Dear Valued Customer,

In this issue of the “———————–” we focus on the “Americans With Disabilities” Act and how it affects your business.

Among other things, The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities. The ADA also establishes requirements for telecommunications relay services.

It is vitally important to understand where your business stands on this topic, so we urge you to read the ADA Act itself. Get a perspective from an Employer or Employee viewpoint. Understand how to resolve a charge, and much more.

We appreciate your continued business and look forward to serving you.

Kind regards,

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

An individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to a vacant position;
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:

• A deaf applicant may need a sign language interpreter during the job interview.
• An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
• A blind employee may need someone to read information posted on a bulletin board.
• An employee with cancer may need leave to have radiation or chemotherapy treatments.

An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. if an employer believes that a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.

Title I of the ADA also covers:

• Medical Examinations and Inquiries
  Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.Medical records are confidential. The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.
• Drug and Alcohol Abuse
  Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

Federal Tax Incentives to Encourage the Employment of People with Disabilities and to Promote the Accessibility of Public Accommodations

The Internal Revenue Code includes several provisions aimed at making businesses more accessible to people with disabilities. The following provides general – non-legal – information about three of the most significant tax incentives. (Employers should check with their accountants or tax advisors to determine eligibility for these incentives or visit the Internal Revenue Service’s website, www.irs.gov, for more information. Similar state and local tax incentives may be available.)

• Small Business Tax Credit (Internal Revenue Code Section 44: Disabled Access Credit)
  Small businesses with either $1,000,000 or less in revenue or 30 or fewer full-time employees may take a tax credit of up to $5,000 annually for the cost of providing reasonable accommodations such as sign language interpreters, readers, materials in alternative format (such as Braille or large print), the purchase of adaptive equipment, the modification of existing equipment, or the removal of architectural barriers.
• Work Opportunity Tax Credit (Internal Revenue Code Section 51)
  Employers who hire certain targeted low-income groups, including individuals referred from vocational rehabilitation agencies and individuals receiving Supplemental Security Income (SSI) may be eligible for an annual tax credit of up to $2,400 for each qualifying employee who works at least 400 hours during the tax year. Additionally, a maximum credit of $1,200 may be available for each qualifying summer youth employee.
• Architectural/Transportation Tax Deduction (Internal Revenue Code Section 190 Barrier Removal):
  This annual deduction of up to $15,000 is available to businesses of any size for the costs of removing barriers for people with disabilities, including the following: providing accessible parking spaces, ramps, and curb cuts; providing wheelchair-accessible telephones, water fountains, and restrooms; making walkways at least 48 inches wide; and making entrances accessible.

Source: U.S. Equal Employment Opportunity Commission, “Facts About the Americans with Disabilities Act” http://www.eeoc.gov website. Accessed August 5, 2014. http://www.eeoc.gov/facts/fs-ada.html

© Copyright 2014. All rights reserved. This content is strictly for informational purposes and although experts have prepared it, the reader should not substitute this information for professional insurance advice. If you have any questions, please consult your insurance professional before acting on any information presented. Read more.

© Copyright 2014. All rights reserved. This content is strictly for informational purposes and although experts have prepared it, the reader should not substitute this information for professional insurance advice. If you have any questions, please consult your insurance professional before acting on any information presented. Read more.

EEOC offers employers many opportunities to resolve charges of discrimination. Successfully resolving the case through one of these voluntary processes may save you time, effort and money. Methods of resolution include mediation, settlement and conciliation.

Mediation

EEOC has greatly expanded its mediation program. The program is free, quick, voluntary and confidential. If mediation is successful, there is no investigation.

If the charge filed against your company is eligible for mediation, you will be invited to take part in the mediation process. If mediation is unsuccessful, the charge is referred for investigation.

Advantages of Mediation

1. EEOC’s mediation program is free.
2. Mediation is efficient. The process is initiated before an investigation begins and most mediations are completed in one session, which usually lasts for one to five hours.
3. The average processing time for mediation is 84 days.
4. The mediation program is completely voluntary.
5. Successful mediation results in the closure of the charge filed with EEOC. If mediation is unsuccessful, the charge is referred for investigation.
6. Mediators are neutral third parties who have no interest in the outcome of the mediation.
7. Mediation is a confidential process. The sessions are not tape-recorded or transcribed. Mediator notes taken during the mediation are discarded. Information learned during the mediation can not be used during an EEOC investigation if the mediation is unsuccessful.
8. Mediation is an informal process. The goal of mediation is not fact finding. The purpose is to discuss the charge and reach an agreement that is satisfactory to all parties.
9. Settlement agreements secured during mediation are not admissions by the employer of any violation of laws enforced by the EEOC.
10. Mediation avoids lengthy and unnecessary litigation.
11. Settlement agreements secured during mediation are enforceable.
12. The overwhelming majority of employers and charging parties participating in EEOC mediation program aresatisfied with the process and would use it again.
13. Mediation can help the parties understand why the employment relationship broke down.
14. Mediation can help the parties identify ways to repair an ongoing relationship.

To learn more about EEOC’s mediation program, and how to participate in it, visit the mediation section of the website.

Settlement

Charges of discrimination may be settled at any time during the investigation. EEOC investigators are experienced in working with the parties to reach satisfactory settlements. You should contact the investigator if you are interested in resolving your charge through settlement.

Advantages of Settlement

1. Voluntary settlement efforts can be pursued at any time during the investigation, but settling a charge early may save you the time and effort associated with investigations.
2. Settlement is an informal process. The goal of settlement is to reach an agreement that is satisfactory to all parties.
3. There is no admission of liability.
4. If the parties, including EEOC, reach a voluntary agreement, the charge will be dismissed.
5. Settlement agreements are enforceable.
6. Settlement avoids lengthy and unnecessary litigation.

Conciliation

EEOC is statutorily required to attempt to resolve findings of discrimination through “informal methods of conference, conciliation, and persuasion.” See 42 U.S.C. 2000e-5. After the parties have been informed by letter that the evidence gathered during the investigation establishes that there is “reasonable cause” to believe that discrimination has occurred, the parties will be invited to participate in conciliation discussions. During conciliation, your investigator will work with you and the Charging Party to develop an appropriate remedy for the discrimination. We encourage you to take advantage of this final opportunity to resolve the charge prior to EEOC considering the matter for litigation.

Advantages of Conciliation

1. Conciliation is a voluntary process.
2. Conciliation discussions are negotiations and counter-offers may be presented.
3. Conciliation offers the parties a final opportunity to resolve the charge informally – – after an investigation has been conducted, but before a litigation decision has been reached.
4. Conciliation agreements remove the uncertainty, cost and animosity surrounding litigation.

Source: U.S. Equal Employment Opportunity Commission, “Resolving a Charge” http://www.eeoc.gov website. Accessed August 5, 2014. http://www.eeoc.gov/employers/resolving.cfm

© Copyright 2014. All rights reserved. This content is strictly for informational purposes and although experts have prepared it, the reader should not substitute this information for professional insurance advice. If you have any questions, please consult your insurance professional before acting on any information presented. Read more.