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Hiring employees under the Disabilities Act.

Ms. Wilkins arrives promptly for her job interview for the receptionist position in the executive offices. She has an impressive background for the position, having worked as a receptionist for the past three years. Her typing skills exceed the required 40 words-per-minute, her telephone voice is pleasant, and her former employer reports that she has good organizational skills. The only problem is that Ms. Wilkins has only one real arm and hand. Her other arm is an artificial arm with a hook attached to the end.

The Wilkins interview raises several questions. First, does this person fit the company image? Can someone work in the executive offices who is disabled? Can Ms. Wilkins greet visitors if she insists on wearing a headset because she can't manage the receiver? How did she lose her arm? Was it from cancer? Will our health and workers' compensation insurance rates go up?

These and other questions raised by Ms. Wilkins' interview are answered by the Americans with Disabilities Act (ADA). Despite the vast number of complex employment issues in the act affecting companies, compliance need not be a risk manager's nightmare. In effect, careful preparation for the ADA can actually lead to better loss control and cost savings for employers. Risk managers will find that their preparation for the ADA can actually decrease workers' compensation costs by reducing lost time, claim settlements and inspiring early return to work.

Congress passed the ADA to show commitment to the 43 million disabled Americans by making it possible to integrate them into the mainstream of American life. Signed into law on July 26,1990, the ADA takes effect July 26,1992, for employers with 25 or more employees, and July 26, 1994, for employers with 15 or more employees. The ADA gives comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, transportation, telecommunications and state and local government services. In short, the act urges society to focus on an individual's abilities, rather than disabilities.

The ADA's effects are far-reaching: It requires all businesses with more than 15 employees to make provisions to hire individuals with disabilities. Certain states, such as Florida and Massachusetts, have similar laws prohibiting discrimination against the disabled. While the ADA may be new, many businesses have already been subject to similar mandates against discrimination; the Rehabilitation Act of 1973 prohibited federal contractors from discriminating against disabled people. The difference today is that the ADA comes with a fanfare of publicity and powerful avenues for enforcement.

Although most of the publicity involves making buildings physically accessible by putting in ramps and improving bathroom facilities under Title 111-the public accommodations section of the ADA employers are also obligated to take steps to make the workplace accessible by opening up employment opportunities for individuals with disabilities. The act imposes restrictions on the way employers may select new employees, and determines the future of injured employees who desire to return to work at their previous job. Title 1, the employment section of the ADA, prohibits discrimination against a qualified individual because of a disability in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training and conditions, and privileges of employment.

Although the ADA outlines a list of specific, discriminatory employment practices that are prohibited by the act, ADA is not a black or white instrument. It states repeatedly that determination of discrimination shall be made on a case-by-case basis. According to the act, a qualified individual with a disability is a person who satisfies the requisite skill, experience, education and other job requirements, and who, with or without reasonable accommodations, can perform the essential functions of the position. Reasonable accommodation is any modification or adjustment to the job application process, the work environment or the manner in which the job is performed that allows a disabled person to perform the essential functions of the job without imposing an undue hardship on the business organization. Essential functions are the fundamental duties of a job or position. Undue hardship is the significant difficulty or expense incurred by a business entity.

Job Descriptions

At present, if a company has written job descriptions, they are often simple lists of requirements such as having a high school diploma or being able to lift 50 pounds. Under the ADA, however, job descriptions must reflect the actual physical and mental requirements needed to perform the job. If an applicant is denied employment because the employer determined that he or she is unable to perform the job, in any action or administrative proceeding under the ADA, the court or agency will look at the job description as part of the evidence to determine the essential functions of the job. The ADA also requires that employers identify the number of individuals performing each job and the amount of time spent performing each job function.

Developing job descriptions requires careful analysis of the physical and force requirements, repetitions and postures necessary to complete the work. For instance, our previous applicant, Ms. Wilkins, was required to type 40 words-per-minute. If in reality, the receptionist answers the phone, directs calls and visitors, records messages and distributes mail but only types a letter once a month, then the typing standard may prove to be a non-essential job requirement and inappropriate for inclusion as an essential function in the job description.

The Bureau of National Affairs suggests that those carrying out a job analysis should not rely solely on supervisors or managers, but should consult rehabilitation professionals who are skilled in function job analysis to determine the requirements for a work assignment. In the past, when disabled individuals have filed complaints, both courts and administrative bodies have ruled against employers who used physical or mental standards which were not essential to the jobs in question.

Employers can protect themselves from challenges to ADA compliance by having detailed, functional job descriptions. These descriptions, which are derived from a job analysis and carried out by qualified individuals, will assist business in promoting non-discriminatory practices. The weight-lifting requirement, present in many job descriptions, is a good example of how incomplete knowledge of job essentials can perpetrate discrimination. Ms. Wilkins may be disqualified because she is unable to lift a 50pound box of paper in the standard manner. Distributing the boxes of paper may be an essential requirement of the receptionist's job. The problem, when correctly identified, is not whether Ms. Wilkins can lift an entire box of paper, but rather, whether the paper must be moved by lifting and carrying the full box. Can individual reams of five pounds each be delivered? Can Ms. Wilkins use a cart to move the box? Is there someone more appropriate to complete this task? These questions are essential to the completion of a detailed functional job analysis.

The job description should also identify the physical factors necessary to carry out essential tasks and an analysis of the steps necessary to complete each task. These physical factors include such activities as reaching, lifting, handling, carrying, walking, stooping and kneeling as well as exact measures of force, weights to be lifted, pushed or pulled, repetitions of movement, and distance. In turn, job descriptions should also reflect environmental, psychological and physiological considerations necessary for a job, and seek to promote alternative placement opportunities by identifying disability groups who are able to perform the job in question.

job Interviews

Under the ADA, employers may not use selection criteria that screen out an applicant because of his or her disability unless the criteria are job-related and consistent with business necessity. Because the functions listed in the description are job-related, and the applicant's performance of those functions is consistent with business necessity, interviewers must be trained to limit their questions to those functions listed in the job description.

Questions should focus on job tasks and objectives and whether the applicant can perform the job, rather than his or her physical or mental status. For example, the interviewer may ask whether the applicant is able to lift 25 pounds if the job description identifies this activity as an essential function of the job. However, the interviewer cannot ask whether the applicant has ever had a back problem. The interviewer should not ask applicants about past physical or emotional illness, workers' compensation history, prior drinking or drug use, obvious physical problems, his or her own health status or the health status of family or friends.

Interviewers may not ask questions about the cause, type or extent of the disability or workers' compensation history. They should be trained to avoid making medical judgments about a person's disability. Instead of asking specific questions about the disability, the interviewer should turn his or her concerns into work-related questions about the person's disability. In the previous example, rather than asking Ms. Wilkins how the artificial arm and hook work, one could inquire "How would you answer telephones and take messages at the same time?" or ask Ms. Wilkins to demonstrate how she would perform these tasks.

Historically, disabled persons may have had a disadvantage in the interview process; many interviewers have little experience with disabled individuals. Their body language and methods of communicating often change unconsciously when interviewing the disabled. When the interviewer changes his or her behavior, it gives the applicant a clear message that the interviewer is uncomfortable with the disability, which in turn, may also put the disabled applicant in an uncomfortable position.

In addition to the interviewer, receptionists, supervisors, human resource directors, and all persons involved in the hiring process need to be trained in disability etiquette. The location for the interview should be accessible and an interpreter should be provided to communicate with a hearing-impaired individual.

One common mistake made by employers is that they put themselves in the disabled person's place to determine whether or not the disabled individual can perform the job. Employers should avoid this way of thinking. Instead of trying to imagine whether they could do the job if he or she were disabled, the interviewer should focus on whether the applicant is capable of performing the functions listed in the job description. For instance, one could ask Ms. Wilkins if she can reach the top of a six-foot-high file cabinet if the job analysis determined that filing is an essential function of the receptionist position. Suppose she could perform all of the essential functions of her job except filing in the top drawer of the file cabinet. Ms. Wilkins could explain to the interviewer that there are several alternatives that are available to accommodate her.

This is where reasonable accommodations come into play. The ADA regulations state that reasonable accommodations include making facilities accessible to disabled employees, job restructuring, part-time or modified work schedules, reassignment to another position, acquisition, modification of equipment or devices, modification of examinations, training materials or policies and providing readers or interpreters. The regulations state that the covered entity may need to initiate "an informal, interactive, process with the applicant to identify the precise limitations resulting from the disability, and the potential reasonable accommodations that can overcome the limitations." In other words, the employer might offer to have the applicant, the supervisor, co-workers, and the interviewer discuss reasonable accommodations at the actual work station.

A discussion with Ms. Wilkins reveals that the hook on her artificial arm does not work in an overhead position. In order to perform the filing tasks, Ms. Wilkins would need to move her files from the top drawer to a lower drawer or use a small stepstool. Neither accommodation presents an undue hardship because moving the files can be done at no cost and the price of a step stool is minimal. To reasonably accommodate the worker, the employer may need the services of a consultant who specializes in making accommodations for individuals with disabilities, including occupational and physical therapists, rehabilitation nurses, physicians and other health professionals.

On an application, an employer may not ask questions about previous accidents, injuries or physical condition. Questions asked for the purpose of identifying disabled individuals for affirmative actions or other legitimate purposes should be asked on a separate form rather than on the employment application. These forms should be housed outside the personnel file to avoid a earing as though the disability information was used in a manner inconsistent with the ADA.

Working Conditions

The ADA requires that company facilities be available to all workers. Employers should not assign disabled individuals to segregated work stations or facilitate access to only selected work areas. For example, if a second-floor lunch room is not accessible to an employee in a wheelchair, the employer should provide an alternative accessible area where the worker can eat lunch, get a cup of coffee or talk with a co-worker during lunch breaks.

Accessibility also means flexibility under the ADA. If an employee's schedule can be readily adjusted to meet the needs for rest or medication, then the employer should comply with the request. Likewise, job sharing to accommodate two workers should also be considered as a reasonable accommodation to make work accessible to the disabled. Another example of flexibility would allow an individual requiring daily therapy for a heart condition to take an hour of vacation leave daily. These flexible schedules seek to make work accessible during the extended recovery period while protecting the employers from high accommodation costs.

Physical accessibility of the work place is mandated under ADA. Employers must make their property and place of business accessible by cutting curbs, installing ramps and improving bathroom facilities. Employers should have accessibility audits performed on their facilities by appropriate professionals such as architects, engineers, mobility instructors, and occupational and physical therapists.

Pre-Placement Screening

An assessment of the functional job criteria and an employee's actual abilities to perform a particular job cannot be conducted by qualified medical personnel until an employer makes a job offer. The ADA requires that employment testing of any kind be job-related and consistent with business necessity. The pre-placement screening tool should be based on a detailed, functional job description, derived from a job analysis to assure that the test items are based upon essential job tasks.

To be job-related and consistent with business necessity within the meaning of the ADA, the screening protocol must consist of a carefully constructed simulation of the job's essential tasks. A pre-placement screening of a convenience store clerk that simulates ringing-up and bagging groceries would be job-related since it tests an essential job function. Screening the same clerk for stocking shelves would not be job-related because other employees perform this function.

A test of mere back strength would not be considered job-related because there is no correlation between strength testing and job performance. Further, the ADA requires test administrators to offer the disabled person reasonable accommodation during the test procedure itself. Because isometric back tests may only be performed in one specific manner, they may eliminate certain disability groups by virtue of their design and therefore are discriminatory.

The Office of Federal Contract Compliance Programs, which investigates disability discrimination complaints for federal contractors under Section 503 of the Rehabilitation Act, has reported that most complaints involving disqualification of candidates can usually be resolved by reasonable accommodations. For this reason, professionals should be prepared to help applicants understand why they are unable to perform an essential function and help employers address possible accommodations. Understanding a job is critical to this task; however, understanding an individual's physiological makeup is also important.

For this reason, a baseline assessment of an individual's general strength and weakness is recommended prior to any pre-placement screening. While this information does not influence the final placement decision, it helps explain an individual's inability to perform an essential function and recommends accommodation procedures for the screening process. This information should become part of the individual's permanent medical record and is subject to the ADA's regulations regarding confidentiality.

The question of risk of future injury is an important aspect of screening for the risk manager. Under ADA, the law requires that employment not be denied based solely on a specific diagnosis, disability or symptom. For example, a job category cannot be closed to all epileptics because the operation of heavy machinery is required. Employment may be refused only if a particular applicant, based upon an individualized assessment of the worker's present ability to safely perform the essential functions of the job, poses a direct threat to oneself or others which cannot be reduced with reasonable accommodation. Therefore, the burden of proof remains with the employer.

Employers need to decide on a case-by-case basis whether a direct threat of future injury exists. According to the regulations, after the risk is identified, the duration of the risk should be considered, the nature, severity and the likelihood of the risk determined. In effect, the evidence that increased risk of future injury is only a possibility, or speculative, is not sufficient to deny employment. Under ADA, the employer can deny employment only after it is clear that no reasonable accommodation can reduce a significant risk of substantial harm to the health or safety of employees.

Benefits

Employers must provide the disabled employee with the same benefits that they provide to other employees. Yet apart from the traditional benefits such as sick leave and continuing education, benefits also include social or recreational activities sponsored by the employer-fitness rooms, bowling or baseball leagues and tickets to employer-sponsored charity benefits. For example, if a company sponsors a bowling team and a disabled employee wishes to participate, provisions must be made to reasonably accommodate the disabled employee. Employers should develop policies that assure that benefits are provided for all employees regardless of whether or not they are disabled.

Undoubtedly, health insurance is the most costly benefit for employers. Prior to the ADA, employers have denied employment to disabled applicants because of fear that their health insurance premiums would increase. Under the ADA, employers can no longer deny employment; however, the ADA does not prevent employers from limiting the amount of health benefits coverage so long as the limitation applies to all employees. Also, the ADA does not affect group health insurance policies containing pre-existing condition clauses. Employers may contract with insurance companies that have pre-existing clauses in their policies, but may not contract for workers' compensation insurance that lacks coverage for accidents incurred by disabled employees.

The ADA does, however, affect workers' compensation by requiring employers to accommodate their employees in their former position or in another position. This helps the employer to reduce loss time by placing the worker back in the work force earlier. Returning injured workers to the workplace also reduces claims pay outs and other associated costs. The ADA can reduce the incidence and costs of workers' compensation litigation, if employees know that every effort will be made to return them to their jobs, treat them fairly and preserve their livelihood.

Staff Training

Many myths and misconceptions separate the disabled from traditional employees who should be educated about the disabled worker. For one, absenteeism and the turnover rates for disabled employees are much lower than for non-disabled employees, according to the Office of Vocational Rehabilitation. The ADA guidelines suggest that managers, supervisors and employees be educated to better understand the problems of people with disabilities.

Companies should move to eliminate stereotypes and an outdated vocabulary about the disabled and provide training that would allow disabled individuals the opportunity to work in a non-discriminatory environment. The training program should dispel myths, encourage the use of proper terms and ways to assist the disabled, provide information about various disabilities and procedures for installing accommodations, and establish resources for answering future questions.

Employee evaluation policies should focus on objective criteria that emphasize performance and abilities of employees regardless of disability. Employers should adhere to good employment practices such as posting vacancies within the organization. As positions become available, employers should consider all qualified employees.

Undue Hardship

Tax credits, grants and other federal and state incentives can help employers pay for accommodations in order to hire the disabled employee. Yet the ADA has outlined specific factors to determine whether an accommodation imposes an undue hardship on an employer.

The first factor to be considered is the nature and cost of the accommodation. Other factors determining undue hardship are the employer's financial resources, the number of employees, the layout of the facility, the impact of the accommodation on the operation and on the terms of the collective bargaining agreement. Employers who violate ADA guidelines face penalties of injunctive relief, reinstatement, back pay, defense fees and other costs related to litigation.

However, a study conducted by Berkley Planning Associates for the U.S. Department of Labor, which is referred to in the ADA's guidelines, reports that 51 percent of all accommodations are actually made at no cost to the employer; more than half of disabled employees require no accommodations to perform their jobs.

Other statistics from this study show that 18.5 percent of reasonable accommodations cost between $1 and $99; 11.9 percent cost between $100 and $499; and more than 80 percent cost less than $500. The average cost of reasonable accommodations was fixed at $304. The top 1.6 percent are structural changes, such as ramp installation, which is required by the public accommodations section of the ADA, and therefore cannot be counted as part of the costs of hiring a disabled employee.

In the end, employers will avoid litigation by making sure that all company policies and procedures are in compliance with ADA guidelines. Policies should be written to include reasonable accommodations, interview procedures, testing procedures, job descriptions, job standards, and accessibility. Records should be meticulously kept to document compliance with ADA policies. For instance, if accommodations are being made along with the job offer, the employer should send a letter to the employee detailing all the reasonable accommodation efforts offered as part of his or her conditions of employment.

Also, employers should maintain relationships with a variety of professional consultants who can provide technical expertise and assist the risk manager in developing reasonable accommodations, pre-placement screening programs, training materials along with job descriptions. This approach in handling workplace issues for the disabled employee will hopefully inspire a more fair and efficient work environment. Barbara L. Kornblau is an attorney, an occupational therapist and president of ADA Consultants Inc.- in Miami. Melanie Ellexson, an author and lecturer on industrial rehabilitation and injury prevention, is the director of Schwab Rehabilitation Centers STEPS Industrial Rehabilitation Clinics in Chicago.
COPYRIGHT 1991 Risk Management Society Publishing, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Americans With Disabilities Act
Author:Kornblau, Barbara; Ellexson, Melanie
Publication:Risk Management
Date:Nov 1, 1991
Words:3743
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