Productive employment of the handicapped: compliance strategies for the Americans with...

Introduction

President George Bush signed the Americans with Disabilities Act (ADA) on July 26, 1990, initially affecting employers with 25 or more employees but later extending to those with 15 or more employees. The ADA adopts all of the enforcement powers and remedies set forth in The Civil

Rights Act of 1964, which can include hiring or reinstatement, with or without back pay, and reasonable attorney's fees. Remedies include injunctive relief to order the alteration of facilities, civil penalties, and monetary damages. The ADA will affect human resource activities in all but the smallest businesses. Specifically, employers will need to reevaluate their current pre-employment procedures, including pre-employment screening procedures, job applications and interviews, and job descriptions (Pimentel and Lotito, 1992).

It is important to realize that the ADA is modeled after the Civil Rights Act of 1964 and is designed to promote the integration of persons with disabilities into every segment of society. Businesses can benefit by utilizing the disabled segment of the population, which comprises some 43 million Americans with one or more physical or mental disabilities. Half a million Americans become disabled each year, and the public spends $45,000 a year to support just one unemployed individual with disabilities.

Employment decisions based on handicaps or disabilities unrelated to job performance are economically wasteful and discourage the disabled from seeking training or employment. Research has shown the handicapped to be at least as effective as normal workers in most jobs (Bolton, 1982). They have been shown to have higher attendance and lower turnover rates than nonhandicapped workers, perhaps because the handicapped employee values his or her job more (Peters, 1987). They have been described as hardworking, safe, and dependable (Stackel, 1986). Experience has demonstrated that the handicapped make excellent employees without many of the costs and problems often anticipated by managers and nonhandicapped employees (Freedman & Keller, 1981).

This legislation may come at a good time, because many businesses are experiencing difficulty finding qualified employees. Surveys have shown that firms expect a skilled labor shortage in the 1990s. This is predicted to force companies to recruit more aggressively and to consider sources they would previously have bypassed (Marlow & Marlow, 1990). Economic analysis indicates that continued discrimination against disabled people in employment lowers the competitiveness of the potential labor pool by adding to the federal deficit through entitlements and support payments and reducing the number of available workers (Perritt, 1991).

The disabled population is a resource waiting to be tapped. The ADA basically says that, no employer, employment agency, labor organization, or joint labor-management committee may discriminate against any qualified individual with a disability in regard to job application procedures, the hiring or discharge of employees, employee compensation, advancement, job training, and other terms, conditions, and privileges of employment. However, in order to fully understand the ADA, employers must first understand the terminology it uses. While a recent poll showed that 86% of businesses either strongly favored or favored the ADA, only 14% were very familiar with it. The survey also found a low level of familiarity with the government agencies, programs, and organizations that support people with disabilities (Pastemak, 1992).

Unfortunately, entrepreneurs using scare tactics are presently wringing profits from the ADA. One company reportedly has been selling copies of the ADA regulations for $400, while they are free from the EEOC. Human resource professionals can avoid falling victim to fear tactics by obtaining a copy of the Act's Technical Assistance Manual of Employment Provisions, which offers straightforward explanations (Overman, 1992).

Nuts and Bolts of the ADA

* Definitions

The ADA defines an individual with a disability as one who either (1) has a physical or mental impairment which substantially limits one or more of that person's "major life activities," (2) has a record of such impairment, or (3) is regarded by the employer as having such an impairment |Sec. 3(1)~. If small business owners are to understand this definition, they must first understand what is meant by "a physical or mental impairment." The Act provides these definitions:

A. Any physiological disorder or 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; endocrine; or

B. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

They must also understand what is meant by "major life activity." A major life activity is a function such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, procreating, and engaging in sexual relations. As can be seen, the definition is very broad.

The list is extensive, but omits the specific diseases that will be covered under the ADA. The reason is that it is difficult to develop a comprehensive list, which has been estimated to exceed 900 specific disabilities (Marlow & Marlow, 1990). Also, it is impossible to know what diseases may develop in the future. However, employers can be certain that this definition will include auto-immune deficiency syndrome (AIDS). The definition also lists categories that will not be protected under the ADA. These include sexual preference, compulsive gambling, kleptomania, pyromania, and current users of illegal drugs.

Employers need to know who is a qualified person with a disability. The ADA defines this to be any individual who, with or without reasonable accommodation, can perform the essential functions of the job the individual has or wants. Essential functions are those that are necessary and fundamental to the job in question (as distinguished from incidental or marginal tasks) and those skills or abilities that are necessary to perform such tasks. The employer's judgment will be given consideration when determining what constitutes essential job functions. Employers must specify the essential functions for each job in their job descriptions. The ADA specifically states that written job descriptions that are in place before an employer advertises for jobs or interviews job applicants will be considered evidence of essential job functions. Therefore, it will be imperative for employers to make their job descriptions as rigorously job-related and accurate as possible.

The definition of reasonable accommodation depends on the specific individual, the specific nature of his or her disability, and the specific job. Reasonable accommodation is the means provided by an employer to eliminate barriers to employment opportunities facing disabled persons and ensure that disabled persons compete with non-disabled persons on a level playing field. There are two main types of barriers, those relating to access to the job site or to common areas and those relating to performance of the job. The ADA says that reasonable accommodation may include modifying existing employment facilities to make them readily accessible to individuals with disabilities, as well as job modifications such as: job restructuring; part-time or modified work schedules; reassignment to vacant positions; acquiring or modifying equipment or devices; adjusting or modifying equipment or devices; adjusting or modifying examinations; training materials or policies; providing qualified readers or interpreters; and other similar accommodations. To fully understand the parameters of reasonable accommodation, employers may have to wait until cases are brought to court. The EEOC has estimated that up to 15,000 charges of discrimination will be filed under the ADA by July 1993 (Overman, 1992).

For now, companies should recognize that personalized, high-quality training is one form of accommodation that clearly enables employees to do their job. Unfortunately, employers tend to see accommodation as a company cost that does little to enhance operations. They also view it as a physical adaptation, such as a ramp. Overly restrictive views like this limit opportunities to make accommodation work for employees and companies alike. A broader definition of accommodation is called for that can mean taking extra steps to increase the productivity, tenure, and job satisfaction of an entire workforce. Examples are flexible hours or family counseling, which employers are beginning to address (Mank, Oorthuys, Rhodes, Sandow & Weyer, 1992).

In the meantime, it is important for businesses to identify trouble spots, such as hard-to-reach public areas, and have them made more accessible. Since July of 1992, companies have had to serve disabled people as they do all other customers. By January 1993, any new building must have complete access for people with disabilities.

* Undue Hardship and Direct Threat

Closely tied to the concept of reasonable accommodation is the concept of undue hardship. The ADA defines undue hardship as an action requiring significant difficulty or expense, as measured by the following factors: the nature and cost of the required accommodations; the overall financial resources of the facilities, including the number of employees, the impact on its expenses and resources, and the impact on the other aspects of its operation; the nature of the operations of the covered entity, including its composition, structure, and work force functions; and the geographic, administrative, or fiscal relationship of the facilities in question to the covered entity. This definition hurts the companies that are doing well, because it would be harder for them to meet the "undue hardship" tests. The important thing to remember about undue hardship is that it is determined on a case-by-case basis.

Generally, the courts are predicted to stand tough regarding undue hardship and to assume that employers should bear the brunt of more than just minimal expenses to facilitate the work of people with disabilities. The definition of undue hardship may vary in actual practice, depending upon an employer's financial resources, type of business, and size. When this area is litigated, courts may require employers to produce records to ascertain whether their hardship is indeed genuine (Rothwell, 1991).

Employers need also to consider the definition of direct threat, which is the significant risk to the health or safety of others and oneself that cannot be eliminated by reasonable accommodation. If the employer can establish that there would be a direct threat to others if they hired an otherwise qualified disabled individual, then they would not be required to hire that person. However, the employer must have complete documentation as to the specific job function(s) that would endanger the health or safety of others. Once again, employers will see a premium being put on the accuracy of job descriptions.

Disability groups are expected to vigorously contest the EEOC ruling of risk to oneself. They contend that there is no justification in any legislative history to add "harm to oneself" to the rules. They argue that stereotypical fears about disabled persons hurting themselves on the job have been used as an excuse not to hire them. The EEOC will probably counter that the burden of proof for "direct threat" for an employer is so exacting that employers cannot discriminate in this arbitrary way. The ultimate outcome of this issue remains unclear (Pimentel and Lotito, 1992).

Compliance

Compliance with the ADA is not as complicated as it seems, although the Act itself appears rather tedious. The Act is simply designed to promote equality between disabled and non-disabled people. The next few pages will look at how the ADA applies to the use of medical examinations, drug tests, job descriptions, job applications, and interviews in the pre-employment screening process. Most of the changes, if any, that are necessary for compliance to the Act will be at low or no additional cost to the employer. The most recent evidence is that the Act is not as burdensome as many feared (Gupta, 1992).

* Medical Examinations

Employers can require medical examinations only after making an employment offer to an applicant and may condition employment on the results of the examination if the following criteria are met:

1) All employees in the specific job category are required to go through the same examination regardless of disability;

2) All information on applicants' medical histories or conditions is kept confidential and maintained on separate forms and in separate medical files. Information may be disclosed to supervisors and managers regarding necessary work or duty restrictions or accommodations, to first aid and safety personnel, when appropriate, if the disability may require emergency treatment, and to government officials investigating ADA compliance.

Employers are advised not to ask about the following before offering a job: medical history; prescription-drug use; prior workers's compensation or health insurance claims; work absenteeism due to illness; and past treatment for alcoholism, drug use or mental illness. Do not require medical exams prior to a job offer, nor broadly require them of current employees unless there is a specific business need (Lublin, 1992).

An employer may reject the applicant if the exam shows that the person would be unable to perform the essential functions of the job with or without a reasonable accommodation. This mandates that employers identify and document the essential functions of the job prior to the Act's effective date of July 26, 1992, and that a physician be consulted if it appears that an applicant may not be able to perform them.

* Job Analyses and Descriptions

Another issue that must be addressed is the writing of job descriptions based on job analyses. As has been noted, these will be essential in determining job functions. The ADA clearly states that written job descriptions that are in place before an employer advertises for jobs or interviews job applicants will be considered evidence of essential job functions. Job descriptions must be accurate and contain only essential job functions, or employers will not be able to justify criteria used in the pre-employment screening process. The descriptions should be as specific as possible when referring to actions such as lifting, pulling, pushing, and carrying. These terms should be quantified in the job descriptions. In other words, the actual weight and time that will be involved in these functions needs to be specified. It is important that these descriptions be written as soon as possible and as accurately as possible by persons who are skilled in job analysis techniques and thoroughly familiar with the provisions of the ADA. Employers may find it useful to have this process monitored or reviewed by a competent industrial psychologist (Barlow and Hane, 1992).

In the future, essential function job descriptions will become the standard human resources tool for comparing job requirements and the physical and mental qualifications of candidates. This matching of the individual to the job ensures that potential incompatibilities come to light and is the point from which reasonable accommodation analysis begins. The ADA states that persons with disabilities are qualified if they meet the requirements and perform the essential functions, with or without accommodation. Therefore, determinations of accommodations need to be handled on a case-by-case basis (Calker, 1991).

The level of supervisory control should be carefully considered in performing the job analysis on which the job description is based. There are numerous cases in which disabled workers who could have successfully done the essentials of the job well were terminated because supervisors neglected to give them adequate guidance and check their work during the first few days on the job.

A job analysis should be divided into the following components:

1. Essential duties. Instead of specifying the method for performing the duties, describe simply what is to be accomplished. For example, rather than "writing information on a note pad," describe the task as "communicating information." Writing may be a problem for the handicapped; however, they could perform the task by typing or tape recording the information.

2. Mental functions. To determine what abilities may be required, list job elements such as inspecting, cataloging, or calculating. If the job requires certain kinds of inspection, then eyesight may be necessary.

3. Physical functions. Break each task down into its physical elements such as bending, cutting, carving, lifting, removing, or carrying.

4. Equipment, tools, and materials. In many cases, a slight adjustment in the materials used may determine whether a disabled worker can perform the essentials of the job effectively.

5. Methods, techniques, and procedures. Describe the procedures used currently for doing the job's essential duties. These may include the extent of lifting or reaching involved and the amount of interaction with coworkers. Assess the level of dexterity needed to perform the job.

6. Working conditions. Include factors such as the range of temperatures at the worksite. For example wet conditions versus dry, humidity and noise levels, cramped space versus open, and presence of gases, fumes, or other possible hazards.

7. Output. Estimate as accurately as possible the number of times a day physical tasks are performed and how much stamina is required.

* Drug Testing

In the pre-employment screening process, many businesses use a drug test. The ADA does not apply in any way to drag testing. The Act says, "Nothing in this |law~ shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results." Employers can require employees to behave in accordance with the Drug Free Work Place Act of 1988. Drug testing of applicants and employees and making employment decisions based on the results of those tests is specifically permitted by Section 104(d) (2) of the ADA. While the ADA does not protect an individual who is currently engaging in illegal drug use, a former drug user who has been successfully rehabilitated and no longer uses drugs is protected by the ADA.

The Act specifically permits employers to "adopt reasonable policies or procedures, including but not limited to drug testing" (Section 104 (6) (3)) to ensure that persons who are participating in or have completed supervised drug rehabilitation programs are not currently using drugs. Employers can refuse to hire an applicant or may take action against an employee who tests positive for drugs if the test validly detects drug presence. This holds even if the person who tested positive denies that he or she is currently using drugs. The employer must comply with other applicable federal, state or local laws pertaining to quality control, confidentiality, and rehabilitation in conducting the tests (Breslar and Sommer, 1992).

* Job Applications & Interviews

The ADA contains specific guidelines regarding what can be put on a job application form and what can be asked during an interview. An application form cannot contain any questions that in any way pertain to a disability. Neither applications nor interviewers can ask whether an applicant has a disability or question the nature or extent of a disability (but they may solicit information regarding an applicant's ability to perform essential job functions). Accessibility is also an issue when it comes to job applications and interviews. Rooms in which interviews are conducted must be accessible to people with all types of disabilities. At least one person must be available to administer tests or assist in filling out the application form for those applicants with impaired sensory, manual, or speaking skills.

Employers frequently feel uncomfortable interviewing disabled workers. As a result, interviewers may ask questions that are not only irrelevant, but open the door to charges of handicap bias. Interviewers therefore must be advised what questions may be asked and how to ask them to avoid bias charges. Given the ADA, employers want to maximize the possibility of placing a qualified person in the job by focusing the interview on job-related matters, not on the disability of the applicant. Employers should discuss information about the job such as physical or mental demands. The applicant can then make an informed decision about whether or not he or she can perform the job and what accommodations may be necessary.

Interviewers should avoid assumptions about the disabled person's ability to perform the job. Disabled people may well have ideas about accommodations that could enable them to perform job essentials that employers may not have thought of. Applicants should be shown the job location so that they can judge the accessibility and "comfort level" of the worksite. They can then determine whether they can do the job if reasonable accommodations are made.

* Insurance and Benefits Adjustments

The ADA prohibits entering into contracts that are discriminatory against the disabled, including contracts with fringe benefits providers. However, the Act does not preclude bonafide benefit plans from underwriting, classifying, or administering risks that are based on and consistent with state law, if they are not a subterfuge to evade the Act.

Although employers may not withhold health insurance coverage based entirely on a person's disease or disability, their plans may exclude certain treatments or procedures and provide for limited amounts of mental health coverage. An employer can refuse to insure or may place limits on the amount, extent, or type of coverage, or provision for differences in rates based on physical or mental impairment. However, it must be based on sound actuarial principles or be related to actual or reasonably anticipated experience. The legislative thrust of the ADA indicates that only under certain circumstances can disabled persons be offered limited coverage or permitted only limited reimbursable inpatient hospital days. Employers cannot refuse to hire people because they fear that they or their disabled dependents might increase the firm's health insurance costs (Lublin, 1992).

It is recommended that employees institute a program of benefits, consultation, and case management to help disabled employees effectively manage health, leave, and other benefits. Employers should also check with insurance carriers regarding coverage of disabled employees and try (within economic reason) to maintain coverage or arrange for separate coverage. The U.S. Chamber of Commerce and the National Association of Manufacturers found that 90% of the companies learned that hiring the handicapped had no effect on insurance costs (Kornblau, Soil, and Ellexson, 1992).

Support Services and Programs

Handicapped employees can be as productive as the non-handicapped if provided with technological aids and training. Fortunately, there are several programs and support services designed to facilitate the entry of handicapped people into the workforce.

The Job Accommodation Network (JAN) was started in May 1984 by the President's Committee on Employment of the Handicapped. This service is available to any business, regardless of size, willing to share its information about handicapped accommodation. A free computer database provides employers with practical solutions to adapting jobs for disabled employees (Bragman & Sole, 1984) and includes information about technological devices, various workplace adoptions, and job modifications. JAN also provides a toll-free number (1-800-JAN-PCEH). The advantage of this database is that firms can easily access solutions to situations rather than rejecting problems as too complex or costly. Small business will find this network particularly helpful in minimizing costs. It has a success rate of 73% and modification expenses were kept under $100 in 70% of the cases (ADA Update, 1989). Other sources of job applicants are rehabilitation agencies and businesses (Young, Rosate & Vandergoot, 1986); the National Health Clearinghouse in Washington, D.C., at (800) 336-4797; and the National Support Center for Persons with Disabilities in Atlanta, GA, at (800) 426-2133 (Waterman, 1992). A list of helpful resources is available from the EEOC by calling (800) 669-EEOC or (202) 663-4264.

In the last several years, the increasing sophistication of personal computers with telephone and cable hookups has encouraged a relatively quiet but increasing level of interest and activity in home-based employment (HBE). Over 23 million American workers are actively engaged in HBE. Several long-term projects have demonstrated the feasibility and successful utilization of the homebound job placement model with disabled workers (Joice, 1991).

Conclusion

In conclusion, employers must remember that the ADA is designed to promote equality amongst individuals. The Act will, one hopes, cause businesses to use the disabled segment of the American population. Individuals with disabilities have suffered discrimination in such critical areas as employment, housing, transportation, communications, recreation, institutionalization, health services, voting, and access to public services without any viable federal avenue for recourse. The ADA is designed to end this discrimination and transform the disabled into a productive segment of society. Businesses need to take the initiative and start making changes now before the ADA goes into effect. Based on the ADA's strong public and congressional support, the EEOC is expected to vigorously enforce this new law (Israel & Scott, 1990).

Debate over the ADA has so far focused on its legal and financial implications. Companies need however to consider strategies that will help them meet the spirit of the law.

A pro-active attitude regarding the ADA can help businesses solve the major

problem of a decreasing labor pool of skilled applicants. The handicapped pool is increasing in size. Several major corporations such as Union Carbide, IBM, and Dupont have successfully integrated the handicapped in their workforces. Some argue that there is no reason that small businesses cannot be just as successful (Marlow & Marlow, 1990). Commitment by top management to the accommodation of the handicapped is crucial for success. Small business managers are encouraged to examine job design and the work environment and discover economical changes that will benefit the handicapped workers. Small businesses can easily participate in a network that shares successful accommodation experiences. They can also get information on personnel training to change their perceptions about the capabilities of the handicapped. With the above accommodations, the way can be paved for enhanced use of a productive part of the labor force.

Good employers will not be doing anything radically different and should not be scared of the ADA. To avoid potential problems, HR professionals should apply the basics in good employment practices and get their firms in order. They should take a fresh look at all hiring, promotion, and benefit practices, steering clear of those that discriminate against people with mental or physical disabilities. Companies with more than 25 employees should now recognize the need for maintaining diverse, qualified, and continually improving employees. They must develop the skills and resources necessary to accommodate a rapidly changing workforce that includes disabled employees.

References

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Dr. Wilhelm teaches graduate organizational behavior, strategic management, and advanced human resource management, and has recently published in Business Insights, the Journal of Business Ethics, and other journals.