ADA Campus Policies : UW-Madison





Campus Resources Community and Beyond Policies		Employment Provisions of the Americans With Disabilities Act: UW-Madison Guidelines for Compliance Campus Contacts Any questions about the use of these guidelines, or about related policies regarding the employment rights of disabled individuals (e.g., disability accommodation policies), should be referred to Barbara Lanser, Disability Coordinator/Employment, Office for Equity and Diversity (OED), 179A Bascom Hall, 263-2378 (voice) or 7-1-1 (Wisconsin Telecommunicator Relay Service). Overall responsibility for ADA compliance at UW-Madison is required by the ADA to be vested in an ADA Coordinator; the Vice Chancellor for Legal and Executive Affairs (361 Bascom Hall, 263-7400). Introduction The Americans with Disabilities Act of 1990 (the "ADA") is a federal law that recognizes -- and seeks to ensure -- the right of individuals with disabilities to participate to the fullest extent possible in the activities and benefits of society. One such activity or benefit is employment; the ADA carefully regulates the extent to which an employer may allow an individual's disability (actual or perceived) to influence an employment decision involving that individual. In this regard, the ADA emphasizes and extends the manner in which other federal and state laws protect the employment rights of the disabled. UW-Madison has developed these guidelines to ensure compliance with the employment provisions of the ADA and related disability laws (in the interest of brevity, discussion of these guidelines will only reference the ADA, although they reflect the substance of related laws also). These guidelines are designed to allow individual departments and administrative units to continue to make most of their own employment decisions, but in a way that complies with the ADA. While the guidelines promote "self-help" in this sense, difficult decisions are anticipated; directions are provided regarding which UW-Madison offices or officials to contact for assistance in making these more difficult decisions (see Campus Contacts above). Any supervisor intending to make a decision that affects the employment of another individual (e.g., a decision to hire, train, evaluate, promote, discipline, transfer, or terminate) should refer to these guidelines when one or more of the following conditions exists: The supervisor is aware that the individual has a disability (see "disability" in Glossary of Terms); The supervisor is aware that the individual had a disability in the past (see "disability" in Glossary of Terms); The supervisor believes that the individual has a disability (see "disability" in Glossary of Terms); and/or The individual has requested an accommodation and/or the supervisor believes that an accommodation may be necessary to enable the individual to adequately perform the essential functions of the position (see Glossary of Terms; note also that separate policies for requesting an accommodation exist for faculty, academic staff, and classified staff). Section A: The Concept of Essential Functions The ADA requires that disabled individuals enjoy equal employment opportunities so long as they are "qualified" to perform the "essential functions" of an employment position (see Glossary of Terms). A person may be qualified in this sense either because his or her disability does not affect performance of essential functions, or because a reasonable accommodation can be identified that enables that performance despite the influence of the disability (see Glossary of Terms and Section B below regarding accommodation). Essential functions are those duties that are fundamental to the purpose of the position, and which simply must be performed by the individual holding the position. If an individual is unable to perform the essential functions of a position, either with or without an accommodation, the individual is not qualified for the position and merits no special consideration as an applicant or employee. In addition, if the disabled applicant or employee poses a "direct threat" (see Glossary of Terms) to the health or safety of self and/or others in the context of a specific employment position, he or she is not qualified for that position. The essential functions of a position should be identified prior to recruitment if possible, since applicants may be asked whether they can perform these functions (with or without accommodation), but may not be asked whether they have a disability or, if one is apparent, how it affects their ability to work. Similarly, applicants may not be asked questions relating to medical history, past use of sick leave or worker's compensation, or related questions. As reflected in the very concept of essential functions, the ADA requires that disabled individuals have the opportunity to compete for employment on the basis of whether they can perform the critical functions of a job. Consistent with this requirement, once the essential functions of a position have been identified, it is necessary to further identify the "marginal" functions of the position, i.e., those that are not critical to the successful performance of that position. Marginal functions are those that can and should be eliminated or redistributed to other workers in the event that a disabled individual is employed and unable to perform them. Designation of the essential functions of a position may include identification of physical and mental qualifications (e.g., lifting capacity, proficiency in mathematical calculus, etc.). If physical or mental qualifications are identified, however, they must be necessary to the accomplishment of essential functions before they can be cited as a basis for considering a disabled applicant or employee to not be qualified for a position. Just as accommodation can become an issue with respect to applicants for employment, once an individual is hired and either evidences a disability or is perceived and/or treated as having one (see Glossary of Terms), it may be necessary to determine whether an accommodation is necessary in order to enable the disabled individual to perform the essential functions of the position. The issue of accommodation may be raised either by the employee or the employer. Accommodation is addressed in Section B below (see also Glossary of Terms). Section B: The Process of Accommodation The ADA guarantees to both applicants and employees the right to request an accommodation. In addition, if an employer perceives that an employee's performance difficulties may be attributable in whole or in part to a disability, the employer may have an obligation to affirmatively engage the employee in discussion about a possible accommodation. Before initiating such a discussion, the employer should contact EDRC for guidance. Accommodations may involve a variety of employer actions, including, but not limited to, modification of a recruitment process (e.g., changing location or format of interviews), a work environment, a work schedule, a work duty, or work-related equipment. Accommodations ordinarily must be made, so long as they are "reasonable" under the circumstances, and do not impose an "undue hardship" on the employer (see Glossary of Terms). Applicants and employees must be informed during the recruitment and selection process, or thereafter as circumstances warrant (as might occur if the individual employee discloses the existence of a disability), that they may request an accommodation if it is necessary to their performance of the essential functions of a position. Applicants and employees must also be informed how to submit such a request. Reference should be made for this purpose to current UW-Madison disability accommodation policies as appropriate to faculty, academic staff and classified staff; for individuals not having one of these three employment statuses, assistance in responding to the accommodation request should be sought from OED. An employing unit does not have a responsibility to accommodate a disability of which it has no knowledge. Applicants and employees with disabilities are expected to comply with applicable policies setting forth the procedures for requesting an accommodation (thus the obligation to inform applicants and employees of those policies). An employee requesting an accommodation must work with his or her supervisor, the Division Level Representative (DLR) (see Glossary of Terms) and/or EDRC to identify the need for -- and the character of -- reasonable accommodations. The most critical part of responding to a request for accommodation, or in attempting to identify the type of accommodation that should be made, involves the dual assessment of whether the accommodation under consideration is reasonable or results in an undue hardship to the employer. Identification of a reasonable accommodation is a creative judgment -- what can be done that will enable the individual to perform essential functions. Undue hardship is a matter of balancing opportunities and costs -- will the accommodation result in significant difficulty or expense for the employer in view of its overall resources and organizational structure. Resolution of this balance requires careful scrutiny of the anticipated duration of the accommodation necessary, the manner in which similar issues have been addressed in the past, and other facts regarding the employment context in which the requested accommodation must be evaluated (for additional discussion, see Glossary of Terms). The complexity of this dual assessment, and its critical relationship to the accommodation process mandated by the ADA, warrants close interaction between the individual requesting an accommodation, the individual's supervisor, the DLR, and EDRC in making the assessment (this is true, in part, because the employer's obligation to accommodate may implicate institutional interests beyond the level of the department or unit in which the individual seeking an accommodation works). Section C: Assessments and Testing In reviewing applicants for a position, an employer may impose physical tests if certain physical abilities are necessary to the performance of essential functions and the test is administered equally to all applicants. In addition, an employer may require tests involving the sensory, manual, and/or speaking skills of applicants, so long as the employer makes available the aids (see Glossary of Terms) or assistance necessary to enable persons with sensory, manual and/or speaking disabilities to effectively take the required test (e.g., additional time for persons who have a reading disability, sign language interpreters for persons with hearing deficits, etc.). The employer is only relieved of the obligation to provide these aids if the essential functions of the job in question require performance of the sensory, manual and/or speaking skill being tested without benefit of assistance. Drug testing of applicants and employees is not prohibited by the ADA. Any supervisor contemplating administration of drug tests should contact Administrative Legal Services before initiating testing. Section D: Confidentiality An employer may require that a disabled employee provide medical information as necessary to answer the following questions: (1) Does the employee have a disability as defined by the ADA (see Glossary of Terms), and how does it affect the employee's ability to perform assigned job duties? (2) What accommodation(s) is necessary to enable the disabled employee to perform the essential functions of his or her position? (3) Does the disabled employee's medical status pose a direct threat to the health or safety of others in the context of his or her present or anticipated employment? An employee's medical information, as obtained for purposes of answering the above three questions, must have a very restricted circulation. Medical information must be maintained in separate confidential files. The ADA requires that only supervisors and managers who need to know this information in order to make accommodations actually have access, in addition to first aid and safety personnel, and government officials investigating ADA compliance. OED should be contacted for guidance regarding the degree of access that supervisors and managers should have to confidential medical information. In addition, each of the UW-Madison policies created for purposes of resolving accommodation issues specifies the individuals who are to have access to employee medical information, consistent with the restrictions imposed by the ADA. Section E: Complaint Procedures Employees may consult with the Personnel and Disability Specialist in OED and/or the Employee Assistance Office regarding disability-related employment matters. Employees with disabilities may appeal a denial of an accommodation request. The appeal processes for faculty, academic staff, and classified staff are outlined in their respective disability accommodation policies, which should be provided to the employee at the time that the accommodation request is denied. Employees who believe that their employment has been affected by disability discrimination may file a complaint through OED, the Wisconsin Personnel Commission, and/or the federal Equal Employment Opportunities Commission, or may pursue a civil suit. Glossary of Terms As noted earlier in this document, the guidelines provided here pertain only to the ADA provisions regarding employment. Consistent with this focus, the definitions provided below are restricted in application to employment-related issues. Accommodation. The process of adjusting an employer's requirements for application to and/or employment in a position as reasonably necessary to ensure that disabled applicants or employees receive equal employment opportunity. Accommodation is necessary in the following circumstances: where applicants for employment must take examinations that require use of visual, sensory, or speaking organs, aids (see definition in this Glossary of Terms) must be made available that allow persons with disabilities impairing these types of organs to effectively participate in the required test (e.g., through use of sign language interpreters if hearing impaired) unless the job requires actual ability to use the visual, sensory, and/or speaking organs without benefit of accommodation in order to perform the essential functions (see definition in this Glossary of Terms) of the position; where an applicant for employment is selected for hire, and then submits a request for accommodation and a reasonable accommodation can be made that allows the applicant to perform the essential functions of the position without causing undue hardship (see definition in this Glossary of Terms) to the employing unit; an employee submits a request for accommodation and one can be arranged as contemplated by 2. above; and a supervisor perceives that an employee might benefit by an accommodation, and works with the employee to devise such as contemplated by 2. above. Accommodation may require job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition of or modifications to equipment or devices; adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; modifications to job application processes; modifications to a work environment; or similar actions as required to enable an individual with a disability to enjoy equal opportunities for and benefits and privileges of employment. Aids (auxiliary equipment and services). Refers to devices or services that compensate for a disabling condition, usually divided into four categories: interpreters, note takers, transcription services, written materials; telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments; acquisition or modification of equipment or devices; and other similar services and actions. Direct Threat. A significant health or safety risk posed by an individual to self or others that can not be eliminated or reduced to an acceptable level through reasonable accommodation. Disability/Disabilities. The ADA provides three definitions for a disability, each of which is an independent basis upon which to trigger issues of accommodation and equal treatment. The three definitions are as follows: an individual has a physical or mental impairment that substantially limits one or more of the major life activities of such individual; an individual has a record (i.e., has had in the past) of a physical or mental impairment that substantially limits one or more of the major life activities of such individual; or an individual is regarded by his or her supervisor as having a physical or mental impairment that substantially limits one or more of the major life activities of such individual. These definitions all focus on disability as a condition that "substantially limits" a "major life activity." A major life activity is one in which people ordinarily engage on a frequent and necessary basis, such as caring for one's self, performing manual tasks, walking, seeing, hearing, breathing, learning, and working. A substantial limitation of an individual's ability to perform a major life activity would entail any significant restriction on that ability, such as limiting the condition, manner, or duration under which the activity could be performed. The determination of whether a condition substantially limits a person is based on the condition's impact on an individual, not on the existence of the condition itself. These definitions are not intended to include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs. In addition, the ADA does not consider current alcohol abuse to be a disability; persons receiving treatment for alcohol abuse, however, are considered to be within the definition of disability. Division Level Representative (DLR). A person designated by a unit's supervising dean or director to consult with supervisors in making disability accommodation decisions. Under some of the disability accommodation policies in effect at UW-Madison for faculty, academic staff, and classified staff, specific guidelines exist for restricting access to an employee's medical information to the DLR under most circumstances. Essential (And Marginal) Functions. Fundamental job duties of an employment position. The concept of essential functions is a key element of identifying whether, through reasonable accommodation, an individual with a disability that is either applying for the position or currently holding it can perform the essential functions of the position. The essential functions of a position are those duties that exist as the very purpose for the position, and which simply must be performed by the individual holding the position (other than for, perhaps, relatively limited periods of time). Essential functions must be distinguished from marginal functions, the latter consisting of duties associated with the position that may be eliminated or redistributed to other employees if an accommodation so requires. Qualified Individual (Applicant Or Employee) With A Disability. An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of a position. Undue Hardship. Regarding the provision of an accommodation, significant difficulty or expense incurred when considered in light of the following factors: nature and net cost of the accommodations needed; the overall financial resources of the facility or unit involved, including the effect on the expenses and resources or impact of such action upon the operation of the facility; the number of employees at the facility; the type of operations of the facility, including the composition, structure and functions of the work force, the geographic location of personnel, and the administrative and financial relationship of the facility to higher levels of employer administration; and the impact of the accommodation on the operations of the facility, including the impact on the ability of other employees in the facility to perform their duties and the impact on the facility's ability to conduct business. History Promulgated by the Interim ADA Coordinator February 20, 1995, in consultation with the Office of Administrative Legal Services, the Office of Affirmative Action and Compliance, and the Employee Assistance Office. Minor grammatical revisions made February 12, 1999.

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