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Staffing up for the start of a new school year has generated a number of inquiries about the Americans with Disabilities Act and related state laws. Following is a brief summary that provides general guidance. Each situation is unique but every situation requires proper handling and, most importantly, documentation.

A. Review of the Legislation
Signed into law on July 26, 1990, the Americans with Disabilities Act is a wide-ranging legislation intended to make American Society more accessible to people with disabilities.

The employment provision (Title 1) of the ADA applies to employers of fifteen employees or more, however the Pennsylvania Human Rights Act (PHRA), extends that duty to employers with four or more employees. The EEOC is the enforcement agency for the Federal ADA and the Pennsylvania Human Rights Commission is the enforcement agency for the PHRA.

The law prohibits discrimination in employment against people with disabilities. It requires employers to make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee, unless such accommodation would impose an undue hardship on the employer. Reasonable accommodations include such actions as making worksites accessible, modifying existing equipment, providing new devices, modifying work schedules, restructuring jobs, and providing readers or interpreters.

The ADA's protection applies primarily, but not exclusively, to disabled individuals. An individual is disabled if he or she meets at least one of the following tests:

1. He or she has a physical or mental impairment that substantially limits one or more of his/her major life activities;
2. He or she has a record of such an impairment; or
3. He or she is regarded as having such impairment.

On September 25, 2008, the ADA Amendments Act (ADAAA) was signed into law. It became effective on January 1, 2009. The U.S. Senate and the U.S. House of Representatives both unanimously passed the ADAAA. The ADAAA focuses on the discrimination at issue instead of on the individual's disability. It makes important changes to the definition of the term "disability" by broadening its interpretation.

The ADAAA and PHRA prohibits discrimination in the entire spectrum of employee life cycle - recruitment, hiring, promotions, training, pay, and social activities. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship.

B. What should you do
Generally: It is important to have an ADA Statement in your employee handbook. Your job descriptions should denote which tasks are essential and non-essential (can be assigned to others). It is equally important to have a policy and procedure regarding how your management team will handle a request for an ADA accommodation. This will provide a guide insure the steps and process taken are consistent and appropriate.

During the hiring process: The ADA prohibits the use of employment tests and other selection criteria that screen out, or tend to screen out, individuals with disabilities, unless such tests or criteria are shown to be job-related and consistent with business necessity. It also bans the use of pre-employment medical examinations or inquiries to determine if an applicant has a disability. It does, however, permit the use of a medical examination after a job offer has been made if the results are kept confidential; all per-sons offered employment in the same job category are required to take them; and the results are not used to discriminate.

The ADA covers potential employees, and medical inquiries are strictly limited. You cannot ask potential employees about a disability or require the applicants to take a medical exam. Employers are permitted, at any time, to inquire about the ability of a job applicant or employee to perform job-related functions. For example, you are allowed to ask questions that directly concern their ability to do the job. For example, you cannot ask potential employees if they have a bad back, but you may ask if they can lift 100-pound objects, assuming that is one of the job's essential requirements. You are also allowed to conduct a pre-employment physical after the potential employee has accepted the job, and you're free to revoke the offer if he fails the physical. (You cannot use the medical exam selectively - it must be given to all entering employees.)

C. During the Identification and Implementation Process: While you must make a reasonable accommodation for an employee's disability, you don't have to provide the exact accommodation that he requests. Moreover, you aren't required to bump one employee to accommodate a second; nor are you required to create a new job for the disabled employee. It is usually helpful to engage a subject matter expert to help guide you through the process. The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues. Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.

The inset below provides a broad overview regarding the steps to take when determining a reasonable accommodation and evaluating undue hardship. Please remember, each ADA request needs to be analyzed and evaluated on a case-by case basis. The standard of measure for employer management is to engage in a “good faith interactive process” with the employee and medical provider to determine and provide reasonable accommodations. It is important to also recognize and seek counsel regarding the possible interplay of Worker’s Comp Laws and the Family Medical Leave Act with the ADAAA.

Remedies for employees if they are dissatisfied with the process:
Employees may file a complaint with the U. S. Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination. The EEOC will evaluate the circumstances and determine if the individual case has merit and then would provide the claimant with a "right-to-sue" letter, if appropriate.

RC Kelly Law Associates is available to help you with questions and assist in handling and documenting your ADA evaluation and compliance needs.

  1. Ask the employee if there is any way that the employer can assist the employee in the performance of the job tasks. No ADA acknowledgment is necessary at this point.
  2. Determine whether there is medical documentation or other reliable, objective information to conclude that the employee has a physical or mental condition that significantly impairs at least one major life function 
  3. Unless there is an observable basis for concluding that the employee has an impairment that is affecting job performance do not inquire about the need for an accommodation.
  4. Be sure to have the employee sign a medical release form before requesting medical information.
  5. Have the medical provider indicate what major life activity is limited.
  6. Keep all medical information in a file that is separate from the employees personnel file.
  7. Indicate accurately in the job description which of the job functions are essential. (Non-essential job tasks may be reassigned to other employees for purposes of accommodations, not essential job functions). Write an updated job description, if necessary.
  8. Determine whether the accommodation creates an undue hardship for the employer.
  9. Discuss possible accommodations with the employee, medical providers, the supervisors who have knowledge of the work site and the job, and vocational or rehabilitation counselor, as appropriate.
  10. Determine whether the employee presently creates a direct threat to himself or others in the performance of the job tasks.
  11. Document the direct threat by: Identifying the risk caused by the limitation; the potential harm that could result; the medical or observable facts whereon the risk is based.
  12. Identify and document the reasonable accommodation or the reason no accommodation is needed.

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