Introduction to the Americans With Disabilities Act

Seattle Pacific University encourages supervisors to work diligently to provide a friendly and supportive employment environment to qualified individuals with disabilities. We hope to equip you with adequate background information on the purpose and spirit behind all of the ADA rules and regulations, and the additional issues set forth in the Washington Rehabilitation Act of 1973.

All materials in this section of the supervisor’s manual have been designed to educate and prepare supervisors for dealing with potential or actual cases involving employees (under their supervision) who have or are suspected of having disabilities. We intended to provide enough information so supervisors can recognize potentially troublesome situations and be equipped to deal with them effectively and appropriately from the start. The Office of Human Resources is ready to assist supervisors with questions, or concerns related to employees who have or are suspected of having a disability. The following article was reprinted with permission:

ADA History  

(Copied from The American’s with Disabilities Act Handbook, Published by the US EEOC and the US Department of Justice)

The ADA is a federal anti-discrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities.

Like the Civil Rights Act of 1964 that prohibits discrimination on the basis of race, color, religion, national origin, and sex, the ADA seeks to ensure access to equal employment opportunities based on merit. It does not guarantee equal results, establish quotas, or require preferences favoring individuals with disabilities over those without disabilities.  However, while the Civil Rights Act of 1964 prohibits any consideration of personal characteristics such as race or national origin, the ADA necessarily takes a different approach. When an individual’s disability creates a barrier to employment opportunities, the ADA requires employers to consider whether reasonable accommodation could remove the barrier.  The ADA thus establishes a process in which the employer must assist a disabled individual’s ability to perform the essential functions of the specific job held or desired. While the ADA focuses on eradicating barriers, the ADA does not relieve a disabled employee or applicant from the obligation to perform the essential functions of the job. To the contrary, the ADA is intended to enable disabled persons to compete in the workplace based on the same performance standards and requirements that employers expect of persons who are not disabled.   

When an otherwise qualified individual is impeded by barriers in the current or potential workplace, the employer must take steps to reasonably accommodate the individual, and thus help overcome the particular impediment, unless to do so would impose an undue hardship. Such accommodations usually take the form of adjustments to the way a job customarily is performed, or to the work environment itself.  This process of identifying whether, and to what extent, a reasonable accommodation is required should be flexible and involve both the employer and the individual with a disability (interactive).  Of course, the determination of whether an individual is qualified for a particular position must necessarily be made on a case-by-case basis (normally under the advice of an appropriate medical practitioner).  No specific form of accommodation is guaranteed for all individuals with a particular disability. Rather, an accommodation must be tailored to match the needs of the disabled individual with the needs of the job’s essential functions.

ADA Overview

Basically, the ADA stipulates that employers cannot discriminate (either in hiring or in continued employment) against qualified individuals with disabilities.  The Americans With Disabilities Act defines a "disability" as a physical or mental impairment that substantially limits one or more of an individual's major life activities even when using a mitigating measure such as glasses, pills or hypertension, or a hearing aid. The definition of disability also includes having a record of such impairment or being regarded as having an impairment and therefore, an employer may not discriminate against an individual with a record of an impairment or against an individual who is regarded as having such an impairment.  Employers must provide reasonable accommodation to individuals with disabilities to perform the essential functions of their jobs, unless doing so would create an undue hardship on the employer, or unless the employee with the disability causes a direct threat to the health and safety of others.

Please note that the Washington Rehabilitation Act defines disability in a much broader sense. 

ADA Definitions

Direct Threat:

Definition (in actual regulation): "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation".  Things to consider:

• duration of the risk;
• nature and severity of the potential harm;
• likelihood that the potential harm will occur; and
• imminence of the potential harm.

Disability:

A physical or mental impairment that substantially limits one or more major life activities even when using mitigating measures such as glasses, pills for hypertension, or a hearing aid; having a record of such a physical or mental impairment; or a perception by others of such an impairment.

Essential Functions:

Person must be required to perform the function; and position exists to perform the function.  A limited number of other employees are able to perform the function, or function is highly specialized.  An essential function is not something which bears only a marginal relationship to the job.

Having a Record of an Impairment, or Regarded as Having Such an Impairment:

A person who has a physical or mental impairment that substantially limits them in a major life.

• Includes those who have recovered from conditions such as mental or emotional illness, heart disease, cancer, etc., and therefore have a history of impairment and
• those who have been misclassified as impaired such as mental retardation, etc.

A person is regarded as having such an impairment if he/she:

• Does not have an impairment but is treated as if he/she has a limitation;
• Has an impairment but it only limits major life activities as a result of attitudes of others toward the impairment.

Major Life Activity:

Functions include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sitting, standing, lifting, reaching, and working. Exercising cognitive functions is also a major life activity. Multiple impairments that combine to substantially limit a major life activity may also be considered a form of disability. Consider:

• Its nature and severity
• How long it will last
• Its permanent or long-term impact

Supervisor’s Note: The Washington Rehabilitation Act (WRA) goes even farther in this regard than does the ADA. Under the WRA, the disability need not "limit a major life activity" to be defined as a disability. The WRA is much broader and provides protection to employees who display any abnormal medical condition that’s not accommodated.

Mitigating Measures:

The Supreme Court has held that the determination as to whether an impairment "substantially limits" one or more major life activities must be made when an individual is medicated or is using his or her assistive device, so-called "mitigating measures." As a result, employers need not consider an individual's impairment in its uncorrected state to determine if the individual is disabled under the ADA.

Physical or Mental Impairment:

Physical Impairment:

• Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting any of several body systems. These body systems include neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, endocrine, and any mental psychological disorder.

Mental or psychological disorders (Defined by the DSM IV)

• The ADA defines "mental impairment’ as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Examples include alcoholism (sober), anxiety disorder, major depressive disorder, schizophrenia, etc.

Physical or mental impairment does not include:  

• Non-chronic impairments of short duration with little or no long term impact such as broken limbs, sprained joints, concussions, appendicitis, and influenza
• Simple physical characteristics such as left-handedness and personality traits such as being irresponsible or having poor judgment
• Environmental, cultural or economic disadvantages, such as prison record or lack of education

Qualified Individual with a Disability:

A person who:

• meets necessary prerequisites for the job such as appropriate years of employment experience, education, certificate or license, etc.
• can perform the essential functions of the job that the person holds or desires with or without reasonable accommodation

The determination of whether an individual with a disability is qualified is to be made at the time of the employment decision, based on the individual's capabilities and qualifications, not speculation.

Reasonable Accommodation:

An adjustment to an employee’s job, schedule or equipment that does not create an "undue hardship" on the employer.  When an employee decides to request accommodation, the individual or their representative must let SPU know that the employee needs an adjustment or change at work for a reason related to a medical condition.  To request accommodation, an employee may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation."  While the employee may request the change due to a medical condition, this does not mean that SPU is required to provide the change.  The request is the first step in what is supposed to be an interactive process between the employee and SPU.

Substantial Limitation

A "substantial limitation" occurs when an impairment prevents or "significantly restricts" the duration, manner, or condition under which the individual could perform a major life activity as compared to an average person in the general population. Generally, it is not the name of the impairment or conditions that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person. Some impairments such as blindness, deafness, or AIDS, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not others, depending on the impact on their activities.

Undue Hardship:

Undue hardship means a significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.  Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.  SPU is required to assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. Consider:

• Nature and net cost of accommodation
• Financial resources of facility, number of employees, and impact on resources of facility
• Type of operation
• The ADA does not require the creation of new positions or bumping other employees

Supervisor’s Note: Situations causing poor departmental morale have not generally been considered by the courts as "undue hardship". Situations where a disabled employee’s condition causes considerable additional work and stress on other members of the department for prolonged periods of time have, in many circumstances, been considered by the courts as undue hardship.

Pre Employment Inquiries

The following Information is published by the United States Department of Labor concerning Pre Employment Inquiries:

Aside from the common courtesy due to anyone being interviewed, regardless of disability, the Americans with Disabilities Act (ADA) places some restrictions on the employer's pre-employment inquiries:

• What Are the Restrictions on Pre-Employment Inquiries?

  Questionnaires, applications, medical examinations, and tests are often used by employers to determine the competency of the applicant. Keep in mind that, at the pre-offer stage, disability-related questions questions that would likely cause the applicant to discuss their disability and medical examinations are prohibited under the ADA.

• How Can I Be Sure To Comply with the ADA Restrictions on Pre-Employment Inquiries?

  Develop a thorough job description that identifies the essential elements of the job. By relying on this description, both the interviewer and applicant are aware of the essential elements of the job. Employers should also review old application forms to ensure that medical histories are not requested, since this is no longer appropriate.

• How Should I Handle Pre-Employment Inquires during the Interview Process?

  Make sure to ask only questions regarding the information on the individual's application form. You may ask the applicant what prior job duties he or she performed. Be careful not to ask applicants about visible physical characteristics or their health status. It is not legal to inquire if the applicant has a psychiatric disability, a history of having a psychiatric disability, or if he or she has consulted with a psychiatrist. Nor may questions be asked about past drug addiction.

• May I Conduct an Employment Physical?

  The law permits a medical examination if the medical evaluation is conducted after an offer of employment has been made. However, if physicals are conducted, they must be conducted for all employees in that job category and the medical information gathered must be kept separate from the personnel file. Drug testing is not considered a "medical examination" under the law. Therefore, pre-employment tests for illegal drug use are permitted by the ADA.

Guidelines to Pre Employment Inquiries (link to hiring policies section)

Source: US DOL, July 1996

What Are Essential Functions?

• Generally, the term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position.
• A job function may be considered essential for any of several reasons, including but not limited to the following:

  1. The function may be essential because the reason the position exists is to perform that function;

  2. The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

  3. The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

• Evidence of whether a particular function is essential includes, but is not limited to:

  1. The employer's judgment as to which functions are essential;

  2. Written job descriptions prepared before advertising or interviewing applicants for the job;

  3. The amount of time spent on the job performing the function;

  4. The consequences of not requiring the incumbent to perform the function (impact on the operations);

  5. The terms of a collective bargaining agreement;

  6. The work experience of past incumbents in the job (employee's perception as to what is essential); and/or

  7. The current work experience of incumbents in similar jobs.

Please check with Human Resources if you have any questions regarding this information.

General Considerations

• Be very careful and thorough in handling a disability situation. Unless the employee discloses that they have a disability it is better not to speculate or guess. If an employee is performing poorly, always focus on the performance issue and address it.
• If the employee tells you that they have a health problem, work in cooperation with the Office of Human Resources to determine if the employee has a disability that needs to be accommodated.
• Once a disability has been identified, explore ways to accommodate the employee. The process of determining accommodations must be interactive so the employee should be involved as much as possible.
• Recognize that short-term, management difficulties typically are outweighed by the expense, uncertainty and inconvenience of litigation.
• Keep the process confidential.

Recognize the possible signs of a disability through job performance

• Complaints of pain
• Absenteeism or tardiness
• Precipitous decline in performance
• Radical change in attitude
• Mood swings
• Poor quality of work
• Difficulty in interpersonal relations
• Frequent accidents, mistakes, carelessness
• Change in work patterns
• Difficulty in meeting deadlines
• External complaints, etc.

  Supervisor’s Note: You are permitted to inquire about the existence of a disability that may be getting in the way of job performance if you can reasonably conclude from comments or actions of an employee that a disability is interfering with job performance. As a general rule, it is best to focus primarily on job performance and let the employee raise the medical issues first.

Gather information

In order to understand whether or not this problem is keeping the employee from being able to effectively perform their job, you must first work to identify essential functions of the job.

Supervisor’s Note: There are many areas to consider when identifying the essential functions of a job -- hopefully this step has already been completed in writing or updating the job description. This step is important for determining (always on a case-by-case basis) reasonable accommodations, if any. The Office of Human Resources is prepared to assist supervisors in this process.

Work with HR to determine, if a disability exists

Ask yourself: According to the definitions provided above, and understanding that the Washington law is very broad, does this condition appear to be a disability?

In coordination with the Office of Human Resources, supervisors should work with the employee, the employee’s physician and other physicians (if necessary) to determine nature, diagnosis, prognosis and precise mental and physical limitations of a condition. In working with the physician, very clear detailed information about the job should be supplied to the physician. A written medical evaluation should be obtained from the physician which is specific, detailed and tailored to the particular individual and his or her specific position.

Supervisor’s Note: In many cases, without detailed information from a physician, it is difficult, if not impossible, to make objective determinations about an employee’s ability (given their condition) to perform the job functions and what types of accommodation might be helpful. A supervisor must have a clear understanding of the needed accommodations before determining the reasonableness of those accommodations. In the process of obtaining information from the employee’s attending physician (where applicable), the University has reserved the right to request a second medical opinion from a University chosen physician at the University’s expense. There will be cases where the disability and needed accommodations are pretty clear cut and there is no need for physician certification.

If a disability, can it be accommodated?

If it is determined that an employee has a disability, then you must consider if the disability be accommodated without creating an undue hardship on the organization.

Discuss potential accommodations: with the employee, front-line supervisor; and with a physician. Consider accommodations that have been made for other employees. (The Office of Human Resources can be particularly helpful in this area.) Types of possible accommodations could include:

• Reallocation or redistribution of nonessential functions
• Modification of work schedules
• Modification of work stations or equipment
• Flexible leave arrangements
• Leave to obtain treatment
• Reassignment to a vacant position
• Modification of training materials
• Providing qualified readers or interpreters
• Extension of leave policy
• Purchase of certain equipment or devices such as: 
• back brace
• special video display monitor
• special chair
• wrist brace
• other  

A modification or adjustment satisfies the reasonable accommodation obligation if it is "effective."

Supervisor’s Note: Purchase of certain equipment can be made the responsibility of the employee if that equipment would aid the employee in their day to day, outside of work living. For example, if an employee’s performance was suffering due to a vision problem that was correctable by purchasing eyeglasses, the employee would be responsible for the purchase.

After accommodations have been decided upon and provided, continue to monitor the situation to insure adequate job performance and no undue hardship.

Situations where accommodations may be ineffective

Inherently stressful jobs

Even reasonable accommodation may be insufficient where an inherently stressful job is concerned. In addition, employees with mental disabilities may perceive certain situations as stressful. Typically, this can include jobs that require significant interpersonal contact, or the need to work in close contact with supervisors, coworkers, or customers. In such situations, a mentally disabled employee may be unable to perform the essential functions of the job, even after reasonable accommodation and would not be considered a "qualified individual". Further accommodation, including a job transfer to an open position should be considered.

Excessive absenteeism

Attendance is normally an essential function of the job.  In order to perform the job, an employee must show up to work.  Chronic absenteeism may constitute an inability to perform the essential functions of the job, which could remove the employee from the category of "qualified individuals." 

Confidentiality

It is extremely important to keep information about an employee’s disability entirely confidential sharing details only with those who have a need to know. An employee’s direct supervisor certainly has a need to know since they will be working to provide the accommodations (if necessary). The Office of Human Resources is very careful to keep medical records and materials pertaining to the medical condition of employees in completely separate files from the employee’s personnel files. Supervisors should do the same. To do otherwise could be considered by the employee, and eventually the courts, as discriminatory, especially if for some (maybe even legitimate) reason the employee is eventually dismissed.