- Okay, so like I said, I'm at Disability Rights Texas
and for those of you that don't know
Disability Rights Texas is the federally mandated
protection and advocacy organization
for people with disabilities in Texas.
Our mission is to advocate and advance the legal rights
of Texans with disabilities.
We are a non-profit organization and as part of that,
we provide free legal services to Texans with disabilities,
and we take discrimination cases in employment, housing,
and public accommodations,
but we also have a healthcare team
that works on issues around health care,
special education team, an education team
that does education issues, an institutional rights
and civil liberties team, a foster care team
that represents children with disabilities
in the foster care systems,
and then we also help with social security benefits
and VR services, vocational rehabilitation services,
if you're a client of TWC.
So I deal with employment discrimination, voting,
and public accommodations,
but other attorneys at our organization
do a lot of other issues to help people with disabilities.
At the end of the presentation, I'll have some information
about contacting Disability Rights Texas
if you have perhaps issues in any of these other areas.
You can also of course, go to our website,
which gives a more comprehensive and clear view
of the types of services that we offer.
In dealing with employment discrimination,
the laws against disability discrimination employment
are the ADA, which is the Americans with Disabilities Act,
but probably a lot of you've heard of it as the ADA,
Section 504 of the Rehabilitation Act,
which is a very similar law to the ADA,
but applies to entities that receive
any sort of federal funding.
So that includes federal contractors that are employers,
but also may include, in the public accommodation context,
like a daycare that receives federal funding
for their daycare program,
but would be traditionally probably thought of as,
as an entity that has to comply with federal laws
under Section 504, and also the Texas Labor Code,
which is the state law,
and also is very similar and has some overlap with the ADA.
But all of these laws potentially could apply,
and we'll talk first now about
what employers are covered by the ADA.
Most of this presentation is really gonna be focusing
on the ADA as the law that we're dealing with,
and the ADA has certain types of employers that are covered.
The first force is federal government agencies
have to comply with the ADA.
Any private employer with more than 15 employees
has to cover, has to meet the qualifications of the ADA.
And this is important because if it's less than 15 employees
they may not have any requirements to comply with the ADA.
So if you're wondering whether your employer is covered
or not, think about the number of employees it has,
15 or more has to comply with the ADA.
State and local governments of any size,
any federal contractors
with federal grants greater than 10,000,
and then finally for the Section 504,
employers that receive or give out federal assistance money.
These laws make discrimination illegal
in all employment practices.
So this includes when you're applying for a job,
when you're getting hired, going through the hiring process,
asking for promotions or getting promoted,
the pay that you receive, the treatment you receive
while you're at the job, and then of course,
protection from firing and discrimination,
if you are being fired for discriminatory reasons.
So essentially these laws protect you
in all aspects of employment.
In order to be a protected, to be protected under the ADA,
you have to be an individual with a disability,
and we'll get to a little bit more about
what a disability is in just a moment,
but you're protected if you have an actual disability,
like I said, we'll look at the actual definition
here in a second, or if you have a record of a disability.
So that may mean that you don't presently
have the disability, but you did have it in the past,
so you have a record of it.
So this might include something like cancer, for example,
that you presently don't have cancer,
you might be in remission,
but you're yet still protected because you have a record
of having had a disability in the past.
And then you also have to be qualified for the job,
and what that means is that you have to be able
to perform the job that you're talking about,
that we're dealing with, with or without an accommodation
and we'll talk more about that.
But so you have to be a person with an actual disability,
a covered disability, or having record of it
and then you also have to be able
to actually do the job itself.
There's another, another piece is that if you're regarded
as somebody having a disability,
and so that actually should be point C here on this page,
but this is somebody who is regarded as having a disability,
but may not actually have a disability,
but somehow their employer thinks they do.
And so the employer can't discriminate against them
based on this kind of belief
that they're being treated like they have a disability.
Now I have a note here that even if
you don't have a disability
and you're disregarded as having a disability,
but that's not enough to get an accommodation.
So you're protected from other types of discrimination
if you're regarded as having a disability,
but you are not entitled to an accommodation
because in this case, you don't actually have the disability
that you're being thought to have
and so you're not entitled to get an accommodation
for this disability that doesn't actually exist
or rise to the level of disability.
So, as I said, we were gonna talk about
what is a covered disability?
What are these actual disabilities
that I mentioned a moment ago?
So you would know if you're covered
as a person with disability
if you have a physical or mental impairment
that substantially limits one or more major life activity.
That's the third bullet on this PowerPoint,
and this is the kind of, these are the magic words
a physical or mental impairment
that substantially limits one or more major life activity.
And the major life activities we're dealing with here
are things like standing, walking, bending, reaching,
sleeping, concentrating, those are just a few of them,
but those are the types of things
that are considered major life activities.
The law is much broader now,
because of a couple of Supreme Court cases,
the law about what a disability was had become very narrow
and it was very hard in the courts to prove
that a person had a disability,
but because of Congressional action,
about 15 years ago let's say, the law became clarified.
And so the Supreme Court cases that had really narrowed
the definition of disability
were clarified through the ADA Amendments Act.
And so now we know that the view of disability
is much broader and it can do, covers a lot of conditions
that those narrowing Supreme Court cases
had prevented from being seen as disabilities.
But now we know the law
takes the view of disability very broadly,
and a lot more things are considered disabilities
than perhaps were considered
more than 12 years ago, more or less.
So some examples, here's some examples
of covered disabilities, and of course,
this is not, this is not comprehensive,
this is not everything,
but here are some things that could be covered
under the broader definition
or definition actually listed in the law.
That includes alcoholism, asthma, cancer, depression,
diabetes, epilepsy, heart disease, migraine, headaches,
orthopedic impairments, and complications from pregnancy.
I mentioned here, the complications from pregnancy
because pregnancy itself
usually is not going to be a covered disability,
but if there are some complications to the pregnancy,
something that makes the pregnancy potentially high risk,
that would potentially be
a covered disability under the ADA.
So complications from pregnancy can be covered,
but usually pregnancy by itself.
And then also any impairment that affects bodily systems,
such as neurological, digestive, immune
or endocrine system could be covered.
So this is something that the major life activity
is the bodily system.
So anything that changes the bodily system
we know could potentially be a covered disability
here let's say, using an example of diabetes
well, diabetes affects the endocrine system
and for that reason among others,
we would consider it a covered disability.
So if you're kind of wondering like, well, does this fit?
You know, I don't, this doesn't affect my walking
or this doesn't affect my bending,
think about, does it affect some other bodily system
in a major way because that's how you could get the coverage
of an impairment that affects bodily systems
is considered a covered disability.
The next slide deals with what about brief
or intermittent disability?
So things, these are things that kinda come and go,
are they considered disabilities?
Is this covered under the law?
And the answer is yes and no,
which is of course, a lot of the times
the answer is yes or no when we're dealing with the law.
But if it's a condition that is permanent,
but only has temporary periods of actual disability,
so something like this might be epilepsy, for example,
so this is a permanent condition,
but somebody only has a seizure perhaps twice a year
that is likely to qualify as a disability, yes.
But if the illness is brief
and the person is expected to recover fully,
so like here, the example is a sprained ankle or the flu
it is likely not going to be covered under the law.
Now there has been some guidance,
I'm sure people are wondering whether or not
COVID would be considered a disability.
And there has been some guidance from the EEOC,
which was the Equal Employment Opportunity Commission
that this idea of what's called long COVID
potentially is a disability,
so that would be covered under the ADA as a disability
and then be entitled to protections.
There's also some case law around whether COVID itself
just on its own would be considered a disability,
but again, if it's brief
and the person is expected to recover fully,
then that's likely not gonna be a covered disability.
And I say here, but don't assume because we don't know
whether or not something is brief or not
without kind of doing a deeper dig
into what the disability is.
So I mentioned very briefly about qualified
because remember, in order to be covered by the law,
you have to be a person with a covered disability,
which we just spoke about
and what that disability definition means,
and then also you have to be qualified
because if you're not qualified,
then you're not covered by the law.
So qualified means that you're able to perform
the essential functions of the job
with or without a reasonable accommodation.
So basically, can you do the job?
Can you do the job without an accommodation
or if not, can you do the job with an accommodation?
And if you can, then you're qualified.
So the key questions here are one,
what are the essential job functions?
Usually in, an employment listing
will list the essential job functions,
or perhaps you know on the job, once you're working it,
you can figure out pretty easily
what the essential job functions are.
And there's sometimes there's some dispute
about whether something is an essential function or not
and again, that's where it's not in the law
it's not clear always, it's not just yes or no,
it's not black or white
and so that sometimes is where people argue,
employers argue with employees
about what's an essential function,
but sometimes it is very clear
and you very much know what the essential functions are
and you know you can do them, or you know you can't do them,
but this idea of what are the essential
functions of the job?
Is another question to ask, and if you can do them
is a reasonable accommodation needed to do them?
And if so, did the employer go through the right process
of engaging with you on the reasonable accommodations?
So I talked a little bit in the previous slide
about the essential functions,
here it does go into a little bit more detail
about how the employer's judgment, so what the employer says
about what the essential functions are
often get some deference, meaning that the courts might pay
more attention to what the employer claims
essential functions are, but really at the end of the day,
it's made on a case-by-case basis.
Some ideas of helping to determine whether or not
it's an essential function is does that position exist
to perform that particular function?
Because if it does, that probably indicates more on the fact
that that's an essential function of the job.
Also the number of employees available
to perform that job function.
If your job is the only job in the whole organization
that performs that function,
then that's more likely to be an essential function.
If you work it with 100 people
and all 100 of you have to do that specific task,
then we know, well, then that's probably easier to identify
and put that specific tasks on somebody else,
so it may not be an essential function
of your particular job.
And then of course the degree or expertise,
the degree of expertise are still needed
to do that function, is it something that others could do
or is it really specific to your job?
And that's again, how to decide whether
or not something's an essential function
for the purposes of whether
or not you're qualified to do the job.
The next way deals with hiring and interview process,
and generally talks about what,
what are your employers obligations
when you're getting hired,
when you're going through the interview?
There is a prohibition under the ADA
that the employers are not allowed to ask you questions
that are likely to reveal or find out
if you have a disability before making the job offer.
We'll talk of course, a little bit about what happens
after a job offer is made in a moment,
but before a job offer is made, your employer can not ask
about questions that might reveal a disability.
So I have some examples in here of,
well, do you have a disability
that could interfere with your job
or your ability to do this job?
That's a pretty straightforward one,
but another one that might be less obvious
is, well, do you need an accommodation to perform this job?
So they can't ask these types of questions
until a job offer is made.
So can't ask you questions
about whether you take prescription drugs,
whether you've ever filed for workers' comp
or been injured on the job,
those are the types of things that would be prohibited.
But they can ask you about the qualifications for,
or your performance at the job.
So if you have to drive in order to do a job,
they can ask you whether you have a driver's license,
that's fine, they can ask you
can you operate heavy machinery?
If that's a thing that you would have to do for the job,
the only kind of limitation on that
is if it doesn't have to do with the job itself,
then it may get into territory that makes it more murky
and makes it probably less clear
that they should be asking you.
So if they ask you about operating heavy machinery,
and it's not a job where you're operating heavy machinery,
they may be trying to get at
whether you have a disability or not
when in fact it has nothing to do with the job.
So again, they can ask you about your qualifications,
they can ask you about whether you can do the job itself
or your performance of doing the job,
but there are limitations on that
because they have to relate
to the essential functions of the job.
So again, employers of course can ask
whether you can do the essential functions of the job
and the employers can ask about current illegal drug use.
So past illegal drug use,
and there's questions about how far past that can be,
that may be a covered disability because of drug addiction
being a covered disability under the ADA, potentially.
But if they're asking you about current illegal drug use,
that's okay, that's different
than asking about past illegal drug use.
And then the other time they can ask about things
is if they need to ask for medical documentation,
if you're requesting a reasonable accommodation,
and we'll talk more about reasonable accommodations
a little bit further into the presentation.
So as I said, before a job offer is made,
an employer can only ask so much,
but after a job offer has been made, things should change
employers can start to ask more information.
And they can ask questions of everyone
so long as these questions are asked
of everyone that has been hired for that position.
So they can begin to ask a little bit more,
they can also require a medical exam,
but again, as long as it's required of all new hires,
and then they can ask questions specifically about
that medical information after they receive it
and that's of course, only if it's medically related
to the previous information, they can't just kinda make up
new medical questions that they want
if it's not related to what the questions were
that they previously asked.
So reasonable accommodations,
this is probably the bulk of the presentation,
maybe what people are most interested in,
whether or not somebody is entitled
to a reasonable accommodation,
what a reasonable accommodation is,
and we spend a lot of our time
here at Disability Rights Texas
helping people get accommodations in their workplace.
As we've talked about, an employee with a disability,
we've defined what disability is
and we've defined who's qualified under the job,
employee with a disability is protected
if she can perform the essential functions of a job
with or without a reasonable accommodation.
Reasonable accommodations are changes, tweaks,
assistance in the workplace that help a person
do the essential functions of the job,
help them apply for the job
or help with other parts of the job.
And what that means is I have here examples
that are closer parking, accessible training,
things like that, that are not necessarily
with actually doing the job itself,
but help the employment in general
that help give that person equal access to the employment
that they wouldn't have otherwise.
And so again, things like closer parking,
accessible training, an accessible bathroom
things that are part of the job, but are not actually
part of the essential functions of the job.
So reasonable accommodations are to help with the job,
to help applying, and then to help
with these other miscellaneous parts of the job.
In order to get an accommodation,
an employee doesn't have to use any magic words,
that doesn't have to be in writing,
always a good idea to put this type of thing in writing,
but it's not required.
The accommodation request should disclose disability
and the limitations that the disability has,
and to actually, oftentimes if you can
ask for the specific accommodation that you want.
Sometimes we have clients that don't really know
what they want and they just say,
I need an accommodation, and that's okay,
but it's always better to suggest a specific accommodation
because you probably already know what that is,
what you need, and you put that in the request
and so your employer knows exactly what you're needing
and exactly what you're requesting.
At that point, the employer and the employee
should engage in what's called interactive process.
Interactive process is a back and forth between the employer
and the employee about how to make this work,
how to make this accommodation happen
if the accomodation that the employee asked for
is not quite something the employer could do,
well, then the employers should come back
with another suggestion
saying okay, well, not that, but how about this?
And so they should kinda go back and forth
until they come up with an actual accommodation,
and that's what's called the interactive process.
Sometimes the first request of the employee
is an accommodation that the employer just says, okay.
And there's really not a lengthy
or detailed interactive process
because the employer just comes back and says,
that works, let's do it,
here's how we're gonna implement it.
So that really just depends,
but if not, then they have to kinda go back and forth.
In terms of when an employer can ask,
can be the one that actually affirmatively goes forward
and asks the employer if they need an accommodation,
is when there's an obvious disability.
Otherwise an employer should not be the one approaching
the employee and saying, do you need an accommodation?
If there, if the disability is obvious,
or if the employee has actually already told
the employer about the disability,
then they can approach them and ask of the accommodation,
but otherwise that's not what the employer should be doing.
So the key takeaways here is an employee
doesn't have to say, I need a reasonable accommodation,
they don't have to use these magic words,
they don't have to say the ADA
or any kinda formal language.
It's helpful, if you wanna do that, that's great,
but it's not required, it doesn't have to be in writing,
but again, it's great if it is.
And then we know that using these words
helps makes things better,
but if you feel like you've already made
an accommodation request and it wasn't in writing
and you didn't use the key words,
know that that's still a valid accommodation request.
So then it begins, then we have the interactive process,
which I explained is about this good faith discussions,
of course, the employer shouldn't ignore their request,
the employer should also just not say just no,
and then not follow up.
Unfortunately, those things happen sometimes
and when that happens, that's when my organization
Disability Rights Texas might get involved.
And then I also always encourage employers
that the person with the disability
knows the most about what they need.
And so listen to them and understand them
and don't think that they're just trying to make,
make things more difficult for the employer.
The question about medical support is a good one
because oftentimes after the accommodation is made
for the request for accommodation,
or there is some question by the person with the disability
well, I don't know if I wanna request for an accommodation
because are they gonna have to ask
for my medical information?
I don't wanna disclose anything,
and so the question is, is medical support required?
Only if the employer asks for it,
but the employer does have the right
to receive some medical information.
Some employers don't ask for medical support,
but a lot of them do, so I think that that's something
that unless it's a very obvious accommodation
and a very obvious disability, it's likely
that there will be a follow-up on medical information.
And the employer doesn't have to pay for you
to see your doctor or another doctor
that you may need to see, unless the employer
is insisting that you see a particular doctor,
but typically this medical support
comes from your own provider,
the one that you've already been seeing for this condition.
And in that case, you may need to make your own appointment
and pay for your own appointment
to get this medical support.
A lot of my clients sometimes can just make the requests
through their doctor's kind of online portal.
And so that might save you some time
from having to make an appointment
and also save money from having to see the doctor,
it seems like that's pretty common for my clients right now,
but they can ask for some support
detailing kind of the accommodation that's needed,
that you have a disability
and the limitations of your disability.
They can't ask for a blanket medical release
giving you all of the records, all of your records.
So there is limitations on what they can get,
but they are entitled to confirmation of a disability
confirmation of the limitations of your disability
and confirmation of the need
for that particular accommodation.
So again, relatively brief what they need,
but they need to get that from your employer
that explains all of that information.
Employers are obligated to treat
this medical information confidentially,
and it has to be kept in a separate file
than your employee file,
so it can't be kept in kinda your general HR file.
And they can share that with your supervisors or managers
who need to know about your reasonable accommodation,
any sort of first aid or safety personnel
that would need to know if you required
some emergency treatment or assistance at work.
So if you've had a seizure at work
and this emergency management would need to know,
it can be shared with them.
And then also if there's ever any instance
where the ADA compliance is being investigated
or for worker's comp or insurance purposes,
that may be shared, if necessary.
When does an employer not have to provide an accommodation?
What are, what kinda excuses, let's use that word
does an employer have that are valid excuses
not to provide an accommodation?
The first is undue hardship, so an undue hardship
is anything that requires a lot of difficulty or expense.
So if an accommodation you request is too expensive,
then your employer doesn't have to do it.
And again, there's often arguments about this,
but sometimes it's easier to kinda know the answer
than others, if you're asking for something,
like you want a stool that's 29.99 on Amazon
that you know is gonna really help you
because of your disability,
it's gonna be unlikely that your employer is gonna say
that that's too much money, 'cause it was 29.99 on Amazon
and you work for a huge company that has lots of money.
So that's probably not gonna be an undue hardship.
If you work for a very small company
and your request is that they build you a new office,
that is built privately outside
of the current building or the current office structure,
okay, well then maybe we're getting
more into undue hardship.
So those are kinda two extreme examples,
but we need to think about what an undue hardship might be
and whether it is maybe too expensive.
And it doesn't just refer to cost,
that's one thing that's usually it refers to,
but it also can refer to things
that are just going to be too difficult to implement.
And again, we think about,
is it really too difficult to implement
or is your employer just being difficult themselves
by saying they can't do it?
Because sometimes we have employers who
just kinda lack the creativity or the motivation
or the desire to wanna do something
and they say it's too difficult
when in fact it really wouldn't be.
So that's something to consider under undue hardship as well
is difficulty or also financial expense.
The other requirement in which they can,
and I'm using epilepsy here as an example in this slide
is a direct threat of when they wouldn't have
to provide an accommodation
is if this employee is a direct threat.
So a person, for example, with epilepsy
can only be excluded from the job
if that person poses an actual direct threat.
So the employer can't just think of stereotypes
or generalizations or general fears about somebody
and say, okay, we have to exclude you
because you're a direct threat.
It has to actually be on about that specific individual
with that specific individuals
medical history and disability,
and it has to be something that can't be eliminated
or reduced through reasonable accommodation.
So if somebody is thought to be a direct threat,
but a simple accommodation could reduce that
or eliminate that threat, then we can't think of that
person being employed as a direct threat anymore.
So again, must be based on objective, factual evidence,
including medical evidence and advancements
in the treatment of whatever the disability is.
In this example, we have epilepsy
as the disability that we're using.
In addition, direct threat,
the employer also has to consider
the duration of the threat, is it once every two years
that it might be a threat or is it every day?
Also, of course, the nature and severity
of the potential harm from the threat,
the likelihood that it will occur and how imminent it is.
And also again, we wanna ask, we need to know,
could the threat be eliminated
with a reasonable accommodation?
Now I mentioned at the very beginning that our website
has some information that's probably gonna be useful to you.
So here's our Employment Discrimination handout,
it is everything that my presentation just included and more
so I'll give everybody a moment
to write down this website address,
but our website has information, not only about
the other types of services that our organization provides,
but also about handouts, so that it has information,
additional resources about employment discrimination,
has a lot of good COVID resources around the vaccine,
what you need to know about your rights under the vaccine,
about the vaccine and employment, about masks at work.
And so there's a lot, there's a COVID section
that you'll find probably some really helpful
and relevant information about employment and COVID,
and then also other issues around COVID
if you're having other issues as well.
- [Edie] Lia, this is Edie.
I just wanna let you know, I'm going to put the URL
in the chat so that people can just click on it.
And I'm actually gonna put a shorter URL in the chat for,
so that it's a little easier.
So everybody, if you could go to the chat for that.
- Very good, yes, that's great.
So I wanna give a couple of links here.
And the first one is something,
to something called the Job Accommodation Network.
The Job Accommodation Network is a really good website
that's very extensive, that gives you basically
all the information you need to know
about asking for a job accommodation.
It gives you a sample letter you can use for your employer,
it gives you a combination ideas by disability,
and it has a lot of different disabilities covered.
It gives you basic information about the ADA,
and it's just a really good, clear, comprehensive website.
The other nice thing about askjan.org
is it also has information for your employer.
So they write things specifically employers,
and you can print it out
and it explains things to employers
in a way that's very straightforward and clear.
So I definitely recommend going to askjan.org
about job accommodations, and then the EEOC also,
and of course in this example, I have epilepsy again,
but if you go to the eeoc.gov/laws,
that has good information just about the ADA generally,
and then you can look more closely
at the different types of disabilities.
askjan.org is more comprehensive
in terms of the types of disabilities covered,
but the EEOC has good information as well.
And then here's our information,
this is Disability Rights Texas,
this is our intake phone number,
and then our website address generally
for how to apply for services.
So this is if you wanna do an intake at our organization,
this is how to do it.
I'll leave that up for just a moment,
but then I'm gonna close my slide show
and just make my video larger
so I can look at the chats and answer some questions.
I saw different chats come in while I was speaking
and so I wanna make sure that if they're,
if they're able to be answered, I'll answer them.
But generally this is the presentation,
this is what I hope was helpful to you all
and giving you some just basic information
about your employment rights, and I will, like I said,
I'll go ahead and close the presentation,
I hope everybody was able to get this information down,
but I know it's also gonna be shared in the chat,
and then I'll also now look at the questions in the chat.
- [Edie] Actually, Lia, most of the questions
you need to answer are in the Q&A.
- Okay.
- [Edie] So you might want to go to the Q&A
and look at the first one that came in
is really under dismissed, and if you want to look at that
and I don't know if you feel like you can answer it or not.
- Okay, yeah, absolutely.
So I see that both the chat and the Q&A have questions.
- [Edie] I'll let you know anything that's in the chat,
but I think most, anything you need to answer is in the Q&A.
- Okay, I see both, thank you.
Okay, so I'm gonna look at this.
Okay, I was seeing that some of them were answered
and Edie, I see that you're answering
is just that they're going to be answered, okay, very good.
So the first question we have is can an organization
require a driver's license as part of job description
for a position that does not require driving?
And that's a really good question because that's an issue
that we see and probably not is the answer to that.
So essentially that is screening out people
that may be qualified for the job and can do the job
yet they're screening them out
by requiring a driver's license,
even though the job doesn't require driving.
So that's a really good question,
my answer to that is probably not.
I don't like when I see job applications
that say you need to have your driver's license
or list your driver's license number
yet there's no obvious way
that this relates to the job itself.
And so that's something that we are interested in,
and I would say, if you see that,
and that's something that's impacting you,
I would do an intake with us.
And that sort of thing really makes me very frustrated
because it very clearly can screen out
people with disabilities in a way
that is completely needless, and again, like I said,
I get very frustrated, I don't,
I don't like when I see that sort of thing.
So if that happens, I hope that you'll do an intake.
- [Edie] If you could, if you could go, Lia
to the, click on the thing that says Dismissed
and look at that question.
- Okay, when I do that, it says, no dismissed questions.
- [Edie] Okay, I'll send it to you.
- Okay, sure, so the next question is
do you have a list of available job coaches?
The quick answer to that is no,
but I would recommend working with TWC's VR,
vocational rehabilitation,
who can perhaps connect you with job coaches.
If you go to TWC's website, if you're not already a client,
you can apply for services there
and they can connect you with job coaches.
We don't have that information unfortunately,
we're a legal services organization.
And so typically we're not the ones
hooking people up with accommodations,
but that's a good question.
So the next question is what if an employer fires you
after you disclose a disability?
So just with that information of the question,
that concerns me a lot because that seems to be suggesting
that you got fired because of the disability.
I would need to know more about
what the specifics of this case are,
whether to say, if there's not some reason or not,
but yeah, just with that information, that does concern me.
And so again, you could do an intake with our organization,
or you can also file an EEOC complaint.
An EEOC complaint is something
that someone can do on their own.
You don't have to be a lawyer to do it.
You don't have to be, have a lawyer to draft it.
You can file it on your own if you go to the EEOC's website,
it has information on there about how to submit a complaint
and it's pretty straight forward that you fill out a form
with your name, information, the employer's name information
and then write a summary of what happened
and why you think this is disability discrimination.
Just because you disclose a disability
doesn't mean your employer should fire you.
So I'd wanna know more about the situation
to be able to see whether that's a really strong case
or perhaps there's something else going on
that makes it not as stronger case.
Okay, so I'm gonna see over here,
there's some other questions, somebody has asked,
what determines you to have a disability?
And it sounds like this person might have
a court in December to see if there's a qualification,
a court hearing in December
to see if there's qualification for disability.
I don't know enough about that question
to know there are different definitions of disability
depending on what the law you're dealing with is.
So somebody under the VA may have a disability
that is not qualified under the ADA,
the Americans with Disabilities Act
or somebody who has a disability
under the Social Security Administration
may not have a VA disability and vice versa.
So all these different laws
have different definitions of disability.
And so just because you're qualified under one does not mean
that you're automatically qualified under another law.
So I talked to my presentation about how,
what is qualified for disability under the ADA,
whether you have a substantial impairment
in a major life activity,
and also whether you have some impairment that affects
the bodily functions of your, in your life,
whether it be your immune system, your endocrine system,
your neurological system,
and that's what qualifies you generally under the ADA.
But again, that's different than the definition
under the Social Security Administration or the VA.
- [Edie] Lia, can you do me a favor?
Go back to the Q&A and under answered,
look for the one that starts with, from somebody named FB.
- Okay, I'm sorry, give me one moment,
I'm looking at the other
that somebody did say that if you need a job coach
for somebody who is deaf blind, there's an email
in the chat that you can perhaps help find somebody,
a job coach for somebody who's deaf blind.
And then also another attorney at our organization, Dinett
was kind enough to put a link to the EEOC, how to file
an employment discrimination claim under the EEOC.
Okay, so I see one more actually, Edie, that is quick
so I wanna answer it, so it asks, should someone
with diabetes always disclose that on application?
Generally, I would say no,
that unless you need an accommodation,
generally the idea is that you should not
disclose disability until it's necessary.
If you have diabetes and there's maybe an accommodation
that you need, then yeah, you may want to disclose it
or if you feel like there's a safety issue
that would make you wanna disclose it, you could,
but generally we recommend, unless there's a reason
not to disclose disability
because of the risks that people discriminate.
You know, if that risk wasn't there, then yes,
of course it would be something that you would share
if you wanted, and not sure if you didn't,
but because of this risk of discrimination,
it does kinda generally seem like a better idea
not to disclose disability unless necessary.
Okay, so let me read this longer question, one moment.
Okay, so there's, this is a really good question
is a really well-worded question.
Essentially this person is asking that
they had a chronic health condition,
sounds like it's probably covered as a disability
and you did an accommodation.
Once they made that request for an accommodation,
their employer changed the position to a classification
for which this person wasn't qualified
and reduced the salary by 10%.
And the new job functions made the disability worse
and eventually they were terminated
because of these changes in the employment.
So their question is, is responding
to an accommodation request by changing the job
to a classification for which the inquester
isn't qualified consistent with the legal requirements?
The answer is probably not.
So I would need to know of course,
more about what's going on,
but this does seem to me like the employer
refused the accommodations that you were requesting.
So you had some accommodations that were requested
and probably they were straightforward,
or they thought, you thought that they would be
something that can be implemented, but the employer here,
rather than implementing the requested accommodations
said no, we can't do that, here's something else.
So what was then provided was an accommodation
that was not effective, because like I said,
the interactive process, the employer has to kinda go
back and forth and they have to figure out something
with the employee, but whatever is figured out
with the employee has to be effective, it has to work.
So it doesn't necessarily have to be the accommodation
that the employee requests, it can be something else,
but it has to work.
We get into some disagreements sometimes
with employers about what that means.
And we also have to remind our clients sometimes
that you don't always get the accommodation you want,
as long as the accommodation you're getting
is one that works.
So here it sounds like that the employer
provided an accommodation that just didn't work
because it was a position that made the disability worse,
it was a position that didn't allow this person
to do the essential functions of the job
and it resulted in termination.
So this is an example of potentially
an employment discrimination case.
One thing to consider though, that I didn't mention
in our, in the presentation is the deadlines
to file an EEOC complaint.
Generally you have up to 300 days in the State of Texas
to file a complaint with the EEOC.
So I'm not sure when this happened,
but that's something to consider
before filing a complaint with the EEOC.
But if you've filed the complaint within that timeline,
this may be something that you'd be able to file on your own
or of course, you could contact
Disability Rights Texas intake,
and hopefully go through the EEOC process.
Okay, so let me see if there are any other,
yes, okay, here's another one.
What's the best way to request accommodations
if you need them, even for an interview?
Should you wait until you get an interview and then ask?
That's a really good question.
I think that waiting until you get an interview
and then asking is probably the best, the best
I mean, and that's just to mean
you need it for the interview
and not for the application itself.
We have clients who need an accommodation
just during the application process.
For example, maybe if there's an online application
and there's a video component of the application
that you have to watch and then fill out
and the video doesn't have captioning
for somebody who is deaf, or we have issues with the website
where you're trying to apply
is not accessible to screen readers.
So sometimes you need an accommodation
for the application itself,
but it sounds like that question was about the interview.
I would ask once you get the interview
to make sure that it doesn't impact
a decision about whether or not
to grant an interview to begin with,
and then oftentimes, though not always,
some employers are good about saying,
if you need an accommodation,
you can contact this person or this email.
And that, if not, you can reach out to the person
who is giving you the interview
and reached out to you to begin with.
Usually the people who set up that sort of thing are in HR
and should be, again, this is a big assumption,
but should be somewhat versed in this accomodation process.
HR is typically the branch of a company
and organization that handles accommodation requests.
Okay, so I see that there's a question
let's see, there's several questions.
One moment, let me go back.
- [Edie] And there are, there is one more question
in the Q&A as well.
- Yeah, I don't, I don't know what,
under what tab? - [Edie] Under Open.
- Okay, I already answered that one.
What if an employer fires you
after you disclosed a disability?
- [Edie] You have answered that.
- Yeah. - [Edie] Okay, thank you.
- Of course, okay, so let's see, I had.
Okay, so this person is wondering,
I guess it sounds like they need an accommodation
for a hearing loss and low vision,
and that it took a long time for the accommodations
to get implemented, and the question is, is this normal?
So it sounds like it took four months
for these accommodations, and then also in addition,
the process of getting these accommodations implemented
meant going through a lot of different people,
submitting information to HR, and CC-ing the supervisor,
waiting a month, nothing happening,
and also a concern that too many people
saw the medical records
and health records during this process.
Question, why didn't they direct me
to the ADA coordinator to begin with?
So this is a lot of pieces to it.
I will say that HR is the typical entity
that handles these types of requests.
Sometimes ADA coordinators may be the one that handles it,
but really, I think oftentimes, it's in HR.
So that doesn't necessarily seem unusual to me
or kinda have any red flags associated with it.
The length of time that it took is also very frustrating,
I don't know why it took that long
and frankly, it sounds like
they waited a month before they did anything
and so that's very concerning,
but sometimes we do see things take four months
to get implemented, and I say that with regret,
I say that with frustration,
but I don't know that it necessarily rises
to the level of a violation of the ADA.
I will say though, that sometimes when, in this four months,
we see somebody during this time
where they're having to wait,
start getting job performance docs that they're getting
a performance improvement plan or disciplinary action.
And then maybe sometimes while they're waiting
for their accommodation, they end up getting fired
because they can't do the job without the accommodation
and they're not performing.
So we understand the importance
and the problem with having a wait,
but sometimes if it takes a long time
and it's a very frustrating process,
but eventually it is implemented, that may not,
you may not have a claim at that point
because eventually you do have the accommodation in place.
And even though the process was very frustrating
and inefficient, there may not be an ADA violation,
but a good question about why it had to go through an HR,
there's nothing in the ADA that states
it has to go through an ADA coordinator, most organizations,
or a lot of organizations don't have an ADA coordinator
and so it is very common for it to go to HR,
but that's a good question, and that sounds very frustrating
and I'm sorry that, that you had to go through that.
So are people who can't get the vaccine
because of disability looked at as a direct threat?
So here, I think this part has kinda two questions.
The first is that, can't get the vaccine
because of a disability, that is a somewhat narrow section
of individuals who are not able to get the vaccine
because of a disability.
And typically there has to be really strong
and good medical support of why they can't get the vaccine,
and sometimes that medical support
has to even be beyond their own doctor.
It has to go through kinda experts on the vaccine
to be able to state that, yes, this disability is one that,
that means this person should not get the vaccine.
So sometimes that medical support
might be more than that person's doctor.
And then whether that person is a direct threat,
well here, there could be ways to mitigate,
to lessen any threat around being unvaccinated.
And so that might be having somebody
be in a different area of the office,
or maybe you have to always wear a mask
or get frequent testing.
And so I think that there are ways to lessen
any sort of direct threat argument
for not getting vaccinated,
but on that, I will say the disabilities
that prevent vaccination are relatively rare
and that those often have to be supported
by not just perhaps one's own doctor,
but other doctors as well,
but it does seem like there are ways
to lessen any direct threat pretty easily.
The next one, I guess, I don't know exactly what it means
it says, "For WOTC purposes, should people click
the I have a disability button?"
And I, unfortunately, I don't know what WOTC is.
If you're able to put it in a chat, I can answer it
maybe I see another message that just came in.
So Work Opportunity Tax Credit, so there are times where,
and I don't know enough about that,
but I will say that there are times where
because somebody is a federal contractor,
they have to ask questions about disability.
And so it may be beneficial for entities
to know whether or not somebody has a disability,
or maybe it's good because they are looking
to hire people with disabilities.
So I think that there are times,
and I don't know enough about this particular program,
but there are times, especially with this,
yeah, so if the employer,
the next piece is the employer gets credit
for employing different people like veterans who,
people that use food stamps or disabilities.
So this might be an example of which
it makes sense to disclose disability
if the employer is seeking to hire people with disabilities.
Let me see that, there might've been a couple more questions
- [Edie] There are a few more in the Q&A now.
- Okay, I'm back to that.
Okay, so the first one says that people don't feel safe
disclosing mental health disorder to their employers,
that's understandable, for fear of not getting hired,
stereotyped or fired, all understandable
and says, but what happens when they choose not to disclose
and they have an episode at work resulting in termination?
Does the employee have any rights at this point?
Had you disclosed you had an episode,
do they have any protections under the ADA?
So this is a really good question
and it's very complex in terms of the thinking
of what to do and when to do it.
But generally, if you have a disability
that you think you're gonna need an accommodation for,
you need to have disclosed it first.
And most of the time,
if you do it after the fact, it's gonna be too late.
So this question and this example of
they choose not to disclose,
and then have an episode at work resulting in termination.
If the employer didn't know about the disability,
then they are protected, the employer is
the employer usually can't have discriminated against you
if they didn't know that you were a person with a disability
And so had the person disclosed and had the episode,
then they have more rights because they may have the right
to an accommodation at work, and so in this example,
I would think about whether or not,
whether or not the person could have accommodations in place
that would have helped prevent have the episode,
having the episode at work.
So an accommodation in place because of the disability
might be taking leave, that I need to have leave at work
as an accommodation in place
such that I can, not call in, I can call in one day
if I feel like I'm having a specific issue
that I'm gonna be facing at work, or that if you're at work
and there's a time that you need to leave work
that you have that accommodation in place to begin with.
So that's, I mean, that's an idea
that's one example, that's not necessarily what it,
what the accomodation might be,
but I think that it makes sense to have requested
an accommodation in advance that maybe could help prevent
having that episode at work itself
and that would be an accommodation
that you should be entitled to.
But the question itself of what if I didn't tell my employer
and then I have an episode of work, am I protected?
The answer is probably not.
The next question is, is there a timeframe
to provide accommodations?
There isn't, so there's no,
there's nothing written in the law that says,
okay, if an accommodation is it provided in 10 days,
then they break the law,
or an accommodation is it provided in five months,
then they break the law, there's no like deadline or rule
and you have to provide an accommodation.
But in this example that we talked about earlier
that somebody was, somebody was waiting around
for four months to get their accommodation,
if that were to be a complaint or if it were to go to court,
we would look at what was happening in that four months?
Was the employer doing anything
or was the employer asking for the software to be delivered
and that was gonna take a month
and that was the only place to get it?
So kinda what was the process?
Why did it have to take this long?
At a certain point though
and again, it's not clear, there's nothing in the law,
but at a certain point,
if the employer does not provide an accommodation,
it's considered a failure to accommodate,
it's considered a denial of the accommodation request,
but it's not clear what that cutoff is.
But usually it's kinda wince,
a normal kind of perception would be,
okay, this employer is not providing this accommodation.
So at a certain point, when somebody,
anybody would just kinda give up and think,
okay, this person's never gonna provide this accommodation,
then that would be considered an outright denial,
which is different than just taking a long time.
So I've had accommodations that can take 10 months,
even a year to get implemented because they are complex
and it required doing a lot of different steps,
so ordering things or going through these motions,
but during that full time,
that full year that it was taking to get implemented,
stuff was happening, it's still frustrating,
but as long as the employer seems to be
actively working on the accomodation request,
it's probably not gonna be considered
a denial of the accommodation.
I think that we're almost out of time,
well, we are out of time
and there are a couple other, a couple other links
to the chats that people might wanna refer to
with good information, good resources.
So I would encourage everybody
to look at that sort of thing.
Everybody has our intake line,
you're welcome to do an intake with us
if anything in this presentation kinda raised your thoughts
about whether or not there was an ADA violation.
I thank everybody for your time,
I appreciate everybody's involvement
and I hope it was helpful.
So everybody have a good weekend
and take care, and thank you so much.