for W2 Agencies Bob Gregg and tess obrienheinzen May 29 2019 Agenda Legal PrimeR When are obligations triggered in the w2 process Providing reasonable accommodations Disability in employment ID: 775924
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Disability Accommodationfor W-2 Agencies
Bob Gregg and tess o’brien-heinzen
May 29, 2019
Slide2Agenda
Legal PrimeRWhen are obligations triggered in the w-2 process?Providing reasonable accommodationsDisability in employmentCommon compliance issues
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Slide3Legal Primer
What are the laws?Americans with Disabilities ActSection 504 of the Rehabilitation ActWisconsin Public Accommodations LawWisconsin Fair Employment ActWhen do these laws apply? Application processDevelopment of EPAssignmentsResponding to failure to participate*These laws apply throughout the whole process
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Slide4Americans with Disabilities Act (ADA)
ADA- Title INo covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.Title I applies to employers with 15 or more employees.
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Slide5Americans with Disabilities Act (ADA)
ADA -Title II[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Title II applies to state and local government entities including W-2 entities
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Slide6Rehabilitation Act of 1973 (“Section 504”)(20 U.S.C. §794; 34 CFR 104)
No otherwise qualified individual with a disability in the United States ... shall solely by reason of his or her disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .Title II makes Section 504 applicable to governmental entities regardless of federal funding.
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Slide7Rehabilitation Act of 1973 (“Section 504”)(20 U.S.C. §794; 34 CFR 104)
“Otherwise qualified” means an individual who is able to meet essential eligibility requirements for receipt of services or benefits with or without reasonable modifications to rules, practices, or policies.
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Slide8Disability
Definition Of Disability Under Section 504 and ADA Physical or mental impairment which substantially limits one or more major life activities (“actual impairment”); Has a record of such impairment; or Is regarded as having such impairment.
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Slide9Actual Impairment
An qualified individual who has a physical or mental impairment that substantially limits a major life activity. (1) Physical or mental impairment (2) Impairment affects a major life activity (3) Substantially limits
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Slide10Actual Impairment – Three Steps
(1) Does the student have a “physical or mental impairment?” Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs, respiratory (including speech organs); cardiovascular; reproductive; digestive; genitor-urinary; hemic and lymphatic; skin; and endocrine; or Any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
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Slide11Actual Impairment – Three Steps
Physical or mental impairment, cont’d…
Physical
or mental impairment includes, but is not limited to, contagious and noncontagious diseases such as the following: orthopedic, visual, speech, and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.
Physical or mental impairment
does not include homosexuality or bisexuality.
Slide12Actual Impairment – Three Steps
(2) Does the impairment affect a “major life activity”? (a) caring for oneself, performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; reaching; sitting; lifting; bending; speaking; learning; concentrating; communicating; breathing; reading; thinking; writing; interacting with others; working; or, (b) The operation of a major bodily function, such as functions of the immune system; special sense organs and skin; normal cell growth; digestive; bowel; bladder; neurological; brain; respiratory; circulatory; cardiovascular; hemic; endocrine; lymphatic; musculoskeletal; and reproductive functions.
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Slide13Actual Impairment – Three Steps
“Major Life Activity” cont’d…Whether an activity is a major life activity is not determined by reference to whether it is of central importance to daily life. 28 CFR s. 35.108. Some examples of disabilities causing impairment of a “major life activity:” cancer (affects normal cell growth); ulcerative colitis, Crohn’s Disease, celiac disease, irritable bowel syndrome (affects function of the bowel) HIV/AIDs (affects function of the immune system epilepsy (affects neurological and brain function) diabetes (affects endocrine system) asthma (affects respiratory system)Remember “learning” is only ONE of the many major life activities listed.
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Slide14Three Steps to Eligibility
(3) Does the impairment “substantially limit” the major life activity?“Substantially limits” is to be construed broadly in favor of expansive coverage. Consider the conditions under which the individual performs the major life activity; the manner in which the individual performs the major life activity; or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity.An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.Comparison of individual to others in general population usually does not require scientific, medical or statistical evidence. But it is not prohibited. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures except ordinary eyeglasses or contact lenses.
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Slide15ADA Regulations
Definition of “Physical or mental impairment” expanded to include dyslexia and other specific learning disabilities and Attention Deficit Hyperactivity DisorderDefinition of “Major life activity” expanded to include writing and interacting with others. Definition of “Major bodily function” expanded to include special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal.
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Slide16ADA Regulations
NOTABLE RULES OF CONSTRUCTION.Regulations state that primary focus should be on whether institutions are meeting their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.“Major” should not be interpreted to create a demanding standard.“Major life activity” is not determined by reference to whether it is of central importance to daily life.The effects of an impairment lasting or expected to last less than six months can be substantially limiting within the meaning of this section for establishing an actual disability or a record of a disability.
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Slide17ADA Regulations
PREDICTABLE ASSESSMENTS. Some impairments will, in virtually all cases, result in a determination of coverage: deafness, blindness, intellectual disability, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy and multiple sclerosis, HIV, and major depressive disorder, bipolar disorder, PTSD, TBI, OCD, and schizophrenia.
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Slide18Record of Impairment
An individual has a record of such an impairment if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities
.
An
individual with a record of a substantially limiting impairment may be entitled to a reasonable modification if needed and related to the past disability.
Slide19Regarded as Having an Impairment
A
n
individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the public entity asserts, or may or does ultimately establish, a defense to the action prohibited by the ADA
.
An
individual is not “regarded as having such an impairment” if the public entity demonstrates that the impairment is, objectively, both “transitory” and “
minor” (6 months or less).
Exclusions
The
term “disability” does not include—
(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current illegal use of drugs.
Slide21Hidden Disabilities
Mental Health
Cognitive Disabilities
Allergies
Slide22What is a “Mental Impairment”Under the ADA?
The ADA defines “mental impairment” to include “[a]ny mental or psychological disorder, such as . . . emotional or mental illness. Examples of “emotional or mental illness[es]” include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia.
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Slide23Mental Impairments IncludeCognitive/Learning Conditions
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Slide24Mental Impairments
About one of every five adults in the U.S. – 43.8 million (18.5 percent) – experiences mental illness in a given year. In 2015, 18.1 percent of U.S. adults experienced an anxiety disorder, 16 million Americans had at least one major depressive episode and one in every 25 adults reported a mental illness that substantially interfered with life activities
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Slide25Mental Health Treatment
Success rate is higher (60-80%) than for other illnesses such as heart disease (45-50%)Treatment depends on severity and personal situationWork can play a therapeutic role
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Slide26Not Every Emotional Condition is Legally a Disability
ADA exempted (pyromania, kleptomania, compulsive gambling, current drug use, sexual disorders)Personality disordersSubstance abuse is not technically a disability, but may have a psychological component (“dependency” may be a disability)Situational impairment (but may be FMLA)
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Slide27Not Every Emotional Condition is Legally a Disability
Traits, symptoms or behaviors are not of themselves disabilities, but if due to a mental disability they do require reasonable accommodation (they may be how the condition came to our attention)Poor judgmentChronic latenessIrritabilityInability to get along with others
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Slide28Most Difficult Areas of the ADA
Not obvious (hidden disabilities)Denial and cover-upsStereotypes and labelingOthers’ frustration and lack of empathyBe careful of labeling difficult people. Turns into “perceived as” disabled.
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Slide29Red Flag Words Which Lead to Litigation
“Mental”“Sicko”“Wacko”“Going to go postal”“Code red”“Paranoid SOB”“Half bubble off level”
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Slide30Cognitive Disabilities
Learning Disabilities
Dyslexia
Dysgraphia
Dyscalculia
Traumatic Brain Injury
ADHD/ADD
Autism
Slide31Allergies
Food Allergies
Most common: peanut, tree nut, fish, shellfish, dairy, wheat, egg, and soy
Allergies or sensitivities to scents
Slide32Obligations under ADA/Section 504
Individuals with disabilities cannot be:
Excluded
from participation
in;
Be
denied the benefits of the services, programs, or activities of a public
entity; or
Be
subjected to discrimination by any such entity.
Agencies have to modify policies, practices, and procedures and provide accommodations if necessary for an individual to access the services and programs of the agency.
Slide33Wisconsin’s Public Accommodation Law
Wis. Stat. § 106.52State law generally prohibits discrimination in places of public accommodation and amusement because of disability.Wisconsin law considers public accommodations to include places of business or recreation, lodging establishments, credit/financial services, restaurants, taverns, nursing homes, clinics, hospitals, and any other place where accommodations, amusement, goods, or services are available to the general public.
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Slide34Disability in Employment – Wisconsin Fair Employment Act
Wisconsin’s definition of disability was interpreted more broadly than the definition under the pre-amendment ADA definition: A physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; Someone who has a record of such an impairment; or Someone who is perceived as having such an impairment.
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Slide35When are Obligations Triggered in the W-2 Process?
Wisconsin Works Manual,
https://
dcf.wisconsin.gov/manuals/w-2-manual/Production/pdf/W2ManualRelease1904.pdf
April 1, 2019
Slide36Obligations of W-2 Agencies
W-2 agencies must:
Ensure
participants have the necessary services, reasonable modifications, and accommodations to successfully engage in assigned W-2 activities; and
Work
with employers to put needed accommodations into place for participants who are making the transition to unsubsidized employment.
Slide37Obligations of W-2 Agencies
The W-2 agency is responsible
for:
Identifying
the need for the
accommodation;
I
dentifying
the accommodation
itself;
and
Making
sure that the accommodation is provided.
This
includes ensuring that the accommodation is provided at all assigned activities such as a basic education lab or a work experience site.
Slide38Informal Assessments
Informal
assessment is an ongoing case management practice, which starts during the W-2 application period and continues until the individual no longer receives W-2 services.
A
comprehensive informal assessment
must
be completed and submitted prior to initial W-2 placement and at each placement change.
Used to determine, among other things, existence of disabilities.
Slide39Conducting Informal Assessment
Paper and pencil tools designed by the W-2 agency;
Automated
screening and assessment tools available within the W-2
agency;
Information
gathered through face-to-face case management
meetings;
Worksite
performance
evaluations;
Goal
setting exercises/tools (e.g., where do you want to be in six months? Two years?, etc.);
and
Experience
with following through on job search and other assigned
activities.
Slide40Participant Barrier Questions
The WWP Informal Assessment Driver Flow includes a Participant Barriers page with questions to collect information about the applicant or participant’s health and personal life that may affect the individual’s ability to obtain and maintain employment. The WWP Informal Assessment - Participant Barriers page consists of five sections:
Physical Health
Mental Health
Alcohol
and Other Drug Abuse (AODA
)
Cognitive
and Learning
Needs
Domestic
Abuse Screen
Slide41Referring for a Formal Assessment
If the applicant
or participant presents medical or other information, including the applicant’s or participant’s own statements that indicate he or
she
may have a disability or other barrier to participation in the W-2 program or
employment.
When
W-2 agency staff or contractors observe behavior that indicates the need for a formal assessment.
Slide42Formal Assessments
Formal assessments must be completed by one or more qualified assessing agencies or individuals. A professional qualified to perform a formal assessment may include: a medical or mental health professional, social worker, psychologist, neuro-psychologist, Division of Vocational Rehabilitation counselor or similar qualified assessing agency or individual.
Slide43Formal Assessment
The
extent and severity of any disabilities or other conditions (e.g., domestic violence, learning needs, need to care for disabled child) that may interfere with normal functioning in an employment setting or with a persons’ ability to meet W2 program
requirements;
The
effect of a disability or other potential Barrier on the person’s capacity to obtain and maintain Unsubsidized Employment, participate in
employment related
activities (e.g., work training activities or education) or otherwise meet W2 program
requirements;
The
need for supportive services, accommodations, auxiliary aids or communication
assistance;
The
conditions under which the person is capable of employment or employment related
activities;
The
need to make reasonable modifications to policies, practices and procedures when necessary to ensure equal opportunity for people with disabilities;
and
The
appropriateness of specific assignments in the W-2 program. The formal assessment process may include gathering information about the participant from one or more qualified assessment agencies or individuals.
Slide44Critical Information from Assessment
Diagnosis
Functional abilities
Functional limitations
Aptitude/cognitive level
Areas of deficit
Range or reasonable modifications and accommodations
Slide45Assessment
Cognitive or learning disability
Mental health
Other medical conditions
Need to care for disabled family member
Slide46Providing Accommodations
Slide47What is Required by the ADA/Section 504?
ADA and Section 504 require
modifications to policies, practices, and procedures
necessary to ensure equal access to the program or benefit.
ADA and Section 504 require
reasonable accommodations
that are necessary to ameliorate the disability’s effects of preventing meaningful access to the program or benefit.
ADA and Section 504 require
auxiliary aids and services
necessary for an individual to access the program or benefit.
Slide48“Reasonable” Accommodations
The hallmark of a “reasonable” accommodation is effectiveness. The question to ask is what is necessary to ameliorate the effects of the disability so the individual has equal access.Decisions must be made on a case-by-case basis.
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Slide49What Is Not Required by the ADA/Section 504
Modifications/accommodations that would impose undue and financial administrative burdens.Modifications/accommodations that would fundamentally alter the nature of the service, program or activity. Does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.An entity does not have to provide every accommodation an individual requests or the accommodation of his or her choice (this may be different with respect to effective communication).
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Slide50Accommodations in W-2 Programs
Provide participant written description of services, modifications or accommodations needed on appropriate form.
Advise W-2 education, training or work site providers of any needed reasonable modifications or accommodations and monitor participant’s performance to ensure they are provided.
Slide51Accommodations in W-2 Programs
Key Principles
No two clients are the same
Every client must be
individually assessed
to determine appropriate accommodations
Employ an interactive process
No blanket rules
and no cookie-cutter lists
Section 1.3.3 of W-2 manual should not be viewed as an exhaustive list
Keep in mind employer’s obligations
Slide52Accommodations in W-2 Programs
Step 1:
Identify the impairment that affects a major life activity (discussed above).
Step 2:
Determine how the impairment limits the client’s ability to participate in program and employment. What are the functional limitations of the disability?
Step 3:
What modifications to policies and practices and/or what accommodations
are necessary for the client to be able to access the program?
How is this different from the “reasonable” question?
Slide53Functional Limitations
A client
has a learning disability. What are the functional limitations of that disability?
Memory
Problem-solving
Attention
Organization
Reading, linguistic, and verbal comprehension
Math comprehension
Visual comprehension
Slide54Functional Limitations
A client has a mental health impairment. What are the functional limitations of that impairment?
Memory
Attendance
Dealing with stressful situations
Work hours
Completing large tasks
Slide55Functional Limitations
A client has a mobility impairment. What are the functional limitations of that impairment?
Navigating the work environment
Travel
Using technology
Completing tasks that need manual dexterity
Slide56Functional Limitations
A client has a medical condition (Crohn’s disease, Diabetes, Cancer, Epilepsy). What are the functional limitations?
Attendance
Extended work hours
Breaks
Medical needs
Slide57Functional Limitations
A client has allergies/sensitivities. What are the functional limitations?
Lunchroom/breakroom
Food service
Work environment
Slide58Accommodations in W-2 Programs
Be flexible on ways to meet with client
Consider how client will meet his or her obligations
Computer
Calling in
Travel
Attendance
Determine with client
what’s necessary
for the client to meet the requirements of the program
Consider whether the requirements of the program need to be modified (good cause)
Slide59Effective Communication
ADA includes regulations specifically related to effective communication.
The goal of regs
is to ensure that communication with people with these disabilities is
equally effective
as
com
munication with people without disabilities
.
Slide60Effective Communication
The purpose of the effective communication rules is to ensure that the person with a vision, hearing, or speech disability can communicate with, receive information from, and convey information to, the covered entity.
Covered entities must provide auxiliary aids and services when needed to communicate effectively with people who have communication disabilities.
The key to communicating effectively is to consider the nature, length, complexity, and context of the communication and the person’s normal method(s) of communication.
The rules apply to communicating with the person who is receiving the covered entity’s goods or services as well as with that person’s parent, spouse, or companion in appropriate circumstances.
Slide61Effective Communication
State and local governments
: in determining whether a particular aid or service would result in undue financial and administrative burdens, a title II entity should take into consideration the cost of the particular aid or service in light of all resources available to fund the program, service, or activity and the effect on other expenses or operations. The decision that a particular aid or service would result in an undue burden must be made by a high level official, no lower than a Department head, and must include a written statement of the reasons for reaching that conclusion.
Slide62Effective Communication
When choosing an aid or service, T
itle
II entities
are
required
to give primary consideration to the choice of aid or service requested by the person who has a communication disability
.
The
state or local government must honor the person’s choice, unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden (see limitations
below
Slide63Undue Burden
Before denying a request for an accommodation because it is an undue burden, you must consider:All resources available for use by the entity in the funding and operation of the service, program, or activity.Administrative inconvenience is not valid defense.
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Slide64Fundamental Alteration
Consider a series of alternatives, feasibility, cost, and effect on program. Lowering particular eligibility or qualifying requirements established by an entity can be substantial modifications that are unreasonable.
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Slide65Direct Threat
Do not need to accommodate when an individual poses a direct threat to the health or safety of others.
I
n determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
Slide66Legal Obligations to Employees
Training and placement leads to employment, so the employment laws are important.
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Slide67What Do Employment Disability Laws Require?
Employers may not discriminate against otherwise qualified applicants or current employees who have physical or psychological disabilities in any aspect of the employment relationship, including the application procedure, hiring, advancement, discharge, compensation, training, or any other term, condition or privilege of employment. This includes the provision of health insurance and other benefits.Employers must provide reasonable accommodations for applicants and employees, both in the hiring process and with regard to all other aspects of employment.
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Slide68Reasonable Accommodation Requirements
A reasonable accommodation is a change in work environment or the way in which things are customarily done that allows an employee with a disability the opportunity to successfully perform his/her position and to enjoy equal employment opportunities.An accommodation is reasonable if it is effective and does not cause undue hardship or a direct threat to the individual or others.The employer may choose among reasonable accommodations as long as the chosen accommodation is effective.
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Slide69Perceived Disabled
Don’t label (psych-speak/diagnostic terms)Don’t speculateDon’t interrogateStereotyping is a form of overt discrimination
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Slide70Major Life Activities
Same list as Title IIAn employee who can show a limitation in one of these functions need NOT show a limitation as to “daily living activities.” Because of the broader definition of major life activities, fewer employees will have to make the argument that they are substantially limited in the major life activity of “working.”
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Slide71“Substantially Limited” in aMajor Life Activity
The condition under which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity. The difficulty, effort, or time required to perform a major life activity; The pain experienced when performing a major life activity; The length of time a major life activity can be performed; and/or The way an impairment affects the operation of a major bodily function.
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Slide72Wisconsin Fair Employment Act Definition of Disability
Wisconsin courts have held that an impairment that “makes achievement unusually difficult” refers to a substantial limitation on a major life activity. Wisconsin agencies and courts have interpreted the phrase “limits the capacity to work” to protect employees who can show that their impairments limit their capacity to perform the specific job at issue. This means that more people are considered disabled under state law.
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Slide73Complying With the Law
Disability accommodationRecognizing Requests for Accommodation Pursuing the Interactive Process — determining whether an employee has a disability — addressing reasonable accommodations.
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Slide74The Requirement to Accommodate
The laws require:No discrimination based upon disability or perceived disabilityAccommodation if a disability has an effect on the person’s program or employment (not every disability has a program or job-related impact)
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Slide75Requests for Accommodation
Requests need not be in writing.Employee need not mention disability laws or use term “reasonable accommodation.” Employers should not proactively ask whether an accommodation is needed. Do not confuse requests for accommodation with requests for FMLA leave.
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Slide76Requests for Accommodation
What is sufficient to give knowledge of a disability and be a “request for a reasonable accommodation”Any mention of mental or medical condition regarding performance, behavior, traits or symptoms, etc. Take a step back and inform HR
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Slide77Disability Process
Step 1. Awareness of disability (person provides information and verification)Step 2. Interactive process (the key) *Communicate *Document *Individualized assessmentStep 3. Reasonable accommodation
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Slide78Verification of Disability
Unless the disability is obvious, the employer can request information from the employee’s health care provider about the nature of the disability, the functional limitations caused by the disability, and what reasonable accommodations might exist. Employers should avoid sharing personal opinions, histories, or speculations when addressing a possible disability with an employee.
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Slide79Verification and Documentation
An employer may obtain reasonable documentation that an employee has a disability and needs an accommodation. Employer may require that documentation come from a health care professional.
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Slide80Documenting Disabilities
Documentation must be sufficient, but Reasonable. -Sufficient: Means that the documentation establishes the existence of an impairment and the degree to which the impairment limits major life activities. -Reasonable: Means that the employer is entitled to no more information than is necessary to determine that the employee has a disability and needs accommodation.
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Slide81Determining Accommodationsin the Workplace
An accommodation is a change in work environment or the way in which things are customarily done that allows the individual to successfully perform his/her position and to enjoy equal employment opportunities. An accommodation is reasonable if it is effective and does not cause the employer undue hardship.
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Slide82Reasonable Accommodation
Individualized assessmentJob-related and consistent with business necessityNo checklists
82
Slide83Reasonable Accommodation
PhysicalDuties or work practices alterationTreatment or counseling (including leave and/or forbearance)
83
Slide84Qualified Person With a Disability
Must meet standards and reasonable rulesEssential function or “Bottom Line” (Wisconsin FEA)
84
Slide85Reasonable Accommodations
The employer may choose among reasonable accommodations as long as the chosen accommodation is effective.
85
Slide86Accommodations That Might be Required
Making existing facilities accessible; Job restructuring/reallocation of certain job functions; Part-time or modified work schedules; Acquiring or modifying equipment; Changing tests, training materials, or policies; Providing qualified readers or interpreters; Possible reassignment to a vacant position; Extended, unpaid leave of absence; Temporary “forbearance” regarding performance; and/orWork at home requests.
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Slide87What is Hardship?
ExpenseImpact on othersSeriousness of consequencesConflicting rights of othersNot required to create new jobSafety/direct threat
87
Slide88Accommodations That Will Generally Not be Required
Longer-term lowering of job standards; Bumping another employee out of a job; Repeatedly excusing prohibited behavior on the job; and/or Indefinite leaves of absence.
88
Slide89Actions Not Required
Lowering production or performance standardsExcusing violations of conduct rules that are job-related and consistent with business necessityRemoving an essential functionMonitoring an employee’s use of medicationActions that would result in undue hardship (i.e., significant difficulty or expense)
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Slide90Risk of Harm to Self or OthersDirect Threat
Significant risk (high probability) of substantial harmIdentify the specific riskShow it is a current risk (not speculative, remote or “could develop into . . .”)Objective medical and/or other factual evidence regarding the individualCannot be eliminated by reasonable accommodation
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Slide91What if an Employee Will Not Accept Accommodation?
Employer may not require someone to accept a reasonable accommodation. Cannot order treatment.Someone who does not accept an accommodation and, as a result, cannot do the job or would pose a “direct threat” will not be considered qualified.
91
Slide92What if an AccommodationCan Not be Made?
Organization burden to show it is not reasonable or achievableAlternative open position at equal or lesser levelTermination of employment or program
92
Slide93Confidentiality Requirements
I-9ADA separateFMLA andGINA securedHIPAAStudent-related recordsPrivacy cases -Harmful information should be handled carefully and confidentially – need to know – (discipline and discharge and negative evaluations and discussions)
93
Slide94Privacy
Not job or program relatedBreaches of confidentiality
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Slide95Confidentiality
Information about an employee’s conditions reasonable accommodation must be kept confidential: -may be disclosed to supervisors and managers for necessary work restrictions or reasonable accommodations -may be disclosed to individuals involved in making decisions about reasonable accommodations -where necessary for emergency treatment; to officials investigating compliance with Rehabilitation Act; for workers’ compensation and insurance purposes
95
Slide96Confidentiality:(Making Private Facts Public)
Medical information (all disability information)Personal identity informationNegative information about character, habits, behavior, honesty, etc. (poor performance, discipline, etc.) Shared with those who have a need to know (to degree necessary)
96
Slide97Confidentiality:(Making Private Facts Public)
Carelessness is the major cause of breachesSometimes it is the intent to be helpful which causes harm.Clear confidentiality policies and training for everyone who “touches” confidential issues.
97
Slide98Common Compliance Issues
Slide99Big Take Away: Know the Law
99
Slide100Bob Gregg
Bob Gregg, Boardman & Clark Law Firm in Madison, Wisconsin, has been involved in Employment Relations for more than 30 years. He litigates employment cases. His main emphasis is helping employers achieve enhanced productivity, creating positive work environments, and resolving employment problems before they generate lawsuits. He has developed the employment policies of numerous employers. Bob has conducted over 3,000 seminars throughout the United States and authorized numerous articles on practical employment issues. His career has included canoe guide, carpenter, laborer, Army Sergeant, social worker, educator, business owner, beer taster, Equal Employment Opportunity officer, and employment relations attorney. Bob has developed anti-discrimination programs for military bases in all services. Bob earned a Masters of Social Work and was employed as a psychiatric social worker and a region planner for disability services. He held an Advance Practice Social Worker license. Mr. Gregg is nationally recognized for helping numerous public and private employers. Bob is a member of the Society for Human Resource Management, the National Speakers Association, is a national faculty member of the American Association for Access, Equity & Diversity and served on the Board of Directors for the Department of Defense Equal Opportunity Management Institute Foundation.
Slide101Tess O’Brien-Heinzen
Tess
O’Brien-Heinzen, a partner at Boardman & Clark LLP, provides
support to the firms’ School Law Group consulting with Districts on the ADA, Section 504, the IDEA, Title IX and Wisconsin’s Seclusion and Restraint Law, and on charter school issues including charter contracts, corporate organization, governance, and tax-exempt status. In addition, Tess provides litigation support to the Insurance Defense, Commercial Litigation and General Litigation practice. Her litigation experience has allowed her to provide support in a wide range of administrative, civil, and appellate cases. Tess is a frequent speaker on the ADA, Section 504, the IDEA, and Title IX and recently co-authored,
Sexual Orientation, Gender Identity and the Law
, published by the Wisconsin State Bar. In the past, she co-authored the school law chapter for the Wisconsin State Bar’s
Annual Survey of Wisconsin Law
and several articles including, “Developments under the ADAAA” in the May 2012
Wisconsin Lawyer
.
Tess is
a 1993 graduate
cum laude
, of the University of Wisconsin Law School and earned her B.A. in English and Business at Marquette University in 1990. Prior to joining the firm, Tess served two terms as a judicial clerk for the late Wisconsin Supreme Court Justice William A.
Bablitch
.
Tess
is
the President-elect of
the Board of Directors of the Wisconsin School Attorneys Association. In addition to practicing law, Tess serves as a Member on the Board of Directors of Lily’s Fund, an organization committed to ending epilepsy. She has also served as the President and Member of the Board of Porchlight, a non-profit organization dedicated to ending homelessness, a Member of the Board of Directors of Dane County CASA, a non-profit organization serving abused and neglected children involved in the Dane County Court system, and a member of the Board of Directors of the Verona Area Community Theater.