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Employment Rights Webinar

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Transcript

March 24, 2014

>> SUE: MY NAME IS SUE MASTEN. ON BEHALF OF THE INTERAGENCY COMMITTEE ON EMPLOYEES WITH DISABILITIES, I WOULD LIKE TO WELCOME YOU TODAY TO OUR WEBINAR.

I HAVE SOME LITTLE HOUSEKEEPING DUTIES HERE THAT I WANT TO FIRST SAY TO EVERYBODY.

THE AUDIO TODAY'S WEBINAR IS BROADCASTED THROUGH YOUR COMPUTER.

PLEASE MAKE SURE YOUR SPEAKERS ARE TURNED ON, AND YOUR HEADPHONES ARE PLUGGED IN.

YOU CAN CONTROL YOUR AUDIO BROADCAST, VIA YOUR AUDIO VIDEO PANEL THAT YOU WILL SEE IN THE UPPER LEFTHAND CORNER.

YOU CAN ADJUST THE SOUND BY SLIDING THE SOUND BAR TO THE RIGHT OR TO THE LEFT.

IF YOU ARE HAVING SOUND QUALITY PROBLEMS, PLEASE CHECK YOUR AUDIO CONTROLS BY GOING THROUGH THE AUDIO WIZARD WHICH IS ACCESSED BY SELECTING THE MICROPHONE ICON ON THE AUDIO AND VIDEO PANEL.

>>REAL TIME CAPTIONING IS PROVIDED TODAY FOR TODAY'S WEBINAR.

THE CAPTIONING SCREEN CAN BE ACCESSED BY CHOOSING THE "CC" ICON ON THE AUDIO AND VIDEO PANEL.

ONCE SELECTED, YOU HAVE THE OPTION TO RESIZE THE CAPTIONING WINDOW AND CHANGE THE FONT AND SAVE IT AS A TRANSCRIPT.

MOVING ALONG WITH OUR TRAINING TODAY, PROVIDING OUR WELCOMING TODAY IS ROCCO CLAPS, DIRECTOR OF THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS AND CHAIR, CO CHAIR OF THE INTERAGENCY COMMITTEE ON EMPLOYEES WITH DISABILITIES SINCE 2003.

UNDER DIRECTOR CLAPS' LEADERSHIP OF ICED, ALONG WITH THE SECRETARY ADAMS OF THE DEPARTMENT OF HUMAN SERVICES, THE COMMITTEE HAS BECOME AN ACTIVE SOURCE FOR DISABILITY RIGHTS, OPPORTUNITY, AND ACCESS TO STATE GOVERNMENT.

DIRECTOR CLAPS CONTINUES TO FUNCTION AS A STRONG ADVOCATE FOR THE ICED INTERNSHIP PROGRAM, HIRING INTERNS INTO THE DEPARTMENT AND ENCOURAGING OTHER AGENCIES TO FOLLOW HIS LEAD.

THIS YEAR, THROUGH THE CO CHAIRS INITIATIVE, ICED JURISDICTION WILL BE EXPANDED TO INCLUDE NOT ONLY IN ENTITIES UNDER THE PERSONNEL CODE, BUT ALSO THE STATE CONSTITUTIONAL OFFICERS.

RIGHT NOW, I WOULD LIKE TO TURN THE PROGRAM OVER TO OUR CO CHAIR DIRECTOR ROCCO CLAPS.

THANK YOU.

>> >> DIRECTR CLAPS: THANK YOU, SUE, FOR THAT INTRODUCTION.

ON BEHALF OF ICED, I'D LIKE TO WELCOME ALL OF OUR WEBINAR PARTICIPANTS TO THE PROGRAM TODAY.

AS IT HAPPENS, 2014 IS THE 40TH ANNIVERSARY OF ICED WHICH I'D LIKE TO CALL A LITTLE COMMITTEE WITH A BIG MISSION, IMPROVING ACCESS AND OPPORTUNITIES FOR PEOPLE WITH DISABILITIES IN STATE GOVERNMENT.

STATE GOVERNMENT I AM PLEASED TO REPORT DOES A PRETTY GOOD JOB IN EMPLOY EMPLOYING PEOPLE WITH JOBS.

40% THAT EXCEEDS THE LABOR FORCE OF PEOPLE WITH DISABILITY IN ILLINOIS AND GREATER UTILIZATION OF PEOPLE WITH DISABILITY THAN THE OFCCP NEW NATIONWIDE GOAL OF FEDERAL CONTRACTORS OF 7%.

IN ILLINOIS STATE GOVERNMENT, WE STRIVE TO BE A MODEL EMPLOYER IN ALL ASPECTS OF AFFIRMATIVE ACTION, RACE, GENDER, ETHNICITY AND DISABILITIES.

THIS YEAR, ICED IS STRIVING TO EXPAND ITS REACH TO ALL BRANCHES OF STATE GOVERNMENT, INCLUDING THE CONSTITUTIONAL OFFICERS.

IN FACT, HOUSE BILL 4665 WHICH ACCOMPLISHES THIS OBJECTIVE WILL BE INTRODUCED IN THE ILLINOIS HOUSE OF REPRESENTATIVES HEALTH AND HEALTH CARE DISPARITIES COMMITTEE TOMORROW, MARCH 25, AT 8:30 A.M. WE URGE OUR MEMBERS AND FRIENDS TO SUPPORT THE COMMITTEE'S WORK AND THIS BILL.

ANYONE WHO IS INTERESTED CAN COMPLETE A WITNESS SLIP IN SUPPORT OF THE BILL.

YOU CAN DO IT ELECTRONICALLY OR IN PERSON AND INFORMATION WILL BE DISTRIBUTED WITH INSTRUCTIONS.

ICED ACCOMPLISHES ITS GOALS THROUGH EDUCATION, LEGISLATION, AND OUTREACH.

THIS IS THE SECOND OF TWO WEBINARS SPONSORED BY ICED THIS YEAR.

FIRST DEALT WITH ACCESSIBLE PARKING REQUIREMENTS.

THE ALTERNATIVE EMPLOYMENT PROGRAM THROUGH WHICH EMPLOYEES CAN GAIN ALTERNATIVE EMPLOYMENT FOR DISABILITY TO CURRENT DUTY WAS ACCOMPLISHMENT ICED REACHED THROUGH LEGISLATION.

THE COMMITTEE'S OUTREACH EFFORTS INCLUDE ANNUAL AWARDS CEREMONY WHICH THIS YEAR WILL BE HELD MAY 20 IN THE HISTORIC PRESERVATION AGENCY'S BUILDING IN SPRINGFIELD.

A FINALIZED PROGRAM I WANT TO MENTION IS THE ALL IMPORTANT INTERNSHIP PROGRAM WHICH BRINGS PEOPLE WITH DISABILITIES INTO STATE GOVERNMENT, THEREBY BENEFITING BOTH EMPLOYEE AND THE AGENCY.

I CAN PERSONALLY ATTEST TO THE SUCCESS OF THIS PROGRAM IN THAT THE DEPARTMENT OF HUMAN RIGHTS HAS EMPLOYED AND VERY MUCH APPRECIATED ICED INTERNS OVER THE MANY YEARS THE PROGRAM HAS EXISTED.

I'D LIKE TO SAY A FEW WORDS ABOUT TODAY'S PROGRAM.

THE ILLINOIS HUMAN RIGHTS ACT WAS ENACTED OVER 35 YEARS AGO IN PART TO ENSURE THAT PEOPLE WITH DISABILITIES ARE PROVIDED AN OPPORTUNITY TO WORK AND TO BE TREATED FAIRLY IN THE WORK PLACE.

THE DEPARTMENT OF HUMAN RIGHTS HAS DONE MUCH TO MEET THAT OBJECTIVE.

HOWEVER, AS WE SEE AT OUR AGENCY, MANY EMPLOYERS ARE EITHER UNAWARE OF THEIR LEGAL OBLIGATION OR REFUSE TO MEET IT FOR OTHER REASONS.

THE DEPARTMENT PREFERS THAT EMPLOYERS LEARN ABOUT LEGAL REQUIREMENTS THROUGH PROGRAMS SUCH AS TODAY, RATHER THAN THROUGH CHARGES AND LAWSUITS.

AS I SAID, WE WANT THE STATE TO LEAD THE WAY.

I WANT TO THANK OUR SPEAKERS TODAY, MISS WEISBERG OF EQUIP FOR EQUALITY AND THE COMMITTEE THAT PLANNED THE EVENT.

I WILL TURN THE PROGRAM OVER TO MISS WEISBERG.

>>RACHEL: THANK YOU SO MUCH, DIRECTOR CLAPS, AND THANK YOU TO ICED FOR INVITING ME TO SPEAK.

I AM RACHEL WEISBERG.

I AM HERE AS AN ATTORNEY FOR EQUIP FOR EQUALITY. I MANAGE A PROGRAM CALLED ILLINOIS ADA PROJECT.

SO BEFORE WE GET INTO THE SUBSTANCE OF TODAY'S DISCUSSION AND TRAINING WHICH IS EMPLOYMENT RIGHTS FOR EMPLOYEES AND APPLICANTS WITH DISABILITIES, I WANTED TO TAKE A MINUTE JUST TO GO THROUGH WHAT EQUIP FOR EQUALITY IS AND WHAT THE ILLINOIS ADA PROJECT DOES.

AS A LAWYER, I DO NEED TO MAKE DISCLAIMER, ALTHOUGH I AM A LAWYER, I AM NOT YOUR LAWYER.

SO THE PRESENTATION TODAY I AM HERE TO GIVE TECHNICAL ASSISTANCE.

I AM HERE TO HELP GIVE AN EDUCATION ABOUT DISABILITY RIGHTS LAWS, BUT NOTHING SHOULD BE CONSTRUED AS GIVING ANYONE LEGAL ADVICE.

SO THAT'S MY ATTORNEY DISCLAIMER THAT I HAVE TO GIVE! I AM STARTING WITH EQUIP FOR EQUALITY.

SOME PEOPLE ON THE WEBINAR MAYBE FAMILIAR, BUT WE ARE THE ILLINOIS PROTECTION AND ADVOCACY ORGANIZATION.

WE ARE A PART OF A NATIONAL NETWORK OF ADVOCACY ORGANIZATIONS WHOSE MISSION IS ADVANCE THE HUMAN AND CIVIL RIGHTS OF PEOPLE WITH DISABILITIES.

WE DO LEGAL ADVOCACY.

WE DO TRAINING AND EDUCATION.

WE HAVE A NUMBER OF SPECIFIC PROGRAMS THAT ARE ALL LISTED HERE ON SLIDE TWO AND OUR CONTACT INFORMATION IS ON THIS SLIDE AS WELL.

SO IF YOU ARE AN EMPLOYEE WITH A DISABILITY AND HAVE QUESTIONS, THIS IS THE NUMBER THAT YOU CAN ALWAYS CALL TO SEEK ASSISTANCE.

I AM ALSO HERE IN MY CAPACITY AS MANAGER OF THE ILLINOIS ADA PROJECT, AND THE ILLINOIS ADA PROJECT RECOGNIZES THAT EDUCATION AND TECHNICAL ASSISTANCE IS SUCH AN IMPORTANT WAY TO MAKE SURE THAT THE GOALS AND THE MISSION OF THE ADA IS ACCOMPLISHED.

THE ILLINOIS ADA PROJECT IS FUNDED BY AN ORGANIZATION CALLED THE GREAT LAKES ADA CENTER.

THE GREAT LAKES ADA CENTER IS ONE IT IS A REGIONAL CENTER, AND THEY ARE FUNDED BY THE DEPARTMENT OF EDUCATION TO PROVIDE TRAINING AND EDUCATION ALL ON THE ADA.

SO IF ANYONE HAS QUESTIONS ABOUT THE ADA, NEEDS TRAININGS, NEEDS A FACT SHEET, ILLINOIS ADA PROJECT AND THE GREAT LAKES ADA CENTER OFFER THEIR SERVICES MOSTLY FREE OF CHARGE, AND IS A REALLY GREAT RESOURCE FOR BOTH EMPLOYEES AND EMPLOYERS WHO MAY HAVE QUESTIONS ABOUT WHAT THE ADA IS AND HOW IT APPLIES TO THEM AND THEIR SPECIFIC SITUATION.

THROUGHOUT THE WEBINAR TODAY, I AM GOING TO BE GIVING A NUMBER OF DIFFERENT TYPES OF RESOURCES THAT ARE AVAILABLE AND AS MUCH AS I'D LIKE TO BE ABLE TO PROVIDE ANSWERS TO EVERY QUESTION AND EVERY SCENARIO, WE RECOGNIZE THAT EVERYTHING IN THE ADA IS VERY FACT SPECIFIC AND SOMETIMES YOU NEED TO HAVE AN INDIVIDUAL CONVERSATION TO DETERMINE THE BEST ROUTE FOR YOUR SPECIFIC SITUATION.

THAT'S A LITTLE BIT ABOUT WHO I AM AND WHY I AM HERE.

THIS NEXT SLIDE, SLIDE FOUR, GIVES AN OUTLINE OF WHAT WE ARE HOPING TO ACCOMPLISH TODAY.

AS YOU CAN SEE IT IS A PRETTY AMBITIOUS SCHEDULE.

I TEND TO DO THIS IN MY TRAININGS, I FIND THERE IS SO MUCH IN THE A.

DA, AND OTHER DISABILITY RIGHTS LAWS, I WANT TO BE ABLE TO TALK ABOUT.

I TEND TO OVER FACT THINGS.

WE WILL DO OUR BEST TO P GET THROUGH EVERYTHING TODAY.

WE WILL START BY TALKING ABOUT THE DIFFERENT RELEVANT LAWS, AND THEN WE WILL BE TALKING ABOUT WHO IS ACTUALLY PROTECTED BY THESE LAWS.

WE WILL TALK ABOUT THE DEFINITION OF DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT AND THE ILLINOIS HUMAN RIGHTS ACT.

NEXT, WE WILL MOVE INTO THE ISSUE OF QUALIFIED.

THE LAW PROTECTS INDIVIDUALS WITH DISABILITIES.

ONCE WE FIND OUT WHO IS PROJECTED, WE WILL MOVE INTO THE SUBSTANCE OF THE LAW.

WHAT DO THESE LAWS DO?

WE WILL TALK ABOUT ANTI DISCRIMINATION PROVISION, AND THEN WE WILL TALK ABOUT FEW AREAS SPECIFIC TO DISABILITY RIGHTS LAWS, THINGS LIKE REASONABLE ACCOMMODATIONS AND QUESTIONS ABOUT DISCLOSURE, MEDICAL EXAMS AND INQUIRIES, AND AT THE END, WE WILL TALK A LITTLE IT BY THE ABOUT DISABILITY HARASSMENT, RETALIATION, AND CONFIDENTIALITY.

FINALLY, WE WILL CONCLUDE TODAY'S PROGRAM BY TALKING ABOUT SOME PRACTICAL TIPS THAT HELP ALL OF US, AND AGAIN, GIVING SOME RESOURCES, AND HOPEFULLY THERE WILL BE TIME FOR SOME QUESTIONS, BUT I WANTED TO LET EVERYONE KNOW NOW, AND WE WILL REITERATE TOWARD THE END OF THE PROGRAM, IF FOR NOT REASON WE ARE NOT ABLE TO ANSWER EVERYONE'S QUESTIONS TODAY, I WILL BE HAPPY TO MAKE MYSELF AVAILABLE FOR FOLLOW UP QUESTIONS, AND ANY QUESTIONS SPECIFIC TO STATE EMPLOYEES THAT I MAY NOT BE ABLE TO ANSWER.

I KNOW THAT ICED IS GOING TO MAKE THEMSELVES AVAILABLE TO ANSWER THOSE QUESTIONS AS WELL.

SO WHAT ARE WE TALKING ABOUT HERE, WHAT ARE THE DISABILITY RIGHTS LAWS IN QUESTION?

THERE IS ACTUALLY A NUMBER OF DIFFERENT DISABILITY RIGHTS LAWS THAT WE WILL BE TALKING ABOUT.

JUST BRIEFLY GO OVER SOME OF THEM.

THE FIRST DISABILITY RIGHTS LAW PROTECTING EMPLOYEES IS THE REHABILITATION ACT.

THIS IS A FEDERAL LAW THAT WAS PASSED IN 1973.

SO A FAIR AMOUNT OF TIME AGO.

WHAT THIS LAW DID IS PROHIBITED DISCRIMINATION FOR QUALIFIED INDIVIDUALS WITH DISABILITIES, BUT IT DIDN'T APPLY TO ALL EMPLOYEES.

DIDN'T APPLY TO PRIVATE EMPLOYEES OR EMPLOYEES THAT WORKED FOR PRIVATE BUSINESSES, BUT IT WAS SOMEWHAT NARROW IN SCOPE.

IT APPLIED ONLY TO FEDERAL GOVERNMENT EMPLOYEES OR TO ENTITIES THAT RECEIVED FEDERAL FUNDING.

SO FROM THAT TIME, FROM 1973, THIS IS PRETTY MUCH THE ONLY GROUP OF INDIVIDUALS THAT WERE PROTECTED, BY FEDERAL LAW.

AS DIRECTOR CLAPS STATED, ILLINOIS PASSED ILLINOIS HUMAN RIGHTS ACT WHICH IS A STATE LAW.

AND THAT PROHIBITS EMPLOYMENT DISCRIMINATION FOR QUALIFIED INDIVIDUALS WITH DISABILITIES WHO WORK FOR STATE GOVERNMENT, LOCAL GOVERNMENT, AND PRIVATE BUSINESSES WITH ONE OR MORE EMPLOYEE.

I AM NOTICING FROM SOME OF THE CHATS THAT SOME INDIVIDUALS ARE HAVING DIFFICULTY HEARING.

IT SEEMS IF SOME PEOPLE ARE OKAY, BUT SOME PEOPLE AREN'T.

SO CONTINUE TO LET US KNOW IF YOU ARE AUDIO IS NOT WORKING SO WE CAN TRY TO COME UP WITH A SOLUTION FOR YOU.

THE NEXT LINE I WANTED TO HIGHLIGHT TODAY IS THE AMERICANS WITH DISABILITIES ACT WHICH IS A FEDERAL LAW.

THIS WAS PASSED IN 1990.

THIS IS THE LAW THAT A LOT OF PEOPLE HAVE PROBABLY HEARD OF, IN ADDITION TO THE ILLINOIS HUMAN RIGHTS ACT.

ADA PROHIBITS EMPLOYMENT DISCRIMINATION FOR QUALIFIED INDIVIDUALS WITH DISABILITIES AND IT REALLY BROADENED THE SCOPE IN ADDITION TO STATE GOVERNMENT AND LOCAL GOVERNMENT, EMPLOYEES, IT PROTECTS INDIVIDUALS WHO WORK FOR PRIVATE BUSINESSES AS LONG AS THE PRIVATE BUSINESS HAS 15 OR MORE EMPLOYEES.

THAT'S AN IMPORTANT DISTINCTION BETWEEN THE ILLINOIS HUMAN RIGHTS ACT, AND THE ADA.

IF YOU ARE ALLEGING DISABILITY DISCRIMINATION, UNDER ILLINOIS HUMAN RIGHTS ACT, YOUR EMPLOYER ONLY NEEDS TO HAVE ONE EMPLOYEE.

BUT UNDER THE ADA, YOU HAVE TO HAVE 15 EMPLOYEES.

THEN FINALLY, ONE LAW WE WILL TALK ABOUT A LITTLE BIT MORE INDEPTH TODAY IS THE ADA AMENDMENTS ACT WHICH WAS PASSED PRETTY RECENTLY IN 2008.

WHAT THE ADA AMENDMENTS ACT IT OVERTURNED VARIOUS SUPREME COURT DECISIONS THAT WERE NARROWLY IN PETTING WHO WAS PROTECTED BY THE ADA, WHO ACTUALLY FELL WITHIN THE DEFINITION OF DISABILITY.

FINALLY, I WANTED TO MENTION THAT THERE ARE LOCAL LAWS AS WELL.

FOR EXAMPLE, THERE IS SOME THROUGHOUT THE STATE, BUT I WANTED TO HIGHLIGHT TWO SPECIFICALLY.

ONE IS IN COOK COUNTY THERE IS A HUMAN RIGHTS ORDINANCE, AND IN CHICAGO, THERE IS ALSO A HUMAN RIGHTS ORDINANCE.

SO IF YOU ARE AN EMPLOYER OR EMPLOYEE IN EITHER OF THESE JURISDICTIONS, IN ADDITION TO ALL OF THESE STATE AND FEDERAL LAWS THAT ARE GOING TO BE RELEVANT, IT IS IMPORTANT TO ALSO CONSIDER WHETHER YOU SHOULD SEEK PROTECTION UNDER THE MORE LOCAL LAWS, THESE COUNTY ARISTATE MUNICIPAL LAWS.

WHO IS PROTECTED?

WHAT IS THE DEFINITION OF DISABILITY?

WHAT IS INTERESTING IS THAT UNLIKE SOME OTHER ANTI DISCRIMINATION LAWS THAT PROTECT EMPLOYEES ON THE BASIS OF OTHER PROTECTED CLASSES, SUCH AS GENDER, RELIGION, NATIONAL ORIGIN, THOSE TYPES OF CASES THAT THE INDIVIDUAL DIDN'T NEED TO SPEND A GREAT AMOUNT OF TIME PROVING THAT THEY ARE A MEMBER OF THE PROTECTED CLASS.

USUALLY THE COURT WILL TAKE YOUR WORD FOR IT, THAT YOU ARE A WOMAN OR MANOR CERTAIN RELIGION.

BUT PEOPLE WITH DISABILITIES, IT IS A LITTLE BIT OF A DIFFERENT SITUATION.

PEOPLE WITH DISABILITIES MAY SHOW THEY ARE WITHIN THE PROTECTED CLASS.

DEFINITION OF DISABILITY ACTUALLY VARIES BY STATUTE.

SO THE SAME DEFINITION DOESN'T APPLY IN ALL OF THOSE LAWS THAT WE JUST DISCUSSED.

SO WE WILL START WITH THE DEFINITION OF DISABILITY UNDER THE ADA.

UNDER THE REHABILITATION ACT.

DEFINITION OF DISABILITY IN ADA AND REHAB ACT, EMPLOYEE HAS A DISABILITY IF HE OR SHE HAS A PHYSICAL OR MENTAL IMPAIRMENT THAT CAUSES A SUBSTANTIAL LIMITATION OF ONE OR MORE MAJOR LIFE ACTIVITIES.

IT IS KIND OF A LEGAL PHRASE, BUT IT MAKES SENSE IF YOU BREAK IT DOWN.

SO STARTING WITH THE PHYSICAL OR MENTAL IMPAIRMENT.

AN IMPAIRMENT IS BASICALLY THE UNDERLYING MEDICAL CONDITION THAT YOU HAVE.

IF YOU ARE SAYING YOU HAVE A DISABILITY BECAUSE YOU HAVE DIABETES, BEING DIABETIC WILL BE THE UNDERLYING IMPAIRMENT.

IF YOU HAVE IF YOU ARE BLIND OR HAVE LOW VISION, WHATEVER UNDERLYING DIAGNOSIS YOU HAVE WILL BE THE PHYSICAL OR MENTAL IMPAIRMENT.

BUT THE ADA AND REHAB ACT TRY NOT TO LOOK AT THINGS UNDER A MEDICAL MODEL.

THEY TRY TO LOOK HOW DOES THIS DISABILITY PRACTICALLY AFFECT YOU IN YOUR DAILY LIFE.

THAT'S WHY IT INCLUDES LANGUAGE SUCH AS SUBSTANTIAL LIMITATION AND MAJOR LIFE ACTIVITY.

JUST TO GIVE AN EXAMPLE OF MAYBE SOMEONE WHO HAS LOW VISION, THE MAJOR LIFE ACTIVITY THAT THEY WOULD BE AFFECTED IN IS PERHAPS SEEING, MAYBE READING, THINGS OF THAT NATURE.

THEN THE QUESTION, HOW SUBSTANTIAL IS THAT LIMITATION?

THAT'S THE ANALYSIS THAT PEOPLE NEED TO GO THROUGH TO DETERMINE WHETHER THEY HAVE A DISABILITY UNDER THE ADA AND THE REHAB ACT.

ADA ALSO PROTECTS PEOPLE WHO HAVE WHO MAYBE DON'T HAVE AN ACTUAL DISABILITY.

SO THE SECOND PRONG WHERE IT SAYS HAS A RECORD OF HAVING SUCH AN IMPAIRMENT, THAT MEANS THAT PEOPLE HAVE PROTECTION UNDER THESE LAWS IF THEY DON'T CURRENTLY HAVE A DISABILITY, BUT THEY MAY HAVE HAD A DISABILITY IN THE PAST. SO A COMMON EXAMPLE OF THIS IS PERHAPS SOMEONE WHO HAS CANCER OR IS CURRENTLY IN REMISSION FROM CANCER, BUT THEY HAVE A HISTORY OF HAVING CANCER.

THE LAW SAYS WE SHOULD STILL BE WE WANT TO STILL PROTECT THAT PERSON FROM BEING DISCRIMINATED AGAINST ON THE BASIS OF THIS CANCER, EVEN THOUGH THEY DON'T CURRENTLY HAVE THIS CONDITION.

FINALLY, AN EMPLOYEE IS PROTECTED UNDER THE LAW AND CONSIDERED TO BE A PERSON WITH A DISABILITY, IF THEY ARE REGARDED AS HAVING AN IMPAIRMENT OR PERCEIVED AS HAVING AN IMPAIRMENT.

REASON FOR THIS, ADA AND REHAB ACT ACKNOWLEDGE THAT SOMETIMES A PERCEPTION OF SOMEONE, AND PERCEPTION OF THEIR DISABILITY IS JUST AS DISABLING AS THE CONDITION ITSELF.

WHAT SOMEONE WOULD HAVE TO SHOW HERE, THEIR EMPLOYER THOUGHT THEY HAD AN IMPAIRMENT OR REGARDED THEM AS HAVING AN IMPAIRMENT. SO IT IS KIND OF A COMPLICATED DEFINITION.

WE WILL GO THROUGH SOME MORE EXAMPLES AS WE MOVE FORWARD IN THE PRESENTATION.

BUT BEFORE WE DO THAT, I JUST WANTED TO ALSO NOTE THE COOK COUNTY HUMAN RIGHTS ORDINANCE HAS A DEFINITION OF DISABILITY THAT IS VERY SIMILAR TO THIS.

SO WHEN CONGRESS DRAFTED THE ADA IN 1990, THEY ACTUALLY BORROWED THE REHABILITATIONS ACT DEFINITION OF DISABILITY.

IF YOU RECALL THE REHABILITATION ACT WAS PASSED IN 1973.

THERE WERE YEARS AND YEARS OF COURTS INTERPRETING THE REHABILITATION ACTS DEFINITION OF DISABILITY.

AND FOR ALL THIS TIME, THEY ACTUALLY WERE CON STREWING THE DEFINITION TO BE PRETTY BROAD, AND I HAVE HERE A CITATION TO A SUPREME COURT CASE ARLINE CASE FROM 1987 WHERE THE COURT EVEN SAID, THEY SAID THE DEFINITION OF THE WORDS THEY USE IS HANDICAPPED INDIVIDUALS.

THAT WAS THE TERMINOLOGY AT THE TIME.

ALTHOUGH NOW WE SAY "DISABILITY." THE DEFINITION IS BROAD.

SUPREME COURT ALSO SAID THAT CONGRESS ACKNOWLEDGED THAT SOCIETY'S MYTHS AND FEARS ABOUT DISABILITY AND DISEASE ARE AS HANDICAPPING IS ONE AS ARE THE PHYSICAL LIMITATIONS THAT FLOW FROM THE ACTUAL IMPAIRMENT.

THE SUPREME COURT THOUGHT THIS DEFINITION OF DISABILITY WAS GOING TO BE WAS BROAD.

SO BECAUSE OF THAT, THAT'S WHY ONE OF THE REAPS CONGRESS PRETTY MUCH ADOPTED THE SEMIDEAF DEFINITION.

HOW FAR, UNFORTUNATELY FOR A LOT OF PEOPLE WITH DISABILITIES, FOR YEARS THE AD A'S GOALS SIMPLY WEREN'T MET BECAUSE COURTS, INCLUDING THE SUPREME COURT KEPT NARROWLY INTERPRETING THE DEFINITION OF DISABILITY.

THEY DID THIS IN A FEW DIFFERENT WAYS.

THE FIRST WAY THEY DID THIS IS IN THE SUTTON TRILOGY, SUPREME COURT CASES, WHAT THE SUPREME COURT DID IN THESE CASES THEY SAID AMELIORATIVE EFFECTS OF MITIGATING MEASURES SHOULD BE CONSIDERED IN DETERMINING SOMEBODY HAS A DISABILITY.

MITIGATING MEASURES THAT SOMETHING INDIVIDUALS WOULD USE TO MITIGATE THE EFFECTS OF THEIR DISABILITY.

SO AS AN EXAMPLE, SOME PEOPLE WHO HAVE EPILEPSY WILL TAKE CERTAIN MEDICATION, AND THAT MEDICATION MAYBE PREVENTS THEM FROM HAVING SEIZURES OR LESSENS THE NUMBER OF SEIZURES THEY HAVE.

SUPREME COURT SAID, OKAY, WE NEED TO LOOK AT SOMEONE WHILE THEY ARE TAKING MITIGATING MEASURES ~L WE WILL LOOK WHETHER SOMEONE HAS EPILEPSY WHILE THEY ARE TAKING MEDICATION.

BECAUSE OF THAT, THEY FOUND THAT A LOT OF PEOPLE WHO HAD DISABILITIES DID NOT HAVE SUBSTANTIAL LIMITATIONS BECAUSE THEY LOOKED AT SOMEONE WHILE THEY WERE MITIGATING THE IMPACT OF THEIR DISABILITY.

AS YOU CAN IMAGINE, IT CREATED A CATCH 22 FOR A LOT OF PEOPLE BECAUSE THEY HAD TO CHOOSE BETWEEN BASICALLY TREATING SOME IMPACT OF THEIR DISABILITY OR MAKING SURE THAT THEY WERE RECEIVING PROTECTIONS UNDER THE CIVIL RIGHTS LAWS.

IT IS NOT REALLY A FAIR CHOICE FOR A LOT OF PEOPLE.

SO BECAUSE OF THAT, A LOT OF TYPES OF PEOPLE WITH DISABILITIES ARE FOUND NOT COVERED BY THE ADA.

AGAIN, BEFORE THE ADA ACT.

THE COURTS WERE CON STREWING DEFINITION OF DISABILITY THROUGH A SUPREME COURT CASE CALLED TOYOTA VERSUS WILLIAMS.

SUPREME COURT SAID VERY CLEARLY THAT THE DEFINITION OF DISABILITY SHOULD BE INTERPRETED STRICTLY TO CREATE A DEMANDING STANDARD.

YOU CAN SEE THIS LANGUAGE IS PRETTY MUCH THE EXACT OPPOSITE OF THE LANGUAGE THE SUPREME COURT USED IN THAT ARLINE CASE, INTERPRETING THE DEFINITION OF THE REHABILITATION ACT.

HERE THEY SAID THE DEFINITIONS SHOULD BE LIMITED.

IT ALSO SAID THE CONDITIONS THAT MAYBE EPISODIC IN NATURE ARE LIKELY NOT COVERED.

BACK TO MY EXAMPLE OF SOMEONE WITH EPILEPSY.

THEY WOULD SAY, OKAY, MAYBE SOMEONE HAS THE MANIFESTATIONS OF THEIR DISABILITY EVERY SO OFTEN, MAYBE IT IS ONLY ONCE A YEAR, MAYBE IT IS ONLY A COUPLE TIMES A YEAR.

IN THOSE SITUATIONS, THE PERSON WOULDN'T BE COVERED BECAUSE THEY DON'T HAVE A SUBSTANTIAL LIMITATION.

BUT, AGAIN, THAT KIND OF CREATED AN UNFAIR SITUATION FOR A LOT OF PEOPLE WITH DISABILITIES BECAUSE THEY STILL HAVE A DISABILITY, CONGRESS INTENDED THEY WERE COVERED, BUT, YET, NEVERTHELESS, BECAUSE OF THE VERY LIMITING SUPREME COURT DECISION, THEY WERE FOUND NOT TO BE COVERED BY THE ADA.

SO BECAUSE OF SOME OF THESE PRINCIPLES, A NUMBER OF DIFFERENT PEOPLE WITH DISABILITIES WERE FOUND NOT TO HAVE AN ADA COVERED DISABILITY.

THERE ARE THINGS THAT PRETTY MUCH ACROSS THE BOARD, YOU WOULD EXPECT TO BE COVERED, THINGS LIKE INTELLECTUAL DISABILITY, EPILEPSY, DIABETES, BIPOLAR DISORDER, MULTIPLE SCLEROSIS, BACK INJURIES, VISION IN ONE EYE, POST TRAUMATIC STRESS DISORDER AND HEART DISEASE.

THESE ARE A FEW OF THE EXAMPLES OF CONDITIONS NOT TO BE DISABILITIES UNDER ADA.

SO BECAUSE OF THIS LIMITATION, PEOPLE WITH DISABILITIES ADVOCATES, GOT TOGETHER AND REALLY ADVOCATED TO FIGHT FOR THE ADA AMENDMENTS ACT.

AND SURE ENOUGH, IN 2008, THE ADA AMENDMENTS ACT WAS PASSED.

WHAT CONGRESS DID WITH THE AMENDMENTS ACT SAID, LOOK, COURTS, YOU GOT IT WRONG. YOU REALLY MISINTERPRETED OUR INTENT.

THE FOCUS IN ADA CASES SHOULD BE WHILE THEY ARE AN ENTITY COVERED BY THE A.

DA HAS COMPLIED WITH THEIR OBLIGATIONS WHICH IS REALLY NOT WHAT WAS HAPPENING UNDER THE PRE ADA CASES.

SO MUCH OF THE CASE LAW WAS FOCUSED JUST WHETHER AN INDIVIDUAL WITH DISABILITY WAS PROTECTED BY THE LAW.

IT DIDN'T GET INTO WHETHER THEY WERE ACTUALLY DISCRIMINATED AGAINST.

SO, AGAIN, CONGRESS WITH ADA AMENDMENTS ACT SAID, AND WENT BACK TO THE LANGUAGE BACK TO ARLINE AND SAID, LOOK, THE DEFINITION OF DISABILITY SHOULD BE CONSTRUED IN FAVOR OF BROAD COVERAGE TO MAXIMUM EXTENT PERMITTED BY THE TERMS OF THIS ACT.

THE HOPE AND GOAL, DEFINITION OF DISABILITY WOULD BE INTERPRETED PURSUANT TO THIS CONGRESSIONAL DIRECTIVE, AND THAT PEOPLE WITH DISABILITIES WOULD AT LEAST GET IN THE FRONT DOOR, AND BE ABLE TO ASSESS WHETHER DISCRIMINATION ACTUALLY OCCURRED.

SO HOW DID THEY DO THIS?

CONGRESS ACTUALLY KEPT THAT SAME DEFINITION OF DISABILITY.

SO SUBSTANTIAL LIMITATION AND MAJOR LIFE ACTIVITY, THAT LANGUAGE IS STILL THE SAME. BUT BASICALLY, CONGRESS DIRECTED COURTS TO MORE BROADLY INTERPRET IT. THEY DID THIS IN A FEW DIFFERENT WAYS.

ONE WAY IS THAT THEY EXPANDED THE DEFINITION OF WHAT IS A MAJOR LIFE ACTIVITY, AND ON THIS SLIDE 13, I HAVE A NUMBER OF DIFFERENT MAJOR LIFE ACTIVITIES THAT CONGRESS SAID THESE ARE GOING TO BE MAJOR LIFE ACTIVITIES.

THEY RANGE FROM CARING FOR YOURSELF, TO SPEAKING, TO CONCENTRATING, TO THINKING, AND IMPORTANTLY, CONGRESS SAID LOOK, THIS LIST IS NOT EXHAUSTIVE.

THERE COULD BE OTHER MAJOR LIFE ACTIVITIES OUT THERE.

BUT HERE ARE GOING TO BE A FEW OF THEM THAT WE ARE GOING TO RECOGNIZE.

ANOTHER THING THAT CONGRESS DID WITH ADA AMENDMENTS ACT THAT IT RECOGNIZED THERE WERE SOME DISABILITIES THAT DON'T NATURALLY CORRELATE TO A TYPICAL OR TRADITIONAL MAJOR LIFE ACTIVITY.

THIS CREATED THAT WHOLE NEW CONCEPT CALLED MAJOR BODILY FUNCTION.

THE IDEA, SOMEONE MIGHT HAVE A CONDITION OR IMPAIRMENT, AND THAT IMPAIRMENT MIGHT NOT HAVE A CLEAR IMPACT ON THE TRADITIONAL MAJOR LIFE ACTIVITY LIKE STANDING OR SITTING, BUT MAYBE IT HAS A PRETTY CLEAR IMPACT ON MAJOR BODILY FUNCTION, THINGS LIKE THE IMMUNE SYSTEM, CELL GROWTH, DIGESTIVE FUNCTION, CIRCULATORY FUNCTION, MUSCULO SKELETAL FUNCTION.

IN THOSE CONDITIONS, THERE SHOULD BE A WAY TO MAKE SURE THESE INDIVIDUALS ARE GETTING CIVIL RIGHTS PROTECTION.

BECAUSE OF THIS, THEY CREATED WHOLE NEW CATEGORY, MAJOR BODILY FUNCTIONS.

THAT WAS ANOTHER GREAT WAY TO EXPAND WHO WAS PROTECTED BY ADA, THESE CIVIL RIGHTS LAWS.

SO JUST ON SLIDE 15 I HAVE EXAMPLES OF DIFFERENT TYPES OF IMPAIRMENTS OR DISABILITIES THAT WOULD CORRELATE WITH DIFFERENT TYPES OF MAJOR BODILY FUNCTIONS.

FOR INSTANCE, SOMEONE WHO HAS CANCER WOULD HAVE WOULD POTENTIALLY HAVE SUBSTANTIAL LIMITATION AND NORMAL CELL GROWTH.

SOMEONE WHO HAS MULING SCLEROSIS WOULD HAVE SUBSTANTIAL LIMITATION IN THE NEUROLOGICAL FUNCTIONING.

YOU HEAR ME SAY POTENTIALLY HAS BECAUSE, OF COURSE, EVERYTHING IN THE ADA SHOULD BE EVALUATED ON A CASE BY CASE BASIS.

EVERYONE IS DIFFERENT, THE WAY THEIR DISABILITY MANIFESTS ITSELF IS DIFFERENT.

THE JOB THEY HAVE IS DIFFERENT.

EVERYTHING IS A CASE BY CASE INTENSIVE INQUIRY.

HERE ARE EXAMPLES OF CONDITIONS THAT COULD INVOKE CERTAIN MAJOR BODILY FUNCTIONS.

IN ADDITION TO CREATING THIS WHOLE MAJOR BODILY FUNCTIONS CATEGORY, ADA AMENDMENTS ACT DID A COUPLE OF OTHER THINGS.

NUMBER ONE, IS THEY SAID COURTS, WHEN YOU DECIDE WHETHER SOMETHING IS SUBSTANTIALLY LIMITING, IT DOESN'T MATTER THAT SOMETHING IS EPISODIC OR IMPAIRMENT IS IN REMISSION.

WHAT THE COURT NEEDS TO DO, AND IN TURN, WHAT EMPLOYERS NEED TO DO IS DETERMINE WHETHER THAT IMPAIRMENT WOULD BE SUBSTANTIALLY LIMITING WHEN IT IS ACTIVE.

BACK TO MY EXAMPLE ABOUT SOMEONE WHO HAS EPILEPSY.

THE QUESTION ISN'T HOW FREQUENTLY DOES SOMEONE HAVE A SEIZURE AND IS THAT SUBSTANTIAL.

THE QUESTION NOW IS WHEN SOMEONE HAS A SEIZURE, DOES THAT PERSON HAVE A SUBSTANTIAL LIMITATION OR IF SOMEONE HAS BIPOLAR DISORDER, WHEN SOMEONE IS HAVING A MANIFESTATION OF THEIR DISABILITY, AT THAT PARTICULAR TIME, DO THEY HAVE A SUBSTANTIAL LIMITATION IN MAJOR LIFE ACTIVITY.

IT REALLY SHIFTS THE FOCUS AND MAKES IT EASE EASIER FOR PEOPLE WITH DISABILITIES TO HAVE COVERAGE.

THE OTHER WAY THAT THE ADA AMENDMENTS ACT BROADENS THE DEFINITION OF DISABILITY WAS BY MAKING CLEAR THAT THE AMELIORATIVE EFFECTS OF MITIGATING MEASURES MUST BE DISREGARDED.

BACK TO THE EXAMPLE WE WERE TALKING ABOUT BEFORE, WHEN SOMEONE IS TAKING MEDICATION AND THAT MEDICATION IS PREVENTING OR LIMITING THE MANIFESTATIONS OF THEIR DISABILITY, WE WOULD ACTUALLY LOOK AT THE PERSON WITHOUT THEIR MITIGATING MEASURES.

IF SOMEONE USES A HEARING AID, AND THEIR HEARING AIDS ASSISTS THEM, WE WOULD LOOK AT WHETHER THEIR HEARING IS SUBSTANTIAL IMPACT AND MAJOR LIFE ACTIVITY WITHOUT THE HEARING AID OR WITHOUT THE MEDICATION OR WITHOUT THE COPING STRATEGY THEY LEARNED.

AGAIN, THIS IS MAKING SURE THE PEOPLE CAN STILL DO WHAT THEY NEED TO DO, USE THE MITIGATING MEASURES THEY NEED TO USE, WITHOUT FOREGOING PROTECTIONS FROM THE LAW.

SO I HAVE GOT A NUMBER OF YOU BE THE JUDGE QUESTIONS WHICH IS A LITTLE BIT OF WHEN WE DO WEBINARS, IT IS A LITTLE STRANGE TO BE ASKING BECAUSE I CAN'T CALL ON PEOPLE! BUT I'D LIKE EVERYONE TO CONSIDER THIS QUESTION, AND SEE WHAT YOU THINK.

MARIA HAS EPILEPSY, HER SEIZURES ARE MOSTLY CONTROLLED BY MEDICATION.

SHE HASN'T HAD A SEIZURE OVER TWO YEARS.

IS SHE A PERSON WITH A DISABILITY UNDER THE ADA?

THE FIRST QUESTION, WHAT DO YOU THINK BEFORE THE ADA AMENDMENTS ACT?

AND THEN THE SECOND QUESTION, WHAT DO YOU THINK AFTER THE ADA AMENDMENTS ACT?

I WILL GO AHEAD AND ANSWER MY OWN QUESTION SINCE I CAN'T CALL ON PEOPLE HERE TODAY.

BASED ON WHAT WE WERE JUST DISCUSSING, THE ANSWERS ARE PRETTY CLEAR. BEFORE THE ADA AMENDMENTS ACT, SHE WOULD HAVE HAD A HARD TIME BECAUSE HER.

>> SUSAN: OVER TWO YEARS, MAYBE SHE DIDN'T HAVE A SUBSTANTIAL LIMITATION.

>> SUSAN: ERS ARE MOSTLY CONTROLLED BY MEDICATION.

SO THE FACT SHE HAD THIS MITIGATING MEASURE WOULD SUGGEST THAT SHE DID NOT HAVE A SUBSTANTIAL LIMITATION.

BUT AFTER THE AMENDMENT ACT, WE NEED TO DISREGARD THE MITIGATING MEASURE, AMELIATIVE FACTOR.

SHE HASN'T HAD A SEIZURE FOR TWO YEARS.

WHAT IS ACTUALLY HAPPENING WHEN SHE DOES HAVE THAT SEIZURE.

IT IS AN EXAMPLE HOW PEOPLE WITH DISABILITIES ARE NOW HAVE BROADER PROTECTS UNDER THE ADA AMENDMENTS ACT.

OF COURSE, AS I MENTIONED, THE DIFFERENT LAWS HAVE DIFFERENT DEFINITIONS OF DISABILITY.

SO I WANTED TO ALSO HIGHLIGHT THE DEFINITION OF DISABILITY UNDER THE ILLINOIS HUMAN RIGHTS ACT.

UNDER THE ILLINOIS HUMAN RIGHTS ACT, DEFINITIONS YOU NEED TO HAVE A DETERMINABLE PHYSICAL OR MENTAL CHARACTERISTIC OF A PERSON, WHICH INCLUDES CHARACTERISTIC WHICH REQUIRES THE USE OF A GUIDE, HEARING OR SUPPORT DOG, OR YOU HAVE A HISTORY OF THE CHARACTERISTIC OR PERCEPTION OF SUCH A CHARACTERISTIC BY THE PERSON COMPLAINED AGAINST, WHICH MAY RESULT FROM DISEASE, INJURY, CONGENITAL CONDITION OF BIRTH OR FUNCTIONAL DISORDER.

SO AS YOU CAN SEE, THIS DEFINITION ISN'T SO DIFFERENT FROM THE ONE THAT WE JUST SPENT SOME TIME TALKING ABOUT UNDER THE ADA AND THE REHAB ACT.

YOU HAVE GOT, DO YOU HAVE AN ACTUAL CONDITION, DO YOU HAVE A HISTORY OR DO YOU HAVE A PERCEPTION OF, BUT THE LANGUAGE IS A LITTLE BIT DIFFERENT.

IT IS IMPORTANT TO UNDERSTAND THE DIFFERENT TYPES OF PROTECTS THAT ARE OUT THERE.

I ALSO WANT TO NOTE THIS DEFINITION IS VERY SIMILAR TO THE ONE USED IN THE CHICAGO HUMAN RIGHTS ORDINANCE.

MY NEXT, "YOU BE THE JUDGE." BILL USES A WHEELCHAIR.

HE APPLIES TO BE A FRENCH LANGUAGE TRANSLATOR, BUT HE DOESN'T SPEAK FRENCH.

HE IS NOT SELECTED.

IS THIS DISCRIMINATION?

WELL, I HOPE EVERYONE IS SAYING TO THEMSELVES NO.

THIS IS A PRETTY OBVIOUS EXAMPLE, BUT IT ILLUSTRATES A PRINCIPLE I WANT TO MAKE SURE EVERYONE UNDERSTOOD.

AND THAT IS THESE ARE ANTI DISCRIMINATION.

LAWS.

THEY ARE LAWS TO BE PROTECTED FROM BEING DISCRIMINATED AGAINST.

THEY STILL NEED TO BE ABLE TO PERFORM THE JOB AT HAND.

HERE, BILL DOESN'T HAVE THE FRENCH SKILLS HE WOULD HAVE TO BE A FRENCH LANGUAGE TRANSLATOR.

IT WOULDN'T BE DISCRIMINATION IF HE IS NOT HIRED, EVEN IF HE USES A WHEELCHAIR.

SO WHAT IS QUALIFIED.

UNDER THIS WILL BE THE DEFINITION UNDER THE ADA, SOMEONE IS QUALIFIED IF THEY MEET TWO DIFFERENT REQUIREMENTS.

THE FIRST IS THEY NEED TO HAVE THE REQUISITE SKILL, EXPERIENCE, EDUCATION, OR OTHER JOB RELATED REQUIREMENTS OF THE POSITION.

THESE ARE THINGS LIKE HAVING THE DEGREE THAT YOU NEED TO HAVE, HOW THEY LICENSURE YOU NEED TO HAVE, IF SOMEONE IS GOING TO BE APPLYING FOR A JOB, I GUESS, THE SAME EXAMPLE, USING FRENCH LANGUAGE EXAMPLE, THEY WILL NEED TO HAVE THE REQUISITE SKILL EXPERIENCE OR EDUCATION.

THE SECOND REQUIREMENT TO BE QUALIFIED, YOU NEED TO BE ABLE TO PERFORM THE SEE ESSENTIAL FUNCTIONS OF YOUR JOB WITH OR WITHOUT ACCOMMODATION.

WE WILL SPEND SOME TIME TALKING ABOUT WHAT ARE THE ESSENTIAL FUNCTIONS OF THE POSITION.

ESSENTIAL FUNCTION OF A POSITION IS BASICALLY WHY DOES THE JOB EXIST, WHAT IS THE ESSENCE OF THE POSITION, WHY IS THIS JOB HERE, AND WHAT IS THERE TO DO.

THERE IS A NUMBER OF DIFFERENT FACTORS THAT THE EEOC, EQUAL OPPORTUNITY COMMISSION, FEDERAL AGENCY THAT ENFORCES THE ADA AND PROMULGATES REGULATIONS UNDER THE ADA HAS LAID OUT TO SAY, OKAY, HERE ARE THE FACTORS WE SHOULD LOOK AT IN DETERMINING WHETHER SPECIFIC JOB FUNCTION IS ESSENTIAL.

ONE IS, WHAT DOES THE EMPLOYER THINK?

EMPLOYER IS THE ONE CREATING THESE JOBS.

WHAT IS THEIR JUDGMENT AS TO WHETHER SPECIFIC FUNCTION IS ESSENTIAL ONE.

THE SECOND FACTOR TO CONSIDER IS JOB DESCRIPTION.

WHAT IS REALLY IMPORTANT FOR THE EMPLOYERS OUT THERE TO KEEP IN MIND IS THAT WHEN YOU ARE GOING TO LOOK AT WHETHER A JOB FUNCTION IS ESSENTIAL, AND YOU WILL LOOK AT THE JOB DESCRIPTION, YOU WANT TO LOOK AT THE JOB DESCRIPTION THAT IS CURRENTLY BEING USED, AND YOU WANT TO MAKE SURE THE JOB DESCRIPTION IS ACTUALLY AN ACCURATE REPRESENTATION OF WHAT THE JOB DOES.

SO IF YOU HAVE SOMETHING AS A JOB DESCRIPTION, BUT IF YOU LOOK AT EVERYONE ELSE WHO IS PERFORMING THE JOB AND PEOPLE AREN'T ACTUALLY DOING THAT FUNCTION, THEN THE JOB DESCRIPTION IS NOT GOING TO BE ENOUGH.

ANOTHER FACTOR THAT EMPLOYEES AND EMPLOYERS LOOK AT WHEN DETERMINING WHETHER A FUNCTION IS ESSENTIAL IS THE AMOUNT OF TIME SPENT PERFORMING THAT FUNCTION.

IF YOU SPEND 95% OF YOUR TIME IN A POSITION DOING SOMETHING, THEN YOU ARE GOING TO HAVE A HARD ARGUE MANY SAYING THAT THAT SPECIFIC FUNCTION IS NOT AN ESSENTIAL ONE.

CONSEQUENCES OF NOT PERFORMING THE JOB, THAT'S ANOTHER FACTOR THAT SHOULD BE CONSIDERED.

EVEN IF AN EXAMPLE THAT I HAVE HEARD BEFORE WHICH MAYBE IS NOT A VERY TIMELY ONE GIVEN EVERYTHING GOING ON IN THE NEWS, IS THAT A PILOT FLYING A PLANE, MAYBE THEY ARE ONLY TAKING OFF AND LANDING ONE PERCENT OF THE TIME. BUT THAT'S A PRETTY IMPORTANT FUNCTION.

CONSEQUENCE OF NOT REQUIRING PERSON TO PERFORM THAT FUNCTION IS NOT A GOOD ONE.

SO EVEN IF SOMETHING IS ONLY PERFORMED ONE PERCENT OF THE TIME, IF THE CONSEQUENCE IS REALLY IMPORTANT, THEN THAT IS STILL GOING TO BE ESSENTIAL FUNCTION.

THE SECOND TO LAST ONE IS THE TERM TERMS OF THE COLLECTIVE BARGAINING AGREEMENT.

FOR UNION EMPLOYEES, THIS IS GOING TO BE SOMETHING THAT EMPLOYEES AND EMPLOYERS NEED TO CONSIDER ABOUT WHETHER SOMETHING IS AN ESSENTIAL FUNCTION.

FINALLY, THE LAST THING TO CONSIDER IS THE WORK EXPERIENCE OF OTHERS WHO HAVE HAD OR CURRENTLY HOLD THE SAME POSITION.

WE ARE GOING TO TALK A LOT ABOUT REASONABLE ACCOMMODATIONS, BUT, REMEMBER, THE DEFINITION OF QUALIFIED, WHETHER YOU CAN PERFORM THE JOB FUNCTION WITH OR WITHOUT AN ACCOMMODATION.

NOW WE KNOW WHO IS PROTECTED BY THE LAW, THAT YOU HAVE TO BE QUALIFIED, AND YOU HAVE TO BE A PERSON WITH A DISABILITY.

WHAT DOES THAT MEAN?

WHAT DOES THIS JOB ACTUALLY DO?

WHAT DOES THIS LAW ACTUALLY DO?

WELL, IT PROHIBITS DISCRIMINATION IN ALL ASPECTS OF EMPLOYMENT.

THIS IS A REALLY BROAD REQUIREMENT.

IT DOES THINGS LIKE PROHIBITING DISCRIMINATION IN THE JOB APPLICATION AND HIRING AND FIRING, BENEFITS AND COMPENSATION, ADVANCEMENT, TRAINING, ALL TERMS AND CONDITIONS OF EMPLOYMENT, AND THEN THERE IS TWO ASPECTS THAT ARE ACTUALLY A LITTLE BIT DIFFERENT UNDER DISABILITY LAWS THAN THEY ARE UNDER OTHER ANTI DISCRIMINATION LAWS.

ONE IS IT ACTUALLY CONSIDERED TO BE DISCRIMINATION IT AN EMPLOYER REFUSE TOSS PROVIDE REASONABLE ACCOMMODATIONS.

AND SECOND, THERE ARE ACTUALLY RESTRICTIONS ABOUT THE TYPES OF MEDICAL EXAMS AND INQUIRIES THAT AN EMPLOYER CAN MAKE.

SO WE WILL SPEND SOME TIME TODAY TALKING ABOUT THOSE DIFFERENT REQUIREMENTS.

SO QUESTION FOR EVERYONE.

WE ARE TALKING RIGHT NOW JUST TO MAKE VERY CLEAR, WE ARE TALKING ABOUT APPLICANTS, PEOPLE WHO ARE APPLYING FOR THE JOB FOR THE VERY FIRST TIME.

MY QUESTION FOR ALL OF YOU IS DOES AN EMPLOYER HAVE TO GIVE PREFERENCE TO QUALIFIED APPLICANT WITH A DISABILITY OVER OTHER APPLICANTS?

TAKE A SECOND.

THINK ABOUT WHAT YOU THINK THE ANSWER IS.

THE ANSWERS ARE VARY.

STARTING WITH THE ADA, AGAIN, THIS IS FOR APPLICANTS APPLYING FOR A JOB FOR THE VERY FIRST TIME.

ANSWER TO THAT IS NO.

EMPLOYER IS FREE TO SELECT THE MOST QUALIFIED APPLICANT AVAILABLE AND TO MAKE DECISIONS BASED ON REASONS UNRELATED TO A DISABILITY, UNDER THE ADA.

THE ADA ITSELF IS NOT AFFIRMATIVE ACTION LAW.

IT IS ANTI DISCRIMINATION LAW.

SO AN AN APPLICANT WITH DISABILITY DOESN'T GET THE JOB BECAUSE THEY HAVE A DISABILITY.

THAT'S THE SAME UNDER THE ILLINOIS HUMAN RIGHTS ACT FOR PRIVATE EMPLOYERS.

BUT UNDER THE ILLINOIS HUMAN RIGHTS ACT, THERE ARE SOME AFFIRMATIVE ACTION REQUIREMENTS FOR PEOPLE WITH DISABILITIES IN STATE GOVERNMENT.

THE SAME THING IS GOING TO PLY TO EMPLOYEES WHO ARE LOOKING FOR JOBS IN THE FEDERAL GOVERNMENT, AGAIN, UNDER THE REHABILITATION ACT WHICH WE DISCUSSED A LITTLE BIT AGO.

NEXT QUESTION FOR EVERYONE: DOES HAVING A DISABILITY PROTECT AN INDIVIDUAL FROM BEING FIRED OR LAID OFF?

EVERYONE HAVE THEIR ANSWER?

AGAIN, IT WILL BE DEPEND LITTLE BIT BASED ON THE LAW WE ARE LOOKING AT.

STARTING UNDER THE ADA, THE ANSWER IS NO.

ADA PROTECTS YOU FROM BEING DISCRIMINATED AGAINST BECAUSE OF YOUR DISABILITY, BUT YOUR EMPLOYER CAN FIRE, DEMOTE, NOT PROMOTE, REDUCE HOURS OR REALLY DO ANYTHING ELSE WITH RESPECT TO THEIR EMPLOYMENT IF IT IS UNRELATED TO YOUR DISABILITY.

THE SO THE QUESTION REALLY WHEN YOU ARE LOOKING AT THIS, UNDER THE A.

DA, IS WHETHER SOMETHING IS HAPPENING BECAUSE OF YOUR DISABILITY, NOT JUST BECAUSE YOU HAVE A DISABILITY.

THE NEXT UNDER ILLINOIS HUMAN RIGHTS ACT, THIS CHANGES JUST A LITTLE BIT.

ILLINOIS HUMAN RIGHTS ACT, THE SAME THING IS GOING TO APPLY FOR PRIVATE EMPLOYERS, BUT IF YOU HAVE A STATE AGENCY, AGAIN, NOT A PRIVATE BUSINESS, THE ILLINOIS HUMAN RIGHTS ACT DOES REQUIRE STATE AGENCIES TO EXAMPLE THE I AM ACT OF IMPACT OF LAYOFF FOR PERSON WITH DISABILITIES.

MOVING ONTO REASONABLE ACCOMMODATIONS WHICH IS A BIG TOPIC IN THE DISABILITY RIGHTS WORLD.

STARTING WITH JUST WHAT IS A REASONABLE ACCOMMODATION, STARTING WITH THE DEFINITION.

AS I MENTIONED BEFORE, IT DOES DISCRIMINATION DOES INCLUDE NOT PROVIDING REASONABLE ACCOMMODATION FOR KNOWN LIMITATION CAUSED BY A DISABILITY.

WHAT IS A REASONABLE ACCOMMODATION?

WELL, IT IS ANY SORT OF MODIFICATION OR ADJUST TO THE WORK ENVIRONMENT OR TO THE MANNER OR CIRCUMSTANCES UNDER WHICH THE POSITION IS CUSTOMARILY PERFORMED, SO LONG AS IT ENABLES THE PERSON WITH DISABILITY TO PERFORM THE ESSENTIAL FUNCTIONS OR ENJOY EQUAL BENEFITS AND PRIVILEGES OF EMPLOYMENT.

LET'S UNPACK THIS AND GIVE SOME EXAMPLES WHICH I THINK HELPS ADD PA LITTLE LIFE TO THIS.

I WANTED TO MENTION I SEE THERE ARE SOME QUESTIONS WHICH IS GREAT.

JUST TO MAKE SURE I GET THROUGH EVERYTHING, I WILL HOLD QUESTIONS TO THE END AND ADDRESS QUESTIONS ONCE WE FINISH THE PRESENTATION.

IF FOR SOME REASON, WE ARE NOT ABLE TO GET TO EVERYONE'S QUESTION, WE WILL CERTAINLY FOLLOW UP WITH INDIVIDUALS TO TALK ONE ON ONE.

BUT YOU CAN FEEL FREE TO KEEP THE QUESTIONS COMING, AND I WILL ADDRESS THEM TOWARDS THE END.

I JUST WANTED TO HIGHLIGHT THAT ACCOMMODATIONS ARE SIGNIFICANT ISSUES.

THIS TABLE ON SLIDE 30, SHOWS THE DIFFERENT TYPES OF ADA ISSUES WHERE CHARGES OF DISCRIMINATION WERE FILED, BOTH WITH THE EEOC, AND WITH STATE EMPLOYMENT PRACTICE AGENCIES.

THINGS SUCH AS IDHR, AND NUMBER TWO IS ACCOMMODATIONS ISSUES.

NEARLY 30% OF ALL CHARGES FROM 2008 TO 2010 WERE CHARGES BASED ON ACCOMMODATION. THIS IS A REAL THING THAT BOTH EMPLOYEES AND EMPLOYERS NEED TO THINK ABOUT.

AS WE KIND OF MENTIONED DURING THE DEFINITION OF REASONABLE ACCOMMODATIONS, THERE ARE THREE CATEGORIES OF ACCOMMODATIONS.

INDIVIDUALS CAN SEEK ACCOMMODATIONS IN APPLICATION PROCESS.

THEY CAN SEEK ACCOMMODATIONS TO BE ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF THEIR JOB, AND THEY CAN ALSO SEEK ACCOMMODATIONS TO ENJOY THE EQUAL BENEFITS AND PRIVILEGES OF EMPLOYMENT.

HERE ARE SOME EXAMPLES OF ACCOMMODATIONS FOR THE JOB APPLICATION AND INTERVIEW.

I ACTUALLY SEE ONE QUESTION I WILL ANSWER RIGHT NOW JUST SO PEOPLE DON'T THINK THEY NEED TO FRANTICALLY TAKE NOTES.

QUESTION IS "WILL WE HAVE ACCESS TO SLIDES AFTER THE WEBINAR?"

I AM HAPPY TO PROVIDE THE POWER POINT PRESENTATION TO THOSE OF YOU.

I WANT TO SAY THAT SO YOU DON'T HAVE TO FRANTICALLY TAKE NOTES AND PAY ATTENTION IF THAT'S WHAT YOU'D LIKE TO DO.

EXAMPLES OF ACCOMMODATIONS FOR JOB APPLICATIONS AND INTERVIEWS, AGAIN, THESE ARE ALL JUST EXAMPLES.

EVERYTHING IS CASE BY JUST BECAUSE I MENTION SOMETHING HERE, DOESN'T MEAN IT WILL BE REASONABLE IN ALL CIRCUMSTANCES.

JUST BECAUSE I DON'T MENTION SOMETHING, DOESN'T MEAN IT IS REASONABLE OR NOT REASONABLE FOR YOU AS EMPLOYEE.

JUST TO GET PEOPLE'S MIND MOVING.

SOME ACCOMMODATIONS OF IN APPLICATION, CONDUCTING THE INTERVIEW IN PHYSICALLY ACCESSIBLE LOCATION, PROVIDING SIGN LANGUAGE INTERPRETERS FOR INTERVIEW, MODIFYING TESTS OR TRAINING MANUALS OR TESTING TIMES, TO ACCOMMODATE SOMEBODY REPLACING A WRITTEN TEST WITH MORE EXTENSIVE INTERVIEW, IF SOMEONE HAS A DISABILITY THAT MAKES IT DIFFICULT TO CONDUCT A WRITTEN TEST OR EVEN DOING THINGS LIKE ALLOWING A SUPPORT PERSON DURING THE INTERVIEW WHICH IS REALLY HELPFUL FOR A LOT OF PEOPLE WHO HAVE EITHER MENTAL HEALTH DISABILITIES OR INTELLECTUAL DISABILITIES.

I THINK THAT REASONABLE ACCOMMODATIONS PROBABLY COME ABOUT THE MOST WHEN YOU ARE TRYING TO FIND AN ACCOMMODATION THAT WILL ENABLE A PERSON TO PERFORM ESSENTIAL JOB FUNCTION.

TWO SLIDES TALK ABOUT DIFFERENT EXAMPLES OF THOSE TYPES OF ACCOMMODATIONS.

THESE ARE THINGS PROVIDING TASKS ORALLY INSTEAD OF WRITING.

NEXT ONE SAYS PROVIDING TASKS IN WRITING INSTEAD OF ORALLY.

WHICH IS A GOOD EXAMPLE THAT EVERYONE IS DIFFERENT, EVERYONE NEEDS DIFFERENT THINGS.

JOBS ARE DIFFERENT, AND SO JUST BECAUSE TO ME, IT IS INTERESTING TO SEE SOMETHING COULD BE THE CHANGE IN ONE JOB COULD BE HELPFUL FOR ONE PERSON WHILE IT MIGHT NOT BE HELPFUL FOR ANOTHER PERSON.

MAKING THE WORK PLACE ACCESSIBLE, PHYSICALLY ACCESSIBLE TO SOMEONE WITH A DISABILITY IS VERY IMPORTANT FOR SOME EMPLOYEES WHO HAVE PHYSICAL DISABILITIES, RESTRUCTURING A JOB, SO WE TALKED FOR AWHILE ABOUT ESSENTIAL JOB FUNCTIONS.

IF A FUNCTION IS DETERMINED NOT TO BE ESSENTIAL FUNCTION, IT IS ALSO DETERMINED TO BE A MARGINAL TASK.

IT IS CONSIDERED TO BE A REASONABLE ACCOMMODATION TO ELIMINATE THAT MARGINAL TASK.

ALLOWING BREAK PERIODS, MODIFYING WORK SCHEDULES, PROVIDING SCENT FREE OR RESTRICTIVE SCENT POLICIES, UNPAID LEAVE, MODIFYING EQUIPMENT, ALL EXAMPLES OF DIFFERENT ACCOMMODATIONS THAT ENABLES SOMEONE TO DO A JOB.

OTHER EXAMPLES, THINGS LIKE PROVIDING QUALIFIED READERS FOR INDIVIDUALS WHO ARE BLIND, PROVIDING SIGN LANGUAGE INTERPRETERS FOR PEOPLE WHO ARE DEAF.

REASSIGNING SOMEONE TO A VACANT POSITION WE WILL TALK MORE ABOUT THAT ONE IN A LITTLE BIT.

ALLOWING A JOB COACH, ALLOWING A SERVICE ANIMAL, TELEWORK IN MANY CIRCUMSTANCES IS A REASONABLE ACCOMMODATION.

I HAVE AT THE BOTTOM "OTHER IDEAS." I AM SURE EACH ONE OF YOU CAN THINK OF A NUMBER OF DIFFERENT IDEAS.

REALLY, ANYTHING CAN BE A REASONABLE ACCOMMODATION, AS LONG AS IT ENABLES A PERSON TO DO A JOB AND DOESN'T RUN INTO ONE OF THE DEFENSES WHICH WE WILL TALK ABOUT.

BUT, FINALLY, OUR LAST CATEGORY OR THIRD CATEGORY, ACCOMMODATIONS WHICH ENABLE SOMEONE TO HAVE EQUAL ACCESS TO THE BENEFITS AND PRIVILEGES OF EMPLOYMENT.

IT IS IMPORTANT FOR ALL OF US TO REMEMBER THAT ACCOMMODATIONS CAN BE USED FOR THOSE SORTS OF THINGS, EVEN IF THEY DON'T REALLY DIRECTLY TOWARD JOB.

SOMEONE WITH A DISABILITY SHOULD HAVE THE SAME ACCESS TO THINGS LIKE OFFICE PARTIES OR NON WORK EVENTS, SHOULD BE ABLE TO HAVE THE SAME ACCESS TO THINGS LIKE CAFETERIAS OR EMPLOYEE LOUNGES OR ACCESSIBLE PARKING, OR ACCESS TO JOB TRAINING WHETHER THROUGH SIGN LANGUAGE INTERPRETERS OR ANY OTHER SOURCE OF ACCOMMODATION.

THE ACCOMMODATIONS ARE BROAD AND MANY DIFFERENT EXAMPLES WILL THERE IS MANY DIFFERENT THINGS THAT WILL APPLY IN MANY SITUATIONS.

BUT, OF COURSE, NOT EVERY SINGLE IDEA THAT AN EMPLOYEE HAS IS POTENTIALLY REASONABLE.

THERE IS A NUMBER OF DIFFERENT DEFENSES THAT EMPLOYERS HAVE.

IF SOMEONE ASKS FOR AN ACCOMMODATION EMPLOYER DOESN'T THINK SHOULD BE PROVIDED, BUT EACH OF THESE THINGS IS SOMETHING THAT SHOULD BE THOUGHT ABOUT INDEPTH AND EMPLOYERS SHOULD REALLY GO THROUGH ALL THESE DIFFERENT FACTORS BEFORE COMING TO THIS CONCLUSION.

ONE REASON AN EMPLOYER WOULD NOT NEED TO PROVIDE AN ACCOMMODATION IF THE ACCOMMODATION WOULD CREATE UP DUE HARDSHIP TO THE EMPLOYER.

WE WILL TALK ABOUT WHAT UNDUE HARDSHIP MEANS ON THE NEXT SLIDE.

NEXT IS IF EMPLOYER IF THE ACCOMMODATION WOULD RESULT IN A DIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS.

DIRECT THREAT IS SOMETHING, AND I HAVE A DEFINITION ACTUALLY ON SLIDE 60 WHICH WE WILL TALK ABOUT IN A LITTLE BIT.

BUT IT IS ESSENTIALLY IT IS A SIGNIFICANT RISK OF SUBSTANTIAL HARM THAT CANNOT BE ELIMINATED.

WHILE THERE IS SOMETHING AS A DIRECT THREAT, REQUIRES AN EMPLOYER TO GO THROUGH INDIVIDUALIZED ASSESSMENT BASED ON MOST OBJECTIVE MEDICAL INFORMATION AVAILABLE.

SO IT IS NOT SOMETHING THAT AN EMPLOYER CAN JUST ASSUME.

IT IS SOMETHING THAT HAS TO REALLY BE SHOWN BEFORE YOU CAN USE THE DIRECT THREAT DEFENSE.

FINALLY, REASONABLE ACCOMMODATION, HAS THAT WORD "REASONABLE" IN IT.

EMPLOYERS DON'T NEED TO PROVIDE ACCOMMODATIONS THAT ARE NOT REASONABLE.

HERE IS JUST A FEW EXAMPLES OF THINGS THAT ARE COMMONLY FOUND NOT TO BE REASONABLE, THINGS LIKE REALLOCATING ESSENTIAL JOB FUNCTIONS.

AGAIN, IF SOMETHING IS ESSENTIAL FUNCTION, THAT'S WHAT THE JOB IS THERE TO BE, AND DOES NOT GENERALLY NEED TO BE REALLOCATED.

EMPLOYERS GENERALLY ARE ALLOWED TO HAVE PRODUCTION STANDARDS AND THOSE CAN BE APPLIED TO ALL EMPLOYEES.

THE IDEA BEHIND A LOT OF THESE DISABILITY RIGHTS LAWS IS TO PROVIDE THE ACCOMMODATION AND PROVIDE THE SKILLS OR WHAT THE EMPLOYEE NEEDS TO BE ABLE TO HELP THEM RAISE THEIR STANDARDS.

IT GENERALLY DOESN'T REQUIRE EMPLOYERS TO LOWER STANDARDS FOR EMPLOYEES.

GENERALLY EMPLOYERS DO NOT NEED TO PROVIDE PERSONAL USE ITEMS.

THEY DON'T NEED TO HELP WITH THINGS LIKE FEEDING OR BATHROOM SERVICES, THINGS OF THAT SORT AS A GENERAL MATTER THAT FALLS OUTSIDE THE SCOPE OF REASONABLE.

GENERALLY, ALSO, EMPLOYERS DO NOT NEED TO CHANGE THE EMPLOYEES SUPERVISOR AS AN ACCOMMODATION.

AGAIN, GENERALLY, EMPLOYERS DON'T NEED TO EXCUSE A VIOLATION OF UNIFORMILY APPLIED CONDUCT RULE.

THE FIRST DEFENSE I MENTIONED WAS UNDUE HARDSHIP.

THAT'S SOMETHING THAT IS KIND OF HARD TO GO THROUGH.

I WILL SPEND A LITTLE BIT OF TIME AND GO THROUGH THE FACTORS EMPLOYERS SHOULD BE CONSIDERING FOR UNDUE HARDSHIP.

DEFINITION, IT IS AN ACTION REQUIRING SIGNIFICANT DIFFICULTY OR EXPENSE.

THE DIFFERENT TYPES OF FACTORS THAT SHOULD BE CONSIDERED ARE THINGS LIKE, WHAT IS THE NATURE AND THE COST OF THE ACCOMMODATION.

WHAT ARE THE OVER ALL FINANCIAL RESOURCES OF THE EMPLOYER.

SO ESSENTIALLY, WHAT IS UNDUE HARDSHIP FOR A REALLY SMALL COMPANY, MAY NOT BE UNDUE HARDSHIP FOR A LARGE CORPORATION OR FOR GOVERNMENT EMPLOYER.

EVERYTHING IS GOING TO DEPEND ON OVER ALL FINANCIAL RESOURCES OF THE FACILITY.

COURTS HAVE OFTEN MADE IT CLEAR WHEN YOU DO THIS ASSESSMENT WHETHER SOMETHING IS GOING TO BE UNDUE HARDSHIP, YOU SHOULDN'T COMPARE IT TO THE EMPLOYER'S ACTUAL SALARY BECAUSE IT WOULD HAVE DISPROPORTIONATE FOR LOW WAGE EARNERS.

IT SHOULD BE OF THE FACILITY, NOT THE EMPLOYEE.

OTHER FACTORS ARE THINGS LIKE OVER ALL FINANCIAL RESOURCES OF POTENTIALLY A PARENT COMPANY IF THE CORPORATION IS PART OF A LARGER PARENT COMPANY.

OF COURSE, IMPACT ON OPERATIONS OF THE FACILITY.

MAYBE SOMETHING IS JUST NOT GOING TO WORK, NO MATTER WHAT, IT IS NOT GOING TO WORK.

THAT WOULD FALL WITHIN THE UNDUE HARDSHIP DEFENSE.

I AM GOING TO TALK A LITTLE BIT ABOUT INTERACTIVE PROCESS IN A MOMENT, BUT I WANTED TO HIGHLIGHT HERE BEFORE WE MOVE ON THAT IF ONE PARTICULAR ACCOMMODATION SUGGESTED IS UNDUE HARDSHIP, EMPLOYERS CAN'T SAY, OKAY, THAT'S IT, I AM DONE.

EMPLOYERS AND EMPLOYEES HAVE THE OBLIGATION TO CONTINUE THE CONVERSATION, SEE IF THEY CAN COME UP WITH AN IDEA THAT WOULD STILL BE EFFECTIVE REASONABLE ACCOMMODATION, BUT WOULD NOT RISE TO LEVEL OF UNDUE HARDSHIP.

THE OTHER THING I WANTED TO MENTION IS THAT WHEN EMPLOYERS ARE ASSESSING WHETHER SOMETHING WOULD BE UNDUE HARDSHIP BASED ON A FINANCIAL RESOURCE, EMPLOYERS ARE SUPPOSED TO CONSIDER ALL AVENUES OF FINANCING.

SO PERHAPS AS AN EXAMPLE, PERHAPS SOMEONE IS REQUESTING A TYPE OF EQUIPMENT, AND THE EQUIPMENT IS VERY EXPENSIVE.

PERHAPS THE EMPLOYEE IS ABLE TO GET THE EQUIPMENT MAYBE # 0% FUNDED BY DORS OR BY DIFFERENT TYPE OF VOCATIONAL REHABILITATION CENTER.

SO THE AMOUNT THAT THE EMPLOYER WOULD HAVE TO PAY IS ACTUALLY SOMEWHAT MINIMAL.

IF THE EMPLOYER IS CONDUCTING UNDUE HARDSHIP ANALYSIS, IT SHOULD LOOK AT ONLY THE SECTION THAT THEY ARE PAYING FOR, NOT THE ENTIRE COST BECAUSE THE EMPLOYEE IS ABLE TO BRING SOME OF THEIR OWN RESOURCES TO THE TABLE.

SO A COUPLE DIFFERENT ACCOMMODATION BASICS.

ACCOMMODATIONS NEED TO BE AN EFFECTIVE ACCOMMODATION, NOT NECESSARILY THE BEST ACCOMMODATION.

SO WHAT THAT MEANS IS EMPLOYEES CERTAINLY CAN HAVE THEIR PREFERENCE AS TO WHICH TYPE OF ACCOMMODATION THEY WANT, AND THEIR PREFERENCE SHOULD BE GIVEN CONSIDERED.

BUT IF AN EMPLOYER CAN COME UP WITH ANOTHER ACCOMMODATION, THAT THEY THINK IS GOING TO MEET THIS EMPLOYEE'S GOALS AND GOING TO ENABLE THAT PERSON TO BE EFFECTIVE, EMPLOYER IS ULTIMATELY THE ONE WHO DETERMINES WHAT TO PROVIDE.

THE EMPLOYER RUNS INTO A RISK IN CASE MAYBE WHAT THEY THINK IS EFFECTIVE ISN'T EFFECTIVE, AND OFTENTIMES PEOPLE WITH DISABILITIES KNOW THEIR DISABILITY BETTER THAN ANYONE ELSE.

SO IT IS ALWAYS A LITTLE BIT OF A RISK, BUT UNDER THE LAW, EMPLOYERS ARE CERTAINLY ABLE TO DETERMINE WHICH ACCOMMODATION THEY THINK WILL BE EFFECTIVE.

NUMBER TWO, PERSONAL DEVICES ARE NOT REQUIRED.

WE TALKED ABOUT THAT.

NUMBER THREE, INDIVIDUALS COVERED SOLELY UNDER THE REGARDED AS PRONG ARE NOT ENTITLED TO ACCOMMODATION.

THIS WAS ACTUALLY SOMETHING BEFORE THE ADA AMENDMENTS ACT, COURTS WERE SOMEWHAT SPLIT.

IF YOU RECALL WHEN WE TALKED ABOUT THE DEFINITION OF DISABILITY, THERE ARE PEOPLE WHO ARE COVERED BY THE LAW, BECAUSE THEY ARE REGARDED AS OR PERCEIVED AS HAVING A DISABILITY.

NOW, BEFORE THE ADA AMENDMENTS ACT, SOME THOUGHT THOSE PERSONS SHOULD STILL GET ACCOMMODATIONS, AND SOME COURTS SAID THAT SHOULDN'T BE TRUE, IF SOMEONE DOESN'T ACTUALLY HAVE A DISABILITY, WHAT TYPE OF ACCOMMODATION WOULD THEY NEED.

THIS WAS IN THE ADA AMENDMENTS ACT, AND NOW IT IS VERY CLEAR, INDIVIDUALS ONLY COVERED BY REGARDED AS PRONG ARE NOT ENTITLED TO REASONABLE ACCOMMODATIONS.

>>THE FOURTH BULLET POINT I HAVE HERE IS THAT INDIVIDUALS COVERED BY ASSOCIATION ARE NOT ENTITLED TO ACCOMMODATIONS.

WE DIDN'T REALLY TALK ABOUT ASSOCIATION, BUT ESSENTIALLY IF AN EMPLOYEE DOES NOT HAVE A DISABILITY, BUT IS ASSOCIATED WITH SOMEONE WITH A DISABILITY.

PERHAPS THEY HAVE A CHILD WITH A DISABILITY, OR THEY HAVE A SPOUSE WITH A DISABILITY, THEY ARE PROTECTED BY THE ADA SUCH THAT THEY CAN'T BE DISCRIMINATED AGAINST.

THEY CAN'T BE TREATED DUMPILY. HOWEVER, THEY ARE NOT ENTITLED TO ACCOMMODATION UNDER THE ADA, AND THE REHAB ACT.

OF COURSE, AND ALL EMPLOYERS SHOULD KEEP THIS IN MIND, THERE IS NOTHING THAT PREVENTS EMPLOYERS FROM PROVIDING EXTRA ACCOMMODATION.

EVEN IF SOMETHING ISN'T LEGALLY REQUIRED.

THERE IS NO LAW PROHIBITING YOU FROM DOING IT. I GET CALLS, TECHNICAL ASSISTANCE CALLS ALL THE TIME FROM EMPLOYERS SAY, WE WANT TO DO THIS, CAN WE?

IS THERE ANY REASON WHY WE CAN'T?

NO, THERE IS NO REASON YOU CAN'T IF THERE IS SOMETHING YOU WANT TO PROVIDE, EVEN THOUGH YOU ARE NOT LEGALLY REQUIRED TO DO SO, THERE IS NO REASON NOT TO.

FINALLY THE LAST POINT I HAVE HERE, WHEN EMPLOYEE REQUESTS ACCOMMODATION, IT TRIGGERS INTERACTIVE PROGRESS.

WE WILL SPEND SOME TIME TALKING ABOUT WHAT THAT MEANS.

SO, HERE IS MY NEXT "YOU BE THE JUDGE." I MAY HAVE GIVEN THE ANSWER AWAY, BUT WE WILL DO IT ANYWAY.

WE HAVE BILL WHO DOES NOT HAVE A DISABILITY, BUT HIS CHILD HAS BIPOLAR DISORDER.

HE ASKS FOR REASONABLE ACCOMMODATION.

HE ASKED SPECIFICALLY FOR MODIFIED WORK SCHEDULE, SO HE CAN TAKE HIS CHILD TO THERAPY APPOINTMENTS, AND HIS EMPLOYER SAYS NO.

MY QUESTION, IS THIS A DISABILITY RIGHTS VIOLATION.

AND THE ANSWER TO THAT IS MOST LIKELY NO.

THE REASON FOR THAT IS THAT BILL IS PRO TECTED UNDER ASSOCIATION PROVISIONS OF THE DISABILITY RIGHTS LAWS.

BECAUSE OF THAT, HE IS NOT ENTITLED TO AN ACCOMMODATION UNDER THE DISABILITY RIGHTS LAWS.

BUT, OF COURSE, THERE ARE OTHER LAWS TO KEEP THIS MIND WE ARE NOT GOING TO TALK ABOUT AT LENGTH TODAY.

THINGS LIKE MAYBE FAMILY MEDICAL LEAVE ACT PROVIDE PROVIDE OPTION FOR BILL, MAYBE THE EMPLOYER HAS ANOTHER TYPE OF LEAVE POLICY, THERE IS OTHER WAYS PERHAPS BILL WOULD BE ABLE TO MANAGE TO TAKE HIS CHILD TO THERAPY APPOINTMENTS, BUT ACCOMMODATION REQUIREMENTS ARE NOT GOING TO APPLY.

WHAT IS THIS INTERACTIVE PROCESS?

IDEA ONCE EMPLOYEE ASKS FOR ACCOMMODATION, EMPLOYEE AND THE EMPLOYER SIT DOWN AND REALLY HAVE A DISCUSSION AND TRY TO FIGURE OUT WHAT IS GOING TO BE THE BEST FOR THAT EMPLOYEE, FOR THAT EMPLOYER, AND FOR THE POSITION.

AGAIN, THIS IS SOMETHING THAT WAS CREATED BECAUSE EVERYONE IS DIFFERENT, EVERYONE'S DISABILITY IS DIFFERENT, MANIFESTATIONS ARE DIFFERENT, JOBS ARE DIFFERENT, EMPLOYERS ARE DIFFERENT.

THERE IS NOT ONE SIZE FITS ALL SORT OF THING.

THAT'S WHY THIS INTERACTIVE PROCESS IS SO IMPORTANT TO FIND A SOLUTION THAT IS GOING TO WORK FOR THE EMPLOYEE AND THE EMPLOYER.

SO GENERALLY, REQUESTS FOR ACCOMMODATIONS DON'T NEED TO BE IN WRITING.

UNDER THE LAW, EMPLOYEE CAN JUST VERBALLY MAKE A REQUEST.

BUT, OF COURSE, AS A LAWYER, I ENCOURAGE EVERYONE TO PUT THINGS IN WRITING.

REASON FOR THAT IS SO IT IS VERY CLEAR WHAT WAS ASKED FOR, WHAT DATE IT WAS ASKED FOR, WHO WAS SPOKEN TO, AND SO THERE IS NO MISCOMMUNICATIONS.

I THINK THAT'S HELPFUL FOR EMPLOYEES AND EMPLOYERS. UNDER THE LAW, NO SPECIFIC LANGUAGE HAS TO BE USED.

AN EMPLOYEE DOES NOT NEED TO USE THE WORDS ADA, ILLINOIS HUMAN RIGHTS ACT, REHABILITATION ACT, DOESN'T NEED TO USE ANY OF THOSE PHRASES.

DOESN'T NEED TO SAY REASONABLE ACCOMMODATION.

EMPLOYEE, ALL THEY NEED TO DO SAY THEY NEED A CHANGE TO THE WORK BECAUSE OF A MEDICAL CONDITION.

THAT SHOULD BE ENOUGH TO TRIGGER T AS BEST PRACTICE, I WOULD ENCOURAGE EVERYONE TO USE THOSE TERMS, AGAIN, JUST SO EVERYONE IS ON THE SAME PAYMENT ABOUT WHAT THE REQUEST IS.

I THINK IT IS ALSO BEST PRACTICE FOR EMPLOYEES TO USE FORMS THAT ARE CREATED BY THEIR EMPLOYERS FOR THIS PURPOSE.

I KNOW THAT FOR THOSE OUT THERE WHO ARE STATE GOVERNMENT EMPLOYEES, STATE AGENCIES HAVE THEIR OWN FORMS THAT THEY CAN USE TO REQUEST AN ACCOMMODATION.

IF YOU ARE LOOKING FOR THOSE TYPES OF FORMS, CAN YOU ASK YOUR SUPERVISOR, YOU CAN ASK YOUR AGENCY'S EEO OR AFFIRMATIVE OFFICER, WHO CAN ASK FOR ADA COORDINATOR AND THEY SHOULD BE ABLE TO GIVE YOU THOSE TYPES OF FORMS.

WHAT HAPPENS NEXT?

AFTER AN EMPLOYEE I GUESS ONE OTHER THING, ANOTHER PERSON CAN REQUEST AN ACCOMMODATION ON THE EMPLOYEE'S BEHALF.

THERE MAYBE A TIME MAYBE SOMEONE IS NOT ABLE TO MAKE THEIR REQUEST ON THEIR OPEN, MAYBE BECAUSE OF THEIR DISABILITY OR BECAUSE OF THEIR DISABILITY THEY ARE IN THE HOSPITAL, OR THERE IS SOME REASON THAT IS PREVENTING THEM, SOMEONE ELSE, UNDER THE LAW, IS ABLE TO MAKE THAT ACCOMMODATION REQUEST ON BEHALF OF THE EMPLOYEE.

IT IS ALWAYS GOOD FOR THE REQUEST TO ACTUALLY DESCRIBE WHAT THE DISABILITY IS, WHAT THE NEED FOR THE ACCOMMODATION IS, AND THAT IF THE EMPLOYEE KNOWS WHAT TYPE OF ACCOMMODATION THEY ARE GOING TO ACTUALLY WANT.

SO THEN AFTER THE REQUEST IS MADE, IDEA IS THAT THE EMPLOYEE AND THE EMPLOYER ARE GOING TO SIT DOWN AND THEY ARE GOING TO HAVE A CONVERSATION.

THERE IS A NUMBER OF DIFFERENT THINGS THAT SHOULD BE DISCUSSED DURING THIS CONVERSATION.

THERE ARE THINGS LIKE, OKAY, WELL, DOES THE EMPLOYEE'S REQUEST, IS THAT ACTUALLY REASONABLE, DOES THAT ACTUALLY WORK, IS THAT ACTUALLY EFFECTIVE?

IF NOT, WHAT OTHER TYPES OF ACCOMMODATIONS, MAYBE THERE IS SOMETHING ELSE THAT WOULD BE MORE EFFECTIVE OR THE EMPLOYER THINKS WOULD BE MORE EFFECTIVE.

AGAIN, EMPLOYER'S OBLIGATION IS PROVIDE EFFECTIVE ACCOMMODATION, NOT NECESSARILY THE SPECIFIC ACCOMMODATION THAT WAS REQUESTED.

OF COURSE, EMPLOYEES PREFERENCE SHOULD GET PRIMARY CONSIDERATION, BUT ULTIMATELY, THE EMPLOYER IS THE ONE THAT CAN DECIDE WHAT ACCOMMODATION WOULD BE EFFECTIVE.

THE INTERACTIVE PROCESS IS TYPICALLY BETWEEN THE EMPLOYEE AND THE EMPLOYER.

BUT I THINK IT IS REALLY IMPORTANT TO REMEMBER THAT THERE ARE SO MANY GREAT RESOURCES OUT THERE THAT CAN CONTRIBUTE TO THIS INTERACTIVE PROCESS.

SO MAYBE THE EMPLOYEE WANTS TO ASK THEIR SUPERVISOR, MAYBE HR FOR SOME IDEAS.

MAYBE THEY ARE PART OF DORS OR ANOTHER SORT OF VOC REHAB AGENCY AND THERE ARE IDEAS THERE.

MAYBE IF THE PERSON HAS A DISABILITY THAT REQUIRES SOME SORT OF COMPUTER ADJUSTMENTS OR ASSISTIVE TECHNOLOGY, THERE ARE SO MANY GREAT RESOURCE, AND SO IT IS IMPORTANT TO REACH OUT TO THOSE EXPERTS WHO ARE ABLE TO HELP YOU.

AND THEN THE FINAL POINT I HAVE HERE IS SOMETHING I WANT TO MAKE SURE EVERYONE IS AWARE OF, AND I HAVE THEIR CONTACT INFORMATION AND RESOURCES.

BUT THERE IS ENTITY CALLED JOB ACCOMMODATION NETWORK.

THEY ARE OUT OF WEST VIRGINIA.

THEIR ENTIRE RESPONSIBILITY IS TO BASICALLY HELP PROMOTE REASONABLE ACCOMMODATIONS.

THERE IS A NUMBER OF DIFFERENT WAYS YOU CAN GET IN TOUCH WITH THEM.

YOU CAN CALL, AND EXPLAIN EITHER I AM THE EMPLOYEE OR I AM THE EMPLOYER, AND HERE IS THE SITUATION.

HERE IS THE JOB.

HERE ARE THE LIMITATION, HERE IS WHAT WE NEED TO DO, AND THEY WILL HELP BRAIN STORM WITH YOU AND COME UP WITH ACCOMMODATION IDEAS.

THEY ALSO HAVE A WEB SITE WHERE THEY HAVE A LIST OF A NUMBER OF DIFFERENT TYPES OF DISABILITIES.

THEY HAVE A LIST OF ACCOMMODATIONS THAT HAVE BEEN SUCCESSFUL FOR THOSE TYPES OF DISABILITIES IN THE PAST.

SO, AGAIN, IT IS NOT THAT YOU PULL UP A LIST FOR SPECIFIC DISABILITY, EVERYTHING THERE IS GOING TO WORK FOR EVERY JOB, BUT IT AT LEAST GETS YOU THINKING OF DIFFERENT IDEAS AND DIFFERENT OPTIONS OUT THERE. WHETHER YOU ARE AN EMPLOYER OR EMPLOYEE, IF YOU RUN INTO A SITUATION WHERE YOU NEED SOME A LITTLE ASSISTANCE COMING UP WITH ACCOMMODATION IDEAS, YOU ENCOURAGE YOU TO CONTACT THEM.

IT IS A FREE RESOURCE AND GOOD PLACE TO CALL IF YOU NEED SOME ASSISTANCE OF THINKING OF SOME IDEAS.

EMPLOYERS ARE ABLE TO REQUEST SOME LIMITED MEDICAL INFORMATION WHEN AN EMPLOYEE REQUESTS AN ACCOMMODATION.

I WANTED TO REFERENCE EMPLOYERS CANNOT AND SHOULD NOT ASK FOR A BROAD RANGE OF MEDICAL HISTORY, CAN'T ASK FOR YOUR ENTIRE MEDICAL FILE.

THAT'S JUST OVER BROAD AND UNNECESSARY.

WHAT YOU CAN DO UNDER LAW IS ASK FOR LIMITED MEDICAL INFORMATION AS LONG AS THE ACCOMMODATION NEED IS AN OBVIOUS AND DISABILITY ISN'T OBVIOUS.

IF SOMEONE USES A WHEELCHAIR AND THEY NEED A RAMP, KIND OF THERE IS NO REASON THAT THE EMPLOYER WOULD HAVE TO ASK FOR MEDICAL DOCUMENTATION.

BUT IF AN EMPLOYER IN GOOD FAITH DOESN'T KNOW THE PERSON HAS A DISABILITY OR DOESN'T KNOW THE ACCOMMODATION WOULD BE EFFECTIVE, THEY ARE, UNDER THE LAW, ABLE TO ASK FOR MEDICAL VERIFICATION.

THE THINGS THEY ARE ASK FOR ARE ENOUGH TO SHOW THAT THE PERSON HAS A DISABILITY SO THE NATURE, SEVERITY, DURATION OF THE ACTIVITY, THE ACTIVITY OR ACTIVITIES THAT THE IMPAIRMENT LIMITS, AND ALSO WHY IS THE ACCOMMODATION GOING TO HELP THE PERSON, HOW IS THE IMPAIRMENT RELATED TO THE ACCOMMODATION.

THE THIRD STEP, AND I THINK THIS IS ONE THAT IS OFTEN TIMES FORGOTTEN BY EMPLOYERS AND EMPLOYEES.

ONCE AN ACCOMMODATION IS AGREED UPON AND IT IS IMPLEMENTED, I ALWAYS THINK IT IS GOOD TO KIND OF FOLLOW UP AND CONTINUE THIS INTERACTIVE PROCESS, JUST TO MAKE SURE THE ACCOMMODATION IS WORKING, THAT IT IS EFFECTIVE, AND THAT THERE ARE NO NEED FOR CHANGES.

SOMETIMES SOMEONE MAYBE THEIR DISABILITY IS GOING TO CHANGE, MAYBE THE JOB WILL CHANGE.

THERE IS A TOP OF DIFFERENT REASONS WHY MAYBE WHAT IS HELPFUL ON DAY ONE ISN'T HELPFUL ON DAY 300.

SO I THINK STAYING IN TOUCH TO SEE HOW THINGS ARE WORKING IS ALWAYS A GOOD IDEA.

SO THAT'S THE INTERACTIVE PROCESS.

I WAS GOING TO SPEND A LITTLE BIT OF TIME TALKING ABOUT TWO DIFFERENT ACCOMMODATIONS, ONE IS REASSIGN.

, AND THE SECOND IS LEAVE.

STARTING WITH REASSIGN.

, UNDER THE ADA, REASSIGN.

TO A VACANT POSITION FOR WHICH THE EMPLOYEE IS QUALIFIED MAYBE AN APPROPRIATE ACCOMMODATION.

GENERALLY, REASSIGN MANY IS NOT GOING TO BE REASONABLE IF ONLY REASON YOU ARE DOING IS TO GET A NEW SUPERVISOR OR ESCAPE CERTAIN COWORKERS WHICH GOES TO THE POINT I WAS SAYING EARLIER ASKING FOR NEW SUPERVISOR GENERALLY IS NOT AN ACCOMMODATION.

REASSIGN.

ALSO DOES NOT NEED TO BE A PROMOTION.

EMPLOYERS DON'T NEED TO PROMOTE SOMEONE TO BE ABLE TO REASSIGN THEM.

AND IF THERE IS A BONA FIDE UNION OR OTHER SENIORITY SYSTEM, REASSIGN.

IS GENERALLY NOT GOING TO TRUMP IT.

SO ONE REASON REASSIGN.

COMES UP A LOT IN THESE DISCUSSIONS IS THAT THERE IS A REASONABLE 7TH CIRCUIT CASE ON REASSIGN.

FOR THOSE OF YOU WHO ARE WHO DON'T KNOW, 7TH CIRCUIT IS U.S. COURT OF APPEALS THAT INCLUDES STATES AROUND ILLINOIS AND ILLINOIS.

SO THIS IS BASICALLY OUR CIRCUIT.

THIS IS THE 7TH CIRCUIT SAYS SOMETHING THAT MATTERS TO US, AND IMPACTS US IN OUR LIVES.

SO THE EEOC VERSUS UNITED AIRLINES CASE IS SOMETHING THAT CAME OUT ABOUT A YEAR AND A HALF AGO.

IT CHANGED THE LANDSCAPE ON REASSIGN.

WHAT HAPPENED IN THIS CASE UNITED AIRLINES HAD A POLICY.

UNDER THE POLICY IT SAYS, OKAY, EMPLOYEES WITH DISABILITIES IF YOU CAN NO LONGER PERFORM ESSENTIAL FUNCTIONS OF YOUR JOB, CAN COMPETE PORE OPEN POSITION WITH REASONABLE ACCOMMODATION.

OKAY, EMPLOYEE NO LONGER BECAUSE OF DISABILITY ABLE TO DO THEIR CURRENT POSITION, THEY WERE ABLE TO APPLY FOR ANOTHER POSITION.

BUT, UNDER UNITED AIRLINES POLICY, THEY WEREN'T ENTITLED TO THAT POSITION BEING THEY WERE NOT GIVEN THAT POSITION AS A REASONABLE ACCOMMODATION.

SO THE EEOC HE IS POSITION WAS THIS ISN'T REALLY ACCOMMODATION.

ANYONE CAN APPLY TO BE TRANSFERRED TO ANOTHER POSITION.

WHY IS THIS THIS ISN'T PREFERENCE.

THIS IS ISN'T WHAT A REASONABLE ACCOMMODATION IS.

SO THEY FILED A LAWSUIT, IN NORTHERN DISTRICT OF ILLINOIS.

BUT AT THE TIME, THE 7TH CIRCUIT ACTUALLY HAD COME OUT WITH A LAW OR HAD A PREVIOUS OPINION THAT SAID "THIS WAS OKAY.

REQUIRING EMPLOYEES TO COMPETE FOR OPEN POSITIONS AS ACCOMMODATIONS WAS ACCEPTABLE." WHEN THE EEOC FILED THIS LAWSUIT PURSUANT TO THE DISTRICT COURT, THE DISTRICT COURT SAID GET WHAT YOU ARE SAYING, EEOC, UNDER THE CURRENT PRESIDENT, MY HANDS ARE TIED.

NOTHING I CAN DO.

THEN THE EEOC APPEALED THAT DECISION.

IT WON'T TO PTH CIRCUIT.

THE 7TH CIRCUIT ALSO PAID, I GET WHAT YOU ARE SAYING.

BUT WE ALREADY HAVE A POSITION ON THIS.

WE ALREADY SAID UNDER THE LAW, THAT IT IS OKAY FOR EMPLOYEES TO HAVE TO COMPETE FOR OPEN POSITIONS AS A REASONABLE ACCOMMODATION.

BUT, 7TH CIRCUIT SAID, YOU CAN ENTIRE PANE OF 7TH CIRCUIT JUDGES WOULD CONSIDER WHETHER TO OVERTURN THE PREVIOUS 7TH CIRCUIT POSITION. THAT'S WHAT THE EEOC ASKED FOR.

THEY SAID, OKAY, 7TH CIRCUIT, WE THINK YOU ARE WRONG, IN LIGHT OF THIS RECENT SUPREME COURT CASE, AND WE WANT YOU TO REVISIT YOUR OPINION.

THAT'S EXACTLY WHAT HAPPENED.

SEVENTH CIRCUIT ULTIMATELY AGREED WITH THE EEOC, AND SAID IN LIGHT OF THE SUPREME COURT'S DECISION IN BARNETT VERSUS U.S. AIRWAYS, UNDER THE ADA, EMPLOYER E CAN SEEK ACCOMMODATION SHOULD BE REASSIGNED TO VACANT POSITION AND THE QUESTION ABOUT WHETHER THEY ARE THE MOST QUALIFIED IS NOT RELEVANT.

IT IS IF THERE IS AN OPEN POSITION, ANY EMPLOYEE IS NO LONGER ABLE TO PERFORM ESSENTIAL FUNCTIONS OF THEIR OWN POSITION BECAUSE OF A DISABILITY, AS AN ACCOMMODATION, THEY ARE ABLE TO BE REASSIGNED TO THAT VACANT POSITION.

AND THEY DON'T NEED TO COMPETE FOR IT.

THERE ARE CERTAIN EXCEPTIONS.

ONE OF THE EXCEPTIONS IF THERE IS A BONA FIDE UNION SENIORITY SYSTEM.

SHORT OF THAT, IT WILL USUALLY BE REASONABLE ACCOMMODATION.

THIS WAS A HUGE CHANGE IN THE 7TH CIRCUIT.

THERE IS STILL SOMEWHAT OF A CIRCUIT SPLIT.

THERE IS ONE CIRCUIT IN I THINK THE EAST CIRCUIT THAT FINDS THE OPPOSITE.

BUT EVERY OTHER CIRCUIT WHO IS ASSESSED THIS QUESTION HAS FOUND THAT REASSIGN.

MEANS REASSIGN.

WITHOUT COMPETITION.

IT IS AN INTERESTING CASE FOR THOSE OF YOU WHO ARE INTERESTED IN LEARNING MORE.

I ENCOURAGE YOU TO READ IT.

I ALSO WANTED TO MENTION THAT REASSIGN.

UNDER THE ILLINOIS HUMAN RIGHTS ACT, ACTUALLY BACK IN 1987, WAS FOUND NOT TO REQUIRE ILLINOIS HUMAN RIGHTS AC WAS INTERPRETED NOT TO REQUIRE REASSIGN.

TO ANOTHER JOB AS A REASONABLE ACCOMMODATION.

SO THAT'S AN OLDER CASE BACK IN 1987.

I AM NOT SURE I DON'T KNOW OF ANY CASES ASKING FOR REASSIGN.

UNDER THE ILLINOIS HUMAN RIGHTS ACT SINCE THE UNITED AIRLINES CASE.

I DON'T KNOW IF IT WOULD CHANGE IT ALL, BECAUSE THERE AGAIN, UNDER TWO DIFFERENT STATUTES.

I WANTED TO CLARIFY 1987 DECISION, ILLINOIS HUMAN ACT WOULD NOT REQUIRE REASSIGN.

BUT IT IS IMPORTANT FOR STATE EMPLOYEES ON THE LINE HERE TO MAKE SURE YOU REMEMBER JUST AS DIRECTOR COLLAPSE MENTIONED, THERE IS ALTERNATIVE EMPLOYMENT PROGRAM.

THIS IS A PROGRAM FOR STATE EMPLOYEES.

SO IF YOU ARE A STATE EMPLOYEE, AND YOU ARE NO LONGER ABLE TO PERFORM YOUR CURRENT JOB BECAUSE OF A DISABILITY, UNDER THE ALTERNATIVE EMPLOYMENT PROGRAM, YOU ARE SUPPOSED TO BE ABLE TO BE CONSIDERED OR HIRED IN ALTERNATIVE PROGRAMS.

AT THE END, PERHAPS, SUE WILL BE ABLE TO GIVE A LITTLE BIT MORE INFORMATION ABOUT THAT PROGRAM FOR THOSE OF YOU WHO ARE ON THE LINE AND INTERESTED IN LEARNING MORE.

>>THE SECOND SPECIFIC TYPE OF ACCOMMODATION I WANTED TO REFERENCE IS LEAVE AS AN ACCOMMODATION.

REASON I WANTED TO MENTION THIS IS THAT THIS IS FREQUENTLY ACCOMMODATION THAT PEOPLE NEED AND THERE IS A LOT OF UNCERTAINTY ABOUT HOW MUCH LEAVE IS REASONABLE.

UNFORTUNATELY, I AM NOT GOING TO BE ABLE TO GIVE YOU ANY CLEAR GUIDANCE.

THIS IS ALWAYS REASONABLE AND THIS IS NOT ALWAYS REASONABLE.

AS I MENTIONED, EVERYTHING IS VERY CASE SPECIFIC.

, FACT INTENSIVE.

I WANT TO GIVE SOME GENERAL GUIDE ANSWER PRINCIPLES.

COURTS HAVE MADE CLEAR THAT LEAVE IS A REASONABLE ACCOMMODATION UNDER THE ADA.

AND ALSO UNDER OTHER DISABILITY RIGHTS LAWS.

BUT I ALSO WANTED TO MENTION THAT INDEFINITE LEAVE IS USUALLY NOT REQUIRED.

IF AN EMPLOYEE HAS ABSOLUTELY NO IDEA WHEN THEY ARE GOING TO BE ABLE TO RETURN TO WORK, IT IS GENERALLY NOT A REASONABLE ACCOMMODATION TO LEAVE THEIR JOB OPEN INDEFINITELY.

TIP FOR EMPLOYEES, IS IT IS ALWAYS BETTER IF THERE IS SOME GENERAL RETURN TO WORK DATE TO GIVE THAT DATE.

YOU DON'T NEED TO GET ABSOLUTE CERTAINTY.

YOU DON'T NEED TO SAY I AM DEFINITELY GOING TO RETURN ON JUNE SECOND, BUT TO BE ABLE TO SAY I AM LIKELY GOING TO RETURN TEN TO 12 WEEKS, MAYBE 20 WEEKS, SOMETHING LIKE THAT, YOU WANT TO GIVE SOME GENERAL SENSE OF WHEN YOU WILL BE ABLE TO RETURN TO WORK.

OF COURSE, THERE IS OTHER LAWS, SUCH AS FAMILY MEDICAL LEAVE ACT WHICH PROVIDES 12 WEEKS OF UNPAID LEAVE FOR SERIOUS MEDICAL CONDITIONS.

ADA AND OTHER DISABILITY RIGHTS LAWS DO KIND OF WORK IN THEY CAN OVERLAP WITH FAMILY MEDICAL LEAVE ACT.

SOME EMPLOYEES MIGHT TAKE 12 WEEKS OF FMLA, BUT AS ACCOMMODATION, ASK FOR ADDITIONAL TWO WEEKS OR ADDITIONAL COUPLE OF WEEKS.

DEPENDING ON THE TYPE OF EMPLOYER AND TYPE OF EMPLOYEE, COURTS HAVE FREQUENT E FREQUENTLY FOUND THAT TYPE OF REQUEST TO BE REASONABLE.

I WANTED TO GIVE TWO DIFFERENT CASE LAW EXAMPLES OF LEAVE AS AN ACCOMMODATION.

FIRST IS THE CASE CRAB VERSUS S.I.U. SCHOOL OF MEDICINE.

HERE THE EMPLOYEE RECEIVES INTERMITTENT FMLA TO TREAT ANXIETY AND DEPRESSION.

AND FOLLOWING AFTER SHE EXHAUSTED FMLA LEAVE, SHE WAS HOSPITALIZED AND SHE DID NOT RETURN TO WORK AND SHE REQUESTED LEAVE.

THIS WAS EXAMPLE OF UNLIMITED LEAVE SITUATION.

THE COURT SAID, LOOK, EMPLOYEE YOU ARE NOT ENTITLED TO RECEIVE UNLIMITED TIME OFF WITHOUT GIVING US ANY SORT OF INDICATION OF WHEN YOU ARE GOING TO RETURN.

THE COURT ALSO EXPLAINED THAT GENERALLY, EMPLOYERS ARE PERMITTED TO TREAT REGULAR ATTENDANCE AS AN ESSENTIAL JOB FUNCTION.

SO BECAUSE OF THAT, EMPLOYERS DON'T NEED TO PERMIT INDEFINITE LEAVE AS REASONABLE ACCOMMODATION.

BUT I WANTED TO COMPARE THAT TO A SECOND CASE WHICH IS SHELTER TON VERSUS BRIDGESTONE WHICH CAME OUT OF TENNESSEE JUST ABOUT TWO YEARS AGO.

HERE THE PLAINTIFF REQUESTED AN EXTENSION OF FMLA LEAVE, AS I MENTIONED BEFORE.

THE REQUEST HERE WASN'T SPECIFICALLY SPECIFIC.

THEY DIDN'T GIVE EXACT DATE. BUT THEY SAID THE EMPLOYEE HAD REQUESTED BETWEEN TWO WEEKS AND SIX MONTHS.

HERE, THE COURT FOUND THAT THE MEDICAL LEAVE IS A REASONABLE ACCOMMODATION BECAUSE THE EMPLOYER WASN'T ABLE TO SHOW THAT IT WAS A, IT IT WAS INDEFINITE REQUEST, AND, B, THEY ALREADY SAID IT WAS NOT THAT MUCH MORE OF SIGNIFICANT EXTENSION TO THE LEAVE.

SO THE COURT FOUND HERE THE EMPLOYER WAS UNABLE TO SHOW THAT THIS LEAVE WAS UNREASONABLE.

SO THIS PLAINTIFF WAS ABLE TO MOVE FORWARD WITH THEIR CASE.

AGAIN, THERE IS NO BRIGHT LINE RULES HERE, BUT THE IDEA IS THAT IF SOMEONE MAKES A REQUEST, YOU NEED TO CONSIDER OR THE EMPLOYEE NEEDS TO CONSIDER WHAT IS REASONABLE, IN YOUR SITUATION, WHETHER THE LEAVE IS INDEFINITE, WHETHER IT IS A DEFINITE RETURN DATE, AND HOW IT IS GOING TO IMPACT THE DAY TO DAY FUNCTIONS.

SO I MENTIONED BEFORE THE JOB ACCOMMODATION NETWORK, AND HERE I HAVE SOME LINKS TO A NUMBER OF DIFFERENT RESOURCES FROM THE JOB ACCOMMODATION NETWORK, THINGS LIKE THE FACT SHEETS FOR ALMOST EVERY TYPE OF IMPAIRMENT AND DISABILITY.

I HAVE GOT INFORMATION ABOUT TECHNICAL ASSISTANCE, AND THERE IS A GREAT EMPLOYERS' PRACTICAL GUIDE AND EMPLOYEES, SAMPLE ACCOMMODATION FORM THAT ONE COULD USE TO EITHER TO EITHER USE IT TO GUIDE YOUR OWN ACCOMMODATION REQUEST OR ACTUALLY JUST USE THAT TO DRAFT YOUR ACCOMMODATION REQUEST.

THE NEXT TOPIC WE HAVE TODAY IS ONE ABOUT DISCLOSURE MEDICAL EXAMS AND INQUIRIES.

THIS IS ANOTHER AREA WHERE DISABILITY RIGHTS LAWS DIFFER BECAUSE THEY ACTUALLY HAVE SOME RESTRICTIONS ABOUT WHAT TYPES OF MEDICAL EXAMS AND INQUIRIES ARE PERMITTED UNDER THE LAW.

SO QUESTION FOR EVERYONE: AM I REQUIRED TO DISCLOSE MY DISABILITY?

THE ANSWER TO THAT IS NO.

UNDER DISABILITY RIGHTS LAWS, YOU ARE NOT REQUIRED TO DISCLOSE A DISABILITY UNLESS YOU DECIDE TO REQUEST A REASONABLE ACCOMMODATION.

I MENTION THIS BECAUSE I GET A LOT OF CALLS FROM PEOPLE WHO FEEL AS IF THEY NEED TO DISCLOSE THEIR DISABILITY.

THEY FEEL THEY ARE LYING, THERE IS SOME SORT OF LEGAL REQUIREMENT TO.

I JUST WANTED TO MAKE VERY CLEAR TO EVERYONE, UNDER THE LAW DISCLOSURE IS NOT SOMETHING THAT IS REQUIRED.

WHETHER TO DISCLOSE IS A PERSONAL DECISION THAT THERE ARE LOTS OF REASONS TO DO IT, LOTS OF REAPS NOT TO DO IT, AND IT IS SOMETHING THAT A PERSON WITH DISABILITY NEEDS TO DECIDE KIND OF ON THEIR OWN BASED ON THEIR CIRCUMSTANCES.

MY NEXT QUESTION, SHOULD YOU DISCLOSURE DISABILITY?

OF COURSE, BACK TO MY FAVORITE RESPONSE TO EVERY ONE OF THESE QUESTIONS IS REALLY DEPENDS ON YOUR PERSONAL SITUATION.

THERE ARE CERTAINLY REASONS WHY AN EMPLOYEE WOULD WANT TO DISCLOSE.

FOR INSTANCE, PERHAPS AN EMPLOYEE IS APPLYING FOR A GOVERNMENT THAT HAS AFFIRMATIVE ACTION PROGRAM.

SO THERE IS A BENEFIT TO DISCLOSING A DISABILITY.

THAT MIGHT BE A REASON TO DISCLOSE.

PERHAPS, EMPLOYEE IS APPLYING TO WORK FOR DISABILITY FRIENDLY EMPLOYER.

OR DISABILITY MAKES THEM MORE QUALIFIED FOR THE JOB.

THOSE ARE CERTAINLY SITUATIONS WHERE IT MAKES SENSE FOR SOMEONE TO DISCLOSE THEY NEED AN ACCOMMODATION.

FINALLY, IF SOMEONE NEEDS AN ACCOMMODATION, THEN CERTAINLY YOU HAVE TO DISCLOSE.

YOU CAN'T ASK FOR AN ACCOMMODATION WITHOUT DISCLOSING YOU HAVE A DISABILITY.

SO, AGAIN, THAT'S SOMETHING THAT EMPLOYEES OR APPLICANTS NEED TO WEIGH THE PROS AND CONS, HOW SENSITIVE THEY ARE, HOW PERSONAL.

THERE ARE THERE IS A LOT OF PEOPLE WITH DISABILITIES THAT DON'T SHARE THE DETAILS OF THE DISABILITY WITH ANYONE, AND THERE ARE SOME PEOPLE VERY OPEN ABOUT IT.

IT IS REALLY A PERSONAL PREFERENCE.

IT IS A DIFFICULT THING FOR SOMEONE TO DECIDE WHETHER OR NOT TO DISCLOSE O I WANTED TO NOTE THAT BECAUSE OF AFFIRMATIVE ACTION PURPOSES, BOTH STATE GOVERNMENT EMPLOYEES AND FEDERAL EMPLOYEES ARE GIVEN VOLUNTARY DISCLOSURE FORMS.

I BELIEVE IN THE STATE, IT IS MANDATORY TO AT LEAST FILL OUT THE FORM, BUT IT IS NOT MANDATORY TO ACTUALLY DISCLOSE YOU HAVE A DISABILITY.

THESE FORMS ARE USUALLY GIVEN TO PEOPLE BOTH WHEN THEY START EMPLOYMENT AND AS THEY CONTINUE EMPLOYMENT.

IDEA IS THAT SOMETIMES PEOPLE CAN ACQUIRE DISABILITIES.

SOMETIMES PEOPLE AREN'T COMFORTABLE WITH DISCLOSING A DISABILITY AT THE BEGINNING OF THEIR EMPLOYMENT.

BUT AFTER THEY HAVE BEEN THERE FOR AWHILE, THEY ARE MORE COMFORTABLE ABOUT IT.

THE REASON THAT STATE GOVERNMENT AND FEDERAL GOVERNMENT AND FEDERAL CONTRACTORS ASK THESE QUESTIONS IS TO MAKE SURE THAT THEY ARE COMPLYING WITH THEIR AFFIRMATIVE ACTION OBLIGATIONS.

I WANTED TO GIVE TWO RESOURCES ABOUT DISCLOSURE, AGAIN, BECAUSE DISCLOSURE IS SUCH A SENSITIVE AND PERSONAL TOPIC.

THERE HAS BEEN SOME FACT SHEETS OUT THERE TO HELP PEOPLE HELP GUIDE PEOPLE THROUGH THE DISCLOSURE DILEMMAS, AS A LOT OF PEOPLE CALL IT.

SO MOVING ONTO WHAT THE REQUIREMENTS ACTUALLY ARE FOR MEDICAL EXAMS AND MEDICAL INQUIRIES.

THE RULES FOR MEDICAL INQUIRIES ACTUALLY DIFFER BASED ON WHERE YOU ARE IN YOUR EMPLOYMENT.

THERE ARE DIFFERENT RULES FOR PRE EMPLOYMENT, FOR APPLICATIONS AND INTERVIEWS.

THEN THERE IS A SEPARATE RULE FOR THE TIME AFTER YOU GET A JOB, CONDITIONAL JOB OFFER BEFORE YOU ACTUALLY START WORK.

THEM FINALLY, THERE IS A THIRD RULE FOR CURRENT EMPLOYEES.

I THINK THERE IS POLICY REASONS BEHIND EACH OF THESE, AND I THINK IT IS BALANCING THE NEEDS OF EMPLOYERS VERSUS THE RIGHTS OF EMPLOYEES, BUT, OF COURSE, FOR US IT MAKES THINGS MORE COMPLICATED AND HARDER TO KEEP TRACK OF.

SO WE WILL WALK THROUGH THESE ONE BY ONE.

THE FIRST IS THE FIRST STAGE WHICH IS THE PRE EMPLOYMENT APPLICATION AND INTERVIEW STAGE.

THIS IS GOING TO BE THE STAGE THAT IS THE MOST RESTRICTIVE.

I THINK, AGAIN THE POLICY REASON FOR THAT, SO THAT EMPLOYEES WITH DISABILITIES CAN GET IN THAT FRONT DOOR.

THE RULE IS EMPLOYERS CANNOT ASK ANY DISABILITY RELATED INFORMATION.

THEY CAN'T GIVE ANY GET ANY MEDICAL EXAMS, ON CONSIDER QUESTIONS THAT MAY ELICIT DISABILITY RELATED INFORMATION, LOOK LIKE, HEY, HAVE YOU TAKE AN LOT OF SICK TIME AT A FORMER JOB.

SO QUESTIONS LIKE THAT ARE PROHIBITED.

OF COURSE, AN EMPLOYER HAS THE RIGHT TO BE ABLE TO MAKE SURE THAT THE EMPLOYEE CAN DO THE JOB.

SO THEY CAN CERTAINLY ASK QUESTIONS ABOUT THE EMPLOYEE'S ABILITY TO PERFORM SPECIFIC JOB FUNCTIONS.

AND THEY CAN ASK AN APPLICANT TO EITHER DESCRIBE OR DEMONSTRATE HOW SHE WOULD BE ABLE TO PERFORM THE SPECIFIC FUNCTIONS OF THEIR JOB.

THEN MOVING ON TO THE STAGE OKAY, SO YOU GET THROUGH THE FRONT DOOR.

YOU GET A CONDITIONAL JOB OFFER.

WHILE AT THAT POINT, THE SCOPE REALLY OPENS UP.

EMPLOYERS ARE AT THAT POINT ABLE TO ASK ANY DISABILITY RELATED QUESTION, AND ANY AND PROVIDE ANY SORT OF MEDICAL INQUIRY, WITH THE QUALIFICATION THEY HAVE TO DO THAT FOR ALL APPLICANTS FOR THAT POSITION.

SO EMPLOYERS CAN'T ONLY ASK THEM QUESTIONS IF THEY PERCEIVE THEY HAVE A DISABILITY OR IF THE INDIVIDUAL LOOKS LIKE THEY HAVE A DISABILITY.

THEY CAN ONLY ASK THESE QUESTIONS IF THEY ARE DONE UNIFORMLY FOR EVERYBODY.

AND THE OTHER ASPECT OF THIS IS THAT IF AN EMPLOYER LEARNS SOMETHING ABOUT A DISABILITY, DURING THAT MEDICAL EXAM, AND MEDICAL INQUIRY, THEY CAN'T WITHDRAW A JOB OFFER UNLESS THE DISABILITY THAT THEY LEARN ABOUT IS GOING TO BE ABLE TO PREVENT THE EMPLOYEE FROM PERFORMING THE ESSENTIAL JOB FUNCTION AND A REASONABLE ACCOMMODATION CAN'T BE PROVIDED.

EVEN THOUGH EMPLOYEE EMPLOYERS ARE GIVEN A LOT OF LEEWAY AT THIS TIME PERIOD TO BE ABLE TO ASK MEDICAL EXAMS AND REQUIRE MEDICAL ASK MEDICAL I CHOIR RIS AND EXAMS, THEY CAN'T USE THAT INFORMATION TO THEN TURN AROUND AND DISCRIMINATE OR REVOKE SOMEONE'S JOB OFFER.

THEN THE THIRD REQUIREMENT IS THAT EMPLOYERS I AM SORRY, THIRD STAGE WHEN SOMEONE IS ACTUALLY AN EMPLOYEE. SO THIS IS, YOU KNOW, AFTER THEY GO THROUGH THE WHOLE APPLICATION PROCESS, AFTER THEY GET THAT CONDITIONAL JOB OFFER, WHEN THEY ARE ACTUALLY WORKING AS EMPLOYEE.

RULES CAN SEEK DISABILITY RELATED INFORMATION WHEN IT IS JOB RELATED AND CONSISTENT WITH BUSINESS TY.

AGAIN, ANOTHER PHRASE THAT IS FULL OF KIND OF LEGAL JARGON.

BUT, ESSENTIALLY WHAT THAT MEANS IS THAT EMPLOYERS HAVE A RIGHT TO MAKE SURE THE EMPLOYEE IS QUALIFIED, IF AN EMPLOYEE REQUESTS REASONABLE ACCOMMODATION, THEY CAN CERTAINLY SEEK SOME MEDICAL DOCUMENTATION ABOUT THAT.

OR IF THE EMPLOYER BELIEVES THAT THE EMPLOYEE POSES A DIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYER OR OTHERS, THEN THEY ARE ALLOWED TO OBTAIN SOME DISABILITY RELATED INFORMATION AS LONG AS IT IS NARROWLY FOCUSED IN DETERMINING WHETHER THAT EMPLOYEE POSES A DIRECT THREAT.

SO WHAT IS A DIRECT THREAT?

WE TALKED ABOUT THIS A LITTLE BIT EARLIER, BUT DIRECT THREAT IS SIGNIFICANT RISK OF SUBSTANTIAL HARM TO HEALTH OR SAFETY OF INDIVIDUAL OR OTHERS THAT CANNOT BE ELIMINATE OR REDUCED BY REASONABLE ACCOMMODATION.

IT REQUIRES INDIVIDUALIZED ASSESSMENT AND HAS TO BE BASED ON REASONABLE MEDICAL JUDGMENT.

A DIRECT THREAT CERTAINLY ISN'T, YOU FIND OUT SOMEONE HAS A DISABILITY OR SOMEONE HAS MENTAL HEALTH DISABILITY, AND EMPLOYER KIND OF PANICS AND ASSUMES SOMEBODY IS A DIRECT THREAT.

THAT'S NOT GOING TO CUT IT.

BUT MAYBE SOMEONE THEIR JOB IS TO OPERATE HEAVY MACHINERY, AND FIND OUT THE EMPLOYEE HAS MAYBE SOMETHING LIKE NARCOLEPSY OR SOMETHING LIKE EPILEPSY OR SOMETHING LIKE MAYBE THERE IS A REASON FOR A CONCERN.

AGAIN, IT HAS TO BE BASED ON INDIVIDUALIZED ASSESSMENT, HAS TO BE BASED ON REASONABLE MEDICAL JUDGMENT.

THAT MIGHT BE A SITUATION WHERE YOU CAN ASK FOR LIMITED MEDICAL DOCUMENTATION TO ENSURE THAT THE INDIVIDUAL WOULD NOT BE A DIRECT THREAT.

SO, REMEMBER, ALL OF THOSE REQUIREMENTS ARE FOR MEDICAL EXAMS AND INQUIRIES.

ONE QUESTION I GET ALL TIME ARE, OKAY, WHAT ABOUT DRUG TESTS.

THE QUESTION IS, OKAY, ARE DRUG TESTS MEDICAL EXAMS AND INQUIRIES.

BECAUSE IF DRUG TESTS ARE, THEY WILL BE SUBJECT TO THE SAME REQUIREMENT.

IF DRUG TESTS AREN'T, THEN THEY ARE NOT GOING TO BE.

AND IT IS PRETTY CLEAR THAT DRUG TESTS ARE NOT CONSIDERED MEDICAL EXAMINATIONS.

SO BECAUSE OF THAT, THEY ARE NOT GOING TO FALL WITHIN THOSE REQUIREMENTS THAT WE JUST WENT OVER.

THAT BEING SAID, EMPLOYERS CAN'T USE A DRUG TEST AND THEN USE THE RESULT OF IT TO SCREEN SOMEONE OUT FOR SOMETHING THAT FOR A DISABILITY RELATED REASON.

SO JUST AN EXAMPLE OF THAT TYPE OF SITUATION IS CONNALLY CASE FROM 2008.

IN THAT CASE, THERE WAS AN APPLICANT TO TOOK LEGALLY PRESCRIBED CONTROLLED SUBSTANCE TORE A BACK CONDITION.

AGAIN, BECAUSE A DRUG TEST IS NOT A MEDICAL EXAM, THE APPLICANT WAS ABLE TO OR EMPLOYER WAS ABLE TO REQUIRE THE APPLICANT TO TAKE THIS DRUG TEST.

AFTER TAKING THE DRUG TEST, THE BANK RESCINDED THE OFFER.

ULTIMATELY THIS WENT TO COURT.

THE COURT SAID IN THIS CASE COULD MOVE FORWARD.

THE COURT EXPLAINED THAT EVEN THOUGH A PRE EMPLOYMENT DRUG TEST FOR ILLEGAL DRUGS DOESN'T VIOLATE THE ADA, IF YOU FIND OUT IF THE DRUG TEST REVEALED SOMETHING ABOUT LEGALLY PRESCRIBED SUBSTANCE, EMPLOYERS CAN'T USE THAT TO MAKE A DECISION THAT WOULD OTHERWISE VIOLATE THE A.

DA.

IN OTHER WORDS, YOU CAN'T USE DRUG TEST TO BE FREE PEEK INTO A MEDICAL HISTORY, AND USE THE DRUG TEST TO GET AT INFORMATION YOU WOULD NOT HAVE OTHERWISE BEEN ABLE TO GET AT.

I THINK THAT ILLUSTRATES, THE PRINCIPLE, YES, EMPLOYERS CAN DO DRUG TESTS, BUT, NO, THEY CAN'T USE RESULTS OF DRUG TESTS TO DISCRIMINATE AGAINST PEOPLE WITH DISABILITIES.

OF COURSE, THIS STUFF IS COMPLICATED AND I KNOW WE HAVE GONE THROUGH IT PRETTY QUICKLY.

I WANT TO MAKE SURE TO GIVE RESOURCES FOR MEDICAL EXAMS AND MEDICAL INQUIRIES.

SLIDE 65, I HAVE LINKS TO FOUR DIFFERENT DOCUMENTS THAT I THINK ARE REALLY HELPFUL IN UNDERSTANDING THE RULES AND REQUIREMENTS FOR MEDICAL EXAMS AND INQUIRIES.

WE ARE NEARING TOWARDS THE END.

BUT I HAVE A COUPLE OTHER ISSUES TO GO OVER RELATIVELY QUICKLY.

THE FIRST IS DISABILITY HARASSMENT.

COURTS HAVE CONSTRUED THERE TO BE A CAUSE OF ACTION FOR DISABILITY HARASSMENT, THE SAME WAY THERE WOULD BE HARASSMENT BASED ON RACE OR RELIGION OR OTHER SORTS OF PROTECTED CLASSES.

THERE ARE FIVE DIFFERENT ELEMENTS THAT SOMEONE WOULD NEED TO SHOW TO SHOW THAT THEY EXPERIENCED AN ADA HARASSMENT CLAIM.

THE INDIVIDUAL HAS TO SHOW THEY ARE QUALIFIED INDIVIDUAL WITH DISABILITY WHICH IS WHAT WE WENT OVER EARLIER.

THEY WOULD NEED TO SHOW THEY ARE SUBJECTIVE TO UNWELCOMED HARASSMENT.

THEY WOULD NEED TO SHOW THE HARASSMENT WAS BASED ON THEIR DISABILITY AS OPPOSED TO BASED ON SOMETHING ELSE.

THEY WOULD NEED TO SHOW, AND THIS IS THE HARDEST ONE BOTH FOR DISABILITY AND FOR OTHER TYPES OF PROTECTED CLASSES WOULD HAVE TO SHOW THAT THE HARASSMENT WAS SUFFICIENTLY SEVERE OR PERVASIVE TO OFFER TERM, CONDITION OR PRIVILEGE OF EMPLOYMENT.

THERE HAS TO BE SOME FACTUAL BASIS TO IMPUTE LIABILITY FOR THE HARASSMENT OF THE EMPLOYER.

THE EMPLOYER KNEW OR SHOULD HAVE KNOWN, THAT THERE WAS HARASSMENT, AND FAILED TO MAKE PROMPT REMEDIAL ACTION.

DISABILITY HARASSMENT CHARGES, CASES ARE SOMETIMES IT IS A PRETTY IT IS A HARD THRESHOLD TO MEET TO SHOW THAT SOMETHING IS DISABILITY BASED HARASSMENT.

BUT I THINK THE NEXT CASE GIVES GOOD EXAMPLE OF COPPED THAT CERTAINLY WOULD BE DISABILITY BASED HARASSMENT.

I APOLOGIZE, SOME OF THE WORDS HERE ARE NOT MY WORDS.

I WANT TO MAKE SURE THAT EVERYONE UNDERSTANDS THESE ARE WORDS COMING DIRECTLY FROM THE CASE.

ESSENTIALLY HERE IN THIS DISTRICT COURT OF MINNESOTA CASE, SCHWARZKOPF CASE, THERE WAS EMPLOYEE WHO HAD DEPRESSION AND ANXIETY DISORDERS.

WORKED FOR A COMPANY FOR SEVERAL YEARS.

AFTER DISCLOSING HIS DISABILITY, WAS STARTED NAMES, HIS EMPLOYER CALLED HIM STUPID, IDIOT, MENTAL CASE, DUMB, INDEPENDENT.

HE WAS CALLED THESE NAMES ON A DAILY BASIS.

ALSO, CALLED THE SUPERVISOR CALLED PEOPLE WHO RECEIVED SOCIAL SECURITY DISABILITY BENEFITS, THIS IS A WORTHLESS PIECES OF SHIT, AND MADE COMMENTS ABOUT SHUTTING A SHOCK COLLAR AROUND THE PERSON BECAUSE HE WAS SO FORGETFUL.

TERRIBLE, TERRIBLE LANGUAGE.

PLAINTIFF DECIDED TO TAKE A MEDICAL LEAVE TO RECOVER FROM THE ANXIETY CAUSED BY THIS WORK PLACE CONDUCT.

THEN WAS EVENTUALLY TOLD HE VOLUNTARILY RESIGNED FROM THE POSITION.

SO HE ULTIMATELY FILED A LAWSUIT, AND CLAIMED THINGS SUCH AS HARASSMENT AND NUMBER OF OTHER THINGS, RETALIATION, CONSTRUCTIVE DISCHARGE, AND THE COURT FOUND THE PLAINTIFF COULD MOVE FORWARD ON HIS DISABILITY HARASSMENT CLAIM AND THE REASON AND MADE VERY CLEAR THE COMMENTS THAT WERE MADE BY THE SUPERVISORS WAS ABSOLUTELY SEVERE AND PERVASIVE, AND THERE WAS A CLEAR CONNECTION BETWEEN THE CONDUCT AND HIS INCREASED ANXIETY AND DEPRESSION.

CERTAINLY, DISABILITY HARASSMENT CLAIMS ARE HARD TO PROVE, BUT FACTS LIKE THESE ABSOLUTELY GIVE RISE TO THAT TYPE OF CLAIM WHICH IS WHY IT IS GOOD COURTS HAVE CONSTRUED THAT THERE BE A CAUSE OF ACTION FOR DISABILITY HARASSMENT.

DISABILITY LAWS ALSO INCLUDE RETALIATION PROTECTION.

ESSENTIALLY IF AN EMPLOYEE ENGAGES IN A COVER, PROTECTED ACTIVITY SUCH AS ASKING FOR AN ACCOMMODATION, FILING A CHARGE OF DISCRIMINATION WITH IDHR, OR FILING A CHARGE OF DISCRIMINATION WITH THE EEOC, THOSE ARE THINGS THAT ARE PROTECTED ACTIVITY.

IF EMPLOYER, EMPLOYMENT AGENCY OR LABOR ORGANIZATION TAKES AN ADD VERSUS ACTION AGAINST THIS COVERED INDIVIDUAL BECAUSE OF THE PROTECTED ACTIVITY, THAT'S GOING TO GIVE RISE TO RETALIATION CLAIM.

RETALIATION LAWS ARE IMPORTANT DOUGH SO THAT INDIVIDUALS ARE ABLE TO BASICALLY ADVOCATE FOR THEMSELVES AND GET BE ABLE TO ASK FOR THE ACCOMMODATIONS THEY NEED WITHOUT BEING WITHOUT FACING FEAR OF BEING TREATED DIFFERENTLY BECAUSE THEY ARE ADVANCING THEIR OWN CIVIL RIGHTS.

FINALLY, I WANTED TO NOTE THAT THE DISABILITY RIGHTS LAWS ALSO INCLUDE INFORMATION ABOUT CONFIDENTIALITY.

ESSENTIALLY WHAT THEY REQUIRE IS THAT DISABILITY RELATED INFORMATION AND ACCOMMODATION INFORMATION NEEDS TO BE KEPT CONFIDENTIAL.

OF COURSE, THERE IS SOME INSTANCES WHERE THIS INFORMATION IS DISCLOSED AND SHOULD BE DISCLOSED FOR PEOPLE LIKE SUPERVISOR, PARTICULARLY EMERGENCY MANAGEMENT FOLKS, BUT GENERALLY, THE INFORMATION IS SUPPOSED TO BE KEPT SEPARATE AND OUTSIDE OF A PERSONNEL FILE.

IT IS SUPPOSED TO BE KEPT IN SEPARATE MEDICAL FILE, AND IT IS SUPPOSED TO BE LOCKED.

I GET QUESTIONS FROM EMPLOYERS FREQUENTLY ASKING, WHAT SHOULD I TELL OTHER EMPLOYEES WHEN AN EMPLOYEE IS ASKING WHY SOMEONE GETS "SPECIAL TREATMENT", THEY WANT TO PROCEED WITH CAUTION.

EMPLOYERS SHOULD SAY GENERALLY THINGS IF WE ARE COMPLYING WITH WE ARE DOING THIS TO COMPLY WITH FEDERAL LAW.

YOU DON'T WANT TO EVER SAY, IF SOMEONE HAS A DISABILITY BECAUSE THEN YOU COULD BE VIOLATING A SEPARATE PROVISION OF THESE LAWS.

I THINK THAT AS A POLICY REASON, THAT MAKES SENSE.

YOU DON'T WANT OFFICE GOSSIP TO BE GOING AROUND OR PERSONAL INFORMATION ABOUT SOMEONE TO BE SPREAD THROUGHOUT THE WORK PLACE.

PRACTICAL TIPS.

A LOT OF THESE TIPS ARE GEARED TOWARDS EMPLOYEES.

I KNOW WE HAVE GOT A NUMBER OF EMPLOYERS ON THE PHONE OR ON THIS WEBINAR TODAY.

SO I HAVE SOME TIPS FOR EMPLOYERS WHICH I COULD FOLLOW UP AND SHARE AFTER IF ANYONE WANTS TO REACH OUT TO ME.

BUT SOME OF THE ONES FOR EMPLOYEES.

IT IS GOOD TO BE READY TO EXPLAIN GAPS IN EMPLOYMENT WHEN ARE YOU GOING TO A JOB INTERVIEW IF THAT REASON IS BECAUSE OF A DISABILITY.

NOW YOU HAVE PARTICIPATED IN THE WEBINAR, AND YOU KNOW THE QUESTIONS THAT ARE PROPER AND IMPROPER.

BUT WHAT DO YOU DO WHEN YOU GET TO THE INTERVIEW AND SOMEONE ASKS IMPROPER QUESTION?

YOU STILL WANT THE JOB, YOU STILL WANT TO BE ABLE TO MOVE FORWARD WITH THE INTERVIEW, AND ONE THING I HAVE HEARD A LOT WHICH I THINK IS A REALLY HELPFUL TIP IS JUST TO SAY, HEY, I'D LIKE TO FOCUS WHY I AM QUALIFIED FOR THE JOB AND TRY TO RESHIFT THE FOCUS OF THE INTERVIEW AWAY FROM A DISABILITY, AWAY FROM IMPROPER QUESTION, AND MOVE IT BACK TOWARDS THE QUALIFICATIONS AND THE JOB AT HAND.

IT IS ALWAYS IMPORTANT TO CONSIDER WHETHER TO DISCLOSE THE DISABILITY.

THERE ARE REASONS WHY YOU WANT TO, REASONS WHY YOU DON'T WANT TO. IT IS IMPORTANT TO HAVE THAT IT IS SOMETHING YOU AT LEAST WANT TO THINK ABOUT BEFORE YOU MAKE A DECISION ONE WAY OR THE OTHER.

WE TALKED A LOT ABOUT THE INTERACTIVE PROCESS.

I CANNOT EMPHASIZE ENOUGH THAT THE INTERACTIVE PROCESS APPLIES TO EMPLOYEES, AND TO EMPLOYERS.

YOU DON'T WANT TO BE THE EMPLOYEE WHO FAILED TO FOLLOW UP WITH YOUR EMPLOYER.

YOU DON'T WAN TO BE THE EMPLOYER WHO FAILED TO FOLLOWED UP WITH YOUR EMPLOYEE.

IT IS REALLY IMPORTANT YOU BOTH MOVE FORWARD AND ENGAGE IN INTERACTIVE PROCESS IN GOOD FAITH.

IDEA IS THAT BY DOING SO, YOU ARE GOING TO COME UP WITH A BETTER RESULT.

OF COURSE, EMPLOYERS SHOULD BE SURE THAT ANY MEDICAL RELEASE IS LIMITED TO THE NEED FOR AN ACCOMMODATION.

YOU DON'T WANT TO OVER ASK FOR INFORMATION THAT PROTECTS BOTH EMPLOYEES AND EMPLOYERS.

EMPLOYERS DON'T NECESSARILY WANT TO KNOW EVERY SINGLE THING ABOUT YOUR EMPLOYEE.

EMPLOYEES SHOULDN'T HAVE TO GIVEN INFORMATION UNRELATED TO THE ACCOMMODATION.

IF YOU ARE AN EMPLOYEE, AND YOU ARE REQUESTING REASONABLE ACCOMMODATION, IT IS IMPORTANT TO IDENTIFY YOUR IMPAIRMENT, YOUR LIMITATIONS AND YOUR REQUESTED ACCOMMODATIONS.

AGAIN, IT IS BEST PRACTICE TO PUT EVERYTHING IN WRITING AND TO DOCUMENT ALL OF YOUR INTERACTS.

IT IS IMPORTANT FOR ALL PARTIES TO BE AS FAR REACHES AS POSSIBLE IN EXPLORING ACCOMMODATION IDEAS.

FOR INSTANCE, IF ONE ACCOMMODATION IDEA WOULDN'T NECESSARILY WORK FOR YOUR EMPLOYER, MAYBE ANOTHER ACCOMMODATION IDEA WOULD WORK FOR YOUR EMPLOYER AND WOULD WORK FOR YOU.

IF YOU ARE AN EMPLOYEE AND YOU FEEL YOU HAVE BEEN DISCRIMINATED AGAINST, YOU HAVE THE RIGHT IN ILLINOIS TO SEEK A COPY OF YOUR PERSONNEL FILE.

AND, OF COURSE, YOU ALSO HAVE THE RIGHT TO ADD INFORMATION TO YOUR PERSONNEL FILE IF YOU SPRINGFIELD SOMETHING IS NOT ADEQUATELY DOCUMENTED.

UNLIKE OTHER LAWSUITS, WHERE YOU CAN JUST SOMETHING HAPPENS TO YOU, AND YOU CAN GO STRAIGHT TOW COURSE, THAT'S NOT THE CASE IN EMPLOYMENT DISCRIMINATION CASES.

YOU ARE ACTUALLY REQUIRED TO WHAT IS CALLED EXHAUST YOUR ADMINISTRATIVE REMEDIES.

YOU DO THAT BY FILING A CHARGE OF DISCRIMINATION WITH EITHER THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OR THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS.

IF YOU ARE GOING TO FILE WITH THE EEOC, YOU HAVE TO FILE WITHIN 300 DAYS.

IF YOU ARE GOING TO FILE WITHIN IDHR, YOU HAVE TO FILE WITHIN 180 DAYS.

PROCESS FOR FILING WITH EITHER OF THESE AGENCIES, YOU DO NOT NEED A LAWYER.

SOMETIMES IF YOU FILE YOU ARE OFFERED REMEDIATION.

THESE AGENCIES WILL ESSENTIALLY DO AN INVESTIGATION, ISSUE A FINDING BEING AN THEN NOT UNTIL YOU GET THE NOTICE OF RIGHT TO SUE FROM THOSE AGENCIES ARE YOU ABLE TO MOVE FORWARD AND FILE A CHALLENGE IN COURT.

AS I MENTIONED, THERE IS A NUMBER OF DIFFERENT RESOURCES.

THERE IS NO WAY I COULD POSSIBLY TALK ABOUT EVERYTHING THAT WE WOULD ALL WANT TO TALK ABOUT TODAY.

SO I ENCOURAGE YOU TO CHECKOUT OUT SOME OF THESE ADDITIONAL RESOURCES ON SLIDE 77, I HAVE A NUMBER OF DIFFERENT EEOC FACT SHEETS LINKS, AND I THINK THERE ARE HELPFUL ESPECIALLY IF YOU OR YOUR EMPLOYEES HAVE ONE OF THE DISABILITY SPECIFICALLY REACHED IN ONE OF THESE FACT SHEETS. THEY HAVE REALLY GREAT TIPS AND IDEAS.

AND HERE IS A NUMBER OF OTHER DIFFERENT RESOURCES.

AS I MENTIONED GREAT LAKES ADA CENTER IS AN ABSOLUTELY FANTASTIC RESOURCE.

IF YOU OR AN EMPLOYEE OR EMPLOYER HAS QUESTIONS ABOUT ADA ISSUE AND WANTS GREAT TECHNICAL ASSISTANCE.

YOU CAN CALL THEIR 1 800 NUMBER, AND YOU CAN CAULK TO EXPERIENCED TECHNICAL ASSISTANCE SPECIALIST AT NO CHARGE, AND TALK ABOUT ADA AND YOUR SPECIFIC SITUATION.

THERE ARE A NUMBER OF OTHER ORGANIZATIONS LISTED HERE, TOO, INCLUDING, I REFERENCED BEFORE, EQUIP FOR EQUALITY, ILLINOIS A DA PROJECT.

AND WITH THAT, I WILL OPEN THE FLOOR TO QUESTIONS.

BUT BEFORE I DO THAT, I WILL SEE IF SUSAN OR SUE WANT TO MAKE ANY OTHER REMARKS BEFORE I JUMP IN ON THE QUESTIONS.

>>SUE: WELL, THAT WAS GREAT.

LOTS OF INFORMATION, AND REALLY HIT ALL THE BIGGIES.

THE AMENDMENTS ACT, RACHEL, SOMETIMES THERE ARE QUESTIONS AS TO WHAT THE RULE CHANGE WAS, AND, OF COURSE, REAL CHANGE WAS THAT MORE PEOPLE NOW INCLUDED (INAUDIBLE) ONLY HAD ABOUT THREE QUESTIONS THUS FAR.

AND I AM START WITH THOSE.

THERESA PARKS ASKS WHAT ARE EXAMPLES OF (INAUDIBLE).

>>RACHEL.

SURE, SOMEONE COULD BE REGARDED AS HAVING A DISABILITY FOR A NUMBER OF DIFFERENT REASONS.

IT CAN BE SOMEONE DOESN'T EVEN HAVE A DISABILITY OR COULD BE SOMEONE REGARDED DOESN'T HAVE A DISABILITY.

A COUPLE OF EXAMPLES, I READ A CASE RECENTLY THERE WAS A RUMOR GOING AROUND ABOUT AN EMPLOYEE THAT THE EMPLOYEE HAD ALCOHOLISM.

EMPLOYEE DID NOT HAVE ALCOHOLISM.

HE HAD NO ALCOHOLISM AT ALL.

IT WAS TOTAL FALSITY.

BUT BECAUSE OF THIS RUMOR GOING AROUND, HIS EMPLOYER THOUGHT THAT HE HAD ALCOHOLISM, AND SO TREATED HIM DIFFERENTLY.

HE ESSENTIALLY REGARDED IT AS HAVING A DISABILITY.

SO THAT'S ONE EXAMPLE.

THERE ARE OTHER EXAMPLES WHERE MAYBE SOMEONE HAS MAYBE BECAUSE OF HOW THEY LOOK, SOMEONE ASSUMES THAT THEY HAVE A DISABILITY, EVEN THOUGH THEY DON'T HAVE A DISABILITY, THAT COULD BE ANOTHER EXAMPLE OF REGARDED AS.

BACK BEFORE THE ADA AMENDMENTS ACT, SOMETIMES SOMEONE REGARDED YOU AS HAVING A DISABILITY IF THEY THOUGHT YOU HAD SOME SORT OF CONDITION.

BUT THE CONDITION DIDN'T ACTUALLY RISE TO THE LEVEL OF THE SUBSTANTIAL LIMITATION AND MAJOR LIFE ACTIVITY.

SO YOU COULD STILL BE REGARDED AS HAVING AN IMPAIRMENT, EVEN IF IMPAIRMENT ITSELF DOESN'T UNSUBSTANTIALLY LIMIT A MAJOR LIFE ACTIVITY.

SO THE IDEA IS THAT IF SOMEONE IS GOING TO TREAT IF AN EMPLOYER IS GOING IT TREAT EMPLOYEE DIFFERENTLY, BECAUSE OF A DISABILITY, IT REALLY DOESN'T MATTER WHETHER WEATHER THE PERSON ACTUALLY HAS A DISABILITY.

THE EMPLOYER IS STILL ACTING BASED ON STEREO TYPES AND MYTHS, AND SO THAT EMPLOYEES SHOULD STILL BE PROTECTED AS SUCH.

I GUESS THAT'S ALSO THE SAME REASON THAT NOW EMPLOYEES ARE ENTITLED TO ACCOMMODATIONS BECAUSE IF YOU IF YOU ULTIMATELY DO NOT HAVE A DISABILITY, THERE IS NOTHING REALLY TO ACCOMMODATE, IF THAT MAKES SENSE.

IF I DIDN'T ANSWER THAT WELL ENOUGH, LET ME KNOW, AND I CAN GIVE MORE EXAMPLES.

LET'S SEE WHAT OTHER QUESTIONS THERE ARE.

>>SUE: I HAVE GOTTEN A COUPLE NOTES THAT I AM A LITTLE GARBLED.

SO I HAVE MOVED MY HEADSET AND MOUTH PIECE.

I HOPE THAT'S BETTER.

TAMMY HAD A QUESTION, WHAT IF A PERSON WITH A DISABILITY IS FIRED CLAIMING THEIR DISABILITY PROVIDED THEM FROM DOING THEIR JOB WHEN, IN REALITY, THEY ARE GETTING MORE WORK PUT ON THEM THAT WAS NOT COVERED UNDER THEIR JOB DESCRIPTION.

>>THAT IS A GREAT QUESTION, AND ONE THAT THERE IS UNFORTUNATELY I AM NOT SURE I WOULD BE ABLE TO GIVE YOU A DEFINITE ANSWER.

I WOULD BE HAPPY TO TALK WITH YOU A LITTLE BIT FURTHER TO LEARN SOME MORE FACTS.

REALLY DEPENDS ON A NUMBER OF DIFFERENT WAYS SITUATIONS.

EMPLOYERS CERTAINLY HAVE THE RIGHT TO MODIFY JOBS AND BUSINESSES CHANGE AND NEEDS CHANGE AND EMPLOYERS ARE ABLE TO CHANGE JOBS TO THE EXTENT THAT THEY NEED TO.

OF COURSE, IF A JOB IS CHANGED TO GET SOMEONE OUT BECAUSE THEY HAVE A DISABILITY, I MEAN THAT'S NOT GOING TO BE ACCEPTABLE.

IF THE ADDITIONAL JOB RESPONSIBILITIES THAT ARE ADDED TO JOB DESCRIPTION ARE A MARGINAL TASKS, THE PERSON WITH DISABILITY COULD ALSO ASK FOR AN ACCOMMODATION OF REMOVING MARGINAL TASKS, AND THAT WOULD BE A REASONABLE ACCOMMODATION UNDER THE ADA.

SO WITHOUT KNOWING, I GUESS, MORE OF THE FACTS, I UNFORTUNATELY CAN'T TELL YOU ONE WAY OR THE OTHER, BUT I WOULD BE HAPPY TO TALK TO YOU FURTHER AFTER THE PROGRAM.

>>SUE: THANK YOU.

I HAVE ONE MORE QUESTION.

I HAVE GOT MY PHONE RINGING ALSO.

LET'S SEE.

MEGAN ASKED, I AM CONCERNED ABOUT A CLIENT I WORK WITH GETTING FIRED BECAUSE THEY HAVE DIFFICULTY HAVING DIFFICULTY COPING SYMPTOMS.

WOULD THERE BE A VIOLATION?

>>AND THAT'S ALSO GOING TO BE I NEED LITTLE BIT MORE INFORMATION TO SAY WHETHER SOMETHING FIRST OF ALL, A COURT ONLY ONE WHO COULD EVER REALLY SAY IF S IS A VIOLATION OR NOT A VIOLATION, RIGHT.

BUT FROM MY PERSPECTIVE, I WOULD NEED MORE INFORMATION TO GIVE SOME GUIDANCE BUT GENERALLY, IF SOMEONE IS EXPERIENCING COPING SYMPTOMS, AND IT IS NOT IMPACT THE THEIR ABILITY TO DO THEIR JOB, THEN THE COPING SYMPTOMS, OF THEMSELVES, WOULDN'T BE ISN'T A REASON TO TERMINATE SOMEONE.

IF SOMEONE IS EXPERIENCING SOMETHING, AND BECAUSE OF THAT, ARE CURRENTLY UNABLE TO PERFORM THEIR JOB FUNCTIONS, THE QUESTION IS WHAT DO WE NEED TO DO TO HELP THAT PERSON PERFORM THEIR JOB FUNCTIONS.

MAYBE IT IS A MATTER OF CHANGING THE WAY WE ARE DOING SOMETHING IN THE WORK PLACE, MAYBE THERE IS AN ACCOMMODATION THAT WOULD ENABLE SOMEONE TO DO THEIR JOB.

IN THAT CASE, THE EMPLOYEE SHOULD ASK FOR ACCOMMODATION.

SOMETIMES SOMEONE IS EXPERIENCING SOMETHING WHERE, OKAY, AT THIS EXACT MOMENT IN TIME, I AM EXPERIENCING SOMETHING THAT TOTALLY PREVENTING ME FROM PERFORMING ESSENTIAL JOB FUNCTIONS, BUT I EXPECT TO HAVE MANAGED THIS AND IN TWO WEEKS, BE ABLE TO DO MY JOB FUNCTIONS.

MAYBE THE ANSWER IS, WELL, MAYBE YOU NEED TWO WEEKS OF LEAVE.

MAYBE SOMEONE IS EXPERIENCING SOMETHING, AND THEY THINK I AM NEVER GOING TO BE ABLE TO DO MY JOB AGAIN.

THEN THE CONVERSATION SHOULD GO TO, IS THERE POTENTIALLY REASSIGN.

, THE PERSON SHOULD CONSIDER.

IS THERE ANY OTHER VACANT POSITIONS FOR WHICH THAT INDIVIDUAL IS QUALIFIED THAT THEY WOULD BE ABLE TO QUALIFY FOR WITHOUT THESE COPING SYMPTOMS.

GOAL FOR EMPLOYEE AND EMPLOYEES SHOULD BE TO REMAIN IN YOUR CURRENT JOB.

IF THAT DOESN'T WORK, REASSIGN.

AND LEAVE ARE SOMETIMES GOOD OPTIONS FOR PEOPLE.

SO AGAIN, ANOTHER ONE OF THOSE FACT DE PRESENT SITUATIONS.

I WOULD BE HAPPY TO TALK TO YOU IF YOU WANT TO TALK ABOUT GETTING A GOOD SOLUTION.

>>GREAT.

THANK YOU FOR THAT ANSWER.

THERE IS A LOT OF QUESTIONS THAT COME UP AROUND THERE.

MUST A STATE AGENCY PROVIDE A REASONABLE ACCOMMODATION WHEN AN EMPLOYEE WITH DISABILITY CONTINUES TO USE ACCRUED BENEFITS BE BUT HAS NO MORE LEAVE TO USE.

I THINK YOU KIND OF COVERED THAT BEFORE, BUT I AM SURE IT IS IMPORTANT TO HEAR AGAIN.

>>RACHEL.

THE ANSWER TO THAT, AND I FEEL I WILL BE A LITTLE BIT OF A BROKEN RECORD HERE, BUT GENERALLY LEAVE IS A REASONABLE ACCOMMODATION AND LEAVE BEYOND ANY ACCRUED BENEFITS, WHETHER THAT BE SICK TIME, VACATION TIME, ANY SORT OF PTO, OR FMLA LEAVE CAN BE A REASONABLE ACCOMMODATION UNDER THE ADA.

I AM SORRY, UNDER ANY DISABILITY RIGHTS ACT, INCLUDING ILLINOIS HUMAN RIGHTS ACT, AND REHAB ACT, WHETHER IT IS REASONABLE FOR A SPECIFIC EMPLOYEE AT A SPECIFIC AGENCY, REALLY DEPENDS ON THE EMPLOYEE'S JOB, AND OTHER SORTS OF FACTORS SUCH AS THAT.

BUT GENERALLY COURTS SAY THAT LEAVE BEYOND ACCRUED BENEFITS IS A REASONABLE ACCOMMODATION.

QUESTION IS HOW MUCH LEAVE IS REASONABLE, AND AGAIN COURTS GENERALLY SAY THAT INDEFINITE LEAVE IS NOT REASONABLE.

SO WHAT IS REASONABLE IN ANY GIVEN SITUATION IS GOING TO VARY.

BUT SOME LEAVE IS GENERALLY CONSIDERED TO BE REASONABLE.

>>SUE: I THINK IT WOULD BE WISE FOR THE AGENCIES TO WHEN YOU HAVE AN EMPLOYEE THAT MAYBE IN THIS POSITION, WHERE THEY HAVE LIQUIDATED ALL THEIR TIME BUT THEY ARE ASKING FOR SOMETHING ELSE, THE REASONABLE ACCOMMODATION PROCESS IS EMPLOYEE DRIVEN.

I THINK TO PROTECT THE AGENCY OR THE EMPLOYER, I THINK IT WOULD BE A GOOD PRACTICE TO, YOU KNOW, NOTIFY THAT EMPLOYEE.

YOU MIGHT PROVIDE OR YOU MIGHT REQUEST A REASONABLE ACCOMMODATION.

BUT I THINK THE OTHER THING HERE THAT IS VERY CLEAR, NOTHING UNDER THE ADA STATES THAT THE LEAVE GIVEN IS WITH PAY.

YOU JUST MIGHT BE GIVEN ADDITIONAL TIME OFF FROM WORK, DEPENDING ON THE CIRCUMSTANCES, BUT IT DOESN'T NECESSARILY COME WITH PAYMENT.

SO I THINK IT IS A GOOD PRACTICE FOR THE EMPLOYERS TO OFFER A REASONABLE ACCOMMODATION TO THE EMPLOYEE.

AT LEAST OFFER THE POINT IN WHICH THE EMPLOYEE CAN ASK FOR ONE.

>>THAT'S A REALLY GOOD POINT, SUE.

THANKS FOR CLARIFYING, PAID VERSUS UNPAID DISTINCTION.

I SEE THERE IS ANOTHER QUESTION ABOUT HOW CAN THE ADA APPLY WITH THE STATE RUTAN PROCESS.

SUE, OR SUSAN, WOULD EITHER OF YOU BE ABLE TO TAKE THAT, GIVEN THAT YOU ARE MORE FAMILIAR WITH THE STATE PROCEDURES THAN I AM?

>> SUSAN: THIS IS SUSAN ALLEN.

RUTAN IS A STRUCTURED INTERVIEW PROCESS THAT THE STATE USES IN MOST OF ITS INTERVIEWS TO RANK INTERVIEW QUESTIONS.

ANYONE HAS A RIGHT TO ASK FOR AN ACCOMMODATION TO THE RUTAN PROCESS AND THE ACCOMMODATION REQUEST WILL BE CONSIDERED.

SO IF A PERSON WITH AN INTELLECTUAL DISABILITY WANTS TO BRING IN ANOTHER PERSON TO INTO THE RUTAN INTERVIEW, GENERALLY, THAT'S NOT ALLOWED.

BUT IF A PERSON WITH A DISABILITY WANTS TO REQUEST THAT, THAT WOULD BE CONSIDERED, AND IT IS DONE ON A CASE BY CASE BASIS. BUT RACHEL, IF YOU HAD ANY OTHER THOUGHTS ABOUT THE TYPE OF ACCOMMODATIONS THAT COULD BE CONSIDERED IN TERMS OF INTERVIEW, YOU WANT TO TALK ABOUT THAT.

PEOPLE MIGHT WANT TO HEAR THAT.

>> RACHEL: WITH QUESTION ASKED TO APPLICANTS ARE ALL THE SAME, IN SOME WAYS THAT'S EXTREMELY CONSISTENT WITH WHAT THE REQUIREMENTS ARE FOR, YOU KNOW, QUESTIONS BEING ASKED DURING THE APPLICATION PROCESS BECAUSE YOU WOULDN'T WANT TO ASK SOMEONE SOMETHING DIFFERENT BECAUSE THEY HAVE A DISABILITY, AND THEN THAT WOULD BE CONSISTENT WITH WHAT THE REQUIREMENTS ARE UNDER RUTAN.

>>SUE: ARE THERE ANY OTHER QUESTIONS?

AS A REMINDER, YOU CAN SUBMIT YOUR QUESTIONS IN THE CHAT ROOM.

IF YOU WOULD LIKE.

WELL, SUSAN, IT DOESN'T SEEM LIKE WE HAVE ANY MORE QUESTIONS AT THIS TIME.

SO I GUESS THIS WILL BRING US TO THE END OF OUR PROGRAM.

I'D LIKE TO THANK OUR PRESENTERS, RACHEL FROM EQUIP FOR EQUALITY AND DIRECTOR COLLAPSE FROM THE DEPARTMENT OF HUMAN RIGHTS.

AN EVALUATION WILL APPEAR AS YOU CLOSE OUT THE WEB SITE.

WE WOULD APPRECIATE YOUR INPUT.

ICED WILL PROVIDE THE POWER POINT PRESENTATIONS FOR EVERYONE WHO REGISTERED FOR TODAY'S PROGRAMS AND INFORMATION ABOUT AND THE INFORMATION COMMENTING ON HOUSE BILL 4665 WHICH WILL EXTEND THE COMMITTEE'S AUTHORITY TO CONSTITUTIONAL OFFICERS AND TO THE COUNCIL ON DEVELOPMENTAL DISABILITIES.

WE WANT TO THANK EVERYONE FOR YOUR INTEREST IN REGISTERING AND PARTICIPATING IN TODAY'S INTERAGENCY COMMITTEE ON EMPLOYEES WITH DISABILITIES TRAINING.

THANK YOU VERY MUCH, AND HAVE A GOOD DAY.

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