Transcript Americans With Disabilities Act

Americans With Disabilities Act
& Food Service
TITLE 1
EMPLOYMENT
NOD-Harris Poll - 2010
21(35)% with a disability work full-time
or part-time
59(78)% without disability work full-time or
part-time
22% report encountering job discrimination
(2004)
ADA Overview
Title I - Employment
Title II - State & Local Government
Title III - Public Accommodations
Title IV - Telecommunications
Title V - Miscellaneous
Definition of a Disability:
A physical or mental impairment that
substantially limits one or more major
life activities;
A record of such an impairment;
Is regarded as having such an
impairment
ADA Amendments Act of 2008
“Substantially limits” – definition
Mitigating measures will not be
considered
Exception – eyeglasses and contact
lenses
Affected major life activities
Seeing
Performing manual
tasks
Speaking
Learning
Walking
Breathing
Hearing
Working
Sleeping
Caring for oneself
Thinking
ADA Amendments Act of 2008
“Major life activities” includes bodily
functions:

functions of the immune system, normal
cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.
Episodic or in Remission
NOT covered by the ADA
Current illegal drug users
Sexual behavior disorders
Compulsive gambling
Kleptomania
Pyromania
Psychoactive substance use disorders
(from use of illegal drugs)
Drug and Alcohol Use
Past illegal drug use covered
Current illegal drug use not covered
Employer may prohibit use of illegal
drugs and alcohol in workplace
Drug tests are not illegal
Drug and Alcohol Use
Past alcohol use covered
Current alcohol use covered
Discipline, discharge or deny
employment when alcohol impairs job
performance or conduct
Title I - Employment
Private employers
State and local governments
Employment agencies
Labor Unions
What Employers Are Not
Covered?
Those with less than 15 employees
Private clubs (i.e. country clubs)
Federal Government
Native American Tribes
Regulated Employment Practices
Application
Promotion
Testing
Medical exams
Hiring
Layoff/Recall
Assignments
Termination
Evaluation
Compensation
Disciplinary actions
Leave
Training
Benefits
The ADA prohibits
discrimination against any
qualified individual with a
disability in regard to all terms,
conditions, and privileges of
employment.
What is a Qualified Individual?
Individual must have the education,
experience and skills required
Must be able to perform the essential
functions of the job with or without a
reasonable accommodation
What makes a Job Task
Essential?
The position exists to perform the
function
There is a limited number of employees
who can perform the task
The function is highly specialized,
requiring specific expertise or skill
Determining if a Task is
Essential
Employer’s judgment
Written job description
Amount of time spent performing
the task
Reasonable Accommodation
Accessible work environment
Modify exams, training materials,
job-restructuring
Modify work practices and procedures
Part-time or modified work schedules
Qualified interpreters or readers
Leave
Reassignment
Not Reasonable Accommodations:
Transfer to a different supervisor
Reassignment of essential functions
Lowering production standards
Provision of personal use items
Provision of “light duty” position
Promotion
Non-adherence to policy and procedure
that is consistent with business
necessity
Reasonable Accommodation
Individual must request an accommodation
Individual may refuse an accommodation
Defenses

Undue hardship
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
Significant expense or difficulty
Fundamental alteration of business
Direct threat

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...to health and safety of others
Significant risk that can not be eliminated by reasonable
accommodation
Interview: Unacceptable Questions
How much alcohol do you drink?
What medications are you taking?
Have you ever been hospitalized?
Have you ever taken AZT?
Have you ever filed or received worker’s
compensation?
Interview: Acceptable Questions
Are you capable of standing for 3 hours?
Would you be able to arrive to work by 8 am
everyday?
Can you perform the essential functions of
the job with or without a reasonable
accommodation?
Can you move 50 lbs from point A to point B?
Can you sit for 2 hours at a time?
Can you read a video display terminal?
Reference Checks
May ask about:
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job functions & tasks
quality & quantity of work
how job functions were performed
attendance record
other job-related issues that do not relate to
disability
Cannot ask about:
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Disability
Illness
Workers compensation history
Medical Inquiry: Pre-Employment
No questions which could elicit medical
information
No medical exams permissible
Agility/aptitude testing permissible if
consistent with business necessity
All other applicants are subject to same
Medical Inquiry: Post Offer
Permissible if all applicants or
individuals in similar positions subject to
same inquiry and exam
Additional inquiry allowed to follow-up
on information found in initial inquiry
Withdrawal of offer must be based on
direct threat
Medical Inquiry: Post-Hire
No medical inquiry unless consistent
with business necessity
Participation in wellness or other health
promotion activities sponsored by
employer must be voluntary
Medical Records
Information regarding medical
exams and inquiries
 must
be kept confidential
 must be kept separate from
personnel files
Service Animals
Only dogs are recognized
Separate provision for miniature horses
Comfort or emotional support animals
do not qualify as a service animal
Definition of Service Animal
Individually trained to do work or perform
tasks
Guiding people who are blind
 Alerting people who are deaf
 Pulling a wheelchair
 Alerting and protecting due to seizure
 Reminding person with mental illness to take
prescribed medications
 Calming a person with Post Traumatic Stress
Disorder (PTSD) during an anxiety attack

Where Service Animals are Allowed
Under the ADA, State and local
governments, businesses, and nonprofit
organizations that serve the public
generally must allow service animals to
accompany people with disabilities in all
areas where members of the public are
allowed to go.
Control of Animal
Service animals must be harnessed,
leashed, or tethered

Exceptions
it interferes with the service animal’s work
 the individual’s disability prevents using these devices

Or, individual must maintain control of animal
through voice, signal, or other effective
controls
Inquiries Allowed
Two questions may be asked

Is the dog a service animal required
because of a disability?

What work or task has the dog been
trained to perform?
Inquiries Not Allowed
Asking about the disability
Requiring medical documentation
Requiring special ID card or training
documentation for the dog
Asking that the dog demonstrate its
ability to perform the work or task
Denying Access to Animals
Allergies and fear of dogs are NOT valid
reasons
If dog is out of control and the handler
does not take effective action to control it
If the dog is not housebroken
Offer the opportunity to obtain goods or
services without the animal’s presence
Food Service
Establishments that sell or prepare food
must allow service animals in public
areas even if state or local health codes
prohibit animals on the premises.
People with disabilities who use service
animals cannot be isolated from other
patrons
Employee with Service Animal
Food Code prohibits handling of animals
Allows employees to handle service animals
After handling, wash hands
At least 20 seconds
 Soap, water, vigorous friction on hand surfaces
 Rinsing, drying

Determine undue hardship/direct threat
CDC: Infectious and
Communicable Diseases
Campylobacter
Salmonella
E. coli
Calicivirus or Norwalk-like virus
Shigella species
Hepatitis A virus
Staphylococcus aureaus
FDA Food Code
Reporting Requirements
Employee must:
Report diagnosis
Report symptoms
Report past illness due to listed pathogens
Specific high-risk conditions
Get medical clearance before
exclusion/restriction is lifted
Food Service Management
Restrict employee if symptoms are
present
Exclude employee if diagnosed with
illness
If disabled by disease, ADA applies
If Disabled by Disease…
Employer can exclude employee if:
No reasonable accommodation would
eliminate risk
 All reasonable accommodations would
pose an undue hardship on business
 There is no vacant position not involving
food handling for which employee is
qualified

Company Policies and Practices
Training
Sensitivity training for managers and
co-workers
Health insurance
Employee assistance programs
Fitness programs
Employee & family activities
Posting Notices
An employer must post notices
concerning the provisions of the ADA
Must be accessible to persons with
visual or other reading disabilities
Posters can be obtained from the EEOC
800-669-EEOC
 or 800-800-3302 (TDD)
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Financial Assistance
IRS Code 44 (Tax Credit)
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30 employees or less OR annual gross receipts less
than $1M
Up to $5000/year
50% of expenditures between $250 - $10,250
IRS Code 190 (Tax Deduction)
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Up to $15,000/year
Architectural or Transportation
Targeted Jobs Tax Credit
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For hiring people with disabilities
Resources
U.S. Department of Justice
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www.usdoj.gov/crt
(800) 514-0301
Job Accommodation
Network (JAN)
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Equal Employment
Opportunity Commission
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www.eeoc.gov
(800) 669-4000
U.S. Access Board
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www.access-board.gov
(800) 872-2253
http://www.jan.wvu.edu/
(800) 526-7234
Great Lakes ADA Center
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www.gldbtac.org
(800) 949-4232
National Center on
Accessibility
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www.ncaonline.org
(812) 856-4422 (voice)
(812) 856-4421 (tty)