Learn tips for ensuring access for applicants with disabilities
The goal of the hiring process is to attract and identify the individual who has the best mix of skills and attributes for the job that is available. Assuring that all qualified individuals can participate in the application process is key to achieving this goal. By examining their hiring procedures and implementing some simple steps, employers can widen their pool of potential talent and ensure that they do not miss out when the best person for the job happens to have a disability.
JOB ANALYSIS AND DETERMINING ESSENTIAL FUNCTIONS
Although it's not required under the Americans with Disabilities Act (ADA), it would be wise for employers to carefully examine each of their jobs to determine its essential functions. One of the aspects of determining whether or not someone is a qualified individual with a disability is whether or not the person can, with or without reasonable accommodation, perform the essential functions of the position. The information that can be provided by a job analysis can be helpful in properly identifying essential job functions, depending on how it is conducted.
Before we can consider whether the person with a disability can perform the essential functions of a job, we must first identify what the essential functions are. According to guidance from the Equal Employment Opportunity Commission (EEOC), essential job functions are the basic job duties that an employee must be able to perform, with or without a reasonable accommodation. Essential functions are the job tasks that are fundamental and necessary, and not those that are marginal. Determining essential job functions will assist employers in establishing appropriate qualification standards, developing a job description, conducting interviews and selecting the best employees.
The first consideration in identifying whether or not a job function is essential is determining whether employees currently in the position are actually required to perform the function. If a person holding the job performs a particular job function, then the next step in determining whether or not the job function is essential is looking at whether removing that function would fundamentally change the job. A job function may be considered essential for any of several reasons, to include:
- The reason the position exists is to perform that function. E.G.: if an individual is hired as a bus driver, the ability to drive a bus is an essential function of the job.
- There are a limited number of other employees available to perform the function, or among whom the function can be distributed. E.G.: if a business has a small number of employees, each employee may need to perform many different functions. The options for reorganizing the work may be more limited than if the number of employees is larger, and particular job tasks may be essential, even though those same job tasks would not be essential in a larger workforce with more options for reorganization.
- The function may be highly specialized and the person in the position is hired for special expertise or ability to perform it. E.G.: For a company wishing to expand its business with Japan, a person in a sales position would not only need to have sales experience, but would also need to be able to communicate fluently in the Japanese language. Thus speaking fluent Japanese would be an essential function of the job.
In identifying whether or not something is an essential function to determine if an individual with a disability is qualified, the employer needs to focus on the purpose of the function and the result to be accomplished, rather than on the manner in which the function is presently being performed. An individual with a disability may be qualified to perform a particular function if, with an accommodation, the job could be performed in a different way, and the accommodation would not impose an undue hardship. Although it may be essential that a job function be performed, frequently it is not essential that it be performed in a particular way. E.G.: the essential function of a job requiring use of a computer is the ability to access, input, and retrieve information. It is not "essential" that the person in the job be able to enter information manually, or visually read the information on the computer screen.
Sometimes a job function that is performed infrequently may still be essential because there will be serious consequences if it is not performed. E.G. An airline pilot usually spends only a few minutes of a flight landing a plane. However, landing the plane is an essential function of the job because of the very serious consequences if the pilot could not perform this function.
Many individuals with disabilities are qualified to perform the essential functions of jobs without the need of any accommodations or modifications. However, if an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of the disability, an employer, in assessing whether the person is qualified to do the job, must consider whether there are modifications or adjustments that could be made that would enable the person to perform these functions. Such modifications or adjustments are called reasonable accommodations.
For more information on Essential Job Functions click here to go to the EEOC Title I Technical Assistance Manual.
Click here to go to the WA State Department of Personnel website for more information on essential functions and the reasonable accommodation process.
For further clarification on conducting a job analysis and determining essential functions click here to go to the Department of Labor Office on Disability Employment Policy website.
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Recruitment, Application, and the Interview
Employers need to ensure that the recruitment process is accessible to all individuals by providing reasonable accommodations that qualified applicants will need to compete for the job (e.g., applications in alternative formats and accessible route-of-travel to the human resources office.) Remember that accessibility does not just pertain to a physical environment. Application forms and other relevant information should be available in alternative formats such as large print, braille, audiotape, or computer disk or CD for people with visual or cognitive disabilities.
Do not assume that accommodations are expensive or difficult to implement. Most are not, and a number of resources are available to assist in making accommodations. It is also important to not assume that one accommodation will work for all individuals with similar disabilities.
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The Job Application Form
Inquiries about disability may not be made on job application forms, but employers may ask questions to find out whether an applicant can perform specific job tasks or functions. Job application questions should focus on an applicant's ability to perform the job. It should be a priority of any employer to regularly review all job application forms to eliminate any questions related to disability.
Examples of inquiries that may not be asked include such things as:
- Whether or not the applicant has been treated for particular conditions or diseases;
- Whether or not the applicant has been hospitalized and for what conditions;
- Whether the applicant has been treated by a psychiatrist or psychologist and for what condition;
- Whether there is any health-related reason the person may not be able to perform the job for which they are applying;
- How many days the person was absent from work because of illness in the last year.
A job application may ask whether an applicant can perform marginal functions of a job. However, an applicant with a disability who meets all of the other qualifications for the job may not be excluded from a job simply because the disability prevents him/her from performing marginal job functions. An application may also include a question about whether the applicant can perform job tasks with or without reasonable accommodation.
For more information on pre-employment inquiries and the job application form click here to go to the Equal Employment Opportunity Commission (EEOC's) Title I Technical Assistance Manual.
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The Interview Process
When meeting with a job applicant, relax and make him or her feel comfortable. Treat an individual with a disability with the same dignity and respect you would give any applicant.
The purpose of a job interview is to obtain appropriate information about the background qualifications and other personal qualities of an applicant in relation to the requirements of a specific job. In a job interview, employers may not ask questions specifically about an applicant's disability. )E.G. how the individual became disabled, or the cause, nature, severity, of prognosis.) An employer also may not ask questions about an applicant's use of medication, or about an applicant's prior workers' compensation history.
Examples of questions employers can ask include:
- Whether s/he has the right education, training, and skills for the position.
- Whether s/he can satisfy the job's requirements or essential functions (describe them to the applicant).
- How much time off the applicant took in a previous job (but not why), the reason s/he or she left a previous job, and any past discipline.
As with the application process, an employer may, during the course of the interview, ask an applicant to describe how, with or without reasonable accommodation, s/he will be able to perform job-related functions. If the applicant indicates that reasonable accommodation will be necessary to perform essential job functions, the need for and type of accommodation can be discussed at this point in the interview.
For more information about how to prepare For and conduct an effective job interview Click here to go to the dol.gov site.
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Medical Inquiries and Exams
The Americans with Disabilities Act identifies specific provisions under which medical examinations and medical inquiries are both prohibited and specifically permitted. These provisions apply to the three stages of the employment process, to include, during the application process, at the time the job is offered but prior to start of employment, and once the person is employed.
Employers need to check to make sure that applications and other forms do not ask disability-related questions. Employers may ask questions that relate to the applicant's ability to perform job-related functions with or without reasonable accommodation. A job applicant can not be required to take a medical examination, to respond to medical inquiries or to provide information about workers' compensation claims before a job offer is made. Employers also need to make sure that any medical examinations required are also required of all other applicants and are performed after a job offer has been extended. The job offer may be conditioned on the results of the post-offer medical examination. However, if a decision is made not to hire an individual based on the results of the medical exam, the basis for that decision must be job related and not because of the individual's disability.
It is important to keep in mind that among those protected by the Americans with Disabilities Act are qualified individuals who have a substantial limitation in a major life activity. Whether qualified individuals with a medical condition like AIDS, cancer, mental retardation, traumatic brain injuries and learning disabilities will be considered disabled under the law will depend on the facts of each individual case.
For more information on the EEOC Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations click here to go to the eeoc.gov site.
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Employee Medical Examinations and Inquiries
After a person starts work, the need for a medical examination or inquiry of an employee must be job related and necessary for the business. If an employee with a disability is having trouble performing essential job functions, or doing so safely, do not immediately assume that the disability is the reason. Poor job performance is often unrelated to a medical condition and, when this is the case, it should be handled in accordance with the employer's existing policies concerning performance (e.g., informal discussions with the employee, verbal or written warnings, or termination where necessary). On the other hand, if an employer has information that reasonably causes him or her to conclude that the problem is related to the employee's disability, then medical
questions, and perhaps even a medical examination, may be appropriate.
Certain types of inquiries or examinations are always permitted, even if they disclose some medical information. For example, an employer may:
- Ask all employees to provide a doctor's note to support a request for leave.
- Ask about an employee's medical condition and conduct medical examinations that are required by another federal law.
For more information on the EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) click here to go to the eeoc.gov site.
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Confidentiality of Medical Information
With limited exceptions, an employer must keep confidential any medical information he or she learns about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if a health care professional does not generate it. This information must be kept in files separate from the applicant's or employee's general personnel file, and made available only under limited conditions. Medical information stored electronically must be similarly protected (e.g., by storing it on a separate database).
The Americans with Disabilities Act (ADA) recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:
- To supervisors and managers where they need medical information in order to provide a reasonable accommodation or to meet an employee's work restrictions;
- To first aid and safety personnel if an employee would need emergency treatment or require some other assistance (such as help during an emergency evacuation) because of a medical condition;
- To individuals investigating compliance with the ADA and with similar state and local laws; and
- Pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.
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