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Larry Studesville, |
FREQUENTLY ASKED QUESTIONS (FAQ)
DISABILITY RIGHTS/AMERICANS WITH DISABILITIES ACT (ADA) Q. What is The Disability Rights & Services Program? A. In 1990, Madison's City Council adopted Madison General Ordinance 39.05, which prohibits discrimination based on disability by City programs and by City-funded agencies. Under this ordinance, the Disability Rights & Services Program monitors both the physical and programmatic access for people with disabilities of the agencies and programs for which the City provides funding. The program also provides technical assistance in helping resolve both physical and programmatic accessibility issues The Disability Rights & Services Program is a unit of the City's Department of Civil Rights serving Madison's residents with disabilities. Under the auspices of the Civil Rights Director, this program coordinates the City's efforts to comply with the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The Department of Civil Rights Director, Disability Rights & Services Program Coordinator and the Commission on People with Disabilities (CPD):
A. Madison General Ordinance 39.05 (MGO 39.05) prohibits a person with a disability from being denied either full access to or full participation in: 1) a service offered by a City of Madison department or 2) a service subsidized by the City. An individual may file a complaint under MGO 39.05, if a denial as described above has occurred and the denial is based solely upon the person's having a disability. The complaint procedure provided under MGO 39.05 serves as the City of Madison's complaint procedure as required by Title II of the Americans with Disabilities Act (ADA). When designated by the Director of the Department of Civil Rights, the Disability Rights & Services Program Coordinator intakes, investigates and resolves disability-based discrimination complaints from users of City services. S/he develops educational programs and other tools to alleviate the circumstances, which can lead to disability-based discrimination. Persons wishing to file a complaint should complete a Complaint Register form (PDF). MGO 39.05 DOES NOT cover alleged discrimination based on disability occurring during the course of one's employment with the City of Madison. Therefore, complaints relative to City employment should be directed to, either the Affirmative Action Specialist, the City's Human Resources Department, or the State of Wisconsin's Department of Workforce Development-Equal Rights Division. If you should have any questions, please call the Disability Rights & Services Program Coordinator at (608) 267-8635, TTY/Textnet at (866) 704-2314. AMERICANS WITH DISABILITIES ACT Q. What is the Americans with Disabilities Act (ADA)? A. The Americans with Disabilities Act gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications. Q. What is the Definition of a disability under the Americans with Disabilities Act? A. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities such as working, talking, hearing, seeing, or caring for one's self. The law also prohibits discrimination against individuals with a record of impairment, such as cancer patients in remission, and those regarded by others as having an impairment, such as individuals with severe facial scarring. Q. What employers are covered by Title I of the ADA, and when is the coverage effective? A. The title I employment provisions apply to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994. Q. What practices and activities are covered by the employment nondiscrimination requirements? A. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities. Q. Who is a "qualified individual with a disability?" A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job. Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants? A. No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job. Q. What limitations does the ADA impose on medical examinations and inquiries about disability? A. An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions. An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be job-related and consistent with business necessity. However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity. The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship. A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a "direct threat" in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or reduced below the direct threat level through reasonable accommodation. Such a disqualification is job-related and consistent with business necessity. A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury. After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs. Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions. Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations. Q. What is "reasonable accommodation?" A. Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities. Q. What are some of the accommodations applicants and employees may need? A. Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids. The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that of effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits. Q. When is an employer required to make a reasonable accommodation? A. The individual must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. An employer is only required to accommodate a "known" disability of a qualified applicant or employee. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. When the disability and/or the need for accommodation are not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. There are also many public and private resources that can provide assistance without cost. Q. What are the limitations on the obligation to make a reasonable accommodation? A. The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources. If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an 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 constitute an undue hardship or providing the accommodation. Q. Must an employer modify existing facilities to make them accessible? A. The employer's obligation under Title I is to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and to all facilities used by employees. For example, if an employee lounge is located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers. The employer must provide such access unless it would cause an undue hardship. Under Title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual's work needs. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits. Q. Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation? A. No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation. Q. Can an employer be required to modify, adjust, or make other reasonable accommodations in the way a test is given to a qualified applicant or employee with a disability? A. Yes. Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless it is a job-related skill that the test is designed to measure. Q. Can an employer maintain existing production/performance standards for an employee with a disability? A. An employer can hold employees with disabilities to the same standards of production/ performance as other similarly situated employees without disabilities for performing essential job functions, with or without reasonable accommodation. An employer also can hold employees with disabilities to the same standards of production/performance as other employees regarding marginal functions unless the disability affects the person's ability to perform those marginal functions. If the ability to perform marginal functions is affected by the disability, the employer must provide some type of reasonable accommodation such as job restructuring but may not exclude an individual with a disability who is satisfactorily performing a job's essential functions. Q. Is providing leave necessitated by an employee's disability a form of reasonable accommodation? A. Yes, absent undue hardship, providing unpaid leave is a form of reasonable accommodation. However, an employer does not have to provide more paid leave than it provides to other employees. Q. When an employee requests leave as a reasonable accommodation; may an employer provide an accommodation that requires him/her to remain on the job instead? A. Yes, if the employer's proposed reasonable accommodation would be effective and eliminate the need for leave. Accordingly, an employer may reallocate minor job tasks or provide a temporary transfer instead of leave, so long as the employee can still address his/her medical needs. Q. When an employee requests leave as a reasonable accommodation; may an employer provide an accommodation that requires him/her to remain on the job instead? A. Yes, if the employer's proposed reasonable accommodation would be effective and eliminate the need for leave. Accordingly, an employer may reallocate minor job tasks or provide a temporary transfer instead of leave, so long as the employee can still address his/her medical needs. Q. What are public accommodations? A. A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are exempt from the ADA's title III requirements for public accommodations. Q. Does the ADA allow public accommodations to take safety factors into consideration in providing services to individuals with disabilities? A. The ADA expressly provides that a public accommodation may exclude an individual, if that individual poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation's policies or procedures, or by the provision of auxiliary aids. A public accommodation will be permitted to establish objective safety criteria for the operation of its business; however, any safety standard must be based on objective requirements rather than stereotypes or generalizations about the ability of persons with disabilities to participate in an activity. Q. Are there any limits on the kinds of modifications in policies, practices, and procedures required by the ADA? A. Yes. The ADA does not require modifications that would fundamentally alter the nature of the services provided by the public accommodation. For example, it would not be discriminatory for a physician specialist who treats only burn patients to refer a deaf individual to another physician for treatment of a broken limb or respiratory ailment. To require a physician to accept patients outside of his or her specialty would fundamentally alter the nature of the medical practice. Q. How does the ADA affect existing State and local building codes? A. Existing codes remain in effect. The ADA allows the Attorney General to certify that a State law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities. Any State or local government may apply for certification of its code or ordinance. The Attorney General can certify a code or ordinance only after prior notice and a public hearing at which interested people, including individuals with disabilities, are provided an opportunity to testify against the certification. Q. Does the ADA cover private apartments and private homes? A. The ADA does not cover strictly residential private apartments and homes. If, however, a place of public accommodation, such as a doctor's office or day care center is located in a private residence, those portions of the residence used for that purpose are subject to the ADA's requirements. Q. Does the ADA cover air transportation? A. Discrimination by air carriers in areas other than employment, is not covered by the ADA, but rather by the Air Carrier Access Act (49 U.S.C. 1374 (c)). Q. What are the ADA's requirements for public transit buses? A. The Department of Transportation has issued regulations mandating accessible public transit vehicles and facilities. The regulations include requirements that all new fixed-route, public transit buses be accessible and that supplementary paratransit services be provided for those individuals with disabilities who cannot use fixed-route bus service. For information contact the Department of Transportation. Q. How will the ADA make telecommunications accessible? A. The ADA requires the establishment of telephone relay services for individuals who use telecommunications devices for deaf persons (TTY's) or similar devices. The Federal Communications Commission has issued regulations specifying standards for the operation of these services. For answers to additional questions, call the ADA Information Line at:
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