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**Compliance with**

**Federal Disability nondiscrimination laws**

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

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

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

-   Presentation: Review of Learning Objectives

-   Presentation: General Principles Unifying Federal Disability
    Nondiscrimination Laws

-   Presentation: Defining the Term "Disability"

-   Presentation: Discrimination Prohibitions

-   Presentation: Accessibility and Accommodation

-   Activity I: Discrimination / Accommodation /Accessibility?

-   Presentation: Communications

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

-   **Presentation:** Supporting Documentation: Compliance with Federal
    Disability Nondiscrimination Laws

-   **Presentation:** State's Implementation of MOA Requirements Related
    to Compliance with Federal Disability Nondiscrimination Laws

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

-   The participant will be able to explain the disability-related
    requirements of 29 CFR part 37, the regulations implementing Section
    188 of WIA, and the requirements of Subparts B and C of 29 CFR part
    32, the regulations implementing Section 504 of the Rehabilitation
    Act of 1973.

-   The participant will be able to describe how the State guarantees
    that compliance with these disability-related requirements will be
    achieved.

-   The participant will be able to describe lawful and appropriate
    methods and practices for providing services to individuals with
    disabilities.

-   The participant will be able to identify what documentation CRC will
    accept as demonstrating compliance with these disability-related
    requirements.

**[General Principles Unifying]{.smallcaps}**

**[Federal Disability Nondiscrimination Laws]{.smallcaps}**

The ***overarching principle*** of Federal disability nondiscrimination
law is that people with disabilities must be treated ***as
individuals***, not on the basis of assumptions and stereotypes about
their disabilities.

Under this principle, recipients are required to focus on the ***skills,
strengths and abilities*** of a particular customer or employee with a
disability, and to provide the reasonable accommodations /
modifications, and the auxiliary aids and services, the customer or
employee needs in order to utilize those skills, strengths, and
abilities. Recipients should *not* focus on the limitations caused by
the customer's or employee's disability.

Laws Providing the Legal Framework for Serving Individuals with
Disabilities in the One-Stop System

It is important to understand that *each* of the laws discussed below
affects every WIA Title I recipient in some way. In addition, *several*
of these laws will be applicable *at the same time* to any given program
or activity. Although the terminology used by these laws is not
identical, the general principles that apply under the laws are
consistent.

-   **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 financial assistance under the
    Act offer a range of different job training, education, and other
    human resource programs through the One-Stop Career Center system.

    -   **Section 188 of WIA** bars discrimination on the basis of
        disability in programs and activities offering aid, benefits,
        services, or training, as well as in employment. The section
        also covers the application process for any of these. Under the
        regulations implementing Section 188, persons with disabilities
        must also be provided with reasonable accommodations and
        modifications for their disabilities. In addition, the
        regulations require 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.

    -   The regulations implementing WIA Section 188 are published at 29
        CFR part 37.

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-   **The Rehabilitation Act of 1973 (the Rehabilitation Act)** was the
    first Federal law to specifically forbid discrimination on the basis
    of disability. Different sections of the Rehabilitation Act apply in
    different circumstances; for example, certain sections of the Act
    apply to the Federal government, and others apply to entities that
    receive Federal financial assistance. Later laws, specifically the
    Americans with Disabilities Act of 1990 (the ADA), built upon the
    foundation laid by this Act. Although the Rehabilitation Act has
    been amended a number of times since 1973, its underlying principles
    remain the same.

    -   **Section 504 of the Rehabilitation Act**, **as amended,** is
        the section that is most relevant to the One-Stop system.
        Section 504 prohibits any program or activity that receives
        Federal financial assistance (including programs or activities
        established or carried out by State or local governments or
        private entities) from discriminating against qualified persons
        with disabilities. This section also applies to programs and
        activities conducted by Federal Executive agencies or by the
        U.S. Postal Service.

    -   DOL's regulations implementing Section 504 are published at 29
        CFR part 32.

**[A Note About Terminology:]{.smallcaps}**

**["Handicapped" vs. "Individual (or Person) with a
Disability"]{.smallcaps}**

As the 21^st^ century begins, the term "handicapped" is regarded as a
negative term that should not be used. However, in the early 1970s, the
term was used commonly to refer to people with disabilities, and in fact
was employed by Congress throughout the original version of the 1973
Rehabilitation Act. The Department of Labor's regulations implementing
Section 504 of the Act, which were published in 1974, also use the term
"handicapped." These regulations have not yet been amended to correct
the use of this term; DOL plans a major revision of the regulations in
the near future. The use of "handicapped" in the regulations should not
be considered an endorsement of the term, and it should be replaced by
"person with disabilities" or similar "people-first" terms wherever
possible.

-   **The Americans with Disabilities Act of 1990 (ADA)** is the
    disability-related law with which many Americans are most familiar.
    The ADA is better known than other disability-related laws because
    it applies to a far broader range of persons, organizations, and
    businesses than any laws that preceded or have followed it.

> The ADA prohibits discrimination on the basis of disability in these
> major areas: employment; State and local government; public
> accommodations, commercial facilities, and transportation; and
> telecommunications.

-   **Title I of the ADA** contains the Act's employment-related
    provisions. It applies to State and local governments in their
    relationships with their own employees and applicants for
    employment, as well as to all private employers with 15 or more
    employees; labor unions; joint labor-management committees; and
    employment agencies.

> Some One-Stop Career Centers regularly conduct activities similar to
> those provided by employment agencies \-- for example, referring
> customers to jobs, or contacting employers to inquire about openings.
> Where those activities constitute a principal part of a Center's
> activities, or the activities of a particular program provided through
> the One-Stop system, the Center or program falls under the legal
> definition of "employment agency," and therefore the services that it
> provides to customers are covered by Title I of the ADA as well.
>
> Title I forbids discrimination against qualified persons with
> disabilities in recruitment, referral, hiring, promotions, training,
> pay, social activities, and other "privileges of employment." It also
> requires those covered to make reasonable accommodations for the known
> disabilities of qualified people.

-   **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. This Title applies to
    most WIA Title I recipients and the programs and activities they
    offer. It bars discrimination against qualified persons with
    disabilities, and requires covered entities to modify their
    policies, practices, and procedures where necessary to avoid such
    discrimination and provide equal opportunity.

**[Who Is Protected From Discrimination]{.smallcaps}**

**[Under Federal Disability Nondiscrimination Laws?]{.smallcaps}**

Disability-based discrimination takes three basic forms:

-   Discrimination based on a person's *actual, current* disability or
    disabilities

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-   Discrimination based on the *record of* a person's *past disability*
    (even though the person has recovered from the disability or no
    longer experiences its effects)

-   Discrimination based on the *incorrect* *perception* that a person
    has a disability

In order to provide protection from all three of these types of
discrimination, Federal disability nondiscrimination laws use the
following standard, three-part definition for the term *"disability"*:

> • A *physical or mental impairment* that *substantially limits* one or
> more of a person's *major life activities*;
>
> • A *record* of such an impairment; or
>
> • Being *regarded* \[by a program, activity, training provider,
> employer, or other person or entity covered by the law\] *as* having
> such an impairment.
>
> So an "individual with a disability," under Federal disability
> nondiscrimination law, means someone who falls under one of these
> three categories. The next part of the training will examine each of
> those categories in detail. A later part of this chapter will discuss
> exceptions to the definition of "individual with a disability."
>
> **[Category One:\
> Is the Individual a Person With]{.smallcaps}**

**[an *Actual, Current* Disability?]{.smallcaps}**

To determine if Federal disability nondiscrimination laws protect a
particular person from discrimination under the first category (a person
with an actual, current disability), ask the following three questions:

-   Does the person have a physical or mental impairment?

-   Does the impairment affect one or more of his/her major life
    activities?

-   Is the effect a substantial limitation?

A full understanding of the meaning of the term disability requires an
understanding of what is meant by physical or mental impairment, major
life activities, and substantially limits. Let's review each of these
important terms.

+----+-----------------------------------------------------------------+
| !  | **[Term to Know -- "Physical or Mental                          |
| [] | Impairment"]{.smallcaps}**                                      |
| (m |                                                                 |
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| 77 |                                                                 |
| 77 |                                                                 |
| 78 |                                                                 |
| in |                                                                 |
| "} |                                                                 |
+----+-----------------------------------------------------------------+
|    | The definition of this term in the WIA nondiscrimination        |
|    | regulations (see 29 CFR 37.4) is consistent with the            |
|    | definitions in other Federal disability nondiscrimination       |
|    | regulations.                                                    |
|    |                                                                 |
|    | The definition has two parts. The first part covers             |
|    | physiological impairments, defining them as follows:            |
|    |                                                                 |
|    | 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                                                   |
|    |                                                                 |
|    | -   genitourinary                                               |
|    |                                                                 |
|    | -   hemic and lymphatic                                         |
|    |                                                                 |
|    | -   skin                                                        |
|    |                                                                 |
|    | -   endocrine                                                   |
|    |                                                                 |
|    | 29 CFR 37.4, definition of "disability," paragraph (1)(i)(A).   |
|    |                                                                 |
|    | The second part of the definition covers                        |
|    |                                                                 |
|    | > Any mental or psychological disorder, such as:                |
|    |                                                                 |
|    | -   mental retardation                                          |
|    |                                                                 |
|    | -   organic brain syndrome                                      |
|    |                                                                 |
|    | -   emotional or mental illness                                 |
|    |                                                                 |
|    | -   specific learning disabilities                              |
|    |                                                                 |
|    | 29 CFR 37.4, definition of "disability," paragraph (1)(i)(B).   |
|    |                                                                 |
|    | The third part of the definition contains the following list of |
|    | examples:                                                       |
|    |                                                                 |
|    | -   Various types of impairments:                               |
|    |                                                                 |
|    |     -   orthopedic                                              |
|    |                                                                 |
|    |     -   visual                                                  |
|    |                                                                 |
|    |     -   speech                                                  |
|    |                                                                 |
|    |     -   hearing                                                 |
|    |                                                                 |
|    | -   Cerebral palsy                                              |
|    |                                                                 |
|    | -   Epilepsy                                                    |
|    |                                                                 |
|    | -   Muscular dystrophy                                          |
|    |                                                                 |
|    | -   Multiple sclerosis                                          |
|    |                                                                 |
|    | ```{=html}                                                      |
|    | <!-- -->                                                        |
|    | ```                                                             |
|    | -   Cancer                                                      |
|    |                                                                 |
|    | -   Heart disease                                               |
|    |                                                                 |
|    | -   Diabetes                                                    |
|    |                                                                 |
|    | -   Mental retardation                                          |
|    |                                                                 |
|    | -   Emotional illness                                           |
|    |                                                                 |
|    | -   Specific learning disabilities                              |
|    |                                                                 |
|    | -   HIV                                                         |
|    |                                                                 |
|    | -   Tuberculosis                                                |
|    |                                                                 |
|    | -   Drug addiction                                              |
|    |                                                                 |
|    | -   Alcoholism                                                  |
|    |                                                                 |
|    | The definition specifies that this is not an exclusive list,    |
|    | and that other conditions may also be considered impairments.   |
|    |                                                                 |
|    | The definition also specifies that homosexuality and            |
|    | bisexuality are not considered impairments.                     |
+----+-----------------------------------------------------------------+

+----+-----------------------------------------------------------------+
| !  | **[Term to Know -- "Major Life Activity"]{.smallcaps}**         |
| [] |                                                                 |
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| 22 |                                                                 |
| in |                                                                 |
| "} |                                                                 |
+----+-----------------------------------------------------------------+
|    | There is no exhaustive list of major life activities; the       |
|    | activities affected by physical or mental impairments differ    |
|    | from person to person. However, within the last few years, the  |
|    | Supreme Court has clarified that a "major life activity" must   |
|    | be "of central importance to daily life."                       |
|    |                                                                 |
|    | The WIA nondiscrimination regulations, and other regulations    |
|    | implementing Federal disability nondiscrimination laws, provide |
|    | some examples of major life activities. These examples include  |
|    | such functions as caring for one's self, performing manual      |
|    | tasks, walking, seeing, hearing, speaking, breathing, and       |
|    | learning.                                                       |
|    |                                                                 |
|    | The regulations also include "working" as an example of a       |
|    | "major life activity." However, the Supreme Court has           |
|    | questioned whether "working" should be listed in this category. |
|    | Until the Court issues a definitive ruling on the issue, it is  |
|    | best to look at other "major life activities" to determine      |
|    | whether a particular person has a disability.                   |
|    |                                                                 |
|    | In various cases, courts and Federal agencies have also         |
|    | recognized other functions that are not listed in the           |
|    | regulations, such as concentrating, interacting with others,    |
|    | sleeping, and reproducing, as major life activities.            |
+----+-----------------------------------------------------------------+

+----+-----------------------------------------------------------------+
| !  | **[Term to Know -- "Substantial Limitation"]{.smallcaps}**      |
| [] |                                                                 |
| (m |                                                                 |
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| 22 |                                                                 |
| in |                                                                 |
| "} |                                                                 |
+----+-----------------------------------------------------------------+
|    | Not every impairment affects a person's life so much that it    |
|    | (the impairment) is considered a disability under Federal       |
|    | disability nondiscrimination law. In order to qualify, an       |
|    | impairment (or combination of impairments) must *substantially  |
|    | limit* one or more of the person's *major life activities*.     |
|    |                                                                 |
|    | Some impairments may be disabling for particular persons but    |
|    | not for others, depending on the stage of the illness or        |
|    | disorder, the presence of other impairments that combine to     |
|    | substantially limit the person's major life activities, or any  |
|    | number of other factors. As with most determinations involving  |
|    | persons with disabilities or potential disabilities, generally  |
|    | the determination whether a person with one or more impairments |
|    | is substantially limited should be made on a case-by-case       |
|    | basis, by someone with expertise in the field.                  |
|    |                                                                 |
|    | The regulations implementing various Federal disability         |
|    | nondiscrimination laws define the term "substantially limits"   |
|    | in different ways; there is no hard-and-fast rule under any of  |
|    | these definitions. In general, however, the term means that an  |
|    | impairment either:                                              |
|    |                                                                 |
|    | -   Prevents the person from performing a major life activity   |
|    |     that the average person can perform, or                     |
|    |                                                                 |
|    | -   Significantly restricts the person in performing such an    |
|    |     activity (as compared to the average person).               |
|    |                                                                 |
|    | ***Significant restriction**.* What constitutes a "significant  |
|    | restriction"? Again, there are no hard-and-fast rules. In       |
|    | general, however, you should look at whether, and if so how     |
|    | much, the impairment restricts:                                 |
|    |                                                                 |
|    | -   the *conditions under which* the person can perform the     |
|    |     activity                                                    |
|    |                                                                 |
|    | -   the *manner (way)* in which s/he can perform the activity   |
|    |                                                                 |
|    | -   the *duration (length of time)* for which s/he can perform  |
|    |     the activity                                                |
|    |                                                                 |
|    | ***Mitigating measures**.* The Supreme Court ruled in 1999 that |
|    | in determining whether an impairment substantially limits a     |
|    | person's major life activities, the effects of any "mitigating  |
|    | measures" must be taken into consideration. For example, in     |
|    | deciding whether a person's visual impairments substantially    |
|    | limit her major life activity of seeing, you must consider how  |
|    | well her vision can be corrected with eyeglasses or contact     |
|    | lenses.                                                         |
|    |                                                                 |
|    | *Mitigating measures* may include medication; devices such as   |
|    | crutches, prostheses, hearing aids, or glasses; or anything     |
|    | else that *mitigates* (lessens) the effect that a particular    |
|    | impairment has on a person's ability to perform major life      |
|    | activities.                                                     |
|    |                                                                 |
|    | It is important to keep in mind that in determining the impact  |
|    | of a *mitigating measure* on a particular person, you must      |
|    | consider both the *positive* and *negative* effects that the    |
|    | measure may have on the person's ability to function.           |
|    |                                                                 |
|    | If you have any question about whether a person's impairment    |
|    | substantially limits his or her major life activities, consult  |
|    | your supervisor, or your program's equal opportunity officer or |
|    | attorney.                                                       |
+----+-----------------------------------------------------------------+

**[Category Two:]{.smallcaps}**

**[Is the Individual]{.smallcaps}**

**[A Person with a Record of a Disability?]{.smallcaps}**

The second category of people who are protected from discrimination
under Federal disability nondiscrimination laws are people who have a
*record of a past disability*, but who have recovered from, or who no
longer have, that disability. This aspect of the law reflects the desire
of Congress and the Executive Branch to protect such people \-- such as
cancer survivors \-- from the effects of unfounded fears and unfair
stereotypes that may be associated with their past impairments.

A person is considered to have a *record of a disability*, and therefore
to fall within the second part of the definition of "disability," if
s/he either:

-   Has a past history of a *genuine* disability, or

-   Has been *misclassified* as having a disability.

Keep in mind that in order for a person to be protected from
discrimination under this part of the definition, the past impairment
(or the impairment that the person has been misclassified as having)
must meet the three-part definition of an *actual disability*:

-   The impairment that has been recorded must fall within the legal
    definition of a *physical or mental impairment*.

-   The recorded impairment must be one that affects one or more *major
    life activities*.

-   The recorded impairment must have *substantially limited* the
    person's major life activities (or, in the case of a
    misclassification, be an impairment that would have substantially
    limited those activities if the impairment had actually existed).

**[Category Three:]{.smallcaps}**

**[Is the Individual *Regarded As*]{.smallcaps}**

**[A Person with a Disability?]{.smallcaps}**

Category Three includes people who are protected by Federal disability
nondiscrimination law solely because of how other people view them. This
category includes two groups of people who actually have impairments
that qualify as "physical or mental impairments" under the legal
definition. It also includes a third group, of people who do not have
actual impairments at all.

The first group includes people who have impairments that are not
genuinely substantially limiting, but that other people mistakenly
believe are substantially limiting.

The second group includes people whose impairments are substantially
limiting solely because of other people's attitudes toward their
impairments.

The third group of people protected under Category Three includes people
who do not have impairments at all, but who are *perceived (regarded) by
others* as having substantially limiting impairments, and who are
subjected to discrimination \-- by a program, activity, training
provider, employer, or other person or entity covered by the law \--
because of that perception.

**["Equal Opportunity"]{.smallcaps}**

**[and Categories Two and Three]{.smallcaps}**

People who fall under any of the three categories in the definition of
"disability" are protected from *discrimination* under WIA Section 188
and other Federal disability nondiscrimination laws. However, people in
Categories Two and Three \-- those who have a record of a past
disability, and those who are regarded as having a disability \-- are
*not* entitled to benefit from the types of positive actions, such as
reasonable accommodations / modifications, that are designed to provide
*equal opportunity* for people with disabilities.

These positive actions are intended to help people with disabilities
succeed in employment despite the barriers imposed by their
substantially limiting impairments. Because people in Categories Two and
Three do not have such substantially limiting impairments, they
presumably do not need \-- and Federal disability nondiscrimination laws
do not entitle them to \-- the additional assistance that reasonable
accommodations/modifications, auxiliary aids and services, and
programmatic / architectural accessibility requirements are meant to
provide. (All of these types of positive actions will be discussed later
in this training.)

**[Exceptions to the Definition]{.smallcaps}**

**[Of "Individual with a Disability"]{.smallcaps}**

Federal laws barring discrimination on the basis of disability contain
several exceptions to the definition of "individual with a disability."
These exceptions mean that people who have certain conditions, or who
engage in certain activities, are not protected from adverse actions
that are motivated by those conditions or activities, even if those
actions would otherwise be considered discriminatory.

The WIA nondiscrimination regulations contain two types of exceptions to
the definition of "individual with a disability": exceptions that apply
in all aspects of the One-Stop Career Center system, and exceptions that
apply only in the employment context.

**Exceptions That Apply In All Contexts**

*Sexual and psychological disorders.* The regulations exclude persons
with specific, listed sexual and psychological disorders. The list of
sexual disorders includes transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting from
physical impairments, and other sexual behavior disorders. Listed
psychological disorders include compulsive gambling, kleptomania, and
pyromania.

*Current illegal use of drugs.* The WIA nondiscrimination regulations
also exclude from the definition of "individual with a disability" both
persons who are "currently engaging in the illegal use of drugs," and
persons with "\[p\]sychoactive substance use disorders resulting from
current illegal use of drugs." Recipients are permitted to take adverse
actions against such people on the basis of their current illegal drug
use.

+----+-----------------------------------------------------------------+
| !  | **[Term to Know -- "Current Illegal Use of                      |
| [] | Drugs"]{.smallcaps}**                                           |
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| 90 |                                                                 |
| 27 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 78 |                                                                 |
| in |                                                                 |
| "} |                                                                 |
+----+-----------------------------------------------------------------+
|    | "Illegal *use of* drugs" is not the same as "use of *illegal    |
|    | drugs*." Drugs that are lawful in some contexts, such as        |
|    | prescription drugs, may be used in an illegal or unlawful way.  |
|    | The term "illegal use of drugs" is intended to cover such use   |
|    | of otherwise-legal drugs, as well as use of drugs whose use is  |
|    | generally prohibited.                                           |
|    |                                                                 |
|    | The WIA nondiscrimination regulations define "illegal use of    |
|    | drugs" as "the use of one or more drugs, the possession or      |
|    | distribution of which is unlawful under the Controlled          |
|    | Substances Act (21 U.S.C. 812)." The regulations note that the  |
|    | term "does not include the use of a drug taken under            |
|    | supervision by a licensed health care professional, or other    |
|    | uses authorized by the Controlled Substances Act or other       |
|    | provisions of Federal law." 29 CFR 37.4.                        |
|    |                                                                 |
|    | The regulations implementing Title II of the ADA define         |
|    | "current illegal use of drugs" as "illegal use of drugs that    |
|    | occurred recently enough to justify a reasonable belief that a  |
|    | person\'s drug use is current or that continuing use is a real  |
|    | and ongoing problem." 28 CFR 35.104.                            |
+----+-----------------------------------------------------------------+

It is important to note that only people who are *currently* using drugs
illegally are excluded from protection under WIA Section 188 and other
relevant Federal laws. The following categories of persons *are*
considered individuals with disabilities under those laws, and are
therefore protected from discrimination on the basis of their past drug
use (if that use qualified as a "disability" under the criteria
described earlier in this training):

-   Persons who have successfully completed a supervised drug
    rehabilitation program (an in-patient, out-patient, or employee
    assistance program), and who are no longer using drugs illegally;

-   Persons who have been rehabilitated successfully in some other way
    (e.g., recognized self-help programs such as Narcotics Anonymous),
    and who are no longer using drugs illegally; and

-   Persons who are currently participating in a supervised
    rehabilitation program, and who are no longer using drugs illegally.

Persons who are not using drugs illegally, but who are mistakenly
believed to be doing so, are also protected from discrimination under
the WIA nondiscrimination regulations.

To ensure that a person's past drug use is not recurring, a recipient
may request evidence that the person is participating in a
rehabilitation program or has been rehabilitated successfully in some
other way, or may request the results of a drug test.

-   In certain circumstances, even persons who are *currently* using
    drugs illegally are protected from discrimination, if their use
    constitutes an addiction (impairment) that substantially limit their
    major life activities.

**[Exceptions That Apply *Only* In the Employment Context]{.smallcaps}**

In the employment context, a person is excluded from the definition of
"individual with a disability" if that person either:

-   is *currently* abusing alcohol, or

-   has a currently contagious disease or infection,

*if* that alcohol abuse or disease/infection *either*:

-   prevents him/her from performing the duties of the job in question,
    or

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```
-   makes his or her employment a *direct threat* to health and safety.

The WIA nondiscrimination regulations do not define the term "direct
threat." However, in the employment context, the regulations
implementing Title I of the ADA apply. These regulations, published by
the Equal Employment Opportunity Commission (EEOC), define "direct
threat" as \"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.\" 29 CFR 1630.2(r). Under this definition,
the factors that must be considered in determining whether a particular
person's employment would create a *direct threat* include:

-   the duration (length of time) during which the person's employment
    would create the risk;

-   the nature and severity of the potential harm;

-   the likelihood that the potential harm will occur; and

-   the imminence of the potential harm.

The EEOC's Interpretive Guidance on Title I of the ADA, found in the
Appendix to 29 CFR part 1630, explains the concept of "direct threat" in
more detail than is possible in this training.

**[Alcoholics and Provision of Benefits/Services]{.smallcaps}**

In the context of provision of benefits and services (as opposed to that
of employment), alcoholics (those whose use of alcohol constitutes an
*impairment* that *substantially limits* one or more of their *major
life activities*) are treated differently by Federal disability
nondiscrimination laws than people who are currently using drugs
illegally. Alcoholics---even those who are currently using
alcohol---*are* protected from discrimination in programs and activities
that provide benefits or services through the One-Stop delivery system.
An otherwise-qualified alcoholic cannot lawfully be denied benefits or
services because of *the alcoholism itself.* However, a recipient is
permitted to take adverse action against an alcoholic because of the
*behavior that the alcoholism causes*.

**[When is a Person with a Disability "Qualified"?]{.smallcaps}**

The civil rights protections discussed in this training do not apply to
every person with a disability; only *qualified* individuals with
disabilities are entitled to those protections.

Under the WIA nondiscrimination regulations and other Federal disability
nondiscrimination laws, the definition of a "qualified individual with a
disability" that applies to a particular person depends on the context.

In the context of ***provision of aid, benefits, and services***, a
"qualified individual with a disability" is someone who meets the
*essential eligibility requirements* for the program or activity. In
deciding whether a particular person meets these requirements, you
*must* consider any *reasonable accommodation* or *reasonable
modification* that can be made for the person's disability. (*Reasonable
accommodations* and *reasonable modifications* will be discussed later
in this training.) However, you must *not* consider architectural,
communication, or transportation barriers to the person's participation.

In deciding whether a person with a disability that affects his/her
communication abilities meets the *essential eligibility requirements*
for a program or activity, you must assume that *auxiliary aids and
services* will be provided. ("*Auxiliary aids and services"* is a
general term used to describe methods of effective communication with
people with various types of disabilities.)

In the ***employment*** context, a "qualified individual 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.* In deciding whether a person with a
disability is qualified for a specific job, you must consider whether
*reasonable accommodations* for his/her disability will enable him/her
to perform those essential functions, and assume that *auxiliary aids
and services* will be provided.

***Job training programs*** fall into a different category, because they
combine aspects of both employment and services. The regulations
interpreting different Federal disability nondiscrimination laws apply
varying definitions of "qualified individual with a disability" to such
programs. The WIA nondiscrimination regulations use the same definition
as for programs and services (in other words, the person with a
disability must meet the *essential eligibility requirements* for the
training program). Under DOL's Section 504 regulations, a person with a
disability is "qualified" if (with *reasonable accommodations*) s/he
meets both the eligibility requirements for participation in the program
and the valid job or training qualifications.

If you have a question about whether a particular person with a
disability is qualified for a job training program, consult your
supervisor, or your program's equal opportunity officer or attorney, to
find which definition applies to your program or activity.

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

The following are *some* of the types of actions that are considered
discriminatory under the disability laws previously discussed. It is
impossible to list every single action that violates these law because
it discriminates against one or more persons with disabilities. However,
the regulations implementing WIA Section 188 and other statutes barring
disability-based discrimination do provide general descriptions of the
types of actions that are considered discriminatory. The following
summary does *not* include all of the requirements of, and should not be
used as a substitute for, the statutes and regulations themselves.

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

-   Excluding, or otherwise discriminating against, any person or entity
    because that person or entity is known to associate, or have a
    relationship, with someone who has a known disability.

######## [Actions That Are *Not* Discriminatory]{.smallcaps}

Some people mistakenly believe that the following actions are
discriminatory. However, the WIA nondiscrimination regulations
specifically state that these actions are allowable and lawful.

-   The regulations do not require you to provide people with
    disabilities with any of the following items or services:

    -   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
        filling out forms or reading other documents related to the
        program or activity you provide); or

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

-   However, you may be required to provide, as ***reasonable
    accommodations,*** items that might otherwise be considered
    personal, if those items are specifically designed or required to
    meet needs that are job-related or program-related, rather than
    personal needs.

-   Also, it is not against the law for a recipient to provide people
    with disabilities with *additional* services or benefits *beyond*
    those that are required by law.

-   If a Federal statute or Executive Order specifies that a particular
    program or activity is limited to persons in special categories, you
    are not required to admit persons with disabilities to the program
    or activity if they do not fit in those categories.

    -   For example, if a Federal statute or Executive Order designates
        a particular program as being for blind persons or those with
        visual impairments, you are not required to admit a person who
        is deaf, but who does not have a visual impairment.

###  Accessibility And Accommodation

Accessibility

Providing ***accessibility*** (or, to use a related term, providing
***access***) for people with disabilities means that WIA recipients
must both *plan ahead* and *act ahead*. 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*, 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 generalized actions *in advance* 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.

**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.

The term "facilities" is frequently interpreted to mean "buildings." But
the term actually includes not only buildings, and the rooms and other
areas within them; it also includes indoor constructs such as computer
kiosks and office cubicles, as well as equipment; vehicles and other
"conveyances"; parking lots and walkways; and other similar examples.
See the definition of "facility" in 29 CFR 37.4. In addition, the law
dealing with architectural accessibility provides standards for such
related, but often overlooked, items as alarm systems and signs.

The level of architectural accessibility that a particular facility must
meet depends on a number of factors:

-   The *age* of the facility (when it was built)

-   Whether the facility has been, or will be, *altered or renovated*
    for the recipient's use

    -   If so, *the date* *when* the facility was / will be altered or
        renovated

-   The date when the recipient first received Federal financial
    assistance

Under the hierarchy of accessibility, facilities that are newly
constructed must meet the highest standards of accessibility. The
standards that apply to facilities that have been altered or renovated
depend on whether the alteration or renovation was accomplished for the
recipient's use, and, if so, the dates of the alteration/renovation and
of the recipient's first receipt of Federal financial assistance. The
lowest standards of accessibility apply to "existing facilities."

*New construction.* Facilities that are newly constructed must, at a
minimum, meet the Uniform Federal Accessibility Standards (UFAS), found
at 41 CFR 101-19.6, Appendix A. DOL's Section 504 regulations permit a
recipient to adopt "alternative standards" for architectural
accessibility if it is clear that the alternative standards provide
equal or greater access for people with disabilities. Such "alternative
standards" include the Americans with Disabilities Act Accessibility
Guidelines (ADAAG), 28 CFR part 36, Appendix A. They also include the
new ADA and ABA Accessibility Guidelines for Buildings and Facilities,
published by the U.S. Access Board in the Federal Register on July 23,
2004. The latter Guidelines are available at
[http://www.access-board.gov/ada-aba/Blue%20HTML/ADA-ABA%20Guidelines%20Blue.htm](http://www.access-board.gov/ada-aba/Blue HTML/ADA-ABA Guidelines Blue.htm).
A State's accessibility standards may also be used if those standards
meet, or exceed, the requirements of UFAS.

*Alteration or renovation.* The standards that apply to a facility that
has been altered or renovated depend upon the following factors:

*The purpose or initiator of the alteration/renovation.* Was the
alteration/renovation done:

-   By the recipient?

-   On the recipient's behalf?

-   For the recipient's use?

*If* the answer to all of these questions is *"no,"* the standards for
*existing facilities* apply to the altered or renovated facility. (We
will discuss these standards shortly.)

*If the answer to one or more questions is "yes,"* the standards that
apply depend on two dates: the date when the alteration was or will be
accomplished, and the date when the recipient first received Federal
financial assistance.

-   If the alteration or renovation was/will be accomplished *before*
    the recipient first received Federal financial assistance, the
    standards for *existing facilities* apply.

-   If the alteration or renovation was/will be accomplished *after* the
    recipient first received Federal financial assistance, the
    altered/renovated part of the facility must comply with UFAS or
    other comparable standards "to the maximum extent feasible."

*Existing facilities.* Facilities that do not meet the above criteria
for either new construction or alteration/renovation must meet the
requirements related to ***program accessibility***.

**Program accessibility** means that a recipient must set up each of its
programs and activities in advance to be accessible to qualified persons
with disabilities *when looked at as a whole*. This requirement does not
mean that every facility (as described above) used by a program or
activity, or every part of such a facility, must be physically
accessible to and usable by qualified people with disabilities. However,
if a particular program or activity is offered at only one site, that
site must be made accessible, or the program or activity must be made
available at an alternative, accessible site or sites. In addition,
every aspect of a program or activity (such as intake, assessment, or
training) must be accessible.

Under the program accessibility requirements, a recipient is not
obligated to make structural changes to its facility if other ways of
providing access for people with disabilities (such as redesigning
equipment, moving classes or other services to accessible locations, or
assigning aides to work with customers with disabilities) are possible.
However, two specific legal requirements will affect the feasibility and
legality of such alternative arrangements:

-   Every recipient must provide programs and activities to people with
    disabilities in the most integrated setting possible (see Element
    5.4); and

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-   A recipient may be required to alter or renovate its facilities if
    there is no other possible way of providing program accessibility.

**Accommodations and Modifications**

In contrast to ***accessibility*** (which refers to *generalized*
actions that must be taken *before* any person with a disability
approaches a recipient), the terms ***reasonable accommodation*** and
***reasonable modifications*** refer to actions a recipient must take
*at the time that* a *particular person* with a known disability seeks
to apply to or participate in a program or activity, based on that
person's *individual* needs. The actions that the recipient must take
are those that will enable that particular person to receive equal
benefits from the program or activity, or to compete fairly in
educational and work settings \-- in other words, to provide *equal
opportunity* for the person with a disability.

**Circumstances Under Which A Recipient Must Provide**

**An Accommodation or Modification**

To request an accommodation or modification, a person with a disability
does not need to mention the word "disability," refer to the law, or use
the phrase "reasonable accommodation" or "reasonable modification." All
s/he needs to do, either personally or through a representative, is let
the recipient know that s/he needs an adjustment or change for a medical
reason.

Once a recipient receives a request for ***reasonable accommodations***
or ***modifications***, the recipient must engage in an informal,
interactive process with the person making the request, to identify how
the disability limits the person's major life activities, and what
***accommodations*** or ***modifications*** are possible and may be
helpful. As part of that process, the recipient may ask for medical
documentation of the disability, or ask other relevant questions about
the disability that will enable the recipient to make an informed
decision about the request.

The fact that a recipient has provided ***accessibility*** for people
with disabilities in general does not excuse it from providing
***reasonable accommodations*** or ***modifications*** for a particular
person with a disability.

As noted earlier in this training, only people with actual, current
disabilities are entitled to ***reasonable accommodations*** or
***modifications***. A recipient is not required to provide an
accommodation or modification for a person with a record of a past
disability, or a person who is regarded as having a disability.

The EEOC's *Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act* may help explain
these concepts, particularly as applied in the employment context. This
guidance is available on the EEOC's website at
[http://www.eeoc.gov/docs/accommodation.html]{.underline}, or may be
obtained from EEOC by calling (800) 669-4000 (voice) or 800-669-6820
(TTY/TDD).

**Undue hardship.** A recipient must provide ***reasonable
accommodations*** for qualified persons with disabilities, unless the
accommodations requested would impose an ***undue hardship*** on the
recipient. In general, the term ***undue hardship*** means *significant*
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:

-   **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

**Fundamental alteration.** Recipients must make ***reasonable
modifications*** to their policies, practices, and procedures when
necessary to avoid discrimination against qualified people with
disabilities, unless such modifications would cause a ***fundamental
alteration***.

Section 37.4 of the WIA nondiscrimination regulations provides two
alternate definitions for the term ***fundamental alteration***:

-   a change in the *essential nature* of a program or activity, or

-   a cost that a recipient can demonstrate would result in an *undue
    burden*.

**The Formal Process** Under 29 CFR 37.8, a recipient must go through a
formal process to determine whether a particular requested accommodation
would cause ***undue hardship***, or a particular requested modification
would result in a ***fundamental alteration***. The required process
includes the following steps:

-   The recipient must consider all of the factors listed in the
    definition of ***undue hardship*** or ***fundamental alteration***,
    as appropriate, before determining whether to provide the requested
    accommodation or modification.

-   If the recipient determines that the requested accommodation will
    cause an ***undue hardship,*** or that the requested modification
    would result in a ***fundamental alteration***, it must take all of
    the following actions:

    -   Prepare a written statement of the reasons underlying the
        determination;

    -   Provide a copy of the statement of reasons to the person or
        persons who requested the accommodation or modification; and

    -   Take any other actions that will *not* cause undue hardship or
        result in a fundamental alteration, but that will enable the
        person(s) with a disability to receive the aid, benefits,
        services, training, or employment offered by the recipient, to
        the maximum extent possible.

Many people have the misconception that accommodations and modifications
frequently impose undue hardships -- that they require a program or
employer to buy expensive equipment or make costly changes for
participants or employees. The truth is that many accommodations and
modifications are inexpensive and easy to provide.

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

### Discrimination / Accommodation / Accessibility?

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

**Purpose:**

 To identify what actions are appropriate in different
disability-related situations

Task:

-   You are the EO Officer for the State of Independence. You have been
    asked to review the following cases and decide what the appropriate
    action would be.

-   Read the descriptions on the following page. Decide which of the
    following actions, if any, are needed to comply with applicable
    legal requirements:

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-   Policy change

-   Reasonable accommodation or modification

-   Change to accomplish architectural or programmatic accessibility

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-   Be prepared to explain your conclusions.

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-   

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-   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}**

######## [Discrimination / 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 unable to complete
    the application process successfully. No individual with a mental
    disability has been admitted to the program.

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 learning disabilities to a
    particular training program at a nearby 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 disabilities.

+----+-----------------------------------------------------------------+
| !  | ## Term to Know -- Auxiliary Aids or Services                   |
| [] |                                                                 |
| (m |                                                                 |
| ed |                                                                 |
| ia |                                                                 |
| /i |                                                                 |
| ma |                                                                 |
| ge |                                                                 |
| 2. |                                                                 |
| pn |                                                                 |
| g) |                                                                 |
| {w |                                                                 |
| id |                                                                 |
| th |                                                                 |
| =" |                                                                 |
| 0. |                                                                 |
| 30 |                                                                 |
| 97 |                                                                 |
| 22 |                                                                 |
| 22 |                                                                 |
| 22 |                                                                 |
| 22 |                                                                 |
| 22 |                                                                 |
| 22 |                                                                 |
| 3i |                                                                 |
| n" |                                                                 |
| he |                                                                 |
| ig |                                                                 |
| ht |                                                                 |
| =" |                                                                 |
| 0. |                                                                 |
| 35 |                                                                 |
| 90 |                                                                 |
| 27 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 77 |                                                                 |
| 78 |                                                                 |
| in |                                                                 |
| "} |                                                                 |
+----+-----------------------------------------------------------------+
|    | > "Auxiliary aids or services" is a general, umbrella term that |
|    | > covers a wide range of devices, services, and actions used to |
|    | > communicate effectively with people with various types of     |
|    | > disabilities.                                                 |
|    | >                                                               |
|    | > For communicating with ***people with hearing impairments***, |
|    | > the list of examples of possible auxiliary aids or services   |
|    | > includes qualified interpreters, notetakers, transcription    |
|    | > services, telephone handset amplifies, telephones compatible  |
|    | > with hearing aids, and closed-caption decoders.               |
|    | >                                                               |
|    | > For communicating the content of visually delivered materials |
|    | > to ***people with visual impairments***, the list of examples |
|    | > of possible auxiliary aids or services includes qualified     |
|    | > readers, taped texts, audio recordings, and brailled and      |
|    | > large print materials.                                        |
+----+-----------------------------------------------------------------+

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

-   The recipient must provide appropriate auxiliary aids or services
    where necessary to give people with disabilities an equal
    opportunity to participate in or benefit from a particular program
    or activity.

    -   In determining what type of auxiliary aid or service is
        appropriate and necessary, the recipient must give primary
        consideration to the requests of the individual with a
        disability. This requirement acknowledges that not every method
        of communication will be effective for every person with the
        same broad, general type of disability, and that the best source
        of information about the most effective way to communicate with
        a particular person with a disability is the person himself or
        herself.

-   Where a recipient uses voice telephone to communicate by telephone,
    the recipient must also use telecommunication devices for
    individuals with hearing impairments (TDDs/TTYs), or equally
    effective communications systems, such as telephone relay services.

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-   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]{.smallcaps}**

The WIA nondiscrimination regulations, and DOL's regulations
implementing Section 504 of the Rehabilitation Act, impose additional
obligations that are related to recipients' employment practices, as
well as their provision of employment-related training. Listed below are
some of the more significant obligations.

## Review of Job Qualifications and Selection Criteria (29 CFR 32.14)

A recipient must develop, and adhere to, a schedule for reviewing the
appropriateness of all job qualifications and all criteria used to
determine eligibility for employment-related training. This review is to
ensure that, where a job qualification or eligibility criterion excludes
individuals with disabilities because of their disability, the
qualification or criterion is genuinely related to the performance of
the job or participation in the training, and is consistent with
business necessity and safe performance.

## Pre-Employment or Pre-Selection Inquires

In the context of employment or providing employment related services
and training, the types of disability-related inquiries that are
permissible depend upon whether the questions being asked are made in
the pre-selection or post-selection stage.

***Pre-Selection Stage***

In the pre-selection stage, recipients are generally prohibited from
asking questions about disability. However, a recipient may invite
applicants for employment or training to identify themselves as having a
disability under the following limited circumstances:

\(1\) The recipient must be either: 

 

\(a\) taking remedial action to correct the effects of past
discrimination,

\(b\) taking voluntary action to overcome the effects of conditions that
resulted in limited participation in the recipient\'s Federally-assisted
program or activity; or

\(c\) taking affirmative action pursuant to section 503 of the
Rehabilitation Act

\(2\) The recipient must state clearly on any written application form,
or must make clear orally (if no written application form is used), that
the disability-related information requested will be used solely in
connection with the recipient\'s remedial action obligations or its
voluntary or affirmative action efforts.

\(3\) The recipient must state clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided by law (see 29 CFR 32.15(d)), that refusal to provide the
information will not subject the applicant, employee or trainee to any
adverse treatment, and that it will be used only in accordance with the
law.

In addition, you may ask about an applicant\'s ability to perform
specific functions necessary for the job or training program. For
example, you may state the physical requirements of a job or training
program (such as the ability to lift a certain amount of weight, or the
ability to climb ladders), and ask if an applicant can satisfy these
requirements. You may also ask applicants to describe or demonstrate how
they would perform specific tasks, if the same questions are asked of
all applicants.

You may also describe what the application process will involve and ask
whether the applicant will need accommodations for the application
process. If the applicant says yes, and the need for accommodation is
not obvious, you may ask for reasonable documentation of a disability
before you provide accommodations.

You may *not,* however, ask an applicant whether s/he will need
reasonable accommodations to perform the essential functions of the job
or meet the essential eligibility requirements of the training program,
except under the following limited circumstances:

-   the applicant has an obvious disability, and you reasonably believe
    that the applicant will need reasonable accommodation because of
    that obvious disability;

-   the applicant has voluntarily disclosed to you that s/he has a
    hidden disability, and you reasonably believe that the applicant
    will need reasonable accommodation because of that hidden
    disability; or

-   the applicant has voluntarily disclosed to you that s/he needs
    reasonable accommodation to perform the job or participate in the
    training program.

In these limited circumstances, although you may ask questions about the
accommodations the job-seeker will need, you may *not* ask questions
about the underlying medical condition.

***In the Post-Selection, Pre-Hire (or Pre-Training) Stage:***

You may ask disability-related questions and require medical
examinations, even if they are unrelated to the job or the training
program, as long as these conditions are met:

-   All entering employees or trainees in the same category must be
    subjected to the same questions/exams, regardless of disability;

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

-   All information obtained through these questions/ exams, as well as
    all other information about an individual's disabilities or medical
    conditions, is kept strictly confidential, as described below.

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

WIA recipients must keep disability-related records, and records
containing medical information about particular individuals,
confidential. This means that recipients must keep this information
separate from other information about a particular individual, whether
the information is maintained on paper or electronically.

The circumstances under which recipients may disclose medical
information (including the fact that a particular individual has a
disability) are extremely limited. Such information may be disclosed
*only* to the following persons under the following circumstances:

-   Supervisors, managers, and trainers may be informed about an
    employee's or trainee's disability, but only to the extent necessary
    in order to explain limitations on the employee's or trainee's
    activities, or to provide him or her with *reasonable
    accommodations*.

-   First-aid and safety personnel may be informed about an employee's,
    applicant's, or trainee's medical condition, where appropriate, if
    the condition might require emergency treatment.

-   Government officials investigating compliance with disability
    nondiscrimination laws must be given such information upon request.

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

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

Purpose:

 To identify whether particular disability-related inquiries are lawful
and 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 training materials, the MOA
    Guidance, and the provisions of 29 CFR 32.15

2.  Identify the parts of the procedure, if any, that are inconsistent
    with the training materials, the MOA Guidance, or the requirements
    of 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 Federal]{.smallcaps}**

**[Disability Nondiscrimination Laws]{.smallcaps}**

The regulations implementing Section 188 of the Workforce Investment Act
require the State to submit 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 disability-related inquiries consistent with
    federal law

-   Ensure confidentiality of disability-related and other medical
    information

-   Communicate effectively with individuals with disabilities

    This documentation should include copies of State and/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 MOA Requirements]{.smallcaps}**

**[Related to Compliance with]{.smallcaps}**

**[Federal Disability Nondiscrimination Laws]{.smallcaps}**

This part of the training has been reserved to discuss the State's
approach to implementing the MOA requirements related to Compliance with
Federal Disability Nondiscrimination Laws. 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, in the
    implementing regulations for Section 188 of WIA, and Subparts B and
    C of 29 CFR part 32, in the implementing regulations for Section 504
    of the Rehabilitation Act.

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-   Procedures and systems that support the State's implementation of
    these requirements.

-   Additional MOA-related requirements that have been imposed by the
    State and that are related to Compliance with Federal Disability
    Nondiscrimination Laws.