procedures, and (3) permitting a disabled employee to enjoy benefits and privileges of employment (including access to non-work areas) that are "equal to" those afforded other similarly situated employees. Reasonable accommodation may include any of the following:
   
   1. making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
   2. initiating part-time or modified work schedules;
   3. acquiring or modifying equipment or devices;
   4. appropriately adjusting or modifying employment examinations, training materials or local practices;
   5. providing interpreters;
   6. leave of absence
   7. reassigning or referring a disabled individual to an active vacant position if all attempts to implement other reasonable accommodations have been unsuccessful.

2. Two exceptions to reasonable accommodation:

   1. The University may be absolved from providing reasonable accommodation if there is no accommodation that can be provided without undue hardship. "Undue hardship" refers to any accommodation that would be unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature of the business or service. The limitations of the department’s funds and resources is only one factor in determining undue hardship. The department must take into account the size, resources, nature and structure of the campus, as well as the impact on the specific facility providing the accommodation. It is only under rare circumstances that financial cost, claimed on the basis of its impact on a departmental budget, will be adequate to meet the test of undue hardship.
   2. The University is not required to employ an individual with a disability who poses a "direct threat" to the health and safety of him/herself or others and who cannot perform the job at a safe level even with reasonable accommodation. This is a very narrow exception for which the employer will bear the burden of proof. To reject on this basis, one must be able to show that there is not only high probability of substantial harm, but also that no reasonable accommodation could either eliminate the risk or reduce it to an acceptable level. Accordingly, the University must identify that aspect of the disability that would impose a direct threat, taking into consideration the following four factors:
      
      1. the duration of the risk;
      2. the nature and severity of the potential harm;
      3. the likelihood that the potential harm will occur; and
      4. the imminence of the potential harm.

3. Disability management process for current employees: The supervisor may work with the employee independently on any workplace accommodations. However, it is important these efforts are documented properly so it is a best practice to work with Disability Management Services (DMS) on all accommodations. A review by DMS is required in cases where there are concerns about continuation of leave or the accommodations does not seem to be allowing the employee to perform their essential job functions.

4. Undue hardship review process: When reasonable accommodation is in dispute, departments shall review and document the factors which constitute undue hardship and forward this information to DMS. Where undue hardship continues to be in dispute, we will work together to determine any other accommodations that may be provided and/or determine the next step in the interactive process.

   If the disability precludes the employee from performing essential job functions and reasonable accommodation cannot be accomplished, then the employee may be medically separated. Existing medical separation policies and appropriate provisions of collective bargaining agreements would apply.  DMS and Labor and Employee Relations will guide you in these processes.