Americans with Disabilities Act

LSU Health Sciences Center - New Orleans Procedures for processing requests for reasonable accommodations

Louisiana State University (LSU) Health Sciences Center is an equal opportunity employer and makes employment decisions on the basis of merit. We want to have the best available persons in every job. LSU Health Sciences Center policy prohibits unlawful discrimination based on race, color, creed, sex, age, national origin, physical handicap, disability, medical condition, sexual orientation, or any other consideration made unlawful by federal, state or local laws. All such discrimination is unlawful.

LSU Health Sciences Center is committed to complying with all applicable laws providing equal employment opportunities to all individuals. That commitment applies to all persons employed by LSU Health Sciences Center and prohibits unlawful discrimination by all employees, including supervisors and co-workers.

To comply with applicable laws insuring equal employment opportunities to qualified individuals with a disability, LSU Health Sciences Center will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee unless undue hardship would result.

The Rehabilitation Act Amendments of 1992 amended the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-97 (1988 & Supp. IV 1992), to apply the substantive standards of Title I of the ADA to section 501, 503, and 504 of the Rehabilitation Act for non-affirmative action employment discrimination cases. Sections 501, 503, and 504 of the Rehabilitation Act prohibit federal agencies, federal contractors, and programs receiving federal financial assistance from discriminating on the basis of disability.

If you believe you have been subjected to any form of unlawful discrimination, provide a written complaint to the Department of Human Resource Management as soon as possible. If the complaint relates to personnel of the Department of Human Resource Management, provide your complaint to the Vice Chancellor of Administration and Finance or to the Chancellor. Your complaint should be specific and should include the names of the individuals involved and the names of any witnesses. LSUHSC will immediately undertake an effective thorough and objective investigation and attempt to resolve the situation.

AMERICANS WITH DISABILITIES

REASONABLE ACCOMMODATION(S) PROCEDURES

Louisiana State University Health Sciences Center has adopted procedures for processing requests for reasonable accommodations by employees and applicants with disabilities as required by Executive Order 13164. The Order helps to implement the requirement of the Rehabilitation Act of 1973 that agencies provide reasonable accommodation to qualified employees and applicants with disabilities.

LSU Health Sciences Center will identify the barriers that make it difficult for the applicant or employee to have an equal opportunity to perform his or her job. LSU Health Sciences Center will identify possible modifications or adjustments, if any, that will help eliminate the limitation. If the accommodation is reasonable and will not impose an undue hardship, LSU Health Sciences Center will make the accommodation.

Requests should be addressed to the Labor Relations Manager, Department of Human Resource Management, 568-8742, who has been designated to coordinate ADA compliance efforts.

Any individual who requires a modification or adjustment in order to perform the essential functions of the job should specify in writing or verbally, their name, address and what modification or adjustment he or she needs to perform the job.
An investigation, as may be appropriate, shall follow a filing of modification or adjustment. A written determination as to the validity of the modification or adjustment and a description of the resolution, if any, shall be issued by the ADA Coordinator and a copy forwarded to the applicant or employee no later than five (5) working days after its request. Where there is a delay in either processing a request for, or delivering, a reasonable accommodation or adjustment, the individual will be notified of the reason for the delay and a date on which the process is to be completed.
If the disability and/or need for accommodation or modification is not obvious, or if information already submitted by the individual is insufficient to make a determination, the individual may be asked for information about the disability, the activities it limits, and the need for accommodation or modification. Failure to provide necessary documentation where it has been properly requested could result in a denial of the reasonable accommodation or modification.
If the individual has provided insufficient documentation from his/her own health care or other appropriate professional to substantiate the existence of a disability and the need for reasonable accommodation or adjustment, LSUHSC may request that the individual be examined by a physician of its choice at its expense. Where medical examination is warranted, failure to agree by the individual could result in a denial of the reasonable accommodation or adjustment.
Reassignment will be considered as a reasonable accommodation or adjustment only to employees, not to applicants, if it is determined that no other reasonable accommodation(s) or adjustment(s) will permit the employee with a disability to perform the essential functions of his or her current position. Reassignment may be made only to a vacant position.
If a request has been denied, the individual will be notified in writing identifying the reason(s) for the decision and by whom the decision(s) were made. The individual has the right to file complaints in the Equal Employment Opportunity process and other statutory processes, as appropriate, if their requests for reasonable accommodation(s) and/or adjustment(s) are denied.

THE AMERICANS WITH DISABILITIES ACT OF 1990

TITLE I: THE EMPLOYMENT PROVISIONS

INTRODUCTION Title I of the ADA prohibits discrimination in employment against qualified individuals with disabilities and affects virtually every aspect of the employment relationship. An employer may not deny an employment opportunity because an individual, with or without a disability, has a relationship or association with an individual who has a disability.

Title I was effected on July 26, 1992, for employers with 25 or more employees, and on July 26, 1994, for employers with 15 or more employees.

EEOC is the enforcement agency making it relatively simple and inexpensive for aggrieved individuals to assert rights created by the Act. For Federal contractors, an agreement of understanding exists between the EEOC and OFCCP for enforcement.

The Civil Rights Act of 1991 extends provision of compensatory and punitive damages to people who charge intentional discrimination on the basis of disability under the ADA. Damages are limited to $300,000 for employers having more than 500 employees.

43 million Americans with disabilities will be covered under the ADA. Advocacy Groups are making a concerted effort to educate these individuals as to their rights and methods of recourse under the ADA. Some groups will take an active role in litigation. It is anticipated that litigation will significantly increase.

DEFINITIONS Disability – 1) a physical or mental impairment that substantially limits one or more major life activities; 2) having a record of such an impairment; 3) being perceived as having such an impairment.

Physical Impairment – any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems; neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.

Mental Impairment – any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

A person’s impairment is determined without regard to any medication or assistive devise that s/he may use.

Example: A person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg would be considered to have an impairment, even if the medicine or prosthesis reduces the impact of the impairment.

An impairment under the ADA is a physiological or mental disorder; simple physical characteristics, therefore, such as eye or hair color, left-handedness, or height or weight within a normal range, are not impairments. A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease would not be an impairment. Personality traits such as poor judgment, quick temper or irresponsible behavior, are not themselves impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record also are not impairments.

Example: A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. But a person who cannot read because s/he dropped out of school is not an individual with a disability, because lack of education is not an impairment.

“Stress” and “depression” are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder.

Example: A person suffering from general “stress” because of job or personal life pressures would not be considered to have an impairment. However, if the person is diagnosed by a psychiatrist as having an identifiable stress disorder, s/he would have an impairment that may be a disability.

A person who has a contagious disease has an impairment. For example, infection with HIV is an impairment.

Major Life Activity – functions such as caring for oneself, walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, working, sitting, standing, lifting, reading.

Substantially limits – unable to perform or be significantly limited in the ability to perform an activity compared to an average person in the general population. Three factors to be considered are: 1) nature and severity; 2) duration or expected duration; 3) permanent, expected or long term impact.

Temporary, non-chronic impairments that do not last for a long time and that have little or no long-term impact usually are not disabilities.

Qualified Individual with a Disability – an individual with a disability who satisfies the position’s job-related skill, experience, and education requirements, with or without reasonable accommodation, and can perform the essential job functions.

The employer has an obligation to consider applicants and make decisions without regard to an individual’s disability, or the individual’s need for reasonable accommodation. There is no obligation to prefer applicants with disabilities over other applicants on the basis of disability.

Essential Functions – fundamental job duties of the employment position the individual with a disability holds or desires. This term does not include the marginal functions of the position.

EXCLUSIONS A person who currently illegally uses drugs. However, persons who have rehabilitated; who are in a supervised drug rehabilitation program; or are erroneously regarded as using drugs are not excluded.

Sexual behavior disorders, such as transvestism, transsexualism, pedophilia, exhibitionism, or voyeurism. (Homosexuality and bisexuality are not such disorders but are also not disabilities).

Compulsive gambling, kleptomania, or pyromania.

Psychoactive disorders resulting from current illegal use of drugs.

ALCOHOLISM An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not “qualified”.

Example: If a person who has alcoholism often is late to work or is unable to perform the responsibilities of his/her job, an employer can take disciplinary action on the basis of the poor job performance and conduct. However, an employer may not discipline an alcoholic employee more severely than it does other employees for the same performance or conduct.

ESSENTIAL FUNCTIONS OF A JOB

Essential functions are those tasks that are fundamental and not marginal to a job. The first consideration is whether employees in the position are actually required to perform the function. If a person holding a job does perform a function, the next consideration is whether removing that function would fundamentally change the job.

The regulations list several reasons why a function could be considered essential:

The position exists to perform that function.
There are a limited number of other employees available to perform the function, or among whom the function can be distributed.
A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.

The regulation lists several types of evidence to be considered in determining whether a function is essential. The list includes:

The employer’s judgment.
A written job description prepared before advertising or interviewing applicants for a job.
The amount of time spent performing the function.
The consequences of not requiring a person in this job to perform a function.
The terms of a collective bargaining agreement.
Work experience of people who have performed a job in the past and work experience of people who currently perform a similar job.
Nature of the work operation and the employer’s organizational structure.

REASONABLE ACCOMMODATION OBLIGATIONS

An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business.

The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person’s disability or job changes.

An employer cannot deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation, unless it would cause an undue hardship.

An employer does not have to make an accommodation for an individual who is not otherwise qualified for a position.

Generally, it is the obligation of an individual with a disability to request a reasonable accommodation.

A qualified individual with a disability has the right to refuse an accommodation. However, if the individual cannot perform the essential functions of the job without the accommodation, s/he may not be qualified for the job.

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 providing the accommodation or paying that portion of the cost that would constitute an undue hardship.

WHAT IS A REASONABLE ACCOMMODATION

Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity. Accommodations may include:

Making facilities readily accessible to and usable by an individual with a disability.
Restructuring a job by reallocating or redistributing marginal job functions.
Altering when or how an essential job function is performed.
Part-time or modified work schedules.
Obtaining or modifying equipment or devices.
Modifying examination, training materials or policies.
Providing qualified readers and interpreters.
Reassignment to a vacant position.
Permitting use of accrued paid leave or unpaid leave for necessary treatment.
Providing reserved parking for a person with a mobility impairment.
Allowing an employee to provide equipment or devices that an employer is not required to provide.

An employer is not required to make a reasonable accommodation if it would impose an undue hardship on the operation of the business. An undue hardship is an action that requires “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation. The concept of undue hardship includes any action that is: unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the business. In general, a larger employer would be expected to make accommodations requiring greater effort or expense that would be required of a smaller employer.

APPLICATIONS AND JOB INTERVIEW

Before making a job offer, an employer:

May ask questions about an applicant’s ability to perform specific job functions.
May not make an inquiry about a disability.
May ask all applicants to describe or demonstrate how they will perform a job, with or without an accommodation.
If an individual has a known disability that might interfere with or prevent performance of job functions, s/he may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so; however
If a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how s/he will perform a job if this is required of all applicants for the position.
May not ask the number of days an applicant was absent from work because of illness or whether an applicant will need to request leave for medical treatment or for other reasons related to a disability.
The interviewer may provide information on the employer’s regular work hours; leave policies, and any special attendance requirements (provided that the requirements actually are applied to employees in a particular job).

Information about previous work attendance records may be obtained on the application form, in the interview or in reference checks, but the questions should not refer to illness or disability.

If an applicant has had a poor attendance record on a previous job, s/he may wish to provide an explanation that includes information related to a disability, but the employer should not ask whether a poor attendance record was due to illness. For examples, an applicant might wish to disclose voluntarily that the previous absence record was due to surgery for a medical condition that is now corrected, treatment for cancer that is now in remission or to adjust medication for epilepsy, but that s/he is now fully able to meet all job requirements.
May make a job offer that is conditioned on satisfactory results of a post-offer medical examination or inquiry. Information from such inquiries or examination must be handled according to the strict confidentiality requirements of the ADA.

CONFIDENTIALITY

All medical information must be maintained in a medical file in a separate, locked cabinet, apart from the location of personnel files, designating a specific person or persons to have access to the file.

All medical-related information must be kept confidential, with the following exceptions:

Supervisors and managers may be informed about necessary restrictions on the work or duties of any employee and necessary accommodations.
First aid safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations.
Government officials investigating compliance with the ADA and other Federal and state laws prohibiting discrimination on the basis of disability or handicap should be provided relevant information on request.
Relevant information may be provided to state workers’ compensation offices or “second injury” funds, in accordance with state workers’ compensation laws.
Relevant information may be provided to insurance companies where the company requires a medical examination to provide health or life insurance for employees.

EVALUATIONS, DISCIPLINE, AND DISCHARGE

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.

A disabled employee who needs an accommodation in order to perform a job function should not be evaluated on his/her ability to perform the function without the accommodation, and should not be downgraded because such an accommodation is needed to perform the function.

An employer should not give employees with disabilities “special treatment”. They should not be evaluated on a lower standard or disciplined less severely than any other employee. This is not equal employment opportunity.

If any employee with a disability is not performing well, an employer may require medical and other professional inquiries that are job-related and consistent with business necessity to discover whether any reasonable accommodation or additional accommodation is needed.

An employer may not discipline or terminate an employee with a disability if the employer has refused to provide a requested reasonable accommodation that did not constitute an undue hardship, and the reason for the unsatisfactory performance was the lack of accommodation.

LEAVE

An employer may establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave.

An employer may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

An employer is not required to give leave as a reasonable accommodation to an employee who has a relationship with an individual with a disability to enable the employee to care for that individual.

GUIDELINES FOR SENSITIVE USE OF LANGUAGE

Do not refer to a disability unless it is relevant.
Do not sensationalize a disability by saying “a victim of,” “afflicted with,” etc. Instead say “person who has multiple sclerosis” or “people who have had polio.”
Avoid emotional descriptions. Say “uses a wheelchair” rather than “confined to a wheelchair,” “wheelchair bound,” and “walks with crutches” rather than “is crippled.”
Avoid labeling and grouping people, as in “the disabled,” “the deaf,” “a paraplegic.” Instead say “people with disabilities,” “people who are deaf,” “a man who has paraplegia.” (Note that the words “disabled,” “blind,” and “deaf” are adjectives, not nouns!)
Avoid using the word “special” in regard to a disability, as in “special entrance” or “special transportation.” Instead say “accessible entrance” and “lift-equipped buses.” The word “special” serves to segregate rather than integrate people with disabilities.
Avoid putting disability issues into a medical context. The overwhelming majority of people with disabilities are not sick. Words like “patient,” “case,” and “invalid” should not be used. Most current disability issues concern civil rights, education, or accessibility.
Do not assume that a person with a speech impediment or mobility impairment has some form of mental limitation.
Avoid using an over familiar tone in referring to people with disabilities. A disabled person deserves the same courtesy of address and reference as a non-disabled person. (Disabled people, for example, are often “first names,” whereas non-disabled people in similar contexts are not.)
If you wish to speak to a person with a disability, address him or her directly, rather than addressing someone who is with that person.
Remember that people with mental retardation often are articulate. Others may understand more than they are able to communicate.

HINTS TO MINIMIZE RISK OF COMPLAINT

Review accessibility and safety features.
Update job descriptions – consider essential functions of positions – both Mental and Physical!
Review screening procedures – Interview Questions.
Interview questions should be confined to whether the person can perform the essential functions of the position.
Avoid any pre-employment questions about applicant’s physical and mental condition. These questions can be asked and a physical examination can be given only after a conditional employment offer is extended.
If in doubt, regarding any aspects of the employment process, call Human Resource Management for guidance.