Disability
Guidelines Statement Regarding the Americans
with Disabilities Act
I.
Introduction and Definitions:
Title
I of the Americans With Disabilities Act of 1990 prohibits discriminatory
hiring and personnel practices against qualified individuals with
disabilities, and requires employers to make "reasonable" efforts to accommodate individuals' mental or physical impairments, as long
as the accommodations do not present undue hardship. The University
of North Dakota practices a policy of nondiscrimination regarding
compliance of ADA Title I, prohibiting discrimination against people
with disabilities in employment for all of its employees - faculty
and staff.
Physical
Impairment: Any physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the body systems.
Mental
Impairment: Any mental or psychological disorder, such as ... organic brain syndrome, emotional
or mental illness....
Qualified
Individual: The ADA defines a qualified individual with a disability as a person who, with
or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires and who has:
(A)
a physical or mental impairment that substantially limits one or
more of the major life activities (the ability to perform such functions
as caring for oneself, executing manual tasks, walking, seeing, hearing,
speaking, breathing, learning or working) of such an individual;
(B)
a record of such an impairment; or
(C)
is regarded as having an impairment.
There
are three different ways in which an individual may satisfy the definition
of "being regarded as having a disability":
*
The individual may have an impairment which is not substantially
limiting but is perceived by the employer or other covered entity
as constituting a substantially limiting impairment.
Example,
physical impairment: An employee with controlled high blood pressure
is reassigned to less strenuous work because the employer fears that
he or she will suffer a heart attack;
Example,
mental impairment: A person whose depression does not impose a substantial
limitation,but who is denied a promotion because an employer fears
that stress will cause a relapse or will exacerbate the problem;
*
The individual may have an impairment which is only substantially
limiting because of attitudes of others toward the impairment;
Example,
physical impairment: An employee who is discriminated against on
the basis of a prominent scar or disfigurement or because he or she
has a nervous condition that causes an involuntary jerking of the
head;
Example,
mental impairment: A person with a mental illness whose opportunities
are limited by stigma, stereotyping, or attitudes rather than actual
performance and which impede on that person's abilities to perform
specific functions or activities; or
*
The individual may have no impairment at all but is regarded by
the employer as having a substantially limiting impairment;
Example,
physical impairment: An employee who is fired because it is falsely
rumored that he or she is infected with the AIDS virus;
Example,
mental impairment: A person may experience discrimination because
of personality traits or physical characteristics but is treated
as if he or she has an emotional or mental illness or impairment.
Reasonable
Accommodation: The ADA definition states that a qualified individual with a disability can
perform the essential functions of the job with or without reasonable
accommodation. Not all individuals will need to be reasonably accommodated,
and for those with such a need, this can be flexible, worked out
on a case- by-case basis by
*
Analyzing the job involved and determining its essential functions;
*
Consulting with the qualified employee or applicant to ascertain
the individual's precise job-related limitations and how they can
be overcome with reasonable accommodation;
*
Identifying potential accommodations and assessing the effectiveness
of each;
*
Considering the individual's preferences and selecting the accommodation
most appropriate for the employer and the individual. If more than
one accommodation would meet the employee's needs, the employer retains
the "ultimate discretion" to choose the option that would be less expensive or easier to implement.
As
long as the accommodation is effective, it does not need to be the
best accommodation possible. Employers need only to accommodate the
known limitations of a qualified individual with a disability. Employees must indicate that they need an accommodation. In general, a reasonable accommodation is an adaptation to a program, facility,
or work place that allows an individual with a disability to participate
in the program or service or perform a job. Examples of reasonable
accommodation options include:
*
Make existing facilities readily accessible to and usable by disabled
individuals;
*
Allow flexible use of leave time;
*
Allow extra time to complete work activities;
*
Permit longer or more frequent work breaks when needed;
*
Restructure job duties to focus on the primary or essential functions
of the job;
*
Exchange problematic marginal job duties with another employee (the
employer would not have to reallocate the essential functions of
the job);
*
Establish job sharing opportunities;
*
Permit a person with a disability to provide equipment, aids, or
services that the employer itself is not required to provide (for
example, a guide dog);
*
Provide qualified readers or interpreters when providing such does
not essentially result in the reader performing the employee's duties
(Colman v. Darden).
II.
ADA Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations
Under
ADA, an employer may ask disability-related questions and require
medical examinations of an applicant only after the applicant has
been given a conditional job offer even if it intends to look at
the answers or results only at the post-offer stage. The employer
may ask a variety of questions to evaluate whether an applicant is
qualified for the job, including:
*
Employers may ask about an applicant's ability to perform specific
job functions including whether applicants can perform job functions "with or without reasonable accommodations."
*
Employers may ask about an applicant's non-medical qualifications
and skills, such as education,
work history, and required certifications and licenses.
*
Employers may ask applicants to describe or demonstrate how they
would perform job tasks as
long as all applicants are asked to do this, or
*
If other applicants are not asked to do this, when an employer reasonably
believes that the applicant will not be able to perform a job function
because of a known disability. A known disability may be obvious
(use of a wheelchair) or an applicant's voluntary self-disclosure
that s/he has a hidden disability.
*
Employers may ask whether an applicant will need reasonable accommodation
for the hiring process.
*
Employers may request reasonable documentation about an applicant's
disability if the applicant
requests reasonable accommodation for the hiring process. This may
include documentation from an appropriate professional concerning the
applicant's disability and functional limitations.
*
Employers may ask applicants whether they will need reasonable accommodation
to perform the
functions of the job under the following conditions:
1.
The employer believes the applicant will need reasonable accommodation
because of an obvious disability;
2.
The employer reasonably believes the applicant will need reasonable
accommodation because of a hidden disability that the applicant has
voluntarily disclosed to the employer; or
3.
The applicant has voluntarily disclosed to the employer that s/he
needs reasonable accommodations to perform the job.
*
Employers may ask whether an applicant can meet the employer's attendance
requirements. Employers may not ask how many days an applicant was
sick because these questions relate directly to the severity of an
individual's impairments.
*
Employers may ask applicants about their arrest (under limited conditions)
or conviction records.
*
Employers may ask about an applicant's impairments only if the particular
question is not likely to elicit information about whether the applicant
has a disability.
*
Employers may ask applicants about their ability to perform major
life activities only if they are
specifically related to the ability to perform the job functions.
*
Employers may ask applicants about current illegal drug use. Employers
may ask about prior illegal drug use provided that the particular
question is not likely to elicit information about a disability.
*
Employers may ask applicants about their lawful drug use if the employer
is administering a test for illegal use of drugs and the applicant
tests positive. Employers may not ask applicants about their lawful
use of drugs if the question is likely to elicit information about
a disability.
*
Employers may give psychological tests as long as they are not medical.
Psychological examinations are medical if they provide evidence that
would lead to identifying a mental disorder or impairment such as
those listed in the American Psychiatric Association's most recent
Diagnostic and Statistical Manual of Mental Disorders (DSM). If a
test is designed to measure only such things such as honesty, tastes,
or habits, it is not medical.
Once
a conditional job offer is made, the employer may ask disability-related
questions and require medical examinations as long as it is done
for all entering employees in that job category. If the employer
rejects the applicant after a disability-related question or medical
examination, it will be scrutinized whether the rejection was based
on the results of that question or examination. If the question or
examination screens out an individual because of a disability, the
employer must demonstrate that the reason for the rejection is "job related and consistent with business necessity." If an individual is screened out for safety reasons, the employer must demonstrate
that the individual poses a "direct threat." This means that the individual poses a significant risk of substantial harm
to him/herself or others, and that the risk cannot be reduced below
the direct threat level through reasonable accommodation.
III.
Procedure or Referral Process for ADA Reasonable Accommodation
*
A qualified individual with a disability must identify the need for
an accommodation with his/her
supervisor. Employers need only accommodate the known limitations of
a qualified individual.
*
The individual requesting reasonable accommodation will fill out
the "ADA Disability Accommodation Request Form" describing the need for accommodation and the accommodation requested. Forms
are available from the Affirmative Action Office or on-line at http://www.und.nodak.edu/dept/aao.
*
The individual requesting reasonable accommodation will then submit
the form to his/her supervisor. Both the employee and the supervisor/department
head are to sign the form.
*
The "ADA Disability Accommodation Request Form" is to be sent to the Affirmative Action Office upon completion. The Affirmative
Action Office will oversee all accommodation requests. Referrals
may be made to specialists who can evaluate work environments and
technology needs.
*
Medical information may be needed to determine if the employee has
a disability covered by the ADA and is entitled to an accommodation,
and if so, to help identify an effective accommodation. Medical inquiries
related to an employee's disability and functional limitations may
include consultations with knowledgeable professional sources, such
as occupational and physical therapists, rehabilitation specialists,
and organizations with expertise in adaptations
for specific disabilities. All documentation will be kept confidential
and separate from personnel files. The Affirmative Action Office will
be the office of record for ADA- related documentation.
*
A meeting may be necessary to discuss the accommodation between the
supervisor, ADA Coordinator (Affirmative Action Officer) and the
employee. Other appropriate individuals may be requested to attend
the meeting such as a physician, appropriate health care or service
provider, safety or health officer, co- workers, etc.
*
Determination will be made as to whether an accommodation is needed
and what accommodation can be made based on the above information.
*
If an employee is exhibiting unsafe behavior, appropriate action
will be taken consistent with University policies.
IV.
Mental/Emotional Disabilities, Learning Disabilities, or "Hidden" Disabilities or Impairments
Requests
for reasonable accommodation that involve mental/emotional, learning,
or "hidden" disabilities or impairments normally will require specific medical or assessment
documentation to establish the disability and the reasonableness
of the accommodation requested.
Information
requests or documentation may include:
