With funding from the U.S. Department of Education, Cornell University prepared a series of technical assistance materials targeted to employers on implementing the Americans with Disabilities Act. Though a few years old, I've just obtained the complete series in electronic form and think it is worth sharing. I've put general topics related to ADA and employment first, followed by guidance on accommodating specific disabilities. Each handout is separated by a line of ten dashes to help one search for the next one. The order is as follows: A HUMAN RESOURCE PERSPECTIVE ON IMPLEMENTING THE ADA THE ADA AND PERSONNEL TRAINING THE AMERICANS WITH DISABILITIES ACT OF 1990 AND INJURED WORKERS THE AMERICANS WITH DISABILITIES ACT AND WORKERS' COMPENSATION PRE-EMPLOYMENT TESTING AND THE ADA REASONABLE ACCOMMODATION UNDER THE ADA HEALTH BENEFIT PLANS AND THE ADA CAUSES OF POOR INDOOR AIR QUALITY AND WHAT YOU CAN DO ABOUT IT THE ADA AND COLLECTIVE BARGAINING ISSUES CULTURAL DIVERSITY AND THE ADA THE ADA AND TOTAL QUALITY MANAGEMENT EMPLOYING AND ACCOMMODATING INDIVIDUALS WITH HISTORIES OF ALCOHOL OR DRUG ABUSE ACCOMMODATING THE ALLERGIC EMPLOYEE IN THE WORKPLACE WORKING EFFECTIVELY WITH PEOPLE WHO ARE BLIND OR VISUALLY IMPAIRED WORKING EFFECTIVELY WITH PERSONS WHO HAVE COGNITIVE DISABILITIES WORKING EFFECTIVELY WITH PERSONS WHO ARE DEAF OR HARD OF HEARING EMPLOYMENT CONSIDERATIONS FOR PEOPLE WHO HAVE DIABETES WORKING EFFECTIVELY WITH INDIVIDUALS WHO ARE HIV-POSITIVE WORKING EFFECTIVELY WITH PEOPLE WITH LEARNING DISABILITIES EMPLOYING AND ACCOMMODATING WORKERS WITH PSYCHIATRIC DISABILITIES WORKING EFFECTIVELY WITH EMPLOYEES WHO HAVE SUSTAINED A BRAIN INJURY Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- A HUMAN RESOURCE PERSPECTIVE ON IMPLEMENTING THE ADA How should I go about developing and implementing a plan? The information presented here focuses on the steps needed to ensure compliance with the ADA. More importantly the information focuses on implementation strategies for the short-term and long-term. The key in any implementation program plan is to maximize employment opportunities for individuals with disabilities. While most of the suggestions might work better in medium-sized or large companies, smaller organizations can develop similar models given their own resources and culture. It may seem that the provided suggestions are expensive, but they need not be. Use the talents, expertise and resources within your organization. Seek out agencies in the community that have additional expertise and are ready to help--often at no expense. Outlined below are the steps to assure ADA compliance: 1. Immerse yourself in ADA literature You can t read enough, listen enough, or learn enough when preparing you and your organization for legislative compliance. Because the ADA legislation is so comprehensive the only way to understand the impact and the requirements is to read, read and read some more. Not just the regulations and the technical assistance manual provided by EEOC, but handbooks, articles, training guides, etc. While there are a few cases out there now to help you decide if the approach you have taken is on target, you will want to remember that everything you do should be on a case-by-case basis. The more basic background information you have learned, the easier it will be to make good, defendable decisions. It is also important to consult with legal counsel as you develop policies and procedures no matter how well grounded you are. 2. Secure support "from the top." Now that you are "informed," you need to sell the top administrators in your organization that ADA is alive and well. And that your organization can t rely on past practices in making good faith efforts to hire individuals with disabilities. Good faith efforts are not enough. Now your efforts must be programmatic, must be concerted, must be coordinated. And to do that, the President, CEO, CFO and/or other top-level administrators must understand the impact of ADA on your organization. You will need to secure their support and authority for the program you develop to succeed. How do you do that? Meet with them. The best way to sell ADA is to gain support that the ADA is not only legally required for covered employers and a good business decision, but the "right thing to do" ethically and morally. A centralized approach will be easier to administer ; authority needs to be centralized to ensure consistent application of programs, policies and procedures. When securing top-level administrative support it will be helpful to outline the pros and cons of centralized versus decentralized authority. Legal counsel may be helpful in detailing the impact of noncompliance and inconsistent applications of decisions. 3. Appoint a Task Force and/or hire a Coordinator You need two things: buy-in and authority. While not required by the ADA, you may want to appoint an organization-wide Task Force. You can then utilize the expertise, ideas and input from staff members at all levels of the organization. Invite individuals with disabilities, members of a collective bargaining agreement, and external customers as "consultants" to the group. An ADA Coordinator hired to develop and implement the organization s program (again not required, but helpful) is further evidence of commitment and support in ensuring compliance with the regulations; and can make implementation and administration easier. If a full-time coordinator is not justified, at minimum identify an ombudsman or intercessor. Employees will then have an internal, informal access point rather than starting their complaint process outside the organization with legal counsel or other third parties. 4. Review policies, procedures, and forms Certainly your employment policies and procedures should be scrutinized carefully. BNA has published a self-evaluation guide that may be a start (Bureau of National Affairs, Inc., 1991). This guide asks you to look at not only your recruiting and hiring practices (including qualification standards and selection criteria), but your upgrading, promotion, demotion, transfer, layoff, termination and rehiring procedures. You will also want to look at your testing programs and processes. Are your application forms in compliance? Will you invite applicants to request reasonable accommodations? Is your employment office accessible to individuals with disabilities? Do your interviewers know what they can and can t ask, when they can and can t ask? The ADA prohibits an employer from asking an applicant, at the pre-offer stage, about job related injuries or workers' compensation history. You may require a medical examination and may condition an offer on the results of this examination after an offer of employment is made, but before the individual actually begins work, if all entering employees in the same job category are given an examination regardless of disability. You should also review your recordkeeping requirements and the need for confidentiality of information obtained during the medical examination. Do you require drug testing? Do your supervisors know what to do when reviewing performance issues for all individuals including those who may have a disability? What is the approach a supervisor should take if he/she does not know the individual may have a disability? Are your benefits programs (medical, hospital, accident, life insurance, retirement programs) in compliance? What about Workers Compensation? (There is a good article, "Shining Light on ADA" you might want to read (Pimental & Lotito, 1992)). Are lunchrooms, lounges, bathrooms, etc. accessible to all employees? Are your business social and recreation activities made accessible to all employees? Are all your program offerings accessible to all employees? Your assessment should be complete--when you read information in any of the guides or assistance manuals, write yourself notes and jot down questions. What are we doing now? What should we be doing? What could we be doing? 5. Review job descriptions ADA does not require employers to have written job descriptions. But most of the literature suggests that properly prepared job descriptions are critical in complying with the regulations. Job descriptions can be a valuable tool in the recruitment, selection, hiring, and accommodation assessments needed for successful programs. Job descriptions are a road map for supervisors, interviewers, medical staff, even applicants and employees throughout the employment process. The job description should be used prior to recruitment and posting. A copy should be given to applicants. The key is to articulate and understand what the essential functions of the job are. This will help in determining what accommodations can or cannot be made. 6. Develop budget requirements Yes, implementation of the ADA program will cost you money. But you don t necessarily need to look at program costs as a burden. The Job Accommodation Network has compiled information that reinforces the point that job accommodations may not be as cumbersome as some may suspect: * 31% cost nothing at all * 19% cost between $1 and $50 * 19% cost between $51 and $500 * 19% cost between $501 and $1000 * 11% cost between $1001 and $5000 * 1% cost more than $5000 It should also be noted that most individuals with disabilities do not require any accommodations. An employer must seek out assistance in paying for accommodations before it can "cry" undue hardship. The employer should work with the individual who needs the accommodation. Many times the applicant or employee already possesses the required accommodation and is willing to use it in the workplace. When developing a budget it may make sense to centralize funding for accommodations. Supervisors are likely to resist paying for accommodations and may say "it is too expensive." There are many factors developed by the EEOC that only the employer can analyze (not the specific supervisor) when determining "expense" and undue hardship. 7. Develop a process for making accommodations and determining undue hardship Your process for making accommodations must be on a case-by-case basis but within a structured system for making assessments. The EEOC s regulations and technical assistance manual provide in-depth information about the process for determining appropriate reasonable accommodations. They recommend a problem-solving approach or process which includes 1) analyzing the particular job (purpose and essential functions), 2) consulting with the individual with the disability and how limitations to his or her ability to perform essential job functions could be overcome with accommodations, 3) identifying potential accommodations (with use of external sources such as JAN, state or local rehabilitation agencies or from disability constituent agencies), 4)considering the preference of the individual, and 5) selecting the accommodation that is most appropriate for both the employee and the employer. Remember, "employment decisions must be based on the abilities of individual applicants or employees, and not on ... presumptions or generalizations about what individuals with disabilities can or cannot do."* Unlawful activities in making accommodations include restricting the duties of the employee based on what s best for the employee, having separate tracks for job promotions or progression, physically separating employees in a particular office or area. Be sensitive. Be sensible. 8. Develop training programs and manuals Training is key. Training is important at all levels of the organization. Not just interviewers. Not just hiring supervisors or administrators. But all employees. Why? ADA isn t just about a law to provide equal access to individuals with disabilities. It s about sensitivity, it s about looking at our behaviors and attitudes and making us realize we may be part of the problem in ensuring equal access--and making sure we are part of the solution in ensuring equal employment opportunity. 9. Review of collective bargaining agreements Your unions are also subject to the ADA regulations. You will want to work closely with them to ensure there is flexibility in the contracts to allow accommodations to be made if appropriate. The regulations suggest that the terms and conditions of a collective bargaining agreement may be used as a factor in determining whether an accommodation would be an undue hardship. However, you will want to look at all the factors and focus on good faith efforts with the union. The key is to fulfill the legal obligation to make reasonable accommodations for the employee. 10. Develop and implement a comprehensive communication program Communication vehicles need to be multi-faceted. Articles in your in-house newsletter won t do it. Training manuals for supervisors won t do it. You will want to make presentations (invite yourself to department meetings, don t expect people to come to you). Develop a plan that focuses on before, during and after implementation. Know that communication is ongoing, not just for the first six months after implementation. Like any program, it is only as good as what employees hear and know about the program. 11. Develop evaluation and monitoring tools Many of the articles and information suggest the need to document, document, document. By documenting what you are doing, you are showing your good faith efforts--appointment of a Task Force, communication of plans for implementation, etc. You will also want to develop a system for recording not only what accommodations have been made for whom but what attempts were made to make accommodations, including what resources you accessed in your attempts. And a system for indicating when accommodations were not made because of your interpretation of undue hardship. Documentation and evaluation are important components of any program, including your ADA plan and program components. Make sure your systems are in place early. Logs, files, documentation processes should start as soon as possible, not when you "start" the program. Conclusion Implementation of the ADA program for your organization will take time and effort. But taking the time on the front end (a proactive approach) to outline your plan is much more effective than reacting later to specific issues or problems. You can take the cautious approach, the insightful approach or the visionary approach. If employers are sensitive and programmatic in their implementation philosophy and plan, we will start to make some strides in equal employment opportunity for all individuals -- those with and those without disabilities. Resources ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TTY). Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). * From Lotito, M.J., Esq. with Jones, Craig, & Pimental, R. with Baker,L. (1990). "The Americans with Disabilities Act: Making the ADA work for you." Milt Wright & Associates, Inc./Jackson, Lewis, Schnitzler & Krupman, page 23. This brochure was written by Kay N. Robinson, SPHR, Assistant Vice Chancellor for Business Affairs - Human Resources, University of North Carolina at Wilmington, North Carolina. This publication is taken from a more extensive review of the topic entitled "A Model Plan for Implementation of Title I of the Americans with Disabilities Act of 1990: The Human Resource Perspective," which is currently available for purchase from your Regional Disability and Business Technical Assistance Center at 1-800-949-4232, or from LRP Publications (specify Product #31015.PLAN, 24 pp., $9) at Dept. NIDRR, PO Box 908, Horsham, PA 19044-0980, phone 1-800-341-7874, Fax 1-215-784-9639. -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- THE ADA AND PERSONNEL TRAINING What is the Americans with Disabilities Act? The Americans with Disabilities Act (ADA) is a landmark piece of Civil Rights legislation that extends the prohibition against discrimination on the basis of race, sex, religion, and national origin to persons with disabilities. Because the ADA covers all aspects of participation in society, such as employment, public accommodations, transportation, and telecommunications, its impact will be felt in business organizations in multiple ways. Businesses will be impacted by the ADA both as employers and as providers of goods and services. It is therefore important that each business organization prepare its employees for the Americans with Disabilities Act by providing appropriate information and personnel training on the provisions of the ADA, its relevance to the functioning of the organization as a whole, and the responsibilities of specific personnel. Which personnel in our organization should receive training on the ADA? Since the impact of the ADA is broad, virtually everyone in your organization might find informational material or training on the ADA relevant for their respective functioning. General information could be useful to all employees, informing them of their rights under the ADA. Employers should consider a number of personnel who may benefit from ADA training both in terms of ensuring that their efforts are in compliance with the ADA, and to ensure that their response to persons with disabilities in their respective functioning is appropriate. Personnel categories which can be considered for training are as follows: training or staff development personnel; human resource development professionals; top management; middle managers; front line supervisors; line employees; union leadership and field representatives; benefits and compensation staff; safety and environmental health personnel; recruitment and job interviewing personnel; industrial/organizational psychologists or other personnel doing pre-employment screening; organizational development personnel; ergonomic specialists; short and long-term disability managers; customer relations representatives; receptionists and others who interface with the general public. Which kinds of information on the ADA should be shared with these personnel? Most personnel can benefit from some basic knowledge about the existence of the law and its requirements. More specific information should be directly relevant to the functioning of these personnel and their responsibilities, which might be impacted by the requirements of a particular provision of the ADA. The following are some examples of personnel training that can be considered and targeted to meet the unique information needs of personnel, dependent upon their job functioning: * Overall knowledge of all titles of the ADA * Knowledge specific to the ADA employment provisions * Knowledge specific to the ADA public accommodations provisions * Employment pre-screening and applicant interviewing under the ADA * Medical, drug, and other testing under the ADA * Interface of the ADA with other state and federal employment and non-discrimination legislation * Identifying essential job functions * Writing job descriptions that identify essential job functions * The reasonable accommodation process * General information regarding specific disabilities an possible accommodations * Job evaluation and compensation information and persons with disabilities * Career equity/promotional considerations for persons with disabilities * Reskilling when disability occurs * Non-discriminatory performance appraisals * The impact of the ADA on accommodation requirements in personnel training * Customer relations with customers with disabilities * Data/record keeping on accommodations * Negotiation/conflict management in the reasonable accommodation process * The place of job coaching and/or supportive employment in the reasonable accommodation process Selected topics, such as specific accommodations for persons with particular disabilities may be best presented by coupling the information of an instructor familiar with the ADA, with that of a professional with expertise on accommodation for such persons. Some examples of these professionals might be an ergonomist, physical or occupational therapist, rehabilitation counselor, supported employment specialist, mental health or drug and alcohol abuse therapist/counselor, or rehabilitation engineer. Other topics which may not directly relate to the requirements of the ADA, but may support the intent of the ADA are training in such topics as: attitudes toward persons with disability; disability as a facet of cultural diversity; effective disability management; prevention of disability; and effective recruitment of persons with disabilities. The above list is not exhaustive, but representative of many content areas which can be considered for effective information sharing and staff development on the provisions of the Americans with Disabilities Act of 1990. Specific content should be targeted toward the job responsibilities of personnel receiving the training. Where is a good place to start a training effort on the ADA? As previously mentioned, personnel at all levels of an organization might benefit from ADA information and training. Getting the support and commitment from top management is an imperative place to start for any such effort. It is important for any such information dissemination initiative to be seen as a company-wide commitment for a real impact to occur. In larger companies, where human resource professionals are the personnel chiefly responsible for employee recruitment, interviewing, pre-employment screening, benefits, compensation, and training, this department may be the appropriate place to focus initial information dissemination efforts. It would also be useful to include employee and labor relations personnel in this round of training. The next level of training in larger companies, and perhaps the first level of focus in smaller companies is that of managers. Some of the topics on the ADA employment provisions which can be targeted to the information needs of supervisors are as follows: pre-employment screening and ADA requirements; medical, drug, and other testing; writing job descriptions with essential job functions; the reasonable accommodation process; performance expectations and the person with a disability; and equal access for persons with disabilities to staff development and promotional opportunities. What are factors to consider for accessibility of training to persons with disabilities? The employment provisions of the Americans with Disabilities Act provides that no employer shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job training. This may mean that personnel trainers, to meet the accommodation needs of a trainee with a disability, could be required to make any of the following examples of possible modifications to address the need of a given individual: * Restructuring or simplifying training formats to accommodate trainees with cognitive impairments * Making training rooms wheelchair accessible * Brailling or audio-taping print materials * Providing a sign language interpreter or reader * Captioning videotape materials * Being aware of environmental irritants for chemically sensitive trainees * Advocating on behalf of a trainee for training held elsewhere, when an accommodation is needed for that individual Are there other related training responsibilities we should be considering? The ADA employment provisions also state that covered entities cannot use a third-party to discriminate on their behalf. Thus, employers should also consider the possible information needs on ADA requirements of organizations that they have contractual relationships with, for example, insurance companies, third party administrators of worker compensation or health care benefits, labor unions, or employee assistance programs. ADA Title I prohibits discriminating against a qualified individual with a disability in all terms, conditions, and privileges of employment, including health benefits. The ADA specifically prohibits participating in a discriminatory contractual or other arrangement with organizations that provide fringe benefits to employees. The union steward is the person in the union with whom each member may have direct contact -- to whom s/he brings his/her problems and grievances, from whom s/he gets information, and who s/he generally sees everyday on the job. The shop steward can serve a role in information dissemination on the ADA. It is at this level that information about the ADA can be shared with union membership on such topics as the union's role in informing the workforce about non-discrimination of persons with disabilities in the workplace and the reasonable accommodation process. There are a number of topics related to the ADA employment provisions which may have relevancy to the functioning of Employee Assistance Program (EAP) professionals. The prior focus of EAP professionals has been on service to persons who have alcohol and drug addiction problems; certainly these individuals may be persons who are covered by the employment provisions of the Americans with Disabilities Act of 1990. Therefore, providing EAP professionals with information about categories of covered entities under the ADA, and their rights in terms of non-discrimination in employment practices is most important. In addition, persons with disabilities of other kinds may also seek support from EAP professionals to assist them through the difficult times they incur when a disabling condition or serious illness impacts their work and day to day life functioning. EAP professionals may be the support counseling system for business organizations, and therefore providing EAP professionals with information about the impact of disability, and the rights of persons with disabilities is most appropriate. Where can I get further resources to conduct training on the Americans with Disabilities Act? Many private commercial distributors and not-for-profit organizations have now developed informational and training materials on the ADA. A comprehensive listing of print and audio visual materials on the employment provisions of the ADA is provided in the expanded version of this paper available through your local Disability and Business Technical Assistance Center or LRP Publications, as listed on page one of this informational brochure. In addition, listings of resources and copies of publications and video tapes are available from your local Disability and Business Technical Assistance Center; call 1-800-949-4232 to request such a list. A complete listing of products and training packages produced by the National Materials Development Project on the ADA Employment Provisions at Cornell University is available either from the Program on Employment and Disability in the School of Industrial and Labor Relations at (607)255-7727, or also from your regional disability and business technical assistance center as listed above. Further resources on the Employment provisions of the ADA are available from the following: Job Accommodation Network (JAN), 800/526-7234, West Virginia University, P.O. Box 6080, Morgan-town, West Virginia 26506-6080. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). ADA Regional Disability and Business Technical Assistance Center Hotline, 800/949-4232 (voice/TTY). -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- THE AMERICANS WITH DISABILITIES ACT OF 1990 AND INJURED WORKERS What is the Americans with Disabilities Act? The Americans with Disabilities Act of 1990 is civil rights legislation that extends to persons with disabilities the same protection against discrimination that has been in place for other persons on the basis of race, sex, religion, and national origin. The ADA covers all aspects of participation in society--employment, public accommodations, transportation, and telecommunications. The employment provisions of the Americans with Disabilities Act (Title I) prohibit discrimination against persons with disabilities in all facets of employment, including: recruitment, pre-employment screening, hiring practices, promotional practices, and layoffs and terminations. Employers, human resource professionals, and labor union representatives need to be aware of the requirements of the ADA in order to respond appropriately to accommodation requests by workers with disabilities. Is there a relationship between the ADA and injured workers? The employment provisions of the ADA became effective on July 26, 1992. Private employers, state and local governments, employment agencies, labor unions, and joint labor-management committees must comply with Title I of the ADA. Covered employers are those who have 25 or more employees (July 15, 1992) or 15 or more employees (July 15, 1994), working for them for 20 or more calendar weeks in the current or preceding calendar year. The definition of "employer" includes persons who are "agents" of the employer such as managers, supervisors, foremen, or others who act for the employer, such as agencies used to conduct background checks on candidates. Therefore, the employer is responsible for actions of such persons that may violate the law. In the first year of the implementation of these provisions, almost 13,000 charges have been filed with the Equal Employment Opportunity Commission, that branch of the federal government that oversees compliance with the employment provisions of the ADA. The ADA violations most often alleged in these complaints in the first year, have been wrongful discharge (49%) and failure to provide reasonable accommodation (22%). The most often cited disability where discrimination has been charged is in back impairments (19%). These figures suggest that people already in the workforce who incur an illness or injury are using the coverage of the ADA to seek protection against discrimination. The areas which employers and workers should consider when trying to identify whether an issue for an injured worker is one that is relevant to coverage by the Americans with Disabilities Act are the following: whether the employee is one who is covered under the ADA, medical examination and medical inquiries under the ADA, confidentiality of medical records, and accommodation of injured workers. Is an injured worker automatically covered under the ADA? Whether an injured worker is protected by the ADA will depend on whether or not the person meets the ADA definitions of "an individual with a disability" and "qualified individual with a disability." For purposes of the ADA, a person with a disability is one whose physical or mental impairment substantially limits one or more major life activities of that individual, or the person has a record of such an impairment, or is regarded as having such an impairment. The key factor under this definition is that the person is substantially limited in his or her major life functioning. However, as the expanded definition indicates, a person who may no longer be experiencing this serious disability, but is discriminated against based on the history of that disability or the perception of being disabled, may also e a person protected under the ADA. Another important facet of definition under the ADA is the concept of the person being qualified for the job. The ADA protects an employee or job applicant who meets the applicable qualification standards and is able to perform the essential functions of the job, with or without the employer making a reasonable accommodation for that disability. The fact that an employee is awarded workers' compensation benefits, or is assigned a high workers' compensation disability rating, does not automatically establish that this person is protected by the ADA. Does the ADA change anything about my ability to find out about a worker's prior workers' compensation history? An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may ask about a person's workers' compensation history in a medical inquiry or examination that is required of all applicants in the same job category. An employer may not require an applicant to have a medical examination simply because the response to a medical inquiry discloses a previous on-the-job injury, unless all applicants in the same job category are required to have the examination. What does the ADA say about pre-employment medical examinations? Under the ADA, it is illegal to conduct medical exams prior to an employment offer. However, a covered entity may require a medical examination after making an offer of employment to a job applicant before beginning his or her employment duties, and may condition an offer of employment on the results of such examination, if all entering employees in the same job category are subjected to such an examination regardless of disability. If the employer withdraws a job offer because the medical examination reveals that the person does not satisfy certain employment criteria, the employer must be able to show that: * the exclusionary criteria does not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities; or * the exclusionary criteria is job-related and consistent with business necessity, and that there is no reasonable accommodation that will permit the individual with A disability to perform the essential functions of the job. With whom can medical records be shared? Information obtained from permitted medical examinations and inquiries is a "confidential medical record," and shall be collected and maintained on separate forms and in separate medical files. Access to the file and the information contained in it must be strictly limited and disclosed only under the following circumstances: * supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; * first-aid safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and * government officials investigating compliance with this chapter shall be provided relevant information on request. What is reasonable accommodation under the ADA? A critical concept in the employment provisions (Title I) of the Americans with Disabilities Act of 1990 (ADA) is that of reasonable accommodation. Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate in and enjoy an equal employment opportunity. The employer's obligation to provide a reasonable accommodation applies to all aspects of employment; the duty is ongoing and may arise any time a person's disability or job changes, unless the accommodation causes an undue hardship to the employer. An undue hardship is an action that requires significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation. An employment opportunity cannot be denied to a qualified applicant or employee solely because of the need to provide reasonable accommodation. If the cost of the accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would otherwise constitute an undue hardship for the employer. The ADA does not require an employer to create "light duty" positions unless the "heavy duty" tasks an injured worker can no longer perform are marginal job functions which may be reallocated to co-workers as part of the reasonable accommodation of job restructuring. An employer is not required to reallocate essential job functions when restructuring a job. However, if an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. Does filing a workers' compensation claim prevent an injured worker from filing a charge under the ADA? Filing a workers' compensation claim does not prevent an injured worker from filing a charge under the ADA. "Exclusivity" clauses in state workers' compensation laws bar all other civil remedies related to an injury that has been compensated by a workers' compensation system. However, these clauses do not prohibit a qualified individual with a disability from filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC), or filing a suit under the ADA, if issued a "right to sue" letter by the EEOC. Where can I go to get more information on these issues? The following are national resources available to you that will provide you with further information on the employment provisions of the Americans with Disabilities Act of 1990 and reasonable accommodation: ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). This publication was written by Susanne M. Bruyere, Ph.D., C.R.C., Director, ILR Program on Employment and Disability, Cornell University, 106 ILR Extension, Garden Avenue, Ithaca, New York 14853-3901, 607/255-7727 (voice) or 607/255-2891 (TTY). This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. OTHER TITLES IN THIS IMPLEMENTING THE ADA SERIES ARE: * Working Effectively with Persons who have Cognitive Disabilities * Employment Considerations for People who have Diabetes * Working Effectively with People who are Blind or Visually Impaired * Working Effectively with Employees who have Sustained a Brain Injury * Workplace Accommodations for Persons with Musculoskeletal Disorders * Employing and Accommodating Workers with Psychiatric Disabilities * Working Effectively with Individuals who are HIV-Positive * Working Effectively with People with Learning Disabilities * Accommodating the Allergic Employee in the Workplace * Employing and Accommodating Individuals with Histories of Alcohol and Drug Abuse * Causes of Poor Indoor Air Quality and What You Can Do About It * Working Effectively with People who are Deaf or Hard of Hearing For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TTY), or 607/255-2763 (Fax). ---------- THE AMERICANS WITH DISABILITIES ACT AND WORKERS' COMPENSATION: CRITICAL ISSUES AND MAJOR EFFECTS by Bruce S. Growick, Ph.D. and Patrick L. Dunn, M.S. The Ohio State University Cornell University, School of Industrial and Labor Relations National Institute on Disability and Rehabilitation Research This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations, Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed by the U.S. Equal Employment Opportunity Commission. Opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the authors and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and in its Technical Assistance Manual for Title I of the act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). You should be aware, however, that NIDRR is not responsible for enforcement of the ADA. The information, materials, or technical assistance are intended solely as informal guidance and are neither a determination of your legal rights or responsibilities under the Act nor binding on any agency with enforcement responsibility under the ADA. LRP Publications, Horsham, Pennsylvania Abstract The Americans with Disabilities Act (ADA) was signed into law by President Bush in 1990 and is having widespread impact on disability-related issues in America. It will continue to have an impact on the workplace for many years to come. The purpose of this paper is to examine the connection between the ADA and workers' compensation. Several areas of critical importance are examined for their impact on workers' compensation in America today: the differences in definition and coverage between the ADA and workers' compensation; workers' compensation inquiries on job applications and second injury funds; appropriate medical pre-screening in light of the ADA; the injured worker and health care benefits under the ADA; employer-based disability manage-ment strategies and reasonable accommodation; the role of collective bargaining and unions under the ADA; and possible employers concerns about the ADA and its enforcement. Included in the discus-sion are ways in which these issues might be resolved and the full implementation of the ADA achieved. Convergence and Divergence in the Americans with Disabilities Act of 1990 and Workers' Compensation The Americans with Disabilities Act (ADA) was signed into law by President Bush in 1990 and is having widespread impact on disability-related issues in America, especially in the area of workers' compensation. The purpose of Title I of the ADA is to remove the barriers that prevent individuals with disabilities from enjoying the same opportunity for employment as individuals without disabilities. For the first time in the history of America, individuals with disabilities in all sectors of employment (not just the federal government and their contractors and grantees) are protected from discrimination and unfair employment practices at the national level. To the largest minority group in our society -- the 43 million Americans with disabilities -- the ADA is, in essence, an extension of the Civil Rights Act of 1964. Title I of the ADA incorporates many of the standards set forth in the regulations implementing Section 504 of the Rehabilitation Act of 1973 and in the case law interpreting these regulations. It has been sufficiently documented that the unemployment rate of individuals with disabilities is currently about 66% while the unemployment rate of their non-disabled peers is only 10-15% at most (Harris, 1986). The high unemployment rate among people with disabilities results in a drain on our national resources and represents an absence in our labor pool of the many individuals who want to contribute to our society. A significant goal of the ADA is to reduce the unemployment rate of individuals with disabilities and thereby to reduce the amount of social supports provided to individuals who would not otherwise be able to care for themselves. Currently, approximately eight percent of our Gross National Product is allocated to subsidizing persons with disabilities. This means that about one dollar of the hourly pay of a citizen earning an average hourly wage is used for disability-related expenses (Harris, 1987). There are obviously strong monetary reasons for including as many individuals with disabilities in our workforce as possible. The overall intent of Title I of the ADA to increase the employment rate of persons with disabilities and their integration into society through greater accessibility and employment is important. However, it is also likely that Title I may have its greatest impact on disabled individuals who want to return to work after a work-related injury, rather than on individuals with disabilities who would be entering the workforce for the first time. Even though much debate was involved in drafting the ADA (11 congressional hearings and five committee markup sessions), workers' compensation was apparently not considered. There perhaps may be some reason for this apparent oversight. First of all, in order for persons with a disability to be covered under the ADA, they must be a "qualified individual" with a disability, defined in Title I of the ADA as: "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires". Employees injured on the job must meet the definition of a "qualified individual with a disability" to gain the protections of the ADA. Some individuals receiving workers' compensation, however, may not meet this definition and therefore would not be covered under the ADA. The separate protections afforded employees under workers' compensation laws and the ADA may have contributed to the lack of discussion of workers' compensation issues in the legislative history of the ADA. It is not surprising that the Equal Employment Opportunity Commission (EEOC), which has enforcement responsibility for Title I of the ADA, reported that, in the first two years that the employment provisions have been in effect (July, 1992 to July, 1994,) over 80% of the complaints (over 33,000 in all) filed under the ADA were done so by current employees rather than by applicants. These complaints include unlawful discharge (50%), unwillingness to make a reasonable accommodation (24%), and discrimination in other terms, conditions, or privileges of employment (17%). Furthermore, it is interesting to note that, according to the EEOC, the most common type of disabling condition being reported is back impairment. Back injuries are also the most common type of disability reported in claims of workers' compensation (ADA Compliance Guide, 1993). The overlap between coverage under the ADA and coverage under state workers' compensation laws is of potential importance to the workers' compen- sation system. When workers' compensation was developed in 1910 as the "exclusive remedy" for work-related injuries and illnesses, the control for the design, implementation, and maintenance of the system-within broad guidelines-was given to the states. Each state was responsible for the development and articulation of its own system for protecting both employees and employers from the litigious aspects of injuries "occurring in and out of the course of employment" (DeCarlo & Minkowitz, 1989). Workers' compensation protects employers from further liability and costly civil suits. At the same time, it provides employees with weekly monetary compensation, with the medical care necessary to cure and relieve the effects of the "allowed" condition, and, in most states, with rehabilitation services designed to help injured workers return to employment. The workers' compensation system has been operating at the state level in this country for the last 80 years and has kept work-related injuries and illnesses out of the civil (tort) system with little interference from the federal government. However, through the provisions of the ADA, persons with disabilities resulting from work-related injuries may sue employers when the workers' rights against disability discrimination have been violated. >From an employer's perspective, some provisions of the ADA may be advantageous. Costs related to disability can, in some cases, be extreme, and the ADA can help to reduce some of these costs. This is especially true if the disability is work-related and related to a valid workers' compensation claim. In 1986, employers across the country paid 87.3 billion dollars in compensation to people who couldn't work because of physical or mental impair-ments (Chelius, Galvin, & Owens, 1992). If medical, rehabilitation, and administrative expenses are added, the total for disability-related expenses to employers was almost 170 billion dollars, or approximately 4% of the GNP. On the average for most employers, disability costs approximately 8% of payroll, of which 4% are direct costs, 3% are hidden costs, and 1% are management costs. A more detailed discussion of the benefits of disability management programs to employers can be found later in the section entitled under the section entitled Employer-Based Disability Management Strategies and Reasonable Accommodation. Employers have so far indicated that they are most concerned about the effects of the ADA on workers' compensation. In 1991, Gilbride and Strenstrud from Drake University contacted 110 employers from 15 states and asked them about their perceptions and concerns surrounding the implemen-tation of the ADA (Gilbride & Stensrud, 1993). Out of 10 areas of concern (including hiring practices, job restructuring, and productivity), the impact of the ADA on workers' compensation was ranked eighth in importance. When the survey was again con-ducted in 1992, this same issue ranked first. This finding may suggest that, as the authors state, "employers did not initially recognize the full implications of the ADA upon the manner in which their companies needed to manage and respond to injured workers." Now that we have examined the relevance of the ADA to workers' compensation, it is equally important to examine some of the critical issues and major effects that the ADA will have on workers' compensation. Seven very important issues or factors will have profound effects on how the ADA impacts workers' compensation. These are (1) the differences in coverage between the ADA and workers' compensation; (2) workers' compensation inquiries on job applications and second injury funds; (3) the role of the medical exam in a post-ADA era; (4) health care benefits under the ADA as they affect the injured worker; (5) the role of collective bargaining and unions under the ADA; (6) employer-based disability management strategies and reasonable accommodation; and, finally, (7) the concerns of employers about the ADA and its enforcement. Difference in Coverage between the ADA and Workers' Compensation Before the full impact of the ADA is felt on the workers' compensation system in America today, the difference between the ADA and workers' compen-sation on the definition of who is eligible for coverage and what that protection entails needs to be clarified and resolved. This issue is perhaps the most important concern to employers, and its resolution must precede many other issues. Under the ADA, an individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. The ADA prohibits discrimination on the basis of disability against qualified individuals with disabilities. The regulations define a "qualified" individual with a disability as a person with a disability who "satisfies the requisite skill, experience, education, and other job- related require-ments of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position" (EEOC, 1992). Like other determinations under the ADA, deciding who is a "qualified" individual is a case-by-case process, depending on the circumstances of the particular employment situation. This process of individual determination is quite different from the way in which the workers' compensation system operates. Under workers' compensation in most states, all injured employees are covered as long as the injury occurs "out of and in the course of employment" (DeCarlo & Minkowitz, 1989). Therefore, an individual who is injured on the job but is not disabled can be covered under workers' compensa-tion but not under the ADA; conversely, a person who is severely injured away from work might be covered under the ADA but not under workers' compensation. This difference in coverage is highlighted by the EEOC's Technical Assistance Manual on the Employment Provisions (Title I) of the ADA wherein it states: "the fact that an employee is awarded workers' compensation benefits, or is assigned a high workers' compensation disability rating, does not automatically establish that the person is protected by ADA." In Figure 1, the two concentric circles which do not completely overlap show the differences in coverage between the ADA and workers' compensation. For example, an employee might sustain a serious work-related injury (such as an amputation) which may qualify the individual for coverage under both the ADA and workers' compensation (segment C); however, if a work-related injury (such as a laceration) is not serious enough to be covered under the ADA (segment A), or if a serious injury covered by the ADA as a disability is not work-related (segment B), then only one of the laws may be applicable. Coverage underCoverage underCoverage under Workers' both ADA only Compensation ADA and WC A CB a work-related a work-related injurya non-work-related injury or illness or illness that resultsimpairment that or any severity in a substantial limitationthat results in a of a major life activitysubstantial limitation of a major life activity Figure 1. The Difference in Coverage Between the ADA and Workers' Compensation It is important to note here that under the ADA, an impairment substantially limits a major life activity when 1.the individual is unable to perform a major life activity that the average person in the general population can perform with little or no difficulty; or 2.the individual is significantly restricted as to the condition, manner or duration under which an individual can perform a particu-lar major life activity as compared to an average person. Factors to consider in determining whether an individual is "substantially limited" in a major life activity are 1.the nature and severity of impairment; 2.the duration or expected duration of the impairment; and 3.the permanent or long-term impact, or expected permanent or long-term impact (EEOC, 1992). Situations in which an injured employee is covered under both the ADA and workers' compensation may be referred to as examples of double protection under both sets of legislation. In these situations, the settlement of a workers' compensation claim through a compromise and release agreement does not necessarily release an employer from obligations to that employee under the ADA. As part of the exclusive remedy doctrine of workers' compensation, when an employee has filed a workers' compensation claim, the liability arising from that accepted claim is not resolved until the employee returns to work or a settlement of that claim has been made. This settlement is commonly called a "compromise and release." With the passage of the ADA, employers released from their work-related liability under a workers' compensation settlement are concerned that they will be sued in civil court because of their apparent failure to consider reasonable accommodation and other means to retain injured workers. The potential penalties faced by employers found to be in violation of Title I of the ADA are identical to those levied for violation of Title VII of the Civil Rights Act of 1964 as amended in 1991 (EEOC, 1992). These penalties include: ..equitable relief, including injunctions against discrimination, the provision of a reasonable accommodation, reinstatement and back pay[1]. ..attorneys fees for the prevailing party. ..money damages (i.e., compensatory and punitive damages) and jury trial available for intentional discrimination only. ..punitive damages available for when an employer acts with malice or reckless disregard for federally-protected rights. ..compensatory and punitive damages capped depending on the number of employees, as follows: a. 15-100 employees:$ 50,000 cap b.101-200 employees:$100,000 cap c.201-500 employees:$200,000 cap d.500+employees:$300,000 cap Concern about this double protection is based on the possible scenario that an injured employee settles a workers' compensation claim with an employer and then files an ADA claim if the employer does not attempt reasonable accommo-dation that would allow the employee to return to work. While most state laws prohibit terminating workers for filing and collecting a workers' compensation claim, statistics show that relatively few workers actually return to work for the same employer after accepting a compromise and release, especially if the settlement involves litigation. The ADA gives workers who have been disabled by a work-related injury the opportunity to settle a workers' compensation claim and also enables them to demand the opportunity to return to work if he or she can perform the essential functions of the job, with or without an accommodation. Although compromise and release stipulations are used every day by employers and insurance companies, workers' compensation should also be concerned with helping a person return to and maintain employment regardless of work-related restrictions caused by an accident. The compromise and release agreement, which previously allowed employers to totally divorce themselves of further liability to an injured worker, may not now be a universal solution. These agreements do not release an employer from obligations to employees covered under the ADA. Employers are required to return a disabled worker to employment when the employee so requests and can perform the essential functions of the job with or without reasonable accommodation. Reassignment to a vacant position may also need to be considered if the employee cannot be accommodated in his current position. In a mock ADA trial held at the 1993 annual meeting of the National Association of Rehabilitation Professionals in the Private Sector (Ellis, 1993), a workers' compensation/ADA case was presented to a jury wherein an injured employee was suing an employer under the ADA. The person was an employee disabled by a work-related injury who needed an accommodation in order to return to his/her old job. The employer spent a great deal of money on an extensive rehabilitation plan including retraining for another job, without offering a reasonable accommodation so that the injured employee could return to his/her former job. The jury found in favor of the plaintiff, since the employer had not attempted to accommodate the injured worker even though indemnity, medical, and rehabilitation payments had been made over a three- year period. It is clear from this example that employers must allow employees with a disability to return to work if he/she can perform the essential functions of the job, with or without reasonable accommodation, regardless of payments previously made under workers' compensation. This additional responsibility for employers should not only reduce the number of lump sum settlements, but should also help disabled workers from becoming disenfran-chised from the work place and from later relying on other social support systems. Research has shown that most injured workers who settle their compensation claims spend most of their money within three years of settlement. Many of these individuals are supported eventually by other social systems, such as social security, unemployment insurance, and even public welfare. Even though double protection may be frightening to some employers, its effect may help employers to save money and employees to save their jobs. Job Applications and Second Injury Funds One of the major goals of disability advocates under the ADA is to change the way in which the employer views the applicant with a disability from the onset. In order to accomplish this goal, application forms for employment must now omit questions related to disability and workers' compensation history. Employers may ask questions about an applicant's qualifications, including inquiries into the applicant's ability to perform job-related functions. However, nonessential marginal functions of the job which the applicant cannot perform because of his disability can no longer be used as a basis for refusing employment. Prior to the passage of the ADA, it was a common practice to include a list of common illnesses and disabilities on job applications, with the applicant asked to indicate all that applied. In addition and most notably, these job applications also contained questions that asked job applicants about previously filed workers' compensation claims, including when and where the claim was submitted and on what medical condition the claim was allowed. It is obvious that the purpose of these questions was to screen out applicants who had a disability or who had a history of submitting workers' compensation claims. The apparent assumption here is that individuals with disabilities were poor job candidates regardless of the ability to perform the essential functions of the job, with or without an accommodation. Furthermore, if an individual had submitted a workers' compensation claim, s/he was assumed to be a bad risk for employment. Individuals with disabilities are now evaluated by their ability to perform job functions, rather than by an employer's misconceptions concerning disability and workers' compensation history. It is also important to note that the ADA requirement does not negate the positive effects of a second injury fund in workers' compensation. Currently, 46 states maintain a second injury fund in workers' compensation for this purpose (Alliance of American Insurers, 1994). Second injury funds in workers' compensation are established so that employers who hire a person with a previously sustained work-related limitation are not liable for compensation associated with injuries sustained while working for previous employers. (Eccleston, 1992). The purpose of a second injury fund is "to encourage the employment of [persons] who have a permanent partial disability by protecting employers and insurers from excess liability for workers' compensation for disability when a subsequent injury to such an employee merges with his [or her] pre-existing permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone." (La. Stat. Ann.-R.S. 23-1371A). If an employee suffers further injury where the pre-existing condition is wholly responsible for the work-related injury or illness, then all of the costs of the subsequent claim are absorbed by the second injury fund. In such cases, not only are the direct costs paid for, but these costs are also not charged to the account of an experience-rated employer (an employer whose premium is based upon the number of accidents.) Second injury funds are important to rehabilitation because, without them, the re-employment of injured workers would be difficult, if not impossible. The incentives for hiring a skilled worker who has sustained an injury yet who has been rehabilitated would be outweighed by the potential workers' compensation liabilities. A healthy and viable second injury fund in workers' compensation is an absolute prerequisite for an efficient industrial rehabilitation program in any state. For the employer, second injury funds restore balance to the workers' compensation system of reasonable liabilities; for the employee, they provide opportunity for re-employment regardless of prior losses, and for the rehabilitation professional, they remove a barrier to job placement endeavors that would otherwise thwart the best of intentions. Second injury funds are an excellent example of good policy making in workers' compensation. Most importantly, the positive effects of a second injury fund are not negated by the ADA. Employers can make disability-related inquiries, including inquiries about any pre-existing condition and/or about previous workers' compensation claims, after a conditional offer of employment has been made. However, an employer must ask these questions only in a medical examination or other inquiry that is required of all applicants in the same job category. In addition, this information must be kept in a separate and confidential medical file. Once this information has been obtained, it can be forwarded to an insurance company or the state's second injury fund so that an employer may exercise the right to limitations on their compensation premiums. Accordingly, employers can still benefit from the knowledge that an employee has a previous workers' compensation claim through the second injury fund, even though this information cannot be used in deciding whether to make a contingent offer of employment. Role of the Medical Exam in a Post-ADA Era In workers' compensation, when a claimant's medical condition has stabilized and become permanent (i.e., the medical condition will not get worse, and the claimant's restrictions are permanent), an employer will often schedule an injured worker for a medical examination. The primary purpose of this medical examination is to determine whether or not the injured worker has reached maximum medical improvement (MMI) and can return to a former job or to remunerative work. In many states, when a claimant has reached MMI, s/he can be required to settle the claim and return to work. Unfortunately, most workers' compensation laws do not require the employer to consider a job modification or work site accommodation as part of a MMI assessment, though such action is often suggested. In essence, the medical examination determines medical stability and permanence, not physical capabilities or transferability of skills. Thus, there is a difference between the ADA and workers' compensation as to how the documentation and accommodation of existing disabling conditions are to be approached. The primary purpose of the medical exam in workers' compensation is to document and justify either the existence of a work-related injury for compensability or for the purpose of termination of benefits. Beyond the determination of whether or not benefits should be denied or curtailed when MMI is reached, the traditional medical examination in workers' compensation is primarily geared towards substantiating or denying the extent of physical impairments according to the specific guidelines of the American Medical Association (AMA). With the passage of the ADA, the medical community must now incorporate into the medical exam a means of determining whether or not the worker disabled by a work-related injury can perform the essential functions of the job, with or without a reasonable accommodation. If the worker with a disability cannot return to the pre-injury occupation, then the physician under the ADA must play a role in determining how to return the employee to produc-tive work. The employer, however, bears the ultimate responsibility for deciding whether or not the individual is qualified for another position, with or without reasonable accommodation. The best way to determine what tasks an individual is able to perform is to conduct a physical capacities examination (PCE) in conjunction with an MMI examination. The findings of a physical capacities exam can help determine which jobs or group of jobs an individual is able to perform. The philosophical and procedural difference between a MMI exam in workers' compensation and a PCE in a post-ADA era is that the medical exam is to be used to determine what an injured worker is able to do, rather than to determine the presence and extent of physical limitations according to AMA guidelines. For a more in-depth description of how rehabilitation personnel determine transferability of skills and the use of a PCE in this process, see Dunn, Finch & Growick (1992). Health Care Benefits Under the ADA and the Injured Worker One of the more problematic areas of the ADA and its relationship to the injured worker is in the delivery of health care benefits. Decisions about the employment of an individual with a disability cannot be motivated by concerns about the impact of the individual's disability on the employer's health insurance plan. Moreover, the ADA requires nondiscrimination on the basis of disability in the provision of health insurance to employees. However, the fundamentals of this requirement are complicated by the fact that the ADA does not mandate employers to provide health insurance that will cover all of the medical conditions of their employees. Under the ADA, pre-existing condition clauses that exclude from coverage the treatment of conditions that pre-date an individual's eligibility for benefits under that health insurance plan are not disability-based insurance distinctions and therefore do not violate the ADA. For the injured worker who is returning to work, the availability of health care coverage is a very important factor to consider. If an individual's health care coverage is not guaranteed upon returning to work, the injured worker may reject the offer of employment. (Hanson and Watson, 1993).[2] For the injured worker, it is paramount that the same coverage be extended for medical needs upon return to work as when disabled and receiving workers' compensation. This is a persistent dilemma. Employer-based Disability Management Strategies The concept of reasonable accommodation is another critical issue in the implementation of the ADA (McMahon & Shrey, 1992). In effect, this means that employers must be willing to explore ways in which the workplace can be modified to accommodate injured employees who have substantial limitations on a major life activity, regardless of whether or not these limitations were produced by a work-related injury. In other words, employers will no longer be able to deny an employment opportunity to an otherwise qualified employee with a disability simply because that employee has not completely recovered from the injury. Many companies have included in their personnel handbook the requirement that employees must be capable of performing 100% of their job duties without any consideration of worksite accommodation before they will even be considered for return to work. This standard employer practice is now illegal for individuals with a disability. Employers are now obliged by the ADA to reinstate disabled employees with restrictions once they are medically stable and capable of performing the essential functions of a job, with or without a reasonable accommodation. Employees, then, cannot be refused consideration for employment simply because they are not functioning at 100% of vocational capacity. Since employers will now have to attempt accommodation of disabled workers with restrictions, as long as the accommodation doesn't impose an undue hardship, transitional work centers or specified, limited-duty jobs become more important to employers. Transitional work, according to Shrey and Olsheski (1992), is any job or combination of tasks and functions that may be performed safely and with remuneration by an employee whose physical capacity to perform functional job demands has been compromised. Because employers are now obligated to engage in a dialogue with qualified employees, including workers who are not at 100% capacity, with restrictions concerning work they are able to perform, employers should consider developing transitional work. This would not only save money on workers' compensation claims but would also help accommodate workers who have permanent restric- tions. For example, the Owens-Illinois Company in Columbus, Ohio, has recently developed a transitional work center (TWC) which has helped this company reduce its workers' compensation costs and has assisted in compliance with the ADA (Growick & Olsheski, 1993). A joint labor/ management committee developed a formal policy and procedures manual for the TWC which outlines how employees who are injured either on or off the job can access the TWC. This manual also describes the work to be performed in the TWC and discusses issues such as length-of-stay, remuneration, and return to regular duty. Another tool of rehabilitation professionals in fighting the war against escalating workers' compensation costs is now the added incentive of establishing a mechanism by which employers can also abide by their legal responsibilities under the ADA. Whereas most transitional work centers were developed to contain and even lower workers' compensation costs, now modified- or limited-duty jobs can also be a means of developing accommo- dations for workers with a disability who want to return to work. It is important to remember in this discussion of light duty and transitional work programs that employers are not under an ADA obligation to create a light-duty position for a disabled worker. However, when a vacant job that is within the disabled workers' physical capacities and qualifications exists, it may be a reasonable accommodation to reassign the worker to the position. In addition, if the heavy-duty portions of a position are marginal functions and are outside of the injured workers's physical capacities, the employer must consider reallo-cating such functions to co-workers as part of the reasonable accommodation of job restructuring. Unions seldom disagree with or attempt to disrupt the establishment of transitional work programs as long as they are involved in their establishment and operation and the jobs created in the transitional work center do not displace regular employees or take work away from contracted positions. Role of Unions and Collective Bargaining Under the ADA The role that unions will play in the implemen-tation of the ADA is an area which has also been debated since the passage of the ADA (Bruyere, 1993). One of the cornerstones of the union movement is adherence to seniority in the employment process. This foundation of union involvement in the return-to-work process for injured workers, however, poses a threat to the flexibility which employers must have in order to comply with the ADA. When an employer is considering reassigning a returning employee with a disability, it may be necessary to take into account the seniority of that employee before making an accommodation for a job that would otherwise go to a more senior employee. Therefore, unions should play a very important role in establishing the policies and procedures by which employers help accommodate injured workers who are transferring to other jobs upon return to work. The flexibility of union stewards will be equally important in developing ways in which employees who have been impacted by injury can return to work and again become productive members of society as well as dues-paying union members. For example, a woman in her mid-fifties who is injured on the job can no longer perform the essential functions of her former position even with the provision of a reasonable accommodation. She has requested, through her attorney, that the employer find another job that she can perform within her limitations. The employer states that, under the union contract, the employer's obligation to return her to her former job and shift persists for only two years following the date of injury. The union is reluctant to grant the employer the ability to accommodate this woman in any job other than the one she left because it would violate the union contract, as well as the National Labor Relations Act (NLRA). The employer and the union are uncertain as to what should be done. This example illustrates a potential conflict which can exist between the ADA and union negotiated labor contracts. EEOC regulations make clear that an employer is prohibited by the ADA from participating in a contractual relationship with a labor union that has the effect of discriminating against qualified individuals with a disability. However, the terms of a collective bargaining agreement may be relevant in determining whether a particular accommodation would impose an undue hardship on the employer. Moreover, most union contracts hold that employees cannot engage in "direct dealing with their employer" (Smith, 1992). To resolve these issues, two actions could be taken. First, union contracts should be modified to allow greater flexibility in accommodating injured workers, and second, joint labor/management disability committees should be formed to investigate, recommend, and negotiate reasonable recommendations, including those that violate seniority when necessary (AFL-CIO, 1992). Apprehensions of Employers concerning the ADA Some employers argue that because the ADA is complaint-driven legislation, it will cause unneces-sary litigation. They also maintain that compliance with the statute will be exceptionally costly. Such arguments make it necessary to review the purpose of the ADA, particularly Title I. As previously stated, the unemployment rate of individuals with disabilities who want to work is approximately 66%, and this unemployment is costing the nation billions of dollars each year. Before the ADA, individuals with disabilities who experienced discrimination had no opportunity for redress under federal law unless they were employed by the federal government or one of its grantees or contractors. That is why the ADA was passed resoundingly by Congress and signed by President Bush. Overall, the ADA is a well- balanced law that does not require quotas and elaborate affirmative action plans, yet it removes some of the barriers to employment that individuals with disabilities have experienced. Ideally, the ADA should prevent unnecessary social expenditures while supplying employers with eager and capable employees. In light of the protection the ADA affords an individual with a disability, many employers fear that such individuals will be the sole judge of the adequacy of an accommodation and that there is virtually no limit to what s/he can demand from an employer. The ADA does in fact limit the degree as to what can fairly be considered a reasonable accommodations by including the concept of "undue hardship" in the accommodation decision-making process. An undue hardship, according to the ADA, is an action requiring "significant difficulty or expense," when considered in light of the following factors: the nature and net cost of the accommoda-tion; the overall financial resources of the facility and the covered entity; the type of operation of the covered entity; and the impact of the accommodation upon the operation of the facility. Defining who has a disability is, of course, not as simple as defining sex, age, or race. The medical profession has identified over 900 separate and distinct disorders that can affect a person. For every bodily function or movement, there can develop a problem that can lead to a disability, which is why the ADA does not simply list the conditions that are covered. Moreover, the Department of Labor has identified over 12,000 distinct and separate jobs in our economy that people can be asked to perform. Thus, many determinations under the law must be made on a case-by-case basis. Of course, giving people with disabilities the right to request a reasonable accommodation does not necessarily mean that they are entitled to employment. Employers can still choose the best person for the job. Some employers question apparent inconsist-encies in the ADA, such as the provisions surrounding treatment of illegal drug use, and the role of the medical exam in the hiring process. A recent editorial in The Wall Street Journal pointed to language in the ADA concerning these two situations which may create confusion in the business commu-nity. For instance, an individual who currently engages in the illegal use of drugs is not considered an individual with a disability. Persons addicted to drugs but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully are protected from discrimination on the basis of past drug addiction. Likewise, while the personnel officer is restricted from asking questions concerning the presence of a disability during a pre- employment interview, the ADA does not prohibit these questions at the post- offer stage. Regardless of their attitudes toward the intentions of the ADA, many employers are unclear about how the provisions of the ADA apply in various employment situations. Continued educational and technical assistance efforts are needed to lessen the confusion and to clarify the accommodation process. The employer should seek community resources to meet this need. The relationship between the ADA and workers' compensation holds great promise for employers. Workers' compensation costs are increasing exponentially, and many employers are struggling to reduce costs. The ADA provides a unique opportunity for employers to use requirements relating to reasonable accommodation to forge an alliance with injured workers by returning them to work while reducing compensation costs. Under the ADA, employers now have a legal obligation to consider disabled employees with restrictions for returning to work when they are medically stable and capable of performing the essential job functions. Conversely, injured workers who do not accept such positions can be terminated from workers' compensa-tion. The ADA permits employers to take measures to avoid increased workers' compensation liability while complying with the requirements of the ADA. For example, employers might use post-offer inquiries to reduce potential liability by resolving issues such as 1)verification of employment history; 2)identification of individuals with a history of fraudulent workers' compensation claims; 3)provision of information to state officials regulating workers' compensation and second injury funds, as may be required by law; 4)identification of individuals who would pose a "direct threat" to the health and safety of themselves or others, which could not be reduced to an acceptable level or eliminated by a reasonable accommodation. With the passage of the ADA. there have been high hopes that employers and individuals with disabilities would engage in constructive dialogue concerning ways that the ADA could be imple-mented for the benefit of all parties. This goal is still attainable if the intent of the law is followed and if employers and workers cooperate to achieve a mutually beneficial solution. REFERENCES ADA Compliance Guide, Monthly Bulletin (Jan., 1993). Washington, D.C.: Thompson Publishing Group. AFL-CIO. (1992). ADA: Instructor's guide for training representatives on application of the ADA. Washington, D.C.: Author. Alliance of American Insurers (1994). Survey of Workers' Compensation Laws. Chicago, Ill.: Author. Arterton, J., & Phelan, G. (1992). For Americans with disabilities, a new door opens. ATLA Trial Magazine. Bell, C. (1993). The ADA and injured workers: Implications for rehabilitation. Rehabilitation Psychology, 38(2), 103-116. Bowe, F. (1992). Development of the ADA. In J. Hablutzed & B. McMahon (Eds.), ADA: Access and Accommodations. Orlando, Florida: PMD Press. Bruyere, S. (1993). Implications of the ADA for labor relations, collective bargaining, and contract administration. Journal of Rehabilitation Administration, 17 (3), 120-126. Chelius, J., Galvin, D, & Owens, P. (1992). Disability: It's more expensive than you think. Business and Health, 11(4), 78-84. DeCarlo, D., & Minkowitz, M. (1989). Workers' compensation insurance and law practice. Horsham, PA: LRP Publications. Dunn, P., Finch, J., & Growick, B. (1992). The Role of vocational rehabilitation in returning injured workers to employment. Physical Medicine and Rehabilitation Clinics of North America, 3, 615-628. Eccleston, S. (Ed.). (1992). ADA: Implications for workers' compensation. Cambridge, MA. Workers' Compensation Research Institute. EEOC issues guidance on health insurance decisions. 61 U.S.L.W. 2761 (6/15/93). Ellis, C. (1993). "Mock American Disabilities Act/Workers' Compensation Trial." NARPPS National Conference. Atlanta, GA. Equal Employment Opportunity Commission. (1992). Technical Assistance Manual on the Employment Provisions (Title I) of the ADA. Washington, D.C.: Author. Gilbride, D, & Stensrud, R. (1993). Challenges and opportunities for rehabilitation counselors in the ADA era. NARPPS Journal, 8(2), 67-74. Growick, B. (1993). Principles of Title I of ADA. Unpublished manuscript. Growick, B., & Olsheski, J. (1993). Policy and procedure manual for transitional work at OI-NEG. Unpublished manuscript. Hanson, S., & Watson, S. (1993). The ADA, health and worker' compensation insurance: Implications for private sector rehabilitation. NARPPS Journal, 8(2), 83-90. Harris, L. (1986). Disabled Americans' self-perception: Bringing disabled Americans into the mainstream (Study 845009). New York: Louis Harris and Associates, Inc. Harris, L. (1987). The ICD survey II: Employing disabled Americans (Study 865009). New York: Louis Harris and Associates, Inc. McMahon, B. T., & Shrey, D. E. (1992). The ADA, disability management, and injured workers. Journal of Workers' Compensation, 1(4), 9-28. Shrey, D., & Olsheski, J. (1992). Disability management and industry-based work return transition programs. Physical Medicine and Rehabilitation, 6(2). Smith, J. (1992). Accommodating the ADA to collective bargaining under the NLRA. Employee Relations Law Journal, 18(2), 273-286. Stockdell, S., & Crawford, M. (1992). An industrial model for assisting employers to comply with the ADA. American Journal of Occupational Therapy, 46(5), 427-433. 1. Unlike Workers' Compensation, the ADA is not primarily concerned with paying a wage replacement benefit to a worker because of a work-related injury. 2. It is important to note that the ADA does not generally prohibit an insurer from considering pre-existing conditions in determining eligibility for coverage or in setting rates. ---------- PRE-EMPLOYMENT TESTING AND THE ADA The ADA is modeled on the regulations implementing section 504 of the Rehabilitation Act of 1973, including the requirement for reasonable accommodation and the inclusion of modified examinations as a form of accommodation. It is the goal of this article to acquaint employers with the legal requirements and psychometric issues that must be considered in using selection tests under the ADA. There are three types of information that must be considered in using selection tests under the ADA. First, employers must be familiar with the legal requirements of the ADA and the rationale behind these requirements. Second, employers should be aware of the specific role of their tests in helping to select qualified employees (in other words, the validity basis for their tests). Third, employers should be familiar with the types of accommodations that are most likely to be effective in preserving the reliability and validity of the tests for people with various disabilities. Legal and Regulatory Requirements Under the ADA, it is discriminatory to use selection criteria that screen out or tend to screen out individuals with disabilities unless the criteria are shown to be job-related for the position in question and are consistent with business necessity. This is to ensure that tests do not act as barriers to the employment of persons with disabilities unless the person is unable to do the job, even with reasonable accommodation. Employers should design selection criteria for jobs to ensure a close fit between the selection criteria and an individual s ability to do the job. A criterion that tends to screen out an individual with a disability must be shown to be job-related for the position and consistent with business necessity. To be consistent with business necessity a criterion must be related to an essential job function. The obligation to make reasonable accommodation means that an employer must make modifications or adjustments to the application process that would enable a qualified individual with a disability to be considered for the position he or she desires. Tests should not be given in formats that require use of the impaired skill, unless it is a job-related skill that the test is intended to measure. For example, it is unlawful to give a written test to a person who is unable to read because of dyslexia, unless the ability to read is the job-related skill that the test is designed to measure. If, instead, the test is designed to measure a factor such as verbal comprehension or reasoning, the test should be given orally. Similarly, test time limits should be relaxed for applicants whose disabilities cause them to need more time to take a test, unless the test is specifically designed to test speed. However, the results of a test of speed could not be used to exclude an individual with a disability unless the skill was necessary to perform an essential function of the position that could not be performed by the individual with or without reasonable accommodation. If speed is related to an essential job function and there is no reasonable accommodation available to enable the applicant to demonstrate the skill or to perform the job, then the employer is not required to employ the individual. An employer is obligated to make reasonable accommodation only to the physical or mental limitations, resulting from the disability of a qualified individual with a disability, that are known to the employer. While an employer may inquire whether an employee is having difficulty performing his or her job, it is generally the responsibility of the employee to inform the employer that accommodation for a disability is needed. Similarly, an employer is generally required to provide testing accommodations only if it knows i advance that an applicant has a disability that requires such accommodations. Usually, it is the responsibility of the individual with a disability to request any accommodation for a test. The employer can be helpful by informing applicants in advance about any tests to be administered as part of the application process, so that they may request an accommodation, if needed. Employers may also ask applicants with a hidden disability for documentation of the need for testing accommodations. It should be noted that the ADA and the Title I regulations prohibit pre-employment inquiry into a person s disability or the nature of the disability, with one narrow exception. The ADA permits employers to ask individuals with a hidden disability who request accommodations at the application stage to provide documentation to verify the disability and the need for accommodation. However, the employer may not make further inquiries as to the nature or severity of the disability. Test Validity Models The use of tests for making employment decisions is supported by evidence of the tests' validity under one or more of the following models: * Content validity: the test is a representative sample of performance in some defined area of job-related knowledge, skill, ability, or other characteristic. * Construct validity: the test is demonstrated to be a measure of a job-relevant characteristic (e.g., reasoning ability). * Criterion-related validity: the test is shown to be statistically related to some criterion of successful job performance. Test accommodations should be made as to retain the validity of the test for selecting qualified employees. Types of Testing Accommodations Testing accommodations will be discussed under three broad categories: testing format, time limits, and test content. Testing format. A change in testing format refers to the use of a different medium or method to present the same information. Test information is usually presented in print in the English language. Therefore, braille, large print, reader, and audiotape are simply different ways of presenting the same information. In most cases, these formats could be interchanged without a change in the question content or the ability being tested. However, several problem areas exist in the use of different formats: 1. Long reading passages may be more difficult when presented orally or in other formats for visually impaired applicants. For oral presentation, the test-taker must try to keep the entire passage in memory. In braille or large print, scanning through the passage is slower than it is with regular print. 2. Figural material is problematic for people with visual impairments. The embossing of figural material should not be viewed as a simple format change, because the tactual sense is quite different from the visual sense (hence, the need for braille). 3. When readers are used, they should be people who read well and articulate clearly, and they should practice reading the test in advance. They should be warned against inadvertently giving clues to the test-taker when they read. It should be noted that changing a test from a printed version into a sign language version is a translation into another language, rather than simply a change of format. It must be done with all of the care that would be taken in translating a test from English into, say, Japanese. Time limits. In most cases of accommodated testing it is necessary to change the test s time limits. Often the change in time limits causes a problem in interpreting test results. This problem arises because of the use of speeded power tests. In order to understand this problem, it is necessary to learn a bit of testing terminology. A pure power test is a test in which everyone has an opportunity to attempt to answer every question, and the scores are based on how many questions people can answer rather than on how fast they can work. The pure speed test, on the other hand, contains questions of trivial difficulty given with a very short time limit. Scores are based only on how fast people can work. Many tests which are intended to be power tests are actually somewhat speeded because a considerable number of people are unable to attempt every question. On a speeded power test, a person who had unlimited time would have an advantage over people who took it with the regular time limit. However, since many people with disabilities, e.g., braille-users, need extra time to take tests, there is the difficult problem of determining exactly how much extra time should be allotted so that the test-taker with a disability is at neither an advantage nor a disadvantage. The ideal solution to this problem would be to eliminate the use of speeded power tests. If a power test has a liberal time limit, with a completion rate of, say, ninety-five percent of all test-takers, then test-takers with disabilities can be given unlimited time without having an undue advantage. The difficult question of how much extra time to allow would no longer need to be answered. In the case of existing speeded power tests in which the regular time limits cannot be changed, unlimited time may be inappropriate. One method of determining appropriate time limits is to conduct empirical studies. The Office of Personnel Management conducted a study to set time limits for visually impaired and deaf applicants on one of its large volume examinations. It was found that at least double time was needed for visually impaired users of all media to answer questions that consisted of a short reading passage followed by five answer choices. Mathematical questions involving computation required considerably more time than that. Such empirical studies are only possible in large-scale programs in which there are many test-takers. Pure speed tests are used in the employment context to test such skills as perceptual speed and clerical checking. Such tests are clearly inappropriate for use with visually impaired test-takers because all of the media for transmitting information are slower, and for some physically impaired applicants, because the physical mechanism for responding (e.g., marking the answer sheet) is slower. The time limit cannot be adjusted on these tests because speed is the factor that is being tested. Therefore, the test user must decide if the speed test should be used with the regular time limit (which is permissible, as noted in the earlier section on legal and regulatory requirements, if the speed factor is related to an essential job function and the applicant cannot meet the requirement even with reasonable accommodation) or if the test should be deleted from the battery and possibly be replaced with another type of assessment. This would be an instance of the last type of test accommodation--change of test content. Test content. In the context of competitive testing for persons with disabilities, changes in test content are not made frequently. However, it is clear that this type of change is a form of accommodation that may be required for compliance with the ADA. Any change in test content would need to be consistent with the validity strategy on which the test was based. For example, substituting one test question for another is easily done under a construct validity model, but might be troublesome under a content validity model. Changes in test content can be divided for convenience into three types: change in individual test questions, change in the question-type, and change or deletion of a knowledge, skill, or ability (KSA) that is being measured. The first type of change, as mentioned above, is easily done in a construct-valid test. The second type of change--using a different type of question to test the same ability--is feasible if another question-type exists and if scoring comparability can be determined. The interpretive guidance to the EEOC s Title I regulations describes some bold substitutions of methods for measuring the same KSA s, as the following excerpt shows: "Where it is not possible to test in an alternative format, the employer may be required, as a reasonable accommodation, to evaluate the skill to be tested in another manner (e. g., through an interview, or through education license, or work experience requirements)." This excerpt does not reflect a concern for score comparability. In fact, it is difficult to see how this approach could be used if applicants needed to be rank-ordered on the basis of quantitative scores. If there is no effective way to test a person with a disability for a certain KSA, and if there is reason to believe that KSA will not be required on the job by the person, it would be appropriate to change or delete the requirement for measuring that KSA. Accommodation for Specific Disabilities The following is a brief listing of the types of testing accommodations that are appropriate for test-takers with different disabilities. For more detailed information about each group, see the bibliography at the end of the paper entitled "Pre-Employment Testing and the ADA" published by LRP Publications (see cover page of this brochure for ordering information). For test-takers with visual impairments, tests must be presented in appropriate formats, such as braille, large print, and audiotape. Time limits must be extended for all of these media, and speed tests are inappropriate. Within the context of changing test materials into different formats, certain types of test material may be problematic, as noted earlier. In addition, the test-taker will probably need accommodation or assistance in marking answers. For test-takers who have physical impairments that affect use of the hands, the principal test accommodation is the adjustment of test time limits and the avoidance of speed tests. In addition, accessible test sites, the assistance of a test administrator in turning pages and marking answers, and extra rest breaks may be required. Among hearing impaired test-takers, only those who are deaf need extensive testing accommodations. For the majority of prelingually deaf persons, that is, persons who lost their hearing before acquiring speech, verbal tests are not good measures of any ability. For most prelingually deaf people, English is a second language and the native language is sign language. (Of course, there are exceptions to this rule; some prelingually deaf people have very good English skills.) Therefore, as a general rule, verbal tests cannot be used effectively with most deaf test-takers to test anything except verbal ability. Tests that are completely nonverbal, however, do not pose a problem. Test instructions should be given very carefully, with the use of sign language or demonstration, and time limits should be explained clearly. Extra time should be allowed on power tests that include verbal material. Individuals with specific learning disabilities now constitute the largest group that requires testing accommodations. The specific tasks that are affected by learning disabilities vary widely, so it is difficult to generalize about testing accommodations. Accommodations will need to be arranged on a case-by-case basis for applicants with specific learning disabilities. The most frequently used accommodations are the allowance of additional time for power tests and reconsideration of speed tests in areas of specific weakness. For example, a test-taker who had a specific learning disability that affected numerical computation might be screened out by a speeded test of computation. Under the ADA, it would be inappropriate to use that test unless it tested an essential job function that the test-taker could not perform with or without reasonable accommodation. Resources ADA Regional Disability and Business Technical Assistance Center Hotline (800) 949-4232 (voice/TTY) Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (Voice) to reach EEOC field offices; for publications call (800) 800-3302 or (800) 669-EEOC (voice/TTY). -- Funding Source -- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA). However, you should be aware that NIDRR is not responsible for enforcement of the ADA. The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. In addition to serving as a National Materials Development Project on the Employment Provisions of the Americans with Disabilities Act of 1990, the Program on Employment and Disability also serves as the training division of the Northeast Disability and Business Technical Assistance Center. This publication is one of a series edited by Susanne M. Bruyere, Ph.D., C.R.C., Director of the ILR Program on Employment and Disability at Cornell University. -- Other Titles in this Implementing the ADA Series -- * A Human Resource Perspective on Implementing the ADA * Reasonable Accommodation Under the ADA * Pre-Employment Screening and the ADA * Pre-Employment Testing and the ADA * Health Benefits Plans and the ADA * The Implications of the ADA for Personnel Training * The ADA and Collective Bargaining Issues * The ADA and Injured Workers * Attitudes Toward the Employment of Persons with Disabilities * Total Quality Management Applied to the Implementation of the ADA For further information about publications such as these, contact the ILR Program on Employment and Disability, Cornell University, 102 ILR Extension, Ithaca, New York 14853-3901; or at 607/255-2906 (Voice), 607/255-2891 (TDD), or 607/255-2763 (Fax). ---------- REASONABLE ACCOMMODATION UNDER THE ADA What is Reasonable Accommodation? The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodation for a qualified individual with a known physical or mental disability. Potential reasonable accommodations include job restructuring, reassignment to a vacant position, part-time or modified work schedules, assistive technology, or aides or qualified interpreters. Although the ADA does not require employers to make accommodations that pose an "undue hardship" (defined as significantly difficult or expensive), the experiences of employers around the nation demonstrates that many accommodations cost nothing, and few pose the "significant expense" that many employers fear. Studies conducted in 1986 and in 1992 showed that more than half of the accommodations made for employees with disabilities cost nothing, while another fifteen percent cost under $500. Tax credits are available to businesses who remove architectural barriers, target jobs for individuals with disabilities, or provide assistive technology or interpreters to workers with disabilities. Employers are required to make reasonable accommodation for qualified individuals with a disability, who are defined by the ADA as individuals with a disability who satisfy the job-related requirements of a position held or desired, and who can perform the "essential functions" of such position, with or without reasonable accommodation. The employer identifies the job s essential functions; job descriptions prepared before an individual is interviewed or selected for a position are considered evidence of a job s essential functions. If the individual cannot perform an essential function, even with accommodation, the individual is not considered "a qualified individual with a disability" under the law. The employer should confer with the employee with regard to the type of accommodation that will enable the employee to perform the essential functions of the position. The requirements of the particular position and the employee s physical or mental limitations should be evaluated in order to determine the accommodation that will be effective. If a reasonable accommodation poses an undue hardship, it need not be implemented. Undue hardship is evaluated by assessing various factors, including the nature and net cost of the accommodation, the overall financial resources of the facility and of the business, and the impact of the accommodation on the operation of the facility. Accommodations of a personal nature (such as a guide dog for a visually-impaired employee, or a wheelchair) would not be the employer s responsibility. The employer need not create a new job for the person with the disability, nor must the employer reallocate essential functions to another worker. An employer may be required to restructure a job by reallocating nonessential, marginal job functions. For example, the Postal Service refused to promote a hearing-impaired secretary because she could not answer the telephone. The court ordered the Postal Service to promote the individual, noting that several other secretaries were available to answer the telephone, and that simply because telephone answering was considered a low status assignment did not make it an essential function of the secretary s job. Employers who fear that accommodating a worker with a disability will lower the morale of co-workers will not find this a helpful defense to an ADA charge. Nor will the concern that co-workers or customers will not wish to associate with an individual with a disability be an appropriate reason to deny such an individual employment. Accommodating a Worker with a Disability The accommodation process begins before the disabled worker is hired (or identified, if it is a current employee who becomes disabled after being hired. Written job descriptions prepared before advertising or interviewing applicants are evidence of whether particular job functions are essential, but other evidence, such as what previous or current holders of the job actually do, is also relevant. Job descriptions should be reviewed to ensure that they include the essential functions of each job, particularly with regard to physical requirements. Statements such as "all incumbents must perform all functions of the position," or "there is no light duty in this department" are not determinative of whether a reasonable accommodation must be provided. Recruiters or interviewers must be trained with regard to inquiries which are permissible under the ADA. Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This prohibition ensures that the applicant s hidden disability is not considered prior to the assessment of the applicant s non-medical qualifications. At this pre-offer stage, employers may ask about an applicant s ability to perform specific job-related functions. An employer also may ask other questions that are not disability-related and may require examinations that are not medical. After making a job offer, an employer may require a medical examination or make disability-related inquiries if all entering employees are subject to the exam or inquiry. If an examination or inquiry screens out an individual because of disability, the exclusionary criterion must be job-related and consistent with business necessity. The employer also must show that the criterion cannot be satisfied and the essential functions cannot be performed with reasonable accommodation. Employers are also permitted to conduct medical examination and make disability-related inquiries of employees if such exams or inquiries are job-related and consistent with business necessity. Any medical information obtained must be kept confidential by the employer. This means that the employer must collect and maintain the information on separate forms and in separate medical files. The employer may disclose the information only to persons and entities specified in the ADA. Employers may use any kind of test to determine job qualifications. However, qualification standards, tests or other selection criteria that screen out an individual with a disability or a class of individuals with disabilities will violate the ADA unless shown to be job-related and consistent with business necessity. Even if this showing can be made, an employer must consider whether the criteria can be met, or job performance accomplished with the provision of reasonable accommodation. In addition, tests must be administered to an applicant or employee with a disability in a way that ensures that the test results accurately reflect the skills, aptitude, or whatever other factor is being tested, rather than reflecting the impaired sensory, manual or speaking skills of the person, unless these skills are what is being tested. Reasonable Accommodation and Safety Some employers are concerned that a worker with a disability could be a safety hazard, either to herself or to co-workers or customers. The law takes this concern into account, but only if it is founded upon clear, documented evidence that the individual is a "direct threat" to herself or others because of the nature of the job and the specific characteristics of that individual s disability. In determining whether an individual with a disability poses a direct threat, including an individual with a contagious disease, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Part of the reasonable accommodation determination is an analysis of whether the individual can be accommodated in a way that eliminates the direct threat or reduces it to an acceptable level. For example, an employer would not be required to hire an individual who is blind to drive a bus, but several courts have said that disabilities such as diabetes do not automatically preclude an individual from holding a bus driver s job. The key here is to obtain individualized medical information about the limitations that are posed by this worker s disability and the probable harm that this individual s specific physical or psychological problems will pose for the position in question. Reasonable Accommodation and Worker Misconduct The ADA protects individuals with mental as well as physical disabilities, and the reasonable accommodation requirement applies in the same way for both kinds of disabilities. However, employers may hold individuals with disabilities to the same performance and conduct standards as other workers; if the worker engages in misconduct that warrants discipline under the employer s policy, even if the conduct is related to the individual s disability, the employer may discipline the worker. If an employee requests accommodation prior to engaging in misconduct, e.g., leave to attend therapy sessions, the accommodation must be provided unless it would impose an undue hardship. On the other hand, if the employee engages in misconduct prior to requesting the accommodation, the employer may impose the appropriate discipline. This may include discharge, depending on the employer's discipline policy and the nature of the misconduct involved. If the employer has a policy of progressive discipline, the employer may impose discipline short of discharge and then provide an accommodation that would enable the employee to meet the conduct standards. Off-duty misconduct may also be grounds for discharge or discipline, even if the worker asserts that the disability caused the misconduct. In most cases that have reached the courts, the misconduct was related to alcohol or drug abuse, and the employer was able to demonstrate that being required to retain the individual would be an undue hardship because the job itself required the individual to demonstrate good judgment or to be law-abiding (such as a police officer or an FBI agent). Employees whose excessive absences or tardiness create problems for the employer are not necessarily protected even if the attendance problems are related to the disability. However, the employer must consider whether a reasonable accommodation (such as a different work schedule, additional paid or unpaid time off, or working at home) is possible and whether such an accommodation would constitute an undue hardship. Employers should train their staff about the general requirements of the ADA, with particular emphasis on defining the essential functions of each position and the accommodation requirement. Learning to assess the individual first and the disability second, working with the individual and his or her counselor, medical professional, or other knowledgeable persons in fashioning the appropriate accommodation, and responding to requests to review the effectiveness of the accommodation will very likely satisfy the demands of the ADA, the practical needs of the individual with a disability, and the employer s need for a productive and committed workforce. The following are national resources available to you that will provide you with further information on the employment provisions of the Americans with Disabilities Act of 1990 and reasonable accommodation: ADA Regional Disability and Business Technical Assistance Center Hotline, (800) 949-4232 (voice/TDD). Job Accommodation Network, 918 Chestnut Ridge Road, Suite 1, Morgantown, WV 26506-6080, (800) ADA-WORK (voice/TDD). U.S. Equal Employment Opportunity Commission, 1801 L Street, NW, Washington, DC 20507, (800) 669-4000 (voice), (800) 800-3302 (TDD), or (800) 666-EEOC (publications). This publication was written by Barbara A. Lee, Associate Professor, Institute of Management and Labor Relations, Rutgers University, New Brunswick, New Jersey. This publication is taken from a more extensive review of the topic entitled "Reasonable Accommodation Under the Americans with Disabilities Act" which is currently available for purchase from your Regional Disability and Business Technical Assistance Center at 800-949-4232, or from LRP Publications (specify Product #31015.ACCOM, 47 pp., $16), PO Box 980, Horsham, PA 19044-0980, phone 1-800-341-7874, Fax 1-215-784-9639. --Funding Source-- This material was produced by the Program on Employment and Disability, School of Industrial and Labor Relations - Extension Division, Cornell University, and funded by a grant from the National Institute on Disability and Rehabilitation Research (grant #H133D10155). It has been reviewed for accuracy by the U.S. Equal Employment Opportunity Commission. However, opinions about the Americans with Disabilities Act (ADA) expressed in this material are those of the author, and do not necessarily reflect the viewpoint of the Equal Employment Opportunity Commission or the publisher. The Commission's interpretations of the ADA are reflected in its ADA regulations (29 CFR Part 1630) and its Technical Assistance Manual for Title I of the Act. Cornell University is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to indiv