ASSISTIVE TECHNOLOGY REASONABLE ACCOMODATIONS IN by jolinmilioncherie

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									ASSISTIVE TECHNOLOGY & REASONABLE
  ACCOMODATIONS IN EMPLOYMENT

              Hillary Sklar, Attorney
           Disability Rights California
          Los Angeles Regional Office
                  (213) 427-8747
      Hillary.Sklar@disabilityrightsca.org
                   June 14, 2011
                         Goals
1. Discuss an overview of federal and state laws that
    protect individuals with disabilities from employment
    discrimination and provide for reasonable
    accommodations.
2. Discuss requests for reasonable accommodations: how
    to negotiate a request for assistive technology;
    employer defenses.

3. Discuss remedies for disability discrimination including
    denials of requests for reasonable accommodations.

4. Review Resources.
         Disability Rights California
Disability Rights California works to bring about fairness and
justice for people with disabilities. To reach those goals of
fairness and justice, we may:

   – File lawsuits on behalf of individuals or groups,
   –Investigate charges of abuse and neglect,
   –Build peer/self advocacy groups,
   –Forge community partnerships,
   –Advocate for change in laws, regulations, and public policy,
   and
   –Provide information to those who may not know about their
   rights.
                    PAAT grant
• PAAT (Protection & Advocacy for Assistive
  Technology), 29 U.S.C. 3004.

  The PAAT program was created in 1994 when
  Congress expanded the Technology-Related
  Assistance for Individuals with Disabilities Act (Tech
  Act) to include funding for Protection &Advocacy’s to
  assist individuals with disabilities in the acquisition,
  utilization, or maintenance of assistive technology
  devices or assistive technology services through
  case management, legal representation and self
  advocacy training.
   Overview of Federal and State Anti-
    Discrimination Employment Laws
• Federal laws
  – Title I of the Americans with Disabilities Act (ADA)
  – Sections 501, 503, and 504 of the Rehabilitation
    Act of 1973


• California laws
  – Fair Housing and Employment Act (FEHA)
  – Government Code Section 11135
                   Federal Laws
Title I of the ADA
• Title I of the ADA does not apply to federal agencies.
Rehabilitation Act of 1973
• Federal agencies must comply with Section 501 of
  the Rehabilitation Act of 1973.

Note:
Each section of the Rehabilitation Act provides virtually
  identical protections and rights as under the ADA.
  However, the complaint process is different under the
  ADA and the Rehabilitation Act.
            Basic requirements of
              Title I of the ADA
• “Covered entities” may not discriminate against a
  “qualified person with a disability” in the private sector
  and in state and local governments.
• Employers may not retaliate against a person because
  the person complained about discrimination, filed a
  charge of discrimination, or participated in an
  employment discrimination investigation or lawsuit.
• Employers must reasonably accommodate the known
  physical or mental limitations of an otherwise qualified
  individual with a disability who is an applicant or
  employee, unless doing so would impose an undue
  hardship on the operation of the employer's business.
            Who Must Comply with
             Title I of the ADA?
•   Private employers
•   State and local governments,
•   Employment agencies
•   Labor unions

These are all considered “covered entities.”

A covered entity has 15 or more employees.

An employer cannot discriminate against “qualified
applicants and employees on the basis of disability.”
Employment Practices Regulated by
       Title I of the ADA
Employers cannot discriminate against people with
disabilities in regard to any employment practices,
condition, and privileges of employment. All aspects of the
employment process are covered such as:

•   Application
•   Promotion
•   Testing
•   Hiring
•   Assignments
•   Leave
•   Benefits
•   Evaluation
                Who is Protected by
                 Title I of the ADA?
Qualified individuals with disabilities

An “individual with a disability” is a person who:
•   Has a physical or mental impairment that substantially
  limits one or more major life activities; or
•   Has a record of such an impairment; or
•   Is regarded as having such an impairment

A “qualified individual with a disability” is an applicant or
employee who meets the:
•    Skill, experience, education, and other job-related requirements
  of the position held or applied for and
•    Who, with or without reasonable accommodation, can perform
  the essential functions of the job
    What is a “Substantial Limitation”?

•   A significant restriction in the ability to perform a class of jobs or a
    broad range of jobs as compared to the average person having similar
    training, skills, and abilities.

•   An inability to perform a single, particular job or narrow range of jobs
    would not rise to the level of substantial limitation.

•   Factors in determining substantial limitation:
     – Nature and severity of the impairment
     – Duration or expected duration of the impairment – is temporary or
       permanent?
     – Permanent or long-term impact
     – Prior to the passage of the ADA Amendments Act of 2008 (ADAAA),
       mitigating measures, such as assistive technology, were considered
    ADA Amendments Act (ADAAA)
             of 2008
• The ADAAA took effect January 1, 2009. The changes
  are not retroactive.
• The changes apply to the ADA and to the Rehabilitation
  Act of 1973.
• The law made a number of significant changes to the
  definition of “disability” under the Americans with
  Disabilities Act (ADA).
• It also directed the U.S. Equal Employment Opportunity
  Commission (EEOC) to amend its ADA regulations to
  reflect the changes made by the ADAAA. The final
  regulations were approved by a bipartisan vote and were
  published in the Federal Register on March 25, 2011.
              Overview of ADAAA

• Congress made it easier for an individual seeking
  protection under the ADA to establish that he or she has
  a disability within the meaning of the statute.
• The EEOC regulations implement the ADAAA -- in
  particular, Congress’s mandate that the definition of
  disability be construed broadly.
• For detailed information:
   – http://www.eeoc.gov/laws/statutes/adaaa_info.cfm
   – ADA National Network www.adata.org
        Key Changes to “Disability”
• The term “substantially limits” requires a lower degree of functional
  limitation than the standard previously applied by the courts.

• The term “substantially limits” is to be construed broadly in
  favor of expansive coverage.

• The determination of whether an impairment substantially limits a
  major life activity requires an individualized assessment, as was
  true prior to the ADAAA.

• With one exception (“ordinary eyeglasses or contact lenses”), the
  determination of whether an impairment substantially limits a major
  life activity shall be made without regard to the ameliorative
  effects of mitigating measures, such as medication or hearing
  aids.
  Key Changes to “Disability” cont’d
• An impairment that is episodic or in remission is a
  disability if it would substantially limit a major life activity
  when active.

• Make it easier for individuals to establish coverage under
  the “regarded as” part of the definition of “disability.”

• The regulations clarify, however, that an individual must
  be covered under the first prong (“actual disability”) or
  second prong (“record of disability”) in order to qualify for
  a reasonable accommodation.
Questions about Title I of the ADA?
        Rehabilitation Act of 1973

The Rehabilitation Act prohibits discrimination on the
basis of disability in programs conducted by Federal
agencies, in programs receiving Federal financial
assistance, in Federal employment, and in the
employment practices of Federal contractors.

Reminder: The standards for determining employment
discrimination under the Rehabilitation Act are the
same as those used in Title I of the Americans with
Disabilities Act.
       Who Must Comply with the
       Rehabilitation Act of 1973?

• Section 501 - Federal departments and agencies

• Section 503 - Contractors and subcontractors who have
  contracts of $10,000 or more with the federal
  government

• Section 504 - Any agency or business receiving federal
  funds
                    Section 501
• Federal departments and agencies may not
  discriminate against a “qualified person with a disability”
  in the private sector and in state and local governments.

• Employers may not retaliate against a person because
  the person complained about discrimination, filed a
  charge of discrimination, or participated in an
  employment discrimination investigation or lawsuit.

• Employers must reasonably accommodate the known
  physical or mental limitations of an otherwise qualified
  individual with a disability who is an applicant or
  employee, unless doing so would impose an undue
  hardship on the operation of the employer's business.
                  Section 503

• Same as Section 501 except applies to Contractors
  and subcontractors who have contracts of $10,000
  or more with the federal government.

• Enforced by the U.S. Department of Labor's Office
  of Federal Contract Compliance Programs

• Section 503 fact sheet:
  http://www.dol.gov/ofccp/regs/compliance/fs503.htm
                        Section 504
• Section 504 states that "no qualified individual with a disability in
  the United States shall be excluded from, denied the benefits of,
  or be subjected to discrimination under" any program or activity
  that either receives Federal financial assistance or is conducted
  by any Executive agency or the United States Postal Service.

• Each Federal agency has its own set of section 504 regulations
  that apply to its own programs. Agencies that provide Federal
  financial assistance also have section 504 regulations covering
  entities that receive Federal aid.

• Each agency is responsible for enforcing its own regulations.
  Section 504 may also be enforced through private lawsuits. It is
  not necessary to file a complaint with a Federal agency or to
  receive a "right-to-sue" letter before going to court.
Questions about the Rehabilitation Act?
                California Law

Fair Housing and Employment Act (FEHA)

Government Code Section 11135
• California law is generally broader than the ADA.

• Employers may not discriminate against a person with
  disability in hiring, training programs, firing,
  compensation or other terms and conditions of
  employment.

• Applies to employers having five or more employees.

• Applies to employers in the State of California or any
  political/civil subdivision of the state, or in a city.
• Substantial limitation not required of major life activity.
Mere limitation is enough.

• Like the ADAAA of 2008, mitigating measures, such as
medications or AT, are not factors except if the mitigating
measure limits a major life activity.

•   For detailed information:
Disability Under the Fair Employment & Housing Act
http://www.dfeh.ca.gov/res/docs/Publications/DFEH-
   208DH.pdf
Employer Requirements under FEHA
1.   Employers must provide reasonable accommodations for
     applicants and employees who, because of their disability,
     are unable to perform the essential job functions.

2.   Employers must engage in a timely, good faith interactive
     process with applicants or employees in need of reasonable
     accommodations. *The employee must first establish they
     have a disability as defined by FEHA.

3.   Employers are not required to provide accommodations that
     would represent an “undue hardship” to the business.
 Definition of “Essential Job Functions”

Factors that must considered:
• The position exists to perform the function.
• There are a limited number of employees available to whom
  the job function can be distributed
• The function is highly specialized.

Evidence of the essentialness of a job function includes:
• The employer's judgment and
• Written job description prepared before advertising or the
  interview
• Amount of time spent on the job performing the function,
  among other factors.
       California Government Code
               Section 11135
• Similar to the ADA
     • Provides at least the same protections as the ADA.
     • Uses the same standard.

•   Covers any employer that:
      • Is funded directly by the California, or
      • Receives funds from California, and
      • Has more than 5 employees
      • The employer must receive a total of $10,000 per
         year or at least $1,000 per arrangement

                                                           28
Questions about FEHA and Section 11135?
     Reasonable Accommodations

• Under Title I of the ADA, a reasonable accommodation
  includes modifications or adjustment that enable
  employees with disabilities to perform essential job
  functions.

• Provision of assistive technology is an example of a
  reasonable accommodation.

Reminder – To be protected under the ADA, the employee
  must be able to perform the essential functions of the job
  with or without reasonable accommodations.

                                                           30
       Making a Request and
    Negotiating For What You Need
Timing

• A request can be made at any time during the job
  application process or during employment.

• Consider asking once the employee with a disability
  knows about a workplace barrier that, due to a disability,
  is preventing the employee from competing for a job or
  performing a task.



                                                           31
                      Requests cont’d
How
•   Tell the employer you have a disability and need an assistive device to
    do your work. Under the ADA, employer need not consider
    accommodations if employee does not employee states s/he has a
    disability.

•   Ask for a meeting to discuss the specifics of what is needed.

•   An agreement may be able to be reached if the employee and the
    employer know enough about AT.

•   Advisable to document the discussion and the terms of the agreement
    in writing.

•   If an agreement cannot be reached, an evaluator should be consulted
    for an assessment.
              Request Examples

• Proper request for a reasonable accommodation
     • “I’m having trouble getting to work at my scheduled
       starting time because of medical treatments I am
       undergoing”

• Insufficient request
      • “I would like a new chair because my current one
        is uncomfortable.”
           – Missing: Link/nexus to medical condition that
             causes the chair to be uncomfortable.


                                                             33
                   AT Evaluations
Department of Rehabilitation (DOR)

• ADA does not require employers to accept outside
  assessments.

• DOR evaluations are fairly comprehensive. May be used to
  support need for AT, to establish proof of disability and/or
  functional limitations that affect job performance.

• Employer incentive: DOR may be a funding source if the
  evaluation is part of a rehabilitation plan and achievement of
  plan goals.

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                  Evaluations cont’d
Medical/Doctor letters
• Employer is entitled to know physical and mental limitations that
  affect ability to perform the job due to disability.
• May be provided by another source of reliable documentation to
  avoid input from a doctor.
• Employer is not entitled to all medical records and information.
• Employer is entitled to ask for additional medical information to
  establish the employee has a disability under the ADA once a
  reasonable accommodation is requested.
• Ex. the disability may not be obvious or more is needed to establish
  a link between the disability, resulting limitation, and the AT sought.

Other sources
• Disability organizations, ILCs, rehabilitation hospitals, private
  companies

                                                                        35
                   Examples of AT
• Telecommunication Devices for the Deaf (TDD)
• Telephone amplifiers
• Talking calculators for people with reading or visual disabilities
• A one-handed can opener for a person who had the use of
  only one hand who worked in food services and could perform
  all tasks except opening cans
• A phone headset for an insurance salesman with cerebral
  palsy

See, EEOC’s Technical Assistance Manual
http://askjan.org/links/adatam1.html


                                                                  36
            Some Considerations

Part-Time Telecommuting for a Full-Time Position
Employer may have to provide equipment to work at home.
Employer may not have to provide same equipment for
both locations if too expensive. Is the equipment portable
and able to be used at home and in the office?

Timing of Employer Response
No specific time frame but should be as quickly as
possible.


                                                         37
                Employer Defenses
• Employers are not required to approve every request for
  an accommodation.
• Reasonable accommodation ≠ the best accommodation
       • Equal ground not better position
       • But, employer must make reasonable efforts to determine
         appropriate accommodation
       • And, may select a less expensive alternative so long as it is
         appropriate.
       • The accommodation may not be for personal use.
•   Undue Hardship
           • Determined by a balance of factors such as the size of the
           employer, the number of employees, and the cost of the
           accommodation requested.

                                                                          38
Questions about Reasonable Accommodations?




                                         39
   Remedies if the AT Request is Denied

General considerations:

• The federal and state agencies that enforce the ADA,
  Rehabilitation Act, FEHA, and Section 11135 each have
  their own rules and timelines for employment
  discrimination complaints.

• Determine whether to file a state or federal complaint.
• Determine the timelines that apply.
• Determine the rules for filing a complaint.
 Determining whether to file a State
       or Federal complaint
1. Determine which law covers the employee and the
employer

2. Determine which law covers the complaint

3. Both state and federal laws may apply

4. Look to the state and federal agency for guidance –
some may have agreements about which agency will
handle certain complaints. (e.g. ADA Title I = EEOC; ADA
Title II = DOJ)

5. Talk to an advocate or attorney for additional guidance.

                                                              41
    U.S. Equal Employment Opportunity
           Commission (EEOC)
•    Enforces Title I of the ADA and Section 501 of the Rehabilitation Act.
•    Complaints are called “Charge of Discrimination”
•    In general, you need to file a charge within 180 calendar days from the day
     the discrimination took place. The 180 calendar day filing deadline is
     extended to 300 calendar days if a state or local agency enforces a law that
     prohibits employment discrimination on the same basis.
•    Holidays and weekends are included in the calculation, although if the
     deadline falls on a weekend or holiday, you will have until the next business
     day.
•    Call an EEOC Field Office for help calculating dates.

•    **In California, you may also file an ADA complaint with the CA Department
     of Fair Employment and Housing (DFEH). The EEOC or the DFEH will let
     you know which agency will investigate your complaint.
          How to File with the EEOC

• See, “Disability Discrimination” includes information on Reasonable
  Accommodations http://www.eeoc.gov/laws/types/disability.cfm

• Filing A Charge of Discrimination
  http://www.eeoc.gov/employees/charge.cfm

• How to File a Charge of Employment Discrimination
  http://www.eeoc.gov/employees/howtofile.cfm

• In general, you need to file a charge within 180 calendar days from
  the day the discrimination took place. The 180 calendar day filing
  deadline is extended to 300 calendar days if a state or local agency
  enforces a law that prohibits employment discrimination on the same
  basis.
         EEOC “Charge Handling”
What to expect:
• An investigation by EEOC staff
• Possible mediation
• Possible dismissal
• If no violation is found, EEOC sends a “Notice-of-Right-To-
  Sue” to complainant.
• If a violation is found, EEOC will try to reach a voluntary
  settlement. If one cannot be reached, the EEOC will refer the
  case to legal staff.

**For detailed EEOC information:
   http://www.eeoc.gov/employees/index.cfm
    California Department of Fair Housing and
         Employment (DFEH) complaints

•   The DFEH is the largest state civil rights agency in the country. The DFEH's
    statutory mandate is to protect the people of California from employment,
    housing and public accommodations discrimination and hate violence
    pursuant to the California Fair Employment and Housing Act (FEHA)

•   A complaint of employment discrimination must be filed within one year
    from the date that the alleged discriminatory act occurred. www.dfeh.ca.gov

•   First make an appointment for an interview in one of the DFEH employment
    offices located throughout the state. Call the Department’s Communication
    Center at 1-800-884-1684 (within California), 1-916-478-7200 (outside
    California), or TTY 1-800-700-2320 during regular business hours, Monday
    through Friday.

•   You may also make an appointment online day or night by using the
    Department’s "Online Appointment System."
                                                                              45
                          DFEH cont’d
• Filing an employment complaint with DFEH:
http://www.dfeh.ca.gov/Complaints_FileComplaint.htm

• Complaint process:
http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm

•   Right-To-Sue Notices
     – FEHA requires that individuals must exhaust their administrative
       remedies with the DFEH by filing a complaint and obtaining a "right-to-
       sue notice" from the Department before filing a lawsuit under the FEHA.
       DFEH will accept requests for an immediate DFEH "right-to-sue notice"
       from persons who have decided to proceed in court. Your DFEH
       complaint must be filed within one year from the last act of
       discrimination or you may lose your right to file a lawsuit under the
       FEHA. See, http://www.dfeh.ca.gov/Complaints_RTSNotice.htm
            Section 11135 complaints

• Must file a complaint within one year from the date of the
  discriminatory action with the state agency that administers
  the program involved.

• If you do not discover the violation until after the one-year
  period has ended, you may still file your complaint; however,
  you only have 90 days from the end of the one-year deadline
  to pursue your complaint.

• The state agency may stop funding to the program and may
  forward the complaint to the DFEH. The administering state
  agency has authority to investigate and resolve discrimination
  claims.

                                                                  47
Questions about filing complaints?




                                     48
                        Resources
• Job Accommodation Network (JAN) www.askjan.org

• Disability Rights California www.disabilityrightscalifornia.org
  Assistive Technology manual, Chapter 6, “Reasonable
  Accommodation in Employment”

• Employment and the ADA: Questions & Answers
  http://www.accessibletech.org/faq/employ.php

• ADA National Network www.adata.org

• Pacific ADA Center www.adapacific.org/

                                                                    49
                   Resources cont’d
• U.S. Department of Labor, Office of Disability Employment Policy (ODEP)
http://www.dol.gov/odep/categories/employment_supports/technology.htm

• U.S. Department of Labor, Office of Disability Employment Policy (ODEP)
Technology and People with Disabilities
   http://www.dol.gov/odep/archives/ek99/tech.htm

• Disability.gov
Employment > Working with a Disability & Employment Supports > Assistive
   Technology & Universal Design
https://www.disability.gov/employment/working_with_a_disability_%26_em
   ployment_supports/assistive_technology_%26_universal_design
Final questions?

								
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