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Old 10-01-06, 03:08 AM
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Q/A-Intellectual Disabilities in the workplace and the Federal ADA Act

Please go to the site, if you're interested, as the information is too broad, to list on one post.

Thanks !


http://www.eeoc.gov/facts/intellectu...abilities.html


The U.S. Equal Employment Opportunity Commission

Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act

INTRODUCTION

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination on the basis of disability.

Title I of the ADA makes it unlawful for any employer to discriminate against a qualified applicant or employee because of a disability in any aspect of employment.

The ADA covers employers with 15 or more employees, including state and local governments.

Section 501 of the Rehabilitation Act provides the same protections for federal government employees and applicants.

In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.

This guide explains how the ADA might apply to job applicants and employees with intellectual disabilities.

In particular, this guide discusses:

-when a condition qualifies as a disability under the ADA

-under what circumstances an employer may ask an applicant or employee or a third party (such as the family member of an applicant or employee) questions about an intellectual disability

-what types of reasonable accommodations may be needed by applicants and employees with intellectual disabilities

-how to address safety concerns and conduct issues in the workplace

-how an employer can prevent harassment of employees with intellectual disabilities
GENERAL INFORMATION ABOUT INTELLECTUAL DISABILITIES

Intellectual disabilities will vary in degree and effect from person to person, just as individual capabilities vary considerably among people who do not have an intellectual disability.

Persons who have intellectual disabilities may have other impairments as well. Examples of coexisting conditions may include: cerebral palsy, seizure disorders, vision impairment, hearing loss, and attention-deficit/hyperactivity disorder (ADHD). Persons with severe intellectual disabilities are more likely to have additional limitations than persons with milder intellectual disabilities.


When is someone with an intellectual impairment covered by the ADA?

Not everyone with an intellectual impairment is covered by the ADA. A person may meet the ADA's definition of "disability" in any one of three ways

Can a person who has a family member with an intellectual disability be protected under the ADA?

In some instances, yes. The ADA's protections extend to people who do not have disabilities themselves but are discriminated against on the basis of their association with a person with a disability. The association may be with family members, friends, or any other person.


A person who experiences discrimination based on such an association has a right to protection under the ADA, but is not entitled to reasonable accommodation.
Example: The parent of a child with an intellectual disability applies for a position as an attorney at a law firm and mentions during a discussion with one of her interviewers that she has a child with an intellectual disability. She is denied employment because the employer believes the child's disability will cause her to be absent from work and will affect her productivity. The parent is protected under the ADA.

OBTAINING AND USING MEDICAL INFORMATION

Title I of the ADA limits an employer's ability to ask questions related to disability and conduct medical examinations at three stages, including: pre-offer, post offer and during employment.

Job Applicants

Before an Offer of Employment is Made

The ADA limits the kinds of medical information that an employer can seek from a job applicant. An employer may not require a job applicant to take a medical examination or ask about a person's disability before making a job offer.

However, the employer can ask an applicant questions about his/her ability to perform job-related functions, as long as the questions are not phrased in terms of a disability.
Example: An employer may not ask the following questions:
  • whether or to what extent a person has an intellectual disability;
  • whether the applicant has ever filed for workers' compensation;
  • whether the applicant takes medication;
  • whether the applicant has been hospitalized in an institution; or
  • whether the applicant is receiving psychiatric treatment.
Example: An employer may ask the following questions if they relate to performance of the job:
  • whether the applicant can lift a 45 pound load;
  • whether the applicant can put files in alphabetical order; and
  • whether the applicant can place items in numerical order.
If an applicant voluntarily tells an employer that s/he has an intellectual disability or if the disability is otherwise obvious, an employer may only ask questions regarding the need for a reasonable accommodation and/or what kind of accommodation may be needed.

Example: An applicant for a position as an office clerk voluntarily discloses to the employer that she has an intellectual disability and will need some type of work plan or technological device to remind her what her duties are.

The employer may ask the applicant questions about reasonable accommodation, such as whether she prefers a detailed checklist or the use of a computer with touch screen (where verbal instructions and images guide her through the steps in a task).

However, the employer may not ask questions about medications, or about whether the employee will have problems with her attendance or job performance because of her intellectual disability.
At the pre-offer stage, an employer is also prohibited from asking a third party (such as a job coach, family member, or social worker attending an interview with an applicant who has an intellectual disability) any questions that it would not be permitted to ask the applicant directly.

After an Offer of Employment is Made

Once the employer has made a job offer, the employer may ask questions about the applicant's health (including questions about the applicant's disability) and may ask for or require a medical examination, as long as all applicants are treated the same, i.e. all applicants are asked the same questions and are required to take the same examination.

After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if it is medically related to the previously obtained medical information. An employer must keep all obtained medical information confidential as discussed in Questions 4 and 5 below.



Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee's medical condition or require the employee to undergo a medical examination.

Generally, to ask an employee for medical information, an employer must have a reason to believe that there is a medical explanation for changes in the employee's job performance, or must believe that the employee's medical condition may pose a direct threat to safety.


May an employer routinely ask for medical information from an employee known to have an intellectual disability if the employee has performance problems?

No. Poor job performance may be unrelated to an intellectual disability and should generally be dealt with according to an employer's existing quality performance policy.

Medical information can be sought only when an employer has a reasonable belief, based on objective evidence, that a medical condition may be the cause of the employee's performance problems.
Example: An employee with an intellectual disability and Attention Deficit Disorder who has performed his job successfully for five years starts to show up to work late and appears anxious and emotional. The supervisor observed these changes soon after the employee moved into his brother's house.

The supervisor can ask the employee why his performance has declined and may explore ways to improve his performance. However, the supervisor may not ask him questions about his intellectual disability unless there is objective evidence that his poor performance is related to his disability.
Keeping Medical Information Confidential

An employer must keep all medical information separate from general personnel files, and treat it as a separate, confidential medical record.

May an employer ever disclose the fact that someone has an intellectual disability?

Yes, in limited circumstances. The ADA's confidentiality requirements also include limited exceptions. An employer may disclose the fact that someone has an intellectual disability:

May an employer tell employees who ask why a particular employee is receiving what seems like "special treatment" that the employee is receiving a reasonable accommodation?
No. Telling co-workers that an employee is receiving a reasonable accommodation amounts to a disclosure of the employee's disability.

Rather than disclosing that the employee is receiving a reasonable accommodation, the employer should focus on the importance of maintaining employee privacy.

Employers may be able to avoid many of these kinds of questions by giving all employees training on the requirements of EEO laws, including the ADA.


ACCOMMODATING PERSONS WITH INTELLECTUAL DISABILITIES

Under the ADA, employers must provide reasonable accommodations to the known physical or mental limitations of persons with disabilities. An accommodation is any modification or adjustment to a job or work environment that will permit a qualified applicant or employee with a disability to do the job, as well as enjoy equal benefits and privileges of employment.

Once an employer determines that an individual has a disability that requires an accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.

A third party may often request an accommodation on behalf of the person with an intellectual disability. If this happens, the employer must respond to the request as if the employee or applicant requested the accommodation.

Accommodations vary depending on the needs of the person with a disability. In some instances, the appropriate accommodation will be readily apparent. In others, the proper accommodation is not obvious.

In those situations, the employer should have an informal and interactive discussion with the person and/or his representative to determine a suitable accommodation.
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Old 10-02-06, 06:47 PM
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Maybe I'm not understanding some of what I read, but it seems that it is not meant for "intellectual disabilities" associated with ADD.

The EEOC's use of the term "intellectual disabilities" follows the model of the President's Committee on Intellectual Disabilities (formerly known as the President's Committee on Mental Retardation). The Committee adopted this term to "update and improve the image of people with disabilities who were formerly referred to as people with mental retardation and to help reduce discrimination against these citizens." The Committee also "sought to reduce the public's confusion between the terms mental illness and mental retardation and to remove the use of terms which resulted in faulty name-calling." President's Committee for People with Intellectual Disabilities."

This seems, to me to refer to those with mental retardation.

Ex; I have trouble with performing procedures. As the receptionist, I typed up procedures for each function that I was required to perform, so I could refer to it. My supervisor had a fit because I, "wasted time" typing it up. Shouldn't you be able to remember how to do this after 3 years?"

At the time, I didn't know that I had ADD, I was just made to feel like a failure at everything I attempted. Since the diagnosis, I have been able to understand why I had trouble in so many areas and have been able to be less critical of myself.

However, if my employer had know about my add, this still wouldn't have qualified as harassment under the ada because I don't have the "Intellectual Disability" or mental retardation.

Am I reading this correctly? Or do I have it all mixed up?
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Old 10-02-06, 07:08 PM
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Hi Karen!

AD/HD is an "Intellectual Disability" covered under the Americans with disabilities act (ADA) regardless of the current semantics they are choosing to use!

So yes, you certainly would have been covered if your employer had known you had AD/HD.
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Old 10-03-06, 01:56 PM
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Exactly Seek.

Thank you for clarifying that.

ADD/ADHD is covered under the ADA Act, and is considered an intellectual disability.
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Old 10-29-06, 11:26 PM
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I setup ada protection during employment. I was not diagnosed until a few months after I was employed techncially. So the subject matter of me being ADD never came up upon an interview or anything. But I had told them I had ADD and was still working at my job for almost a year after that. But they seemed to fail and really trying to understand how to help me. They fired me for not being able to uphold quality performance- like they took it right out of this information above - im sure to claim it was a performance issue NOT realated to my illness. I had already gone to a doctor brought them a note and setup ADA protectionto.

Does it matter if they didn't know I was ADD before I got employed? They even told me several people working there have ADD.
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