Ethical Issues and Practice in Disability Employment
Hello everyone!
Thank you for your enthusiastic participation in our session on ethics!
Although you were not given an assignment, I encourage you to review the materials and to engage your colleagues in conversations about your personal, professional and organizational ethics. This will help you determine the boundaries within which you make decisions. The scenarios and decision making models I shared may help with this.
There seemed to be a lot of interest in Title I –Employment Provisions of the ADA. I wanted to clarify a few points:
The wording on the slide about “direct threat” (Slide 49) is awkward. I will revise it before uploading copies of the PowerPoint to this site. Although the concept of “direct threat” was initially interrupted by the courts as applying only to potential harm to others, on June 10, 2002, the U.S. Supreme Court unanimously reversed a decision of the Court of Appeals for the Ninth Circuit and ruled that employers may assert a "direct threat to self" defense to claims under the Americans with Disabilities Act (ADA). Chevron U.S.A. v. Echazabal, No. 00-1406, 535 U.S. ___ (June 10, 2002). Echazabal affirms that employers who refuse to place an employee in a position that poses a direct threat to the employee's own health and safety does not violate the ADA.
A drug screen test is allowed as it is not considered a “medical inquiry” and can be applied prior to a job offer being extended. Also, the ADA does not protect individuals currently using illegal drugs. It does, however, protect people from discrimination for past or recovering drug addictions.. Sometimes people are taking prescribed drugs for a nonobvious disability, such as AIDS, and are concerned that employer will see the drug test results and this will result in unintentional disability disclosure. However, drug tests are conducted by another entity and the only information they should be sharing with the employer is whether or not illegal drugs were found in the person’s system. Details of what drugs were found, etc. are not to be shared with the employer.
Even if a disability is disclosed during the medical examination, this does not mean that the job offer will always be withdrawn. Nor does it mean the candidate was “caught in a lie.” Disability disclosure is a legally protected choice.
Whether or not you have a disability, the employer can ask you to show how you would perform the essential functions of the job in order to determine if you are qualified to do the job.
I mentioned some recent court decisions that are concerning because they seem to go against the intent of the ADA Amendments Act in that they suggest employees with disabilities must implicitly state the connection between an accommodation request and their disability, even if they have previously disclosed. Williamson v. Clarke County Dept. of Human Resources. 2011 WL 2680738 (S.D. Ala. July 8, 2011)
Employee had two separate conversations with his employer – first mentioned that he had ADHD in an informal conversation. Later, he mentioned that he was struggling with the workload and asked for a reduction in certain responsibilities, but did not mention that these difficulties were related to his ADHD.
He was terminated and claimed employer failed to provide reasonable accommodation.
Court said: Employee did not make an adequate request to put the employer on notice of the need for a reasonable accommodation – the employee failed to “connect the dots.” They said the employer did not fail to participate in interactive process the employee hadn’t given adequate notice for them to realize it was a disability-related performance issue.
An interesting case that relates to disability disclosure and who the employer can tell about a disability: http://caselaw.findlaw.com/us-10th-circuit/1566122.html
A trainer for a truck driving company had HIV. The employer developed a release form advising his potential students of his condition and giving them the option to refuse to be trained by him. The court said this did not violate the man’s rights because he didn’t object to the use of the form nor did in limit his opportunities to train since there was always a large pool of potential students and the one student who had been given the release agreed to work with the employee.
The Northeast ADA Center has a confidential, toll-free technical assistance line to help people with disabilities, employers, service providers and others to understand their rights and responsibilities under the ADA. The number is 1-800-949-4232. We also have free information and self-paced tutorials on our website at www.northeastada.org that may be helpful to you in your work with consumers.
Ethical Issues and Practice in Disability Employment
Hello everyone!
Thank you for your enthusiastic participation in our session on ethics!
Although you were not given an assignment, I encourage you to review the materials and to engage your colleagues in conversations about your personal, professional and organizational ethics. This will help you determine the boundaries within which you make decisions. The scenarios and decision making models I shared may help with this.
There seemed to be a lot of interest in Title I –Employment Provisions of the ADA. I wanted to clarify a few points:
I mentioned some recent court decisions that are concerning because they seem to go against the intent of the ADA Amendments Act in that they suggest employees with disabilities must implicitly state the connection between an accommodation request and their disability, even if they have previously disclosed.
Williamson v. Clarke County Dept. of Human Resources.
2011 WL 2680738 (S.D. Ala. July 8, 2011)
An interesting case that relates to disability disclosure and who the employer can tell about a disability:
http://caselaw.findlaw.com/us-10th-circuit/1566122.html
A trainer for a truck driving company had HIV. The employer developed a release form advising his potential students of his condition and giving them the option to refuse to be trained by him. The court said this did not violate the man’s rights because he didn’t object to the use of the form nor did in limit his opportunities to train since there was always a large pool of potential students and the one student who had been given the release agreed to work with the employee.
The Northeast ADA Center has a confidential, toll-free technical assistance line to help people with disabilities, employers, service providers and others to understand their rights and responsibilities under the ADA. The number is 1-800-949-4232. We also have free information and self-paced tutorials on our website at www.northeastada.org that may be helpful to you in your work with consumers.
Best wishes,
LaWanda