This episode is our first of at east two episodes dedicated to Title I of the Americans with Disabilities Act. Title I is critical to those of us with disabilities, because it covers employment.

This episode focuses on important definitions under Title I. Some of this will be review for those of you who reviewed the posts on Titles II and III.

DisclaimerThe information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

IntroductionDuring the month of January I will be covering employment of people with disabilities. Specifically, I will be covering the Equal Employment Opportunity Commission’ (EEOC) regulations describing what compliance with Title I of the Americans with Disabilities Act means. The rules on Title I compliance developed by the EEOC are set forth in 29 C.F.R. § 1630. To make this easier to follow, I’m not going to review all of the citations in this episode. As always, links to the information covered here will be provided on the Demand Our Access website in the show notes accompanying this episode.

Given the amount of information in Title I compliance, I have divided the material up so it fits in two episodes. I’m also hoping that by leaving some time in both episodes there will be enough time for questions and comments. If you are not participating in the live version, you can email me at Jonathan@DemandOurAccess.com with any questions or comments you may have. You can also fill out the contact form at Demand Our Access.

Even though I don’t like the word "impairment" the reality is it is used in the law and every publication about the law. So, it is not possible to produce a presentation about Title I that doesn’t contain lots of uses of the word "impairment" and other words many of us with disabilities don’t use.

I will not be covering every aspect of Title I. Specifically, I’m not going to cover things that largely or completely relate only to employers, drug abuse, and additional concepts that I don’t believe are relevant to most people with disabilities.

Before getting into the material under Title I, I want to let you know that some of the material covered in this episode will be a review for those of you who have followed my presentations on Titles II and III. I’m repeating myself in areas like defining a disability so that people who have not reviewed the material on Titles II and III will get what they need from my coverage of Title I. That being said, I will be getting into concepts that are unique to Title I during this episode. If you have heard my presentations on titles II and III, there will be new information for you in this episode.

Title IImportant Things to Know* For an employer to be covered byTitle I, it must have at least 15 employees. * The United States government is not subject to the provisions of Title I; however, Section 501 of the Rehabilitation Act of 1973 provides similar protections for federal positions. Will be covering sections of the Rehabilitation Act later this year. * To be clear, state and local governments are covered by Title I. If you work or you are interested in working for a state or local government, what I am covering here applies to you. * Private membership clubs (excluding labor organizations) are not covered by Title I. * Religious institutions are covered by Title I. but they may give preference to people of their religion. * Members of the clergy and people perform essentially religious functions are excluded from the protections of Title I.

Individuals with DisabilitiesTitle I, like Titles II and III, protects three categories of individuals with disabilities:

• Individuals who have a physical or mental impairment that substantially limits one or more major life activities
• Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities
• Individuals who are regarded as having such an impairment, whether they have the impairment or not

Physical or Mental ImpairmentPhysical disabilities include:

• Physiological disorders
• Cosmetic disfigurement
• Anatomical loss affecting one or more critical body systems

Mental disabilities include mental or psychological disorders, such as, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

I’m not going to list any of the qualifying disabilities listed in the law because the ADA Amendments Act. of 2008 requires broad coverage.

Substantial Limitation of a Major Life ActivityAn impairment substantially interferes with the accomplishment of a major life activity when the individual’s important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people. The consideration of whether a disability substantially limits a major life activity is not intended to require extensive analysis. The law is focussed on determining whether the employer violated the law and discriminated on the basis of disability.

Temporary ImpairmentsTemporary impairments are covered as long as the impairment substantially limits a major life activity. The issue of whether a temporary impairment is significant enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual. To be considered temporary, an impairment must be expected to last no longer than six months.

Mitigating MeasuresIn most instances, whether a person has a disability does not depend on their ability to limit the ways their condition substantially limits a major life activity. A person with severe hearing loss is considered disabled even though their hearing can be greatly improved through the use of a hearing aid. Someone whose epplepsey can be controlled through the use of medication is still considered disabled. The exception to this is the impact of ordinary eyeglasses and contact lenses on an individual’s ability to see. If the use of eyeglasses and/or contact lenses improve someone’s vision to the point where they are not considered low vision, they are not considered disabled under the law.

Record of a Substantial ImpairmentA record of a Physical or Mental Impairment That Substantially Limited One or More Major Life Activity is covered by the ADA. This protected group includes:

• A person who has a history of an impairment that substantially limited a major life activity but who has recovered from the impairment
• People who have been misclassified as having an impairment

Regarded as DisabledThe ADA protects certain people when they are regarded as having a disability that substantially limits one or more major life activity when they do not. Typically, this happens under one of the following three situations:

• An individual who has a physical or mental impairment that does not substantially limit major life activities, but who is treated as if the impairment does substantially limit a major life activity
• An individual who has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment
• An individual who has no impairments but who is treated by an employer as having an impairment.

Qualified Person with a DisabilityA qualified person with a disability under Title I is someone who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

Essential Functions of a JobEssential functions of a job are those that are fundamental job duties of the employment position the individual with a disability holds or desires. The term essential functions does not include the marginal functions of the position.

A job function may be considered essential for any of several reasons, including but not limited to the following:

• The function may be essential because the reason the position exists is to perform that function
• The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed
  • The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function

Evidence as to whether a particular function is essential includes but is not limited to the following:

• The employer’s judgment as to which functions are essential
• Written job descriptions prepared before advertising or interviewing applicants for the job
• The amount of time spent on the job performing the function
• The consequences of not requiring the incumbent to perform the function
• The terms of a collective bargaining agreement
• The work experience of past incumbents in the job
• The current work experience of incumbents in similar jobs

Reasonable AccommodationThe term reasonable accommodation means:

• Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position.
• Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable the individual with a disability who is qualified to perform the essential functions of the position.
• Modifications or adjustments that enable and employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.

Reasonable accommodation may include, but is not limited to the following:

• Making existing facilities used by employees readily accessible to and usable by people with disabilities
• Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities

To determine the appropriate reasonable accommodation it may be necessary for an employer to initiate an informal, interactive process. The interactive process should examine the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

Employers are required, absent undue hardship, to provide reasonable accommodations to an otherwise qualified individual with a disability who meets the definition of disability under the actual disability prong or the record of a disability prong of the tests to determine whether someone has a qualifying disability. This means that someone who is regarded as having a disability but who does not actually have a disability is not entitled to a reasonable accommodation under Title I.

Undue HardshipFactors to be considered when examining whether a particular accommodation constitutes an undue hardship on the employer include:

• The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding
• The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources
• The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities
• The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity
• The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business

Qualification Standardsthe personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired.

Direct ThreatDirect Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include

• The duration of the risk
• The nature and severity of the potential harm
• The likelihood that the potential harm will occur
• The imminence of the potential harm