TEIN4-00AttachCh5.pdf

ETA Advisory File Text

DRAFT 07 25 2000 Ch. 5 Pg. 129 CFR 37.5 What forms of discrimination are prohibited by this part No individual in the United States may on the ground of race color religion sex national origin age disability political affiliation or belief and for beneficiaries only citizenship or participation in any WIA Title I--financially assisted program or activity be excluded from participation in denied the benefits of subjected to discrimination under or denied employment in the administration of or in connection with any WIA Title I--funded program or activity.CHAPTER FIVE Employment Policies and Practices This chapter reviews nondiscrimination requirements related to the employment policies and practices of One-Stop entities. It presents an overview of the legal standards and their basic requirements of nondiscrimination in the hiring and employment processes. It reviews definitions of a qualified person with a disability and essential functions in the context of employment. It discusses reasonable accommodations that are required of employers under the ADA as well as the situation when an accommodation constitutes an undue hardship to the employer. The chapter then reviews a number of additional employment- related issues including qualification standards and selection criteria nondiscrimination in the hiring process post-offer employee medical examinations and inquiries nondiscrimination prohibitions on limiting segregating or classifying applicants and employees because of disability insurance and other benefits opportunities for advancement performance standards and training opportunities Finally the chapter reviews nondiscrimination responsibility of One-Stops in their contractual relationships with other organizations prohibitions against discrimination on the basis of relationship or association and prohibitions against retaliation or coercion resulting from pursuing nondiscrimination compliance. WIA Title I Recipients as Employers One-Stop entities may chiefly focus on the employment and training assistance they deliver in the form of aid benefits services and training that are offered to the public. As WIA Title I financially assisted entities they must ensure that the entire public has access to these opportunities including persons with disabilities for whom reasonable modifications may be required to facilitate participation or benefit. These requirements have been discussed in Chapter Two and Chapter Four included assessment in each of the areas DRAFT 07 25 2000 Ch. 5 Pg. 229 CFR 37.10 To what extent are employment practices covered by this part a Discrimination on the ground of race color religion sex national origin age disability or political affiliation or belief is prohibited in employment practices in the admin- istration of or in connection with 1 Any WIA Title I-financially assisted program or activity and 2 Any program or activity that is part of the One-Stop delivery system and is operated by a One-Stop partner listed in Section 121 b of WIA to the extent that the program or activity is being conducted as part of the One-Stop delivery system.28 CFR 35.140 Employment discrimination prohibited. a No qualified individual with a disability shall on the basis of disability be subjected to discrimination in employment under any service program or activity conducted by a public entity.29 CFR 37.4 Employment practices means a recipient s practices related to employ-ment including but not limited to 1 Recruitment or recruitment advertising 2 Selection placement layoff or termination of employees 3 Upgrading promotion demotion or transfer of employees 4 Training including employment-related training 5 Participation in upward mobility programs 6 Deciding rates of pay or other forms of compensation 7 Use of facilities or 8 Deciding other terms conditions benefits and or privileges of employment.where specific provision for persons with disabilities is required. At the same time as One-Stop entities seek to assist persons with disabilities in securing or changing employment the entities themselves are employers. As employers all recipients of WIA Title I financial assistance must ensure that they do not discriminate against persons with disabilities in their own employment policies and practices. Overview of Legal Standards and Requirements The Section 188 regulations are explicit in prohibiting discrimination in the employment practices of WIA Title I financially assisted programs or activities and in extending that prohibition to any One-Stop partner to the extent that they conduct a program or activity as part of the One-Stop delivery system 29 CFR 37.10 a . In addition the Section 188 regulations incorporate by reference the implementing regulations of subparts B C and Appendix A of Section 504 of the Rehabilitation Act of 1973 as amended 29 CFR 37.3 b 37.10 d . And they caution recipients that are public entities to be mindful of the requirements of Titles I and II of the ADA which pertain to them 29 CFR 37.10 c . Title II prohibits all public entities from discriminating against qualified individuals with disabilities in their employment policies and practices 28 CFR 35.140 a . Title I of the ADA by its incorporation in 1992 as an amendment to Section 504 of the Rehabilitation Act of 1973 and by reference in Section 188 is held to apply to all WIA Title I recipients. Its basic mandate is that an employer cannot discriminate against an otherwise qualified person with a disability in any aspect of the employment relationship. Activities that are part of the employment relationship include recruitment the application process testing interviewing hiring assignments evaluation discipline medical examinations compensation promotion on-the-job training layoff recall termination leave benefits such as health insurance and any other terms conditions and privileges of employment. Examples of Prohibited Employment Policies and Practices DRAFT 07 25 2000 Ch. 5 Pg. 3 Under federal nondiscrimination regulations the following actions in the area of employment are prohibited 1. Refusing to make reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless the public entity can prove that the accommodation would pose an undue hardship. 2. Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability if such denial is based on the need of the public entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant. 3. Using qualification standards employment tests or other selection criteria that screen out or tend to screen out an individual with a disability unless these criteria are job-related and consistent with business necessity. 4. Making pre-employment inquiries related to an individual s disability or medical history or refusing to hire an individual on the basis of the person s disability or medical history unless the rejection is job-related and consistent with business necessity and job performance cannot be accomplished with reasonable accommodation . 5. Failing to select and administer tests concerning employment so as to ensure that when a test is administered to an applicant or employee with impaired sensory manual or speaking skills the test results accurately reflect the individual s aptitude or achievement level or whatever other factor the test purports to measure rather than reflecting the person s impaired sensory manual or speaking skills except where those skills are the factors that the test purports to measure . 6. Making medical inquiries or conducting medical examinations of applicants or employees or taking actions against individuals with disabilities based on medical or related information in a manner prohibited by federal disability law. 7. Limiting segregating or classifying a job applicant or employee because of his or her disability in a way that adversely affects the individual s employment opportunities. DRAFT 07 25 2000 Ch. 5 Pg. 4 8. Participating in a contractual or other arrangement or relationship that subjects either a qualified applicant or an employee with a disability to discrimination. 9. Utilizing standards criteria or methods of administration a that have the effect of discrimination on the basis of disability or b that perpetuate the discrimination of others who are subject to common administrative control. 10. Denying employment opportunities to or otherwise discriminating against a qualified individual whether or not that individual has a disability because he or she has a relationship or association with a person with a disability. 11. Discriminating against an individual because he or she has opposed an employment practice of the employer has filed a complaint or has testified assisted or participated in an investigation proceeding or hearing to enforce provisions of federal disability law. BASIC DEFINITIONS Who is a Qualified Individual with a Disability As mentioned in Chapter Two employers may not discriminate against qualified individuals with disabilities either as job applicants or employees. For the purposes of employment a qualified individual with a disability is a person with a disability who satisfies the requisite skill experience education and other job-related requirements for the job and can perform the essential functions of the job with or without reasonable accommodation 29 CFR 1630.2 m . Clearly all individuals with disabilities are not necessarily qualified individuals with disabilities. For example a One- Stop Center is hiring for a certified public accountant position. Jill who has a psychiatric disability applies for the position. She has some bookkeeping experience but she is not a certified public accountant and cannot perform the essential functions of the job in question with or without reasonable accommodation. The Center can reject Jill because she is not qualified for the position. On the other hand Lisa who has a visual disability applies for the position. She is a certified29 CFR 37.4 Qualified individual with a disability means 1 With respect to employment an individual with a disability who with or without reasonable accommodation is capable of performing the essential functions of the job in question 29 CFR 1630.2 Definitions. m Qualified individual with a disabil- ity means an individual with a disabil- ity who satisfies the requisite skill experience education and other job- related requirements of the employ- ment position such individual holds or desires and who with or without reasonable accommodation can perform the essential functions of such position. DRAFT 07 25 2000 Ch. 5 Pg. 529 CFR 1630.2 Definitions. n Essential functions. 1 In general. 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. public accountant and can perform all essential job functions. Lisa is qualified for the position. What are the Essential Functions of a Job A person is a qualified individual with a disability only if he or she can perform the essential functions of a job with or without reasonable accommodation . If such a person cannot perform functions marginal or incidental to job performance the individual is still qualified. Clearly it is critical that employers thoughtfully analyze and document job requirements in a way that clarifies the distinction between essential and non-essential functions of a job. Factors to be weighed in determining whether a job function is essential include 1. whether the reason the position exists is to perform the function 2. whether a limited number of employees are available to perform the function or whether the performance of the job function can be distributed among them and or 3. whether the function is a highly specialized one that requires special expertise or ability the person hired must have to be able to perform it 29 CFR 1630.2 n 2 . Evidence that may be considered in determining whether a particular job function is essential includes but is not limited to the following written job descriptions prepared before advertising or interviewing applicants the terms of a collective bargaining agreement the amount of time spent on the job performing the function the work experience of past employees in the job the work experience of current employees in the same or similar jobs the consequences of not requiring that the function be performed and or the employer s judgment as to which functions are essential 29 CFR 1630.2 n 3 . DRAFT 07 25 2000 Ch. 5 Pg. 6 Job descriptions used to identify essential job functions should be written to focus on the desired outcomes or results of a job not the manner in which it is usually performed. Often reasonable accommodation will enable an individual with a disability to achieve the necessary results in a different way from the more typical approach to the task. What matters is that the desired outcome is achieved. If an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of his or her disability the prospective employer must consider whether there are accommodations that would enable the person to perform these functions. The following section discusses the employer s obligation to provide reasonable accommodation and the limits to that obligation. The section also provides examples of reasonable accommodation. The Obligation to Provide Reasonable Accommodation The concepts and definitions of reasonable accommodation reasonable modifications and auxiliary aids and services were introduced in Chapter Two. Employers are required to make reasonable accommodation for qualified applicants and employees with disabilities who request such accommodation. Reasonable accommodation means modification or adjustment to a job application process the work environment the way in which a job is customarily performed or employment policies that enable a qualified individual with a disability to be considered for the position perform the essential functions of the job or enjoy benefits and privileges of employment equal to those available to a similarly-situated employee without a disability 29 CFR 1630.2 o 1 29 CFR 37.4 . Examples of Reasonable Accommodation Reasonable accommodation in the employment environment means modification of the job application process the way in which a job is customarily performed or employment policies that enable a qualified individual with a disability to be considered for the position perform the essential functions of the job or enjoy benefits and privileges of employment equal to those available to a similarly-situated employee without a disability 29 CFR 37.4 . Examples of reasonable accommodation include adjusting work schedules DRAFT 07 25 2000 Ch. 5 Pg. 729 CFR 37.8 a With regard to aid benefits services training and employment a recipient must provide reasonable accommoda-tion to qualified individuals with disabilities who are applicants registrants eligible applicants registrants participants employees or applicants for employment unless providing the accommodation would cause undue hardship. 29 CFR 37.4 3 To determine the appropriate reasonable accommodation it may be necessary for the recipient to initiate an informal interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. restructuring the job reassigning the employee acquiring or modifying equipment and devices providing qualified readers or interpreters or modifying the work site 29 CFR 37.4 1630.2 o 2 . A further description and case scenario for each of these is presented in Chapter Two. Choosing the Accommodation The employer is obligated to accommodate only known disabilities of qualified applicants or employees 29 CFR 37.8 a . The responsibility for providing an accommodation is triggered when an individual with a disability makes a request for an accommodation. The person making the request will often be able to suggest an appropriate accommodation. While the need for accommodation may be obvious for some employees with disabilities not all employees with disabilities require accommodations. If an employee with a known disability is having difficulty performing the job without an accommodation the employer may ask the employee whether he or she is in need of an accommodation. Under the disability regulations a qualified individual with a disability is not required to accept the offer of an accommodation 29CFR 37.7 o 1 . However if such an offer is rejected and the person cannot then perform the essential functions of the job the person will no longer be considered a qualified individual with a disability 29 CFR 1630.9 d . Once the applicant or employee has requested an accommodation sufficient information must be gathered to determine the type of accommodation necessary to enable the individual to perform the job. The recipient should seek to identify the precise limitations resulting from the disability. In most instances the person with a disability is in the best position to identify what is needed. Ask them When necessary seek additional information from qualified experts. An employer need not provide the requested accommoda- tion if an alternative means of accommodation that is less costly but equally effective is available. It is mandatory however to provide an accommodation that gives a qualified DRAFT 07 25 2000 Ch. 5 Pg. 829 CFR 1630.9 Not making reasonable accommodation. a It is unlawful for a covered entity not to make reasonable accommoda-tion to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.29 CFR 37.4 Undue hardship This term has different meanings depending upon whether it is used with regard to reasonable accommo- dation of individuals with disabilities or with regard to religious accommodation. 1 Reasonable accommodation of individuals with disabilities i In general undue hardship means significant difficulty or expense incurred by a recipient when considered in light of the factors set forth in paragraph ii . ii Factors to be considered in determining whether an accommodation would impose an undue hardship on a recipient include A The nature and net cost of the accommodation needed taking into consideration the availability of tax credits and deductions and or outside funding for the accommodation B The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation including 1 The number of persons aided benefitted served or trained by or employed at the facility or facilities and 2 The effect the accommodation would have on the expenses and resources of the facility or facilities C The overall financial resources of the recipient including 1 The overall size of the recipient 2 The number of persons aided benefitted served trained or employed by the recipient and 3 The number type and location of the recipient s facilities D The type of operation or operations of the recipient including 1 The geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the recipient and 2 Where the individual is seeking an employment-related accommodation the composition structure and functions of the recipient s workforce and E The impact of the accommodation upon the operation of the facility or facilities including 1 The impact on the ability of other participants to receive aid benefits services or training or of other employees to perform their duties and 2 The impact on the facility s ability to carry out its mission.individual with a disability an opportunity to attain the same level of job performance as co-workers with similar skills and abilities. The Job Accommodation Network JAN provides free consulting services for employers employees or job-seekers to help them select accommodations to enable persons with disabilities to perform critical job functions. By contacting JAN an employer job-seeker or a One-Stop recipient can access experienced persons familiar with a large number of accommodations that may be applicable to the barrier an employee must overcome. The majority of accommodations suggested by JAN are inexpensive many are free. Contact JAN at http www.jan.wvu.edu english homeus.htm. A Limit Undue Hardship The limit on providing reasonable accommodation occurs if an employer can prove that a requested accommodation imposes an undue hardship on the employer 29 CFR 37.8 a 1630.9 a . However if the originally suggested accommodation is an undue hardship the employer must consider carefully whether another accommodation exists that would not result in an undue hardship. Undue hardship is defined as significant difficulty or expense incurred by a covered entity in the provision of an accommodation 29 CFR 37.4 1630.2 p 1 . The factors that should be weighed in determining whether a requested accommodation poses an undue hardship include the nature and net cost of the accommodation taking into consideration the availability of tax credits and deductions and or outside funding the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation the number of persons employed at such facility and the effect on expenses and resources the overall financial resources of the covered entity the overall size of the business of the covered entity with respect to the number of employees and the number type and location of its facilities the type of operation or operations of the covered entity including the composition structure and functions of the work force the geographic separateness and 1 The full citation of 29 CFR 37.8 a which describes a the burden of proof and other obligations that rest with a recipient in cases of undue hardship is printed in the margin in chapter 2. DRAFT 07 25 2000 Ch. 5 Pg. 9 administrative or fiscal relationship of the facility or facilities in question to the covered entity and the impact of the accommodation upon the operation of the facility including the impact on the ability of other employees to perform their duties and the impact on the facility s ability to conduct business 29 CFR 37.4 1630.2 p 2 . The regulations require that the resources available to the employee s specific work site must be considered in addition to consideration of the resources of the covered entity as a whole. The regulations also stress that net cost taking into consideration the availability of tax credits tax deductions and or outside funding is a relevant factor. If a recipient believes that a requested accommodation poses an undue burden the burden of proof rests with the recipient to provide a written statement demonstrating the burden in light of all of the factors included in the definition of undue hardship in 29 CFR 37.4. The employer must also attempt to identify an alternative accommodation that would not impose a hardship.1 In cases in which the accommodation would pose an undue hardship for the employer Title I of the ADA provides that the individual with the disability should be given the option of paying for the portion of the cost that constitutes an undue hardship or of providing the accommodation Appendix to 29 CFR Part 1630 at 414 1994 . It must be clearly understood however that this option is to be offered as a last resort and only in cases in which providing the requested accommodation would clearly constitute an undue hardship it is not to be considered a routine cost-saving strategy. If employees are governed by a collective bargaining agreement the terms of that agreement may have an impact on whether or not a requested accommodation creates an undue hardship Appendix to 29 CFR Part 1630 at 414 1994 . The EEOC has developed guidance on reasonable accommodation. It is available through the EEOC website www.eeoc.gov docs accommodation.html DRAFT 07 25 2000 Ch. 5 Pg. 1029 CFR 1630.10 Qualification standards tests and other selection criteria. It is unlawful for a covered entity to use qualification standards employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities on the basis of disability unless the standard test or other selection criteria as used by the covered entity is shown to be job- related for the position in question and is consistent with business necessity.QUALIFICATION STANDARDS AND SELECTION CRITERIA Federal regulations do not prohibit an employer from establishing physical and mental job-related qualification standards--including education skills and work experience-- necessary for job performance health and safety 29 CFR 1630.10 . One Stop entities are entitled to hire the most qualified person able to perform a job. The regulations are designed to ensure that people with disabilities are not excluded from jobs that they can perform. However qualification standards or selection criteria that screen out or tend to screen out an individual with a disability on the basis of disability are not automatically disallowed if they are demonstrably job-related and consistent with business necessity 29 CFR 1630.10 . Job-related means that a selection criterion must be a legitimate measure or qualification for the specific job for which it is being used. Business necessity means that a selection criterion may not exclude an individual with a disability because of the disability unless the criterion relates to the essential functions of the job Even if a standard is job-related and consistent with business necessity if it screens out an individual with a disability on the basis of disability the employer must consider whether the individual could meet the standard with reasonable accommodation. For example it may be job-related and necessary for a One-Stop Center to require that a secretary produce letters and other documents on a word processor. However it would be discriminatory to reject a person whose disability prevented manual keyboard operation but who could meet the qualification standard using a computer assistive device. Such devices are generally not costly and would not be expected to impose an undue hardship for any One-Stop. It is important to note that employers may continue to select and hire people who can perform all job functions. However an employer may not refuse to hire an individual with a disability who while able to perform the essential functions of the job cannot perform marginal job functions because of the disability even though other applicants can perform those marginal functions. DRAFT 07 25 2000 Ch. 5 Pg. 1129 CFR 1630.11 Administration of Tests. It is unlawful for a covered entity to fail to select and administer tests concerning employment in the most effective manner to ensure that when a test is administered to a job applicant or employee who has a disability that impairs sensory manual or speaking skills the test results accurately reflect the skills aptitude or whatever other factor of the applicant or employee that the test purports to measure rather than reflecting the impaired sensory manual or speaking skills of such employee or applicant except where such skills are the factors that the test purports to measure .NONDISCRIMINATION IN THE HIRING PROCESS Job Advertisements and Notices It is advisable that job announcements advertisements and other recruitment notices include information on the essential functions of the job. Specific information about essential functions will attract applicants including individuals with disabilities who have appropriate qualifications. Information about job openings should be accessible to people with various disabilities. For example job information should be available in a location that is accessible to people with mobility impairments and in formats accessible to individuals with sensory impairments. While an employer is not obligated to provide written information such as job descriptions in alternative formats in advance of any request the information in alternative formats must be made available in a timely manner once it has been requested. Testing Employers may use any kind of test to determine job qualifications. However if a test screens out or tends to screen out an individual with a disability or a class of such individuals on the basis of disability it must be job-related and consistent with business necessity 29 CFR 1630.10 . For example an administrator s office seeking to hire a secretary may continue to use a typing test that excludes individuals who type less than sixty words per minute if typing is an essential function of the job and sixty words per minute is the expected level of performance for employees in the job category. Federal nondiscrimination regulations require that tests be given to people who have impaired sensory speaking or manual skills in a format and manner that does not require use of the impaired skill unless the test is designed to measure that skill 29 CFR 1630.11 . The purpose of this requirement is to ensure that tests accurately reflect a person s job skills aptitudes or whatever else the test is supposed to measure rather than impaired skills that are not required to perform essential job functions. This requirement applies the reasonable accommodation obligation to testing. DRAFT 07 25 2000 Ch. 5 Pg. 12 Some examples of alternative test formats and accommoda- tions include substituting a written test for an oral test or written instructions for oral instructions for people with impaired speaking or hearing skills administering a test in large print in Braille by a reader or on a computer for people with visual or other reading disabilities allowing people with visual or learning disabilities or who have limited use of their hands to record test answers by tape recorder dictation or computer providing extra time to complete a test for people with impaired writing skills or certain learning disabilities allowing individuals with disabilities who function better or worse at certain times of day because of the effects of medication or changing energy levels to take the test at a time when they can do their best ensuring that a test site is physically accessible to a person with a mobility impairment allowing a person with a disability who cannot perform well if there are distractions to take a test in a separate room unless the ability to take the test in a group setting is relevant to essential job functions being tested and allowing rest breaks for people with mental and other disabilities who need that relief. Pre-employment Inquiries Federal nondiscrimination regulations prohibit pre-offer inquiries regarding the existence of an applicant s disability or the nature and severity of the disability on application forms in job interviews and in background or reference checks 29 CFR 1630.13 a 32.15 . Pre-offer medical inquiries or medical examinations are also prohibited 29 CFR 1630.13 a 32.15 . These requirements are intended to redress a historically common occurrence the rejection of people with disabilities before their merits are considered often based on myths and misinformation about their disability. Employers may make pre-employment inquiries into the ability of the applicant to perform job-related functions 29 CFR 1630.14 a 32.15 . However blanket questions such as Do you have a disability or How many times have you been hospitalized in the last five years and for what are not permissible. Employers may also not ask such questions as Have you ever been treated by a DRAFT 07 25 2000 Ch. 5 Pg. 13 psychiatrist or psychologist and Are you taking any prescribed drugs Questions concerning an applicant s workers compensation claims history are also prohibited at the pre-offer stage. Employers may ask all applicants to describe or demonstrate how they will perform the functions of the job with or without reasonable accommodation. Employers may also ask an individual with a known disability to describe or demonstrate how functions of the job will be performed whether or not all applicants in the job category are so asked 29 CFR 1630.14 a 32.15 . If a demonstration of how the proposed accommodation would work in practice is required the employer must provide the reasonable accommodation for the demonstration. It is important to note that One-Stop entities have an obligation to make reasonable accommodations to enable an applicant with a disability to apply for a job. For example individuals with visual or learning disabilities or other mental disabilities may require assistance in filling out application forms. One-Stops must also provide a reasonable accommodation if needed to enable an applicant to have equal opportunity in the interview process. Needed accommodations for interviews may include an accessible location for people with mobility impairments a sign language interpreter for a person with a hearing impairment or a reader for a person with a visual impairment. One-Stops may find it helpful to include a statement in job notices and or job application forms that applicants who need accommodation for an interview should request this in advance. POST-OFFER AND EMPLOYEE MEDICAL EXAMINATIONS AND INQUIRIES Inquiries Following a Conditional Offer Once an offer of employment has been extended it may be conditioned on the results of a medical examination if all individuals in the same job category are examined and if the information obtained is kept confidential 29 CFR 1630.14 b . Medical inquiries at this stage of the employment process are unrestricted. However there are limitations on how medical information gathered at this stage may be used. If the results of DRAFT 07 25 2000 Ch. 5 Pg. 14 the medical examination are used to screen out applicants with disabilities the criteria must be job-related and consistent with business necessity 29 CFR 1630.14 b 3 . Employee Medical Examinations and Inquiries Once an employee starts work any health-related inquiries or medical examinations must be job-related and consistent with business necessity 29 CFR 1630.14 c . Medical examinations or inquiries may be conducted when there is a need to determine whether an employee is still able to perform essential job functions. For example if an employee repeatedly falls asleep on the job has excessive absenteeism or exhibits difficulty performing essential job functions a medical examination may be required to determine fitness for job duty and or the need for reasonable accommodations. Under Title I of the ADA employers may conduct periodic examinations and other medical screening and monitoring required by federal state or local laws Appendix to 29 CFR Part 1630 at 413 1994 . The Title I regulations provide that an employer may defend an alleged discriminatory action by showing that the action was taken in compliance with another federal law or regulation 29 CFR 1630.15 e . An action taken to comply with state or local law must be consistent with the ADA Appendix to 29 CFR Part 1630 at 413 1994 . For example if a state or local law required that employees in a particular job be tested periodically for AIDS or the HIV virus the ADA would prohibit such an examination unless an employer can show that it is job-related and consistent with business necessity or required to avoid a direct threat to health or safety. Medical Files Employers are required to maintain medical files separate from employees personnel files to ensure against unwarranted disclosure of the person s disability 29 CFR 37.15 1630.14 b 1 c 1 and d 1 . Although confidentiality must be maintained an employer may inform supervisory personnel about an individual s medical restrictions or necessary accommodations. First aid or safety personnel may be informed if special treatment or evacuation assistance may be necessary. Disclosure is also permitted to 1 government officials investigating compliance with federal disability law 2 DRAFT 07 25 2000 Ch. 5 Pg. 15 state workers compensation or second injury fund offices and 3 the employer s health or life insurance companies Appendix to 29 CFR Part 1630 at 412 1994 . Drug Testing Federal nondiscrimination regulations do not require or prohibit testing employees for illegal use of drugs 29 CFR 1630.16 c 1 . However any additional information obtained from drug tests besides whether the individual is currently engaging in the illegal use of drugs such as the presence of a prescription medication to control a particular disability must be treated as confidential medical information 29 CFR 1630.16 c 3 . The employer can require drug use tests at any stage of the employment process. Direct Threat to Health or Safety As discussed in Chapter Two federal nondiscrimination regulations do not require an employer to hire or continue to employ an individual who poses a direct threat to the health or safety of the individual or others 29 CFR 1630.15 b 2 . The direct threat standard is a strict one. The term is defined as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation 29 CFR 1630.2 r . Speculative or remote risks are not sufficient to constitute a significant risk under this provision. In determining whether an individual would pose a direct threat the factors to be considered include 1. the duration of the risk 2. he nature and severity of the potential harm 3. the likelihood that the potential harm will occur and 4. the imminence of the potential harm 29 CFR 1630.2 r . The employer must rely on the most current medical knowledge and or objective factual evidence concerning the individual not on generalizations or stereotypes to demonstrate the existence of a direct threat to health or safety. The assessment must consider whether accommodations could be provided that would enable the individual to safely perform the essential functions of the job 29 CFR 1630.2 r . A specific provision of Title I of the ADA applies the direct threat analysis to food handlers with infectious or communicable DRAFT 07 25 2000 Ch. 5 Pg. 1629 CFR 1630.5 Limiting segregating and classifying. It is unlawful for a covered entity to limit segregate or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability. diseases. The Secretary of the U.S. Department of Health and Human Services is responsible for generating a list of infectious and communicable diseases that are transmitted by food handling. If a person with a disability has one of these diseases and there is no reasonable accommodation that can eliminate the risk of transmitting the disease the employer can refuse to hire the applicant or can reassign an incumbent to a position where he or she does not pose a direct threat to health or safety 29 CFR 1630.16 e . LIMITING SEGREGATING OR CLASSIFYING JOB APPLICANTS OR EMPLOYEES An employer or other covered entity may not limit segregate or classify an individual with a disability in a manner that adversely affects the individual s employment opportunities because of his or her disability 29 CFR 1630.5 . Under federal statutes and regulations an individual with a disability must have equal access to any employment opportunity available to a similarly situated individual who is not disabled. This includes access to opportunities and benefits extended to current employees as well as those offered during the recruitment process. Insurance and Other Benefit Plans The requirement that individuals may not be limited segregated or classified because of a disability in a way that adversely affects their employment opportunities applies to health insurance and other benefit plans provided by the One- Stop Center to its employees. Included are life insurance and pension plans as well as to other benefits and privileges of employment. If an employer provides insurance or other benefit plans to its employees without disabilities it must provide equal access to the same coverage to its employees with disabilities Appendix to 29 CFR Part 1630 at 404 1994 . An employer cannot fire or refuse to hire an individual with a disability because the employer s current health insurance plan does not cover the individual s disability or because the individual may increase the employer s future health care costs. Also an employer cannot fire or refuse to hire an individual whether or not that individual has a disability because the individual has a family member or dependent with a disability DRAFT 07 25 2000 Ch. 5 Pg. 17 who is not covered by the employer s current health insurance plan or who may increase the employer s future health care costs. Other Benefits and Privileges Nondiscrimination requirements including the obligation to make reasonable accommodation apply to all social or recreational activities provided or conducted by an employer to any transportation provided by an employer for its employees or applicants and to all other benefits and privileges of employment 29 CFR 1630.4 and Appendix to 29 CFR Part 1630 at 404 1994 . Picnics parties award ceremonies and other social functions held by or sponsored by One-Stop entities must be held in accessible locations with interpreters or other accommodations available when needed. Employees with disabilities must be given an equal opportu-nity to participate in employer-sponsored sports teams leagues or recreational activities such as hiking or biking clubs. However no activity need be cancelled because an employee with a disability cannot participate or participate fully because of the nature of the disability. Any special facilities provided to employees-- such as lounges cafeterias exercise rooms and gymnasiums-- must be equally available to employees with disabilities. Transportation provided to employees must also be accessible to employees with mobility impairments. OPPORTUNITIES FOR ADVANCEMENT The nondiscrimination requirements that apply to initial selection apply to all aspects of employment including opportunities for advancement 29 CFR 1630.4 . For example an employer may not discriminate with respect to promotion job classification evaluation disciplinary action opportunities for training or participation in meetings and conferences. Assuming that an employee is not interested in or qualified for advancement--whether resulting from prejudice or mistaken sympathy--is not permissible. Also the need to provide reasonable accommodation to enable the person with a disability to perform essential job functions may not appropriately be considered as a criterion for advancement. Employers should ensure that supervisors and managers who make decisions regarding promotion and advancement are aware of ADA nondiscrimination requirements. DRAFT 07 25 2000 Ch. 5 Pg. 1829 CFR 1630.6 Contractual or other arrangements. a In general. It is unlawful for a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity s own qualified applicant or employee with a disability to the discrimination prohibited by this part. Performance Standards Employees with disabilities may be held to the same standards of production and performance as other employees without disabilities who are performing similar functions. No special treatment is required in performance evaluations. If an employee with a disability is not performing well an employer is entitled to take the same disciplinary action that would be taken against other similarly situated employees. The employer is even permitted to make medical and other professional inquiries to determine how the disability may be affecting job performance provided the inquiries are job-related and consistent with business necessity. However an employee with a disability who needs an accommodation to perform an essential job function should not be evaluated on his or her ability to perform the function without the accommodation and should not be downgraded because the accommodation is necessary. Training Opportunities Employees with disabilities must be provided equal opportunities to participate in training that will enable them to improve their job performance or to qualify for advancement 29 CFR 1630.4 g . In order to enable employees with disabilities to benefit from training reasonable accommodation must be made unless the employer can prove that it would constitute an undue hardship. For example interpreters and note takers may need to be provided for employees who have hearing impairments. Training conducted directly by the recipient or made available through contractors must be held in locations accessible to persons with mobility disabilities. CONTRACTUAL OR OTHER RELATIONSHIPS Employers may not do anything through a contractual relationship that they cannot do directly 29 CFR 1630.6 a . Examples of entities with which an employer might contract include employment referral services training programs labor unions and organizations providing fringe benefits to employees 29 CFR 1630.6 b . As part of the self-assessment process and of future reviews conducted to ensure continued compliance with federal DRAFT 07 25 2000 Ch. 5 Pg. 19 nondiscrimination regulations One-Stop Centers should examine the recruitment and placement practices of any employment agencies they utilize whether for temporary or permanent job placements to ensure that the employment agencies practices are in compliance with disability statutes. Particular attention should be given to the methods employment agencies use to recruit or screen applicants. One-Stop Centers should inform employment agencies they work with of their mutual obligation to comply with federal nondiscrimination regulations. In addition any apprenticeship and job-training programs with which Local Workforce Investment Areas are associated must be free from discrimination in their treatment of participants. For example a One-Stop Operator uses an employment agency to recruit prospective employees for a management position. The agency places a newspaper advertisement with a telephone number that all interested persons must call no address is given and the employer s identity is not cited. The advertisement mentions no TTY TDD number. A qualified applicant with a hearing impairment uses a relay service to reach the employment agency the interviewer finds using the service time-consuming and frustrating. As a result of her initial impression that the candidate would be a hassle to work with she does not include the individual s resume in a selected group of resumes of qualified applicants for further consideration-- even though the applicant has met all stated qualifications. The One-Stop is responsible for the contractor s discriminatory hiring practices. Labor unions are covered by the ADA and have the same obligation as the employer to comply with its requirements. A Local Workforce Investment Area cannot take any action through a labor union contract that would be impermissible for it to take directly. For example if a union contract contained physical requirements for a particular job that screened out people with disabilities who were qualified to perform the job and these requirements were not job-related and consistent with business necessity they could be challenged as discriminatory by a qualified individual with a disability. DISCRIMINATION ON THE BASIS OF RELATIONSHIP OR ASSOCIATION DRAFT 07 25 2000 Ch. 5 Pg. 20 As discussed in Chapter Two employers sometimes make damaging and unfounded assumptions about how a current or prospective employee s relationship to a person with a disability will affect job performance. To protect individuals from this form of discrimination federal disability regulations bar employers from discriminating against employees or potential employees because of their known relationship or association with a person who has a disability 29 CFR 37.7 l 1630.8 . This ADA provision makes it illegal to fire or refuse to hire someone because of assumptions about how their relationship with a person who has a disability will affect either their work schedule or their participation in an employer-provided health insurance plan. Such persons also cannot be required to accept different insurance terms than those offered to other individuals. The requirement prohibiting discrimination on the basis of relationship or association refers not only to family and other close personal relationships but also to other social or business relationships and associations Appendix to 29 CFR Part 1630 at 406 1994 . RETALIATION AND COERCION Also as discussed in Chapter Two it is unlawful to discriminate against an individual because he or she has opposed an employment practice of the employer has filed a complaint or has testified assisted or participated in an investigation proceeding or hearing to enforce provisions of the Act 29 CFR 37.11 a 1-3 1630.12 a . It is also unlawful to coerce intimidate threaten harass or interfere with any individual in the exercise or enjoyment of any right protected by the ADA or because that individual aided or encouraged any other individual to exercise any right protected by the ADA 29 CFR 1630.12 b . IMPLEMENTING THE REVIEW OF EMPLOYMENT POLICIES AND PRACTICES Federal nondiscrimination regulations require One-Stop Centers and entities to ensure that qualified persons with disabilities are given equal opportunity to compete for available jobs to maintain their jobs and to advance through the organization as far as their abilities will take them. Qualified DRAFT 07 25 2000 Ch. 5 Pg. 21 persons with disabilities must also have equal access to all benefits and privileges afforded other employees. To ensure that a One-Stop is in compliance with these regulations it is recommended that an Access Team conduct a thorough review of system-wide policies and practices in the area of employment. In particular it is recommended that a review of One-Stop Center job descriptions be conducted evaluating whether or not those descriptions accurately represent essential job functions. Access Teams should make certain to receive input from all of the One-Stop partnering agencies and organizations. Resource 5-1 is provided as an aid in assessing reasonable accommodations that could be provided at all stages in the employment process from recruitment and hiring to on-the-job to access to training opportunities and social activities. DRAFT 07 25 2000 Ch. 5 Pg. 22Resource 5-1 Reasonable Accommodations Checklist The first column illustrates many common forms of reasonable accommodation. For each stage of the employment process where the reasonable accommodation indicated is already available upon request mark with an X. Mark with a D those that should be developed. Recruiting and HiringOn-the- jobTraining ActivitiesLarge print materials e.g. 18 pt Braille materials Audio cassettes Computer diskette Readers Interpreters Note takers TTY TDDs Amplified hearing aid compatible telephones Assistive listening systemsOpen Closed captioning Real-time captioning CART Adaptive computer hardware Adaptive computer software Flex-time work schedules Part-time work schedules Work-site modifications Job restructuring Job reassignment DRAFT 07 25 2000 Ch. 5 Pg. 23Other list CHAPTER FIVE Employment Policies and Practices WIA Title I Recipients as Employers.................................Ch. 5 Pg. 1 Overview of Legal Standards and Requirements.........................Ch. 5 Pg. 2 Examples of Prohibited Employment Policies and Practices................Ch. 5 Pg. 3 Basic Definitions ................................................Ch. 5 Pg. 4 Who is a Qualified Individual with a Disability ........................Ch. 5 Pg. 4 What are the Essential Functions of a Job ..........................Ch. 5 Pg. 5 outcomes results The Obligation to Provide Reasonable Accommodation .................Ch. 5 Pg. 6 Examples of Reasonable Accommodation ..........................Ch. 5 Pg. 6 Choosing the Accommodation ...................................Ch. 5 Pg. 7 A Limit Undue Hardship .......................................Ch. 5 Pg. 8 Qualification Standards and Selection Criteria ..........................Ch. 5 Pg. 10 Job-related Business necessity Nondiscrimination in the Hiring Process ..............................Ch. 5 Pg. 11 Job Advertisements and Notices ................................Ch. 5 Pg. 11 Testing.....................................................Ch. 5 Pg. 11 Pre-employment Inquiries .....................................Ch. 5 Pg. 12 Post-Offer and Employee Medical Examinations and Inquiries.................Ch. 5 Pg. 14 Inquiries Following a Conditional Offer .............................Ch. 5 Pg. 14 Employee Medical Examinations and Inquiries ......................Ch. 5 Pg. 14 Medical Files ..............................................Ch. 5 Pg. 15 Drug Testing ..............................................Ch. 5 Pg. 15 Direct Threat to Health or Safety ................................Ch. 5 Pg. 15 Limiting Segregating or Classifying Job Applicants or Employees..............Ch. 5 Pg. 16 Insurance and Other Benefit Plans ...............................Ch. 5 Pg. 17 Other Benefits and Privileges ...................................Ch. 5 Pg. 17 Opportunities for Advancement .....................................Ch. 5 Pg. 18 Performance Standards .......................................Ch. 5 Pg. 18 Training Opportunities ..........................................Ch. 5 Pg. 19 Contractual or Other Relationships....................................Ch. 5 Pg. 19 Discrimination on the Basis of Relationship or Association...................Ch. 5 Pg. 20 Retaliation and Coercion............................................Ch. 5 Pg. 21 Implementing the Review of Employment Policies and Practices...............Ch. 5 Pg. 21 Resource 5-1 Reasonable Accommodations Checklist......................Ch. 5 Pg. 22