Tip:
Highlight text to annotate it
X
Computer/Electronic Accommodations Program Highlights From: Dispelling the Myths, Reasonable
Accommodations Under the Rehab Act March 28, 2013 Jo Linda Johnson, Director, Federal Training
& Outreach Division Office of Federal Operations, Equal Employment Opportunity Commission Jo
Linda Johnson: Okay. So let's talk about what the Rehab Act requires, and actually let me
back up and ask, who knows what the ADA is? Only three of you, really? So what's the difference
between the ADA and the Rehab Act? Participant: The Rehabilitation Act covers Federal agencies;
the ADA covers the private sector. Jo Linda Johnson: That's right. So the Rehab Act covers
the Federal Government; the ADA covers everyone else, private sector, state, and local. Okay?
Which came first? Participant: The Rehab Act. Jo Linda Johnson: The Rehab Act, and the ADA
is actually based on the Rehab Act. So they are mirror images of one another, one just
applies to a different sector than the other. So if you hear in the news that the Supreme
Court made a decision under the ADA, it applies to us as Federal employees in the exact same
way, it just applies under the Rehab Act as opposed to under the ADA. Okay? So what did
I do? There. What does the Rehab Act require? First and foremost, like all the statutes
enforced by the Commission the Rehab Act says you may not discriminate against a person
based on the fact that they have a disability. So there is a non-discrimination portion of
the law. Everybody understand that? That's pretty straightforward. The second part of
the law, and this is where it differs from other statutes that are enforced by the Commission,
the second part of the law is that it says that in addition to not discriminating against
somebody because they have a disability, you also, employer, you must provide reasonable
accommodations to employees with disabilities, and we'll talk a lot about what that means,
what that looks like, what it doesn't look like. It also requires that employers have
an affirmative action program to hire, advance, and retain individuals with disabilities.
Affirmative action, despite what you may think or may have heard, is alive and well in the
Federal Government. It is not dead. Under the Rehab Act Federal employers are required
to have an affirmative action program, and that's the actual language in the statute,
and the statute is still in effect. So affirmative action is still in effect for the Federal
Government, okay? The Rehab Act also prohibits employers from making inappropriate disability
related questions. This is an area where employers often find themselves running afoul with the
law, because they ask inappropriate questions at the interview stage, or when someone is
already on board, they ask inappropriate questions about whether or not they may or may not have
a disability. So if I am interviewing someone, it is not appropriate for me to ask if they
have a disability. It's not appropriate for me to ask questions that might lead to an
answer about a disability or any sort of medical related issue. If I am interviewing for a
position, I have to focus on what's required for the position? What are the skills and
knowledge that is required for that person to perform? It's inappropriate for me to ask
questions like, do you have any sort of injuries that I need to know about? That's an inappropriate
question. Are you pregnant? That's an inappropriate question. That's an inappropriate question
under a different statute, but those are the kinds of questions that we see more often
than we should, but they're all prohibited, okay? You have to focus on what are the job
skills necessary to do the job and does the person have them? Questions about that? The
Rehab Act also requires that employers keep medical information about all employees confidential.
Take note that it says all employees, not just employees with disabilities. All employees.
So this part of the Rehab Act applies to everyone. Whether I have a disability or not I have
a cause of action if my medical information is disclosed inappropriately. So if you have
an employee who sends you an email saying, "hey, I'm going to be out of the office for
the next week because I sprained my ankle." Is that medical information? It absolutely
is. It's innocuous medical information. It's not the type of information that people are
typically sensitive about, but it's still medical information, therefore it has to be
kept confidential. As the employee who sprained their ankle, who sent that information, I
can tell whomever I want, because it's my information. You as my supervisor or manager,
you must keep it confidential. Okay? Does that make sense? A lot of times employers
will think, oh, well, it's not like she said I was just diagnosed with depression. She
just said I sprained my ankle. We don't weigh the sensitivity of the information. It's either
medical information or it's not. Okay? Clear on that? Questions about that? Yes ma'am!
Participant: So what about, when you say the immediate supervisor, has to keep it confidential,
what about the immediate supervisor? Jo Linda Johnson: The employer has to keep it confidential,
period. That applies to everyone; all supervisors, all managers, everyone has to keep it confidential.
Confidential, it can be disclosed to those who have a need to know. So what's an example
of that? Let's say I am a person with a disability and I need an accommodation. So I go to my
supervisor and say, I have a back condition and because of my back condition I need a
chair, the office chair that you provided me is not sufficient. Well, my supervisor
has a right to ask for medical documentation to support that. Your employer has a right
generally, number one. And number two, the supervisor is unlikely to be the person who
is actually going to be buying the chair. They're probably going to turn that over to
someone else who will do that. That person may have a need to know. So disclosing to
that person might be appropriate. But disclosing to everyone in my supervisory chain, no, it's
those who have a need to know. Participant: A slightly different one. Jo Linda Johnson:
Absolutely! Participant: Say it's a friend of yours -- I am a supervisor, there is a
colleague on the hallway who has an injury, and we work closely with other people, you
know, the same chain. It comes back they're out of the office just because of this injury,
that discussion comes to me, and I get that information, I know what happened. Now, because
I am a supervisor are you saying, because I've perceived that, I've been told that,
as being part of the... employer, I wouldn't be able to share that with others because
just the way this group of people may have been talking about it? Jo Linda Johnson: What
do you guys think about that? Can you share the information or not? Remember my answer
to her question. Participant: That's a no. Jo Linda Johnson: The answer is no. The answer
is -- there is two parts to this answer. Number one, supervisors and managers are the ones
held accountable under this, because you represent the employer. So if you are a colleague of
this employee and you're just a line staff person, yes, you should keep it confidential,
but we can't attach liability to the Agency for the behavior of a line employee in this
instance; there are some circumstances where we can to the courts of the Commission. In
this instance we cannot. But if you are a manager/supervisor, you are an agent of the
employer, therefore you represent the employer, you are held to the standard. You keep medical
information about all employees confidential and you only disclose it to those who have
a need to know. So if there is someone that needs to know, you can disclose it. If they
do not have a need to know, the fact that you're not their supervisor, doesn't change
the fact that you are a supervisor. Okay? Other questions about that? Okay. The Rehab
Act also requires that employers comply with anti-harassment requirements, meaning you
can't harass somebody because they have a disability. And importantly, employers must
address situations where harassment is occurring, even if it is based on disability, and you
cannot retaliate against a person, number one because they have a disability; or number
two, because they have requested an accommodation. If I request an accommodation, I don't get
penalized for doing so after the fact. Okay? Makes sense? Questions? Okay. So as I mentioned,
I'm going to go quickly through the definition of disability, because I think most people
have a working understanding of it, but if I go through it too quickly and you don't
understand, or you have follow-up questions, don't hesitate to raise your hand and let
me know and we'll come back to it, okay? So a person with a disability is a person who
-- and this is a three part definition and it's important that all three parts are met.
Number one, it's a person who has a physical or mental impairment; number two, that substantially
limits them in; number three, one or more of their major life activities. So number
one, physical or mental impairment, give me an example of a physical impairment? Anything?
Participant: Amputee, paralysis. Jo Linda Johnson: An amputee, paralysis. What else?
Participant: Bad back. Jo Linda Johnson: Bad back. What else? Participant: Wheelchair,
crutches. Jo Linda Johnson: Okay, so somebody who has mobility impairments. Okay. Anything
else? Participant: Vision, hearing. Jo Linda Johnson: Vision, hearing. Those are all big
ones. I'm thinking of small ones, like what if I sprained my ankle, is that a physical
impairment? Or break my leg, is that a physical impairment? Participant: Carpal tunnel. Jo
Linda Johnson: I have carpal tunnel. Those are all physical impairments too. So large
and small. Note that I didn't say those are all disabilities; I said they're all impairments,
because that's part one of the definition. So I sprained my ankle, is that a physical
impairment? Of course it is. Am I a person with a disability? We have to figure that
out, because we have to look at part two and part three of the definition. So part one,
physical impairment. What's an example of a mental impairment? Participant: Depression.
Jo Linda Johnson: Depression. Participant: Traumatic brain injury. Jo Linda Johnson:
TBI. Participant: PTSD. Jo Linda Johnson: PTSD. Participant: ADD. Jo Linda Johnson:
ADD. ADHD. Dyslexia, learning disabilities, anxiety disorders, depressive disorders. Participant:
Seizures. Jo Linda Johnson: Seizures. Epilepsy, I think they are viewed often as mental impairments,
but it really is a physical neurological impairment technically. Scientifically it's a neurological
issue, but a lot of people believe it to be a mental impairment. OK, so schizophrenia,
bipolar disorder, depressive disorders, anxiety disorders, learning impairments, any numbers
of things could be a mental impairment, any number of things could be a physical impairment.
It doesn't necessarily mean if I have that diagnosis that I am a person with a disability
yet, because I still have to go through parts two and three of the definition. So are you
with me? Okay. Part two says that whatever that impairment is, it has to substantially
limit part three, a major life activity. So let's go with part three for now. What are
examples of major life activities? Participant: Dressing yourself. Jo Linda Johnson: Dressing
yourself. Caring for yourself is what we would call that, yeah. What else? Participant: Being
born. Jo Linda Johnson: Being born? No, we wouldn't call being born a major life activity,
but think of it this way. Major life activities are things that the typical person does as
part of a typical day in a typical life. So what do you do every single day? Walk, eat,
breathe, sleep. Jo Linda Johnson: Dress. Sleep. Participant: Talking. Participant: Driving.
Jo Linda Johnson: Driving is not a major life activity. Participant: Talking. Jo Linda Johnson:
Talking, thinking, concentrating, learning, communicating, caring for oneself. Participant:
Working. Jo Linda Johnson: Working is a major life activity. Driving is not. Traveling is
not. Keep that definition in mind. Typical person, typical day, typical life. So in D.C.
everybody drives. In New York nobody drives. So it's typical person, typical day, typical
life. That's why driving is not a major life activity, because it's geographical. What
else? Participant: Bodily functions. Jo Linda Johnson: Bodily functions; eating, digesting,
eliminating waste. What else? Normal cell growth, all the major functions of your internal
systems, so normal respiratory system, normal immune system, the functioning of all the
systems are all considered major life activities. So putting those two together, one and three,
to get to the definition of disability. I have to identify a physical or mental impairment
that substantially limits me in one or more of those major life activities. Part two of
the definition is substantial limitation. What does that mean? It means that you have
some difficulty in doing it. It doesn't mean that it's impossible. It doesn't mean that
you can't do it at all, but it means there is some impact on your ability to engage in
one of those major life activities. So if I am a person who has been diagnosed with
carpal tunnel syndrome, but it was sort of an ancillary diagnosis as part of my yearly
physical and when my doctor says, do you have problems with the keyboard, do you have problems
operating small items, like this remote, and I say, oh no, I mean, I may have carpal tunnel,
but I wouldn't have known it if you hadn't told me. I have an impairment, but it's not
impacting any of my major life activities. Am I a person with a disability? Participant:
No. Jo Linda Johnson: No. What about, compare that to another person, same diagnosis, carpal
tunnel syndrome? They have trouble keyboarding. They have trouble holding small objects. They
have trouble typing for more than five minutes at a time. Might that person with the same
exact disability -- excuse me -- same exact impairment diagnosis be a person with a disability?
Participant: Yes! Jo Linda Johnson: Yeah. All disability decisions are made on a case-by-case
basis. It's made on an individual-by-individual basis. You can have two people with the same
impairment diagnosis; one person is a person with a disability, one person is not, absolutely
possible. Let's use my broken leg example. It's a physical impairment, yes. Does it substantially
limit me in any of my major life activities? Which one? Participant: Walking. Jo Linda
Johnson: Walking. What about the fact that it only lasts for six weeks? Maybe, if it's
a small break, and I'm only going to be in a cast for six weeks, does that mean I'm not
a person with a disability? Participant: No. Jo Linda Johnson: Or does it mean I'm a person
with a disability for six weeks? I'm a person with a disability for six weeks. Now, if you've
ever had disability training before, this is different than what you used to be taught,
because what changed? In 2008 the Americans with Disabilities Act, Amendments Act, the
ADA Amendments Act was signed. It went into effect January 1, 2009, and some say reinstated
the intent of the law all along, I being one of those some, because this is what it used
to mean and then the Supreme Court narrowed it and the ADA Amendments Act came back and
said, no, that was not the intent. The law means, substantial limitation was broadened
so that who is considered a person with the disability could be much vaster than what
it used to be. So you will have -- is vaster a word. I'm going to have to think about that.
More vast. I might make up some other words as I go along. Who might be considered a person
with a disability is much broader now, and that was the intent of the law all along,
but ADA Amendments Act sort of reinstated that. So a person -- it used to be when I
taught this class to managers and supervisors, and we were talking about a person with a
disability, I would use the broken leg example as an example of a person who is not a person
with disability. Now, it is my example of a person who is a person with the disability,
even though it's a temporary impairment that's going to be fine in six weeks. At the end
of those six weeks I'm no longer a person with the disability, but for these six weeks
I am. And what's significant about that is that means during those six weeks I might
be entitled to an accommodation, and the Agency might have to accommodate me for six weeks,
and then when the cast come off and everything is healed normally, then they get to revoke
that accommodation, because I don't need it anymore, because I'm no longer a person with
a disability. Makes sense? Questions about that? Participant: Like the same thing if
a person has sciatic nerve problem? Jo Linda Johnson: Yeah, if you an episodic condition,
so it flares up; it might a sciatic nerve; it might be epilepsy; it might be cancer;
you have things that come and go. When they exist I'm a person with a disability, when
they go I might not need any accommodation anymore. So we might have accommodations that
only occur periodically, because you only have a need for them periodically. If I am
a person with epilepsy, let's use that as an example, I may need accommodations of when
I have a seizure, I am going to need time off, and I may need unscheduled time off.
I'm not going to be able to give you a week notice. I had a seizure yesterday and I'm
going to need three days to recover from that. That's the accommodation. Leave is a typical
reasonable accommodation and that might be what I need. But I only need that unscheduled
leave when a seizure occurs, otherwise I'll be able to tell you ahead of time that I want
to take next Wednesday off or something like that. Okay? Other questions? No? All right!
We talked about the ADA Amendments Act. Importantly, if you have managers who have had training
before and they're having a hard time sort of making the transition after the Amendments
Act, what helps to remind them of is that the intent of the law is not to focus on whether
or not the person has a disability, and there is a lot of language in the actual statute,
there is a lot of language in the legislative history of the Amendments Act that goes into,
look, we don't want employers spending all their time culling through medical information
to figure out whether or not a person is a person with the disability. What we want you
to spend your time on is figuring out how to accommodate them. If you've got information,
sort of minimal information that's enough, that's all you need. You don't need to go
through this rigorous task to figure out whether or not they're a person with a disability.
Focus your energy on how do we accommodate them. Okay? Questions? Participant: Yeah,
the last slide with record of disability. Jo Linda Johnson: Oh yeah. Participant: What
constitutes a record? Jo Linda Johnson: You can replace the word record with history and
that might make it easier to understand. I can't be discriminated against if I have a
history of a disability or a record of a disability. Record is little "r" here, not capital R,
Record. Record meaning, let's say I had a heart attack last year and everybody in the
office knows that I had a heart attack, because I was out for six weeks recovering, you sent
me flowers, you sent me a card, it's not a secret. There is a history of a disability
there. That's what that means. If I have a hidden condition that nobody knows about,
but my manager and the disability program manager, because I submitted documentation
because I wanted accommodation, there is a record of that too, at least with those people.
Okay? Makes sense? Other questions about that? So I didn't go into those second bullets because
I'm focusing mainly on if you are a person who currently has a disability and has a need
for accommodation, and because this session is about accommodation I'm not really talking
about the last two. The reason why I'm not talking about the last two is because if you're
a person who doesn't currently have a disability, you're not entitled to an accommodation. You
are entitled to protection from being discriminated against if you have a history of or record
of. You're protected from being discriminated against if you are being regarded as a person
with a disability. But our focus is on who is entitled to reasonable accommodation, and
it's the person who has a current impairment. This CAP Dispelling the Myths program showcased
key highlights of the featured speaker, Jo Linda Johnson. CAP thanks Ms. Johnson and
EEOC for sharing valuable insights regarding reasonable accommodations under the Rehabilitation
Act. To learn more, visit eeoc.gov and cap.mil.