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Rights on the Job for All

>>AMY SUSAN: Hi, I’m Amy Susan, Director of Communications for the Missouri Department of Labor.  For the past few weeks we’ve produced podcasts that surround the human resource sector of the workplace.  This week we are going to touch upon the topic of disability and how that relates to employment.  The reason this issue is so important is because we handle hundreds of these cases every year.  In fact, disability discrimination makes up nearly 30 percent of the discrimination cases filed with our department every year, the second leading cause of complaints and 78 percent of those cases were filed in employment.  I’m joined by Jeannie Mitchell.  She’s an attorney with the Department, who finds herself often working with HR quite a bit when it comes to identifying disabilities on the job and finding ways to accommodate them.  So, Jeannie, welcome.

>>JEANNIE MITCHELL: Hi.

>>SUSAN: Have you found there’s more than meets the eye when we talk about recognizing disabilities in the workplace?

>>MITCHELL: Certainly.  Not all disabilities are physical and employers need to keep that in mind.  An employer applicant with a disability is one that has a physical or mental impairment that substantially limits one or more major life activities or has a record of a disability or is regarded as having a disability.

>>SUSAN: Tell us about the laws set forth that provide guidelines and protections for individuals that have disabilities.

>>MITCHELL: The Americans With Disabilities Act and the Missouri Human Rights Act prohibit employment discrimination against qualified workers with disabilities and this includes all types of employment practices from hiring, firing, layoffs, trainings and even fringe benefits.  Both laws apply to all private employers with 15 or more employees and all state and local government employers, regardless of the number of employees.

>>SUSAN: Now, I understand the law also provides a layer of protection for individuals who do not have disabilities.

>>MITCHELL: Sure.  Employers cannot discrimination against an employee because of the employee’s relationship or association with a person with a disability.  For instance, if an employer disciplines an employee for taking time off to care for a child who is disabled but then does not discipline another employee for taking similar time off work, that would be discrimination.

>>SUSAN: I would like to talk about accommodations a little bit later but now really focus on how to identify disabilities in the workplace.  How can an employer prepare for making those accommodations before they even hire the person?

>>MITCHELL: Just want to make clear that employers have the responsibility to provide accommodations to individuals prior to employment.  This means that even job applicants with disabilities are protected, so a job applicant with a disability can--the basis for them not proceeding to the next level in the hiring process cannot be because of their disability.  An employer, during the interview process, should ask questions about the applicants experience or ability to do the job as opposed to the existence of a disability.  In fact, the employer is prohibited from asking about the existence of a disability during the application stage and also prohibited from having the applicant submit a medical questionnaire or having them perform a medical exam.

>>SUSAN: Well, how can the employer get to the nuts and bolts in finding out if that person can perform the job duties needed?

>>MITCHELL: They simply need to ask.  They can ask the applicant, can you perform the job duties.  They can even ask the applicant to explain how they would perform the job duties with or without an accommodation or to demonstrate how they would perform the job duties with or without an accommodation.

>>SUSAN: Okay.  And by doing that, the interview becomes more about the person’s qualifications and less about the disability.

>>MITCHELL: Exactly.

>>SUSAN: What if the disability is not mentioned at all by the employee or the employee does not discover that they have a disability until later on?

>>MITCHELL: What I want to stress here is communication.  It is the employee’s responsibility to communicate the existence of a mental or physical disability to the employer and once that employer finds out about that then the employer has a right to request medical documentation.  Let’s say, the employee initially just notices that something’s not right at work and then they go see a doctor and later find out that it’s because of a disability and that disability is affecting the workplace, then at that time the employee needs to communicate that to the employer and the employee can say these are the recommendations from my doctor and these are my job restrictions and, again, the employer can request medical documentation.

>>SUSAN: Lastly, I’d like to talk about some of those reasonable accommodations.  Can you provide some examples of this?

>>MITCHELL: Reasonable accommodations vary, depending on the disability and the job functions of the employee.  A reasonable accommodation can be making a workplace accessible to a wheelchair user or walker, providing a reader for the blind, interpreter for the hearing impaired or it could be dimming the lights above a workstation or providing noise-cancelling device or headphones to someone who has difficulty concentrating.

>>SUSAN: What modifications would be deemed as unreasonable?

>>MITCHELL: An employer does not have to provide personal use items, such as eyeglasses or hearing aids.  Also, employers do not have to provide an accommodation if it would be in an undue hardship and they determine that looking at the nature and the cost of the accommodation and also if the accommodation would be too disruptive to the workplace.

>>SUSAN: Okay.  An example of that would be maybe a little bit more challenging for say a smaller employer to make all the necessary modifications versus a larger employer and they may be able to make those modifications and may be reasonable to them.

>>MITCHELL: Exactly.  A bigger employer generally can absorb more costs than a smaller employer can.

>>SUSAN: Jeannie, you provided a lot of great information for both employees and employers surrounding disability in the workplace.  Do you have any other resources or information you could send people to?

>>MITCHELL: Certainly.  A great tool is Job Accommodation Network, which is a service provided by USDOL’s Office of Disability Employment Policy, which is on our screen.  They can also visit our website, which has an online assessment to help identify discrimination, as well as a tool titled Job Questions That Cross the Line.  This helps job applicants and employers understand acceptable interview questions.

>>SUSAN: Great.  Well, be sure to check out those websites as well as other links and helpful resources that are placed below this video.  Thank you, Jeannie, for joining us today.

>>MITCHELL: Thank you for having me.

>>SUSAN: Next week we will visit with Tammy Cavender again to talk about FMLA and how to handle potential abuse of this law in the workplace.  Thanks.