ADA In Focus - Volume 7, Number 1 Winter 2002
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TEMPORARY EMPLOYMENT: Business is Booming
The U.S. Bureau of Labor Statistics reports that the labor pool is shrinking, and projects that it will continue to do so as the population ages. Meanwhile, the temporary staffing industry is booming. Utilizing "temps" has become increasingly common for a variety of reasons. Employers are calling on staffing firms not only to fill the traditional short-term or seasonal types of jobs, but to fill permanent jobs on a temporary basis when qualified candidates can not be found, or when regular staff are out on leave.
When individuals, including those with disabilities, are seeking employment, signing up with the "temp agency" may be a way to fill the gap between "regular" jobs, so they don't have a gap between regular meals. It can also be a way to get a "foot in the door" or gain valuable experience that may eventually help land that elusive great job (you know, the one with the generous pay and benefits, reasonable hours, nice boss, easy commute, etc.).
Statistics indicate that people with disabilities continue to experience an extremely high rate of unemployment, regardless of the fluctuations in the general unemployment rate. Whether the economy is good or bad, people with disabilities remain largely unemployed. There are undoubtedly many reasons for this, but certainly people with disabilities often face unique barriers to employment.
Employment Relationships
The application of the ADA to the traditional employment process may seem daunting enough, to both employers and employees. If they have little or no experience with these matters, they may be unsure about when and how to discuss the subject of disability or the need for reasonable accommodations. There may be questions about how to obtain medical documentation, determine what is "reasonable", find out about assistive technology, or a host of other issues. Open communication and cooperation will facilitate effective solutions.
But what about temporary employment situations? These employment relationships may involve more players and more layers. It is important to keep in mind the roles and responsibilities of staffing firms and temporary employment agencies, their client companies, and individual workers.
Unlike standard employment agencies, temporary employment agencies typically set and pay wages directly to workers, withholding taxes and providing workers' compensation, etc. The agencies recruit and sometimes even train workers. Assignments are made to the agencies' client companies, which are billed for services.
While an individual worker is on an assignment, the client company typically controls working conditions, determines particular duties, and supervises the worker.
In these typical situations, both the agency and the client company are acting in some capacities as the employers of the individual worker.
Back to Basics
Employment agencies are already specifically covered by title I of the ADA. Additionally, the ADA makes it unlawful to discriminate through contract, agreement, or other arrangement, or to interfere with an individual's rights. These principles may come into play in the context of the relationships between employers, staffing firms, and individuals.
Staffing agencies and their employer clients are liable for their own discrimination, and may be liable for the other's discrimination if they participate in it, or fail to try to correct it when they know (or should know) about it.
Disability-Related Questions and Medical Exams
Entities covered by title I of the ADA, including staffing firms, may not ask disability-related questions or require medical examinations before making a job offer, except in limited situations. It is therefore important to understand what constitutes a bona fide offer of employment.
A staffing firm or temporary employment agency placing an individual on its roster for consideration for assignments does not constitute a job offer. The parties are not forming an employment relationship at this point.
When a particular assignment is offered and accepted, the parties form an employment relationship. This is the post-offer, pre-employment phase of employment. Disability-related questions may be asked and medical exams may be required, as long as they are asked and required of all employees entering the same job category.
Work assignments may be contingent on the results of necessary medical exams, and a job offer may be revoked if the results are not available before the assignment begins.
Employment Tests, Qualification Standards, and Selection Criteria
When employment tests are given or other qualification standards or selection criteria are used that screen out applicants with disabilities, the standards must be job related and consistent with business necessity. Staffing firms and client companies can neither directly nor indirectly use or participate in the application of discriminatory tests, standards, or criteria.
Again, when they are aware of discriminatory practices on the part of the other entity, they must make every effort that is within their control to correct the situation.
The Reasonable Accommodation Process
Both a temporary staffing firm and a client company where an individual performs an assignment may share responsibility for providing reasonable accommodations, depending on the circumstances.
Typically, only the staffing firm will have obligations during the pre-offer, or application phase of employment. If a staffing firm gives pre-employment tests, for instance, prior to making assignments, the firm will be solely responsible for providing reasonable accommodations for test-taking. After a worker is on the job, the staffing firm and the client company will usually both be considered the workers' employers, as they both will fill certain roles in the employment relationship.
Determining when an accommodation would pose an undue hardship will also be affected by the more complex employment relationships involved in temporary assignments.
When cost is a factor and both an agency and a client company share responsibility, undue hardship may be present if one refuses to assume any portion of the cost, and the other's resources alone will be insufficient.
When time is a factor, undue hardship may be present when the accommodation can not be obtained before the assignment begins.
It may be advantageous for staffing firms and their clients to specify in their contracts how responsibility for providing accommodations will be allocated or shared. This can help prevent delay or disagreement when a request for an accommodation is received.
RESOURCES
EEOC Enforcement Guidance: Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms www.eeoc.gov/docs/guidance-contingent.html
EEOC Fact Sheet on Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures www.eeoc.gov/facts/evacuation.html
People with Disabilities - Temporary Employment Options www.dol.gov/dol/odep/public/pubs/ek99/temp.htm
For more information or to obtain copies of documents, contact the ADA & IT Information Center at 1-800-949-4232 (Voice or TTY).
EMERGENCY EVACUATION: Planning, Participation, Practice
The ADA & IT Information Center has received a number of calls in recent weeks from people who are concerned about emergency preparedness in their workplaces. Following are a few tips that may help employers and workers establish and implement successful strategies.
Planning and Participation
People with disabilities already on staff are "experts in residence," but don't forget to consider possible needs of visitors or future employees with types of disabilities that may not be currently "represented."
Employers can ask employees to voluntarily identify themselves as people with disabilities for safety purposes. Employers should ensure that only appropriate information is shared with people who need to know.
Think not only about how to get out of the building, but about where to go and what to do once outside.
Think about how you will communicate, both internally and externally, during and after an emergency situation. Is your building equipped with both audible and visual alarms? Does your building alarm system automatically alert the fire department? Ask questions; find out now.
If you need to purchase or obtain equipment (such as evacuation devices for people who can not descend stairs), do it now.
Don't forget to include and share information with people who work different shifts, contractors like cleaning crews, or among multiple building tenants.
Practice, Practice, Practice
Practice drills can help insure that people will remember what to do when the pressure is on. Hold practice drills periodically, at irregular intervals and under differing conditions.
CALENDAR UPCOMING TRAINING EVENTS
Providing Culturally Competent Disability Services
- wyndham city center, washington, d.c.......................may 6 - 8, 2002
The Center for International Rehabilitation Research Information and Exchange (CIRRIE) will sponsor this international conference to examine issues related to providing rehabilitation services to people born in other countries and of differing cultures.
For more information, visit: http://cirrie.buffalo.edu/conference/CIRRIE2002/ or call 1-800-628-2281 Voice/TTY
Reframing Disability: AHEAD 2002
- hyatt regency crystal city, arlington, va................july 8 - 12, 2002
The 25th annual conference and exhibit of the Association on Higher Education and Disability.
For more information, visit: www.ahead.org or call 617-287-3880 Voice or 617-287-3882 TTY
ADA Distance Learning Program
The ADA Distance Learning Program offers the opportunity for low-cost training in the comfort of your office or home. Sessions are provided via toll-free telephone conference call; real-time captioning is available via an Internet web site.
- playgrounds and play areas: application of ada........march 19, 2002
- service animals: policy and procedure........................april 16, 2002
- application of the ada to temporary employment.........may 21, 2002
- design issues in children's environments.......................june 18, 2002
This session will discuss the scoping and technical provisions of the final rule for accessibility guidelines for play areas, as well as practical applications.
This session will discuss some of the issues involving access for people who use service animals in places of public accommodations and housing.
This session will discuss the ways that the ADA's employment provisions may affect temporary workers, placement agencies, and employers.
This session will highlight the final rule for accessibility guidelines for children's elements, and some of the design considerations in facilities such as day care centers and schools.
For more information, call the ADA & IT Information Center at 1-800-949-4232 V/TTY or visit the "Training and Resources" page at www.adainfo.org
COALITION / CONSORTIUM NEWS ACCESSIBLE INFORMATION TECHNOLOGY
The ADA & IT Information Center, in its expanded role to provide assistance on accessible information technology to educational entities, will utilize the skills and talents of the six state Assistive Technology (AT) Act projects in the region. They have joined together to form the Mid-Atlantic Accessible Education-Based Information Technology Consortium.
The ADA & IT Information Center and its partners and affiliates will have a valuable resource in the newly funded National Center on Accessible Information Technology in Education, or AccessIT.
This project, also funded by the National Institute on Disability and Rehabilitation Research (NIDRR) of the U.S. Department of Education, is located at the University of Washington in Seattle. AccessIT will develop materials and provide training and technical assistance to increase the use of accessible information technology in educational settings for both students and employees.
What are some examples of accessible information technology in education?
- Accessible web pages allow students to access information, share their work, communicate with others, and take advantage of distance learning opportunities.
- Accessible instructional software and documentation allow students to participate in computer labs and classrooms as they complete assignments, collaborate with peers, and participate in a variety of academic activities.
- Accessible telecommunications and office equipment makes communications and educational administrative functions available to everyone.
| TO CONTACT THE ADA COALITIONS: | |
| DC | 202-234-7550 ext. 5 V |
| 202-234-7590 TTY | |
| rights@erols.com | |
| DE | 302-292-3066 V/TTY |
| lheller@magpage.com | |
| MD | 301-217-0124 V/TTY |
| PA | 814-863-0471 V/TTY |
| wwr1@psu.edu | |
| VA | 804-384-1322 V/Relay |
| Cash@CentralVa.net | |
| WV | 304-296-6091 V/TTY |
| wvadacoalition@aol.com | |
| TO CONTACT THE ASSISTIVE TECHNOLOGY PROJECTS | |
| DC | 202-547-0198 V |
| 202-547-2657 TTY | |
| WEB | www.atpdc.org |
| DE | 800-870-3284 V/TTY |
| WEB | www.asel.udel.edu/dati |
| MD | 800-832-4827 V/TTY |
| WEB | www.mdtap.org |
| PA | 800-204-7428 V |
| 800-750-7428 TTY | |
| WEB | www.temple.edu/inst_disabilities/piat |
| VA | 800-552-5019 V/TTY |
| WEB | www.vats.org |
| WV | 800-841-8436 V/TTY |
| WEB | www.uacdd.wvu.edu/wvats |
DECISIONS IN FOCUS NEW ADA RULINGS: Decisions and Settlements
Supreme Court Rules in Toyota v. Willams
The U.S. Supreme Court issued its decision in yet another high-profile case that sought to clarify the ADA's definition of disability. The Court delved into the issue of what consitutes a "major life activity," ruling that in order to rise to the level of disability, an impairment must substantially limit activities that are "central to most people's daily lives." The Court's opinion, as well as a brief syllabus, are posted to the web at http://supremecourtus.gov/ Follow the links to "Opinions", "Latest Slip Opinions", "Toyota Motor Mfg., Ky., Inc. v. Williams" (dated 01-08).
Baltimore City Schools Agrees to Settle the Case of the Service Animal
Baltimore City Schools will pay a teacher with a vision impairment $55,000 as compensation after an offer of employment was revoked. The elementary school teacher alleged that the school system offered her a job after two interviews, where she used a cane. After she mentioned that she would soon be picking up her new service animal, the school principal withdrew the offer, saying a dog would not be allowed in the building.
The school system has also agreed to adopt new policies to ensure compliance with the employment provisions of the ADA.
EEOC and Trader Joe's Settle Lawsuit
The U.S. Equal Employment Opportunities Commission and Trader Joe's Company announced the settlement of a lawsuit that was brought under title I of the ADA.
Vaydre Parsons was hired to work in the Fairfax, Virginia Trader Joe's store, but was fired after one day when a co-worker noticed that Ms. Parsons used only one arm when stocking shelves, and alerted a supervisor. Ms. Parsons explained that she had sustained nerve damage in an accident, but believed she was capable of performing the duties of her position.
Trader Joe's did not think so, but agreed to settle the matter without further litigation. The company will pay $60,000, which includes a donation to a disability research foundation and reimbursement of Ms. Parson's attorney's fees.
Additionally, Trader Joe's will provide training on the ADA to managers at several of its northern Virginia stores, and give written information on the ADA to other employees.
Accessible Parking at Ravens Stadium
The U.S. Department of Justice and the Maryland Stadium Authority have entered a settlement agreement to resolve an investigation that was initiated by a compaint from a Ravens football fan.
The Department conducted an investigation which included a review of the design and construction of the parking area, as well as operational practices and procedures. The Department asserted that the parking area itself was not accessible, and that people with disabilities were denied the opportunity that was available to "Club Seat" members to reserve parking spaces in advance.
The stadium has agreed to take a number of steps, including:
- Re-stripe accessible parking spaces and adjoining aisles in compliance with standards and install appropriate signage.
- Perform regular inspections of the parking area and accessible routes.
- Maintain accessible parking spaces, access aisles, and routes to accessible entrances to ensure that they are free of barriers such as debris and snow.
- Ensure that accessible entrances that are closest to accessible parking remain open during events.
WHAT'S NEW PUBLICATIONS AND RESOURCES
ADA Guidebook for Small Towns
The National Center for Small Communities (NCSC) has published "The ADA Guidebook" as a resource for small towns and rural counties.
This easy-to-follow document outlines the basic application of the ADA within the context of small community government structures. It includes worksheets and samples to assist with reviews of policies, programs, and communication methods.
Common questions and concerns are discussed (historic preservation, leasing space, etc.). The booklet includes examples and practical tips on things like do-it-yourself audio recording and producing large print documents.
The ADA & IT Information Center has a limited supply of these guides, available at no charge. To request a copy, please call 1-800-949-4232 (Voice or TTY).
Access Board Develops New Technical Assistance Materials
The U.S. Access Board has developed several new technical assistance documents and resources on their web site.
The Board has posted a comprehensive collection of documents and links related to Section 508 of the Rehabilitation Act and information technology. The "Guide to the Standards" is an excellent, practical resource for anyone interested in accessibility to multi-media, telecommunications, and computer and web-based technologies.
Three new technical bulletins on Assistive Listening Systems provide guidance for consumers, installers, and providers.
Information on the Board's work in the area of classroom acoustics is also available. The Board has been working with the Acoustical Society of America and the American National Standards Institute, and has submitted a proposal to the International Code Council for the incorporation of acoustical standards into the next edition of the International Building Code.
For more information, contact the Board at 800-872-2253 (voice), 800-993-2822 (TTY), or visit www.access-board.gov/
Access in "One-Stop" Employment Centers
The Institute for Community Inclusion (ICI) has produced a resource to assist One-Stop systems in meeting the needs of people with disabilities. "Access for All: A Resource Manual for Meeting the Needs of One-Stop Customers with Disabilities" can be downloaded directly from the Internet or ordered from ICI. For more information, visit www.childrenshospital.org/ici or call ICI at 617-355-6505 (voice) or 617-355-6956 (TTY).
Employer Assistance Referral Network
This new project, operated under the U.S. Department of Labor, Office of Disability Employment Policy, is a free, nationwide service designed to connect employers with qualified job candidates. Transcen, Inc., the ADA & IT Information Center's parent organization, is a partner in this project.
Job placement professionals and employers are invited to contact Project EARN between 9:00 a.m. and 10:00 p.m. Eastern time via their toll-free telephone number, 1-866-EARN NOW (327-6669), or visit their web site at www.earnworks.com
Advisory Board Invites New Members
The ADA & IT Information Center is seeking people who are interested in serving on the Advisory Board, which meets twice a year to provide guidance to the Center. Contact Marian Vessels at 1-800-949-4232 (Voice/TTY).
ON THE INTERNET WEB SITES OF INTEREST
www.disabilitydirect.gov This site is sponsored by the Office of Disability Employment Policy under the U.S. Department of Labor. The site offers information about services and resources available through a variety of Federal programs, as well as links to other public and private sites. It also highlights current events, ADA success stories, and information about a broad range of topics, including housing, education, transportation, and technology.
www.access-board.gov/evac.htm This page at the site of the U.S. Access Board includes information on architectural design standards that may be relevant to issues of emergency evacuation. It also features links to a variety of other resources, such as information on evacuation and emergency alarm products, planning tips for people with various types of disabilities, and organizations that offer preparedness and relief services.
If you would like to receive in Focus via e-mail rather than in print, or to receive the ADA & IT Information Center's bi-monthly e-mail bulletin for updates on recent court decisions, notices of training activities, and other news, contact the Center at 1-800-949-4232 (V/TTY). We'll be happy to add you to our electronic mailing list!
ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
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