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**Compliance with**

**Disability Requirements and Section 504**

#####  {#section .CRC-MOA}

##### [Agenda]{.smallcaps}

#####  {#section-1 .CRC-MOA}

-   Presentation: Review of Learning Objectives

-   Presentation: Underlying Principles for Providing Equally Effective
    Opportunity

-   Presentation: Defining the Term "Disability"

-   Presentation: Discrimination Prohibitions

-   Presentation: Accessibility and Accommodation

-   Activity I: Accommodation/Accessibility

-   Presentation: Communications

##### **Presentation:** Employment Practices and Employment-Related Training Participation  {#presentation-employment-practices-and-employment-related-training-participation .CRC-MOA}

-   **Presentation:** Documentation of the Implementation of Compliance
    with Disability Requirements and Section 504

-   **Presentation:** State's Implementation of Compliance With
    Disability Requirements and Section 504

**[Learning Objectives]{.smallcaps}**

-   The participant will be able to explain the federal requirements, 29
    CFR 37.7-37.9 and 29 CFR, the implementing regulations for Section
    188 of WIA and Subparts B and C of 29 CFR part 32, the implementing
    regulations for 504 of the Rehabilitation Act.

-   The participant will be able to describe how the state guarantees
    that Compliance with Disability Requirements and Section 504 will be
    achieved.

-   The participant will be able to define the laws, legal theories, and
    acceptable practices related to providing services to individuals
    with disabilities.

-   The participant will be able to identify acceptable documentation
    for Compliance with the Disability Requirements of Section 188 of
    WIA and Section 504 of the Rehabilitation Act.

**[Principles for Providing\
Equally Effective services]{.smallcaps}**

WIA is committed to the principle that *[services]{.underline}* provided
to qualified individuals with disabilities *[are to be]{.underline}* as
effective as services provided to those without disabilities. Generally,
speaking, this means that the provision of services to persons with
disabilities (PWD's) is fully integrated into the provision of services
to nondisabled persons.

Depending on the particular needs or circumstances of individual service
seekers ("customers" or clients"), a WIA-assisted grant recipient is not
precluded either from providing different services, or from providing
the same or similar services in different ways. However, any such
differences that are rationalized and accepted on the basis of
'disability', must be justifiable as *[necessary,]{.underline}* i.e.,
*[meaningful differences that are 'legally permissible.]{.underline}*
Under the principles guiding WIA, the provision of these necessary
'special services,' as they are often referred to, must be just as
effective as so-called 'mainstream services'.

+----+-----------------------------------------------------------------+
| !  | ## Term to Know -- Qualified Person With a Disability           |
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+----+-----------------------------------------------------------------+
|    | > A qualified individual with a disability is a person who      |
|    | > satisfies the requisite skills, experience, education and     |
|    | > other job-related requirements of the employment or training  |
|    | > position that the individual holds or desires and who, *[with |
|    | > or without reasonable accommodation**, can perform the        |
|    | > essentia**l functions of the position.]{.underline}*          |
+----+-----------------------------------------------------------------+

+----+-----------------------------------------------------------------+
| !  | ## Term to Know -- Reasonable Accommodation                     |
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+----+-----------------------------------------------------------------+
|    | > Reasonable accommodation means:                               |
|    |                                                                 |
|    | -   modifications or adjustments to an application/registration |
|    |     process that enables a qualified applicant/registrant with  |
|    |     a disability to be considered for the aid, benefits,        |
|    |     services, training, or employment that is desired, and      |
|    |                                                                 |
|    | -   modifications or adjustments that enable a qualified        |
|    |     individual with a disability to take advantage of the same  |
|    |     privileges of the aid, benefits, services, training, or     |
|    |     employment as is provided to individuals without            |
|    |     disabilities.                                               |
+----+-----------------------------------------------------------------+

Laws Providing the Legal Structure for Serving Individuals with
Disabilities

-   **The Workforce Investment Act of 1998 (WIA)** reformed the nation's
    job training system in a number of ways. In particular, WIA required
    that states and local areas receiving federal financial assistance
    offer a range of different job training, education, and other human
    resource programs, through the One-Stop system.

    -   **Section 188 of WIA** bars discrimination on the basis of
        disability in programs, services, and employment (including the
        application process for any of these). Under Section 188,
        persons with disabilities must also be provided with reasonable
        accommodations and modifications for their disabilities. The
        section also requires that individuals with disabilities be
        given services alongside (not segregated from) people without
        disabilities, unless the program or activity providing services
        performs an individualized assessment of a particular individual
        with a disability and concludes that the individual needs
        special, segregated services.

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-   **The Rehabilitation Act of 1973 (the Rehab Act)** was the first
    federal law to specifically forbid discrimination on the basis of
    "disability." It applies to the federal government and to entities
    that receive federal funds. Later laws, specifically the Americans
    with Disabilities Act of 1990 (the ADA), built upon the foundation
    laid by the Rehab Act. Although the Rehab Act has been amended a
    number of times since 1973, its basic requirements remain the same.

    -   **Section 504 of the Rehabilitation Act**, **as amended,** is
        the section that is most relevant to WIA. It prohibits any
        program or activity that receives federal financial assistance
        (including those established by state or local governments or
        private entities), and any Federal Executive agency from
        discriminating against qualified persons with disabilities.

## 29 CFR (Code of Federal Regulations) Part 32 implements section 504 with respect to programs and activities receiving or benefiting from federal financial assistance from the Department of Labor.

**Note:**

The Code of Federal Regulations (29 CFR Part 32) has not yet been
amended to clearly identify the appropriate terms to use, namely
"individual with a disability" or "person with a disability."
Nevertheless, the term "handicapped" is ***[unacceptable]{.underline}***
and should not be used.

-   **The Americans with Disabilities Act of 1990 (ADA)** applies to a
    far broader range of persons, organizations, and businesses than any
    laws that preceded or have followed it.

> The ADA, built on the foundation laid by the Rehab Act, prohibits
> discrimination on the basis of disability in these major areas:
> private sector employers, state and local governments, labor
> organizations, public accommodations, commercial facilities,
> transportation, and telecommunications.

-   **Title I of the ADA** contains the Act's employment-related
    provisions. It prohibits discrimination against qualified
    individuals with disabilities by employers (including private
    employers, state and local governments), employment agencies, labor
    organizations, and joint labor-management committees.

-   **Title II of the ADA** prohibits disability-based discrimination by
    public entities, including state and local governments, and any of
    their departments, agencies or instrumentalities, whether or not
    they receive federal financial assistance

**[defining the term "disability"]{.smallcaps}**

Throughout this manual we refer to "individual(s) with disabilities." It
is the appropriate term to use when referring to this population. It is
also important to have a clear understanding as to what the definition
of "disability" is.

The Rehab Act and the ADA use a three-part definition for the term
"disability". A disability is:

1.  A physical or mental impairment that substantially limits one or
    more of a person's major life activities, or

2.  A record of such an impairment, or

3.  Being regarded (by a program, activity, training provider, employer,
    or other person or entity covered by the law) as having such an
    impairment.

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1.  **A Physical or Mental Impairment**

A full understanding of the first portion of the definition of
disability requires an understanding of what is meant by the terms (a)
physical or mental impairment, (b) life activities, and (c)
substantially limits.

A.  **Physical or Mental Impairment** is defined as any physiological
    disorder or condition, cosmetic disfigurement, or anatomical loss
    affecting one or more of the following body systems: neurological,
    musculoskeletal, special sense organs, respiratory (including speech
    organs), cardiovascular, reproductive, digestive, genito-urinary,
    hemic and lymphatic, skin, and endocrine; or

Any medical or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities

-   Examples of **physical or mental impairment** include, but are not
    limited to, such contagious and non-contagious diseases and
    conditions as orthopedic, visual, speech, and hearing impairments;
    cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis;
    cancer; heart disease; diabetes; mental retardation; emotional
    illness; specific learning disabilities; HIV (whether symptomatic or
    asymptomatic); tuberculosis; drug addiction; and alcoholism.

-   Physical or mental impairment *[does not]{.underline}* include:

    -   Homosexuality or bisexuality.

    -   Simple physical characteristics, such as blue eyes
        Environmental, cultural, economic, or other\
        disadvantages, such as having a prison, or being poor

    -   Age

B.  **Major life activities** are defined as the activities affected by
    physical or mental impairment. There is no exhaustive list of these
    activities because they differ from person to person.

> Major life activities are best described by examples;

-   Examples of **major life activities** include such functions as:
    caring for one's self, performing manual tasks, walking, seeing,
    hearing, speaking, breathing, learning, and working.

-   Courts and Federal agencies have also recognized other functions,
    such as: concentration, interacting with others, sleeping and
    reproducing.

C.  **Substantially limits** means that an impairment prevents or
    significantly restricts the individual from performing a major life
    activity that the average person can perform.

The impairment may restrict the conditions under which the person can
perform the activity, the manner in which the person may perform the
activity, or the duration for which they can perform the activity. For
example:

-   Certain learning disabilities or psychiatric disorders may
    significantly affect the conditions under which a person can perform
    the major life activity of concentrating, by causing them to be
    easily distracted by noise or interruptions.

-   A learning disability may significantly affect the length of time
    during which a person is able to concentrate on a task.

-   Mental retardation may significantly affect the way in which a
    person learns. A person with mental retardation may have to be
    specifically taught what other people can infer or figure out on
    their own.

Not every impairment affects a person's life to the extent that it is
considered a disability. Some impairments, or combinations of
impairments, may be disabling for one person but not for others.

The determination of whether a person is substantially limited or not
should be made on a case-case-basis by a professional with expertise in
the field.

2.  **A Record of Such an Impairment**

"A record of such an impairment" documents that a person has a history
of an impairment that substantially limited a major life activity. For
example, an individual who has recovered from an impairment.

-   Examples of those with a record of impairment are persons with
    histories of mental or emotional illness, heart disease, or cancer.

A *[record of such an impairment]{.underline}* also includes person who
have been misclassified as having an impairment.

This provision is included in the definition in part to protect
individuals who have recovered from a physical or mental impairment that
previously substantially limited them in a major life activity.
Discrimination on the basis of such a past impairment is prohibited.

-   Examples of those who have been misclassified as having an
    impairment are persons who have been misclassified as having mental
    illness or mental retardation.

3.  **Being regarded as having such an impairment**

Being regarded as having an impairment is part three of the definition
of the term disability. It means that an individual:

-   Has a physical or mental impairment that does not substantially
    limit major life activities, but is treated by a recipient as having
    such a limitation

-   Has a physical or mental impairment that substantially limits major
    life activities, but only as a result of the attitudes others have
    toward such impairment

-   Has none of the impairments in this section, but is treated by a
    recipient as having such an impairment

The perception others have of the person because of myths, fears and
stereotypes associated with disabilities is the key issue here.

-   For example, persons with severe burns often encounter
    discrimination in community activities resulting in substantial
    limitation of major life activities. They have an impairment that
    does not diminish their physical or mental capabilities, but could
    nevertheless substantially limit their ability to work as a result
    of other people's negative reactions to the impairment.

## Criteria For Qualified Individual with a Disability

Every person with a disability is not eligible for WIA services; the
laws we have discussed protect only qualified individuals with a
disability.

+----+-----------------------------------------------------------------+
| !  | ## Term to Know -- Qualified Person With a Disability           |
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+----+-----------------------------------------------------------------+
|    | > A qualified individual with a disability is a person who      |
|    | > satisfies the requisite skills, experience, education and     |
|    | > other job-related requirements of the employment or training  |
|    | > position that the individual holds or desires and who, *[with |
|    | > or without reasonable accommodation, **can perform the        |
|    | > essentia**l functions of the position.]{.underline}*          |
+----+-----------------------------------------------------------------+

The criteria for determining whether a person with a disability is
qualified include the following:

-   With respect to employment, an individual with a disability must be
    capable, with or without reasonable accommodation, of performing the
    essential functions of the job in question

-   With respect to aid, benefits, services or training, an individual
    with a disability must, with or without reasonable accommodation
    and/or reasonable modification, meet the essential eligibility
    requirements for the receipt of such aid, benefits, service, or
    training.

Essentially, **qualified person with a disability,** is a person who
meets the job-related requirements imposed by a *particular employer for
a particular job,* such as skill, experience, or education, and who is
able to perform the *essential functions* of that *specific job*, with
or without accommodations.

## Exceptions to the Definition of Individual with a Disability

The federal laws do contain several *exceptions* to the definition of
"individual with a disability." These exceptions address:

-   Sexual behavior disorders, such a pedophilia, exhibitionism, or
    voyeurism

-   Current illegal use of drugs

-   Current alcohol abuse in the work setting

-   Currently contagious disease or infection that affects job
    performance or safety

**[Discrimination Prohibitions]{.smallcaps}**

The following are the most prevalent examples of employment and training
related actions that are considered discriminatory under the
disability-laws previously discussed. It is impossible to list every
single action that violates the law because it discriminates against one
or more persons with disabilities. However, the laws do provide general
descriptions of the types of actions that are considered discriminatory.

It is important to note that the actions listed below are discriminatory
and unlawful, even if the person(s) who take the actions are
well-intentioned and do not mean to discriminate. *It is the actions
themselves, not the intent behind them, that constitute discrimination.*

Examples of discriminatory actions include the following (32 CFR 32.26
and 29 CFR 37.6):

-   Denying a qualified individual with a disability the opportunity to
    participate in, or benefit from, a WIA activity because of their
    disability

-   Failing to give a qualified person with a disability an equal
    opportunity to get the same results or benefits from a program or
    activity that people without disabilities receive

-   Charging a particular person with a disability, or any group of
    persons with disabilities, any extra fees to cover the costs of
    accommodating the disability or of providing the nondiscriminatory
    treatment required by law

The regulations [do not]{.underline} require the recipient to provide
persons with disabilities with certain types of items. It is often
mistakenly believed that not making these provisions is discriminatory,
which is not the case.

Items the regulations [do not]{.underline} require the recipient to
provide include:

-   Personal devices, such as wheelchairs

-   Individually prescribed devices, such as prescription eyeglasses or
    hearing aids

-   Readers for *personal* use and study (as opposed to help with filing
    out forms or reading other documents related to the program or
    activity provided)

-   Services of a personal nature, such as assistance with eating,
    toileting, or dressing

###  Accessibility And Accommodation

Accessibility

A WIA recipient's operation, when viewed in its entirety, is expected to
operate in a manner such that all programs and activities are readily
available to individuals with disabilities. Providing
*[accessibility]{.underline}* (or, to use a related term, providing
*[access]{.underline}*) for people with disabilities means that WIA
recipients must both *[plan ahead]{.underline}* and *[act
ahead.]{.underline}*

People with many different types of disabilities will need and want to
apply to WIA programs, use computers provided by One-Stop centers,
participate in job readiness activities, and take advantage of every
other service and benefit that is available. To satisfy the obligation
to provide *[access]{.underline}*, recipients must not wait for a person
with a disability to ask to participate in a program or receive a
service. Instead, they must plan for and take a wide range of actions
*[in advance]{.underline}* to be ready to provide effective services.

There are two types of accessibility that must be considered when
planning for services to individuals with disabilities (32 CFR 32
Subpart C):

-   **Architectural accessibility** is the term that most people
    consider when thinking of accessibility. It is the physical
    modification of a recipient's facilities to accommodate use by
    individuals with disabilities.

> It should be noted that "facilities" are not only buildings and the
> rooms within them; facilities also include, but are not limited to:

-   Indoor constructs such as computer kiosks and office cubicles

-   Vehicles and other conveyances

-   Parking lots and walkways

-   Alarm systems and signs

    -   **Program accessibility** means that a program or activity must
        be *[set up in advance]{.underline}* to be accessible to
        qualified persons with disabilities.

> Program access consists of not only physical access for a range of
> disabilities (including visual, hearing, and mobility, but also access
> for people with cognitive disabilities, including mental retardation,
> psychiatric disabilities, brain injuries, learning disabilities, etc.

-   Providing program access for people with cognitive disabilities
    might include, for example, reading instructions, having a quiet
    space, explaining what is written, repeating instructions, using
    less complex sentences/wording in verbal and written communications,
    etc.

> The recipient is not required to make each of its existing facilities
> or every part of a facility accessible. However, if a particular
> program is available in only one location, that site must be made
> accessible or the program must be made available at an alternative
> site.

**Reasonable Accommodation**

While accessibility is proactive, **reasonable accommodation** is
retroactive (29 CFR 37.8).

-   **Reasonable accommodation or reasonable modifications** refers to
    the actions a recipient must take, at a time that a particular
    qualified person with a disability wants to take part in a program,
    based on that person's individual needs.

> The fact that the recipient may have provided accessibility for
> individuals with disabilities does not excuse it from providing
> reasonable accommodation for a particular person with a disability.

-   **General principles of reasonable accommodation.** The
    accommodations that are needed will vary from person to person and
    situation to situation. However, these general principles help to
    define the concept:

    -   Individuals with known disabilities are entitled to reasonable
        accommodations for the application process for participation in
        a program or employment. For example:

        -   A person with a learning disability may need help with
            understanding a written instruction

        -   A person with psychiatric disorder, who is distracted by
            noise, may need a quiet area to fill out an application form

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-   A program that does not require a formal application in order to
    participate must still provide reasonable accommodations during
    whatever admissions process is used.

-   Once an applicant with a known disability has been admitted to the
    program, reasonable accommodations are changes that the program can
    make to allow that person to receive benefits or services equal to
    those received by qualified people without disabilities.

-   For individuals with disabilities hired to work for the program,
    reasonable accommodations are changes that can be made to enable
    them to perform the *[essential functions]{.underline}* of the job.

> As explained above, the recipient must provide ***reasonable
> accommodations*** for qualified persons with disabilities, unless the
> accommodations requested would impose an ***undue hardship*** on the
> program.

-   **Undue hardship.** In general, the term ***undue hardship*** means
    *[significant]{.underline}* difficulty or expense. The regulations
    implementing various Federal disability nondiscrimination laws list
    the factors that must be considered in deciding whether a particular
    accommodation would impose an **undue hardship**. In general, those
    factors include the following:

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-   **Type of accommodation** that has been asked for

-   **Net cost of the accommodation** (taking into consideration the
    availability of tax credits and deductions, and/or outside funding,
    for the accommodation)

-   **Overall size of the program** (including number of employees,
    number of participants, number and type of facilities, and size of
    budget)

-   **Overall financial resources** of the program as a whole and the
    individual facility or facilities that would be involved with the
    accommodation

-   **Effect** that providing the accommodation would have on the
    program or facility's ability to serve other customers (or, for a
    work-related accommodation, its employees' ability to perform their
    duties), and its ability to carry out its mission

> In addition, even if the program decides that a requested
> accommodation would result in **undue hardship**, the program must
> take any steps that will *not* cause hardship, but will enable the
> person with a disability to participate in the program, or to perform
> the essential functions of the job, to the maximum extent possible.
>
> The recipient's program staff must consider all of the required
> factors listed in the regulations before making a decision about the
> accommodation. If they decide that the accommodation will cause an
> undue hardship***,*** they must prepare a written statement of the
> reasons underlying their decision, and must provide a copy of that
> statement to the person or persons who requested the accommodation.
>
> Many people have the misconception that accommodations frequently
> impose such undue hardships -- that they require a program or employer
> to buy expensive equipment or make costly modifications for
> participants or employees. The truth is that many accommodations are
> inexpensive and easy to provide.

-   **Time period.** The recipient is obligated to provide reasonable
    accommodations as expeditiously as possible but in not more than 60
    days from the time of the request is acknowledged, except where
    structural changes in facilities are necessary.

> In the event that structural changes are necessary, the recipient must
> develop a *[transition plan]{.underline}* setting forth the steps
> necessary to complete the required changes.
>
> The plan should be developed in partnership with the person(s) with a
> disability, for whom the accommodation is being designed.

**[Activity I:]{.smallcaps}**

### Accommodation/Accessibility

#####  {#section-2 .CRC-MOA}

**Purpose:**

 To identify when a reasonable accommodation for access should be\
provided

Task:

-   You are one of the members of the EO monitoring team for the State
    of Independence. You have been asked to review the following cases
    and decide what is the appropriate accommodation decision.

-   Read the descriptions on the following page. Decide which of the
    following, if any, are needed to achieve compliance:

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-   Policy change

-   Reasonable accommodation

-   Program accessibility resolution

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-   Be prepared to explain your conclusions.

-   Share your findings with the class.

Time:

-   10 minutes to read the descriptions and make your conclusions

-   10 minutes for the class discussion

**[Cases:]{.smallcaps}**

######## [Accommodation/accessibility]{.smallcaps}

1.  A qualified individual with a disability (a physical impairment that
    requires the use of a wheelchair) applies for referral to an auto
    mechanic job.

2.  An assessment center to which the employment service refers
    applicants for testing permits applicants with hearing impairments
    to bring their own interpreters if they cannot pay the \$5
    interpreter fee.

3.  A county program that provides services to eligible applicants has a
    lengthy and complex application process. When individuals with
    mental disabilities apply for services, they are always unable to
    complete the application process successfully.

4.  An intake center's front entrance is inaccessible and cannot be made
    accessible without substantial alterations to the front façade of
    the building. However, the rear service entrance can easily be made
    accessible. .

5.  A case manager refers all applicants with reading disabilities to a
    testing center at a nearby teacher's college.

6.  A WIA applicant who needs a kidney transplant will be unable to
    attend training one day a week because of her dialysis schedule.

**[Communications]{.smallcaps}**

Recipients must take appropriate steps to ensure that communications
with individuals with disabilities are as effective as communications
with persons without a disability.

+----+-----------------------------------------------------------------+
| !  | ## Term to Know -- Auxiliary Aids or Services                   |
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| 35 |                                                                 |
| 90 |                                                                 |
| 27 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 78 |                                                                 |
| in |                                                                 |
| "} |                                                                 |
+----+-----------------------------------------------------------------+
|    | > Auxiliary aids or services includes qualified interpreters,   |
|    | > notetakers, transcription services, telephone handset         |
|    | > amplifies, telephones compatible with hearing aids,           |
|    | > closed-caption decoders, or other effective means of making   |
|    | > orally delivered materials available to individuals with      |
|    | > hearing impairments.                                          |
|    | >                                                               |
|    | > Also, qualified readers, taped texts, audio recordings,       |
|    | > brailed and large print materials, or other effective means   |
|    | > of making visually delivered materials available to           |
|    | > individuals with visual impairments.                          |
+----+-----------------------------------------------------------------+

**Effective communication with individuals with disabilities requires
the following:**

-   The recipient must provide appropriate auxiliary aids or services
    where necessary.

    -   In determining what type of auxiliary aid or service is
        appropriate and necessary, the recipient must give primary
        consideration to the request(s) or choice of the individual with
        the disability.\
        \
        Deference to the request of the individual with a disability is
        desirable because of the range of disabilities, the variety of
        auxiliary aids and services, and different circumstances
        requiring effective communication.

> For example: Some courtrooms are now equipped for "computer-assisted
> transcripts," which allow virtually instantaneous transcripts of
> courtroom argument and testimony to appear on displays. Such a system
> might be an effective auxiliary aid or service for a person who has a
> hearing impairment or hearing loss and uses speech to communicate, but
> may not be useful for someone who uses sign language.

-   To communicate by telephone the recipient must use telecommunication
    devices for individuals with hearing impairments (TDDs/TTYs) or
    equally effective communications systems such as telephone relay
    services.

-   The recipient must ensure that interested individuals, including
    individuals with visual or hearing impairments, can obtain
    information as to the existence and location of accessible services,
    activities, and facilities.

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-   A recipient must provide signage at a primary entrance to each of
    its inaccessible facilities, directing users to a location at which
    they can obtain information about accessible facilities.

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-   The international symbol for accessibility must be used at each
    primary entrance of an accessible facility.

**[Employment Practices and\
Employment-Related Training Participation]{.smallcaps}**

## Review of Job Qualifications (29 CFR part 32 Subpart B)

A recipient must develop, and adhere to, a schedule for reviewing the
appropriateness of all job qualifications. This review is to ensure
that, where a job qualification excludes individuals with disabilities
because of their disability, the qualification is truly related to the
performance of the job and is consistent with business necessity and
safe performance.

## Pre-employment or Pre-training Inquires

A recipient may not ask a person who is applying for employment or
training whether he or she has a disability or the nature or severity of
the disability.

Exceptions to this prohibition, include:

-   A recipient taking remedial action to correct the effects of past
    discrimination

-   Determining the extent to which the recipient is operating its WIA
    funded program or activity in a nondiscriminatory manner

-   For the purpose of collecting EO data

When making such inquiries, the recipient should tell applicants:

-   The purpose of the inquiry

-   That it is voluntary

-   That the confidentiality of the information will be safeguarded, and

-   That the refusal to provide the information will not subject the
    individual to any adverse treatment

## Pre-employment Medical Examinations

Recipients may not require pre-employment medical examinations. However,
they may condition a job offer on the results of a medical examination
to be conducted prior to an individual's entrance on duty if:

-   All entering employees in the same job category, regardless of
    disability status, are required to take the same medical examination

-   The results of the medical examination are not used to impermissibly
    discriminate on the basis of disability; and

-   All information on the individual's medical conditions and history
    is treated as confidential medical information

**\
Confidentiality of Medical or Other Disability-Related Records**

WIA recipients must keep disability-related records, and records
containing information about the results of medical examinations
confidential. This means that recipients must keep this information
separate from other information about each participant, whether the
information is maintained on paper or electronically. The circumstances
under which recipients may disclose medical information, including the
fact that the participant has a disability, to others such as employers,
prospective employers, or even other staff members, are extremely
limited.

Information about a participant's disability, or other medical
information, may be disclosed *only* to the following persons under the
following circumstances:

-   Supervisors and managers may be informed about a participant's
    disability, but only to the extent necessary in order to explain
    limitations on the participant's activities, or to provide the
    participants with *reasonable accommodations*.

-   First-aid and safety personnel may be informed about a participant's
    medical condition, where appropriate, if the condition might require
    emergency treatment.

-   Government officials investigating compliance with disability
    nondiscrimination laws may be given a participant's medical
    information if they request it.

Before participants are asked to provide information about their medical
condition or history, they must be told that the information is being
requested on a voluntary basis. They must also be informed about the
ways in which the information will be used and the narrow circumstances
under which the information may be disclosed.

**[Activity II:\
Disability --Related Requirements]{.smallcaps}**

#####  {#section-3 .CRC-MOA}

Purpose:

 To identify when an employment-related training practice is
appropriate

Task:

-   You are one of the members of the EO MOA review team for the State
    of Independence. As part of the documentation for Element 5,
    Independence has provided the attached memorandum from one of its
    LWIAs to the state EO Officer. The memorandum addresses the use of
    pre-employment medical inquiries.

-   Individually:

1.  Evaluate the procedure using the guidance provided and the
    provisions of 29 CFR 32.15

2.  Identify the parts of the procedure, if any, that are inconsistent
    with the guidance or 29 CFR 32.15; and

3.  For any part that is inconsistent, determine what changes should be
    made to correct the inconsistency.

-   Within your small group, discuss your individual findings and come
    to a consensus on the changes that are required, if any.

-   Select a spokesperson to report out.

Time:

-   10 minutes to read the descriptions and make your conclusions

-   10 minutes for the group discussion

## Memorandum For: Martha Washington

Equal Opportunity Officer, State of Independence

[**From:**]{.smallcaps} Benjamin Franklin

Director, LWIA Grant Recipient

[**Subject:**]{.smallcaps} Your Request for Information About
Pre-employment Medical Inquiries

This memorandum is in response to your request for a description of our
policies and procedures on the use of pre-employment medical inquiries
within our local workforce investment area. Let me assure you that our
procedures are fully in compliance with the Americans with Disabilities
Act. Feel free to include this memorandum in your Methods of
Administration.

Our LWIA wants to ensure that the workers it hires are fully able to
perform the work assigned. Therefore, the general health of potential
employees is very important. However, it is also important to remember
that local workforce investment areas have very limited administrative
budgets. Notwithstanding this, we have no questions about disability on
the application form and the personnel office does not ask questions
about disability.

The first step in the process is for an applicant to complete an
employment application and file it with the Human Resources Clerk. While
the applicant is in the office, the clerk reviews the application for
completeness. Based upon her personal observation, the application is
coded 1,2,or 3. A ["1"]{.underline} means that the applicant appears
healthy, a ["2"]{.underline} means that there may be some question as to
the applicant's health, and a ["3"]{.underline} means that there is
cause for concern, such as the applicant is blind, in a wheelchair or
has some other problem. No specific *[inquiry]{.underline}* about
disability is made.

If the applicant is applying for a vacant position, appears to have the
requisite qualifications, and is categorized a "1" or a "2", an
appointment with the Human Resources Managers is set up. (If a "3" is
particularly well qualified, he or she might also be referred to the HR
Manager.) At the meeting with the HR Manager, the qualifications of the
applicant are discussed in detail.

As noted previously, the LWIA is very concerned about the health of its
employees. We would like to be in a financial position to provide every
potential employee with a physical examination. However, given our
budget constraints, we cannot do that. We do provide physical
examinations to those potential employees who appear to have health
problems that would affect their work. While these exams are scheduled
at the time of the HR Manager interview, they are not carried out until
after the applicant has gone through the third step of the process, that
of an interview with the head of the department in question.

The interview with the department head is the final stage of the process
of selecting LWIA employees. Consistent with the ADA, we have instructed
department heads to

limit their discussions with applicants to the legitimate, non-medical
qualifications for the job and how applicants meet those qualifications.
Department heads are under strict instructions not to discuss disability
issues with applicants under any circumstances.

The physical examination is conducted only after a "conditional offer of
employment" is made by the department head. Again, this is in strict
compliance with the ADA. The physician examines the applicant to
determine their general health and to determine if the applicant has the
physical and mental health needed to fully integrate himself or herself
into the work setting. The results of the examination are then reviewed.
It is extremely rare that we would not hire an applicant because of the
medical examination.

You also asked about how we maintain confidentiality of medical records.
Again, we have developed the policy to strictly conform to ADA
requirements. Any record that contains medical information is maintained
in a separate file. Electronic records are created in such a way that
medical information in those files can be accessed only through a
password. The records are made available only to supervisors and LWIA
medical personnel.

**[Supporting Documentation:\
Compliance with Disability\
Requirements and Section 504]{.smallcaps}**

The regulations implementing Section 188 of the Workforce Investment Act
require the submission, as part of the MOA, of documentation that
describes how the state ensures that recipients:

-   Comply with the requirements regarding prohibited discriminatory
    actions based on disability

-   Provide reasonable accommodation, reasonable modification,
    architectural accessibility and programmatic accessibility

-   Evaluate job/selection qualifications on a planned schedule

-   Limit pre-selection medical inquiries consistent with federal law

-   Ensure confidentiality of medical information

-   Communicate effectively with individuals with disabilities

    This documentation should include copies of state or recipient
    policies and procedures dealing with disability issues, such as:

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-   Integrated settings

-   Reasonable accommodation/modification

-   Effective communication

-   Architectural and programmatic accessibility

-   Self-evaluations (forms and completed surveys) and descriptions of
    the status of corrective actions

-   Training publications/agendas the state uses to raise awareness of
    disability issues

**[State's Implementation of Compliance with]{.smallcaps}**

**[Disability Requirements and Section 504]{.smallcaps}**

This part of the training has been reserved to discuss the state's
approach to implementing the MOA's Compliance with Disability
Requirements and Section 504. The state specialist will address the
following:

-   Policy communications and directives to LWIAs that instruct
    recipients on how to comply with 29 CFR 37.7-37.9, the implementing
    regulations for Section 188 of WIA and Subparts B and C of 29 CFR
    part 32, the implementing regulations for Section 504 of the
    Rehabilitation Act.

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-   Procedures and systems that support the implementation of Compliance
    with Disability Requirements and Section 504.

-   Additional MOA requirements imposed by the state to implement
    Compliance with Disability Requirements and Section 504.