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:
