# Presentation: 774007

## Disability-Related Information: Asking, Telling, Using and Storing

- Presented by Denise Sudell, Esq.
- Senior Policy Advisor, Disability Issues
- USDOL, Civil Rights Center

## Introduction 

- In this workshop, we’ll discuss the legal requirements that apply to:
**Asking**:  you want to ask a customer questions that may reveal whether s/he has a disability
**Telling**:  you know a customer has a disability and are considering telling someone else about the disability
**Using**:  what the law permits you to do with disability-related information
**Storing**:  where and how the law requires you to keep disability-related information about customers, applicants, and employees

## Terminology we’ll use

*Disability-related information*
*Any* information that discloses that the customer has a disability (*e.g.*, information about special education, notes that a customer has been referred to Voc Rehab, etc.)
*Disability-related inquiries  (asking)*
- Asking customers questions that are likely to elicit information about disabilities
- Asking customers to undergo assessments to determine if they have *hidden disabilities* (such as learning disabilities)

**Notes:**
This first category is broader than you might think

## What Federal Disability Nondiscrimination Laws Apply to the One-Stop System?

- Several *different* disability nondiscrimination laws apply to *each* program or activity within the One-Stop system
- You need to know about *all * the laws that apply to your program or activity

**Notes:**
I’ve had people ask, “Is this program covered by Section 504 of the Rehabilitation Act, or Title II of the Americans with Disabilities Act?”  I answer “Yes.”
Why do you need to know about these laws?  Because they provide the framework for determining what’s legal and what’s illegal

## Applicable Federal Disability Nondiscrimination Laws (cont’d)

***Workforce Investment Act of 1998 (WIA), Section 188 ***(29 U.S.C. § 2938)
- Implementing regulations:  29 CFR part 37
- Bar disability-based discrimination *and** . . .*
- Require *equal opportunity** *for customers with disabilities through:
*individualized treatment*
*positive actions* (*e.g., reasonable accommodation)*

## Applicable Federal Disability Nondiscrimination Laws (cont’d)

- Other applicable laws:
- Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794)
- The Americans with Disabilities Act of 1990, as amended (42 U.S.C. § 12101 *et seq.*)

## Applicable Federal Disability Nondiscrimination Laws (cont’d)

- Under these laws, the One-Stop system . . .*** ***
*should** *focus on:
- the individual customer’s *abilities*
- the *accommodations* and *auxiliary aids and services* she needs in order to use those abilities
- should *not* focus on:
- the limitations caused by the customer’s disability

**Notes:**
Also, INTEGRATION – providing services for people with disabilities alongside other people wherever possible

## “Handicapped” vs. “Individual (or Person) with a Disability”

- DOL’s Section 504 regulations (29 CFR part 32) have not yet been amended to replace the term “handicap” with “disability”
- However, the term “handicapped” is unacceptable and should not be used
- Use “people first” language (“person with a disability,” “people who are blind”) – not “the blind” or “the disabled”

## Asking

## Provision of servicesvs. employment

- Two *different*  types of legal standards
- Standards relating to *provision of services**** ***(*e.g., *ADA Title II, Section 504)
- Standards relating to *employment**** ***(*e.g., *ADA Title I, specific parts of Section 504 regs [29 CFR part 32 subparts B and C])

**Notes:**
WIA Section 188 contains both types of standards

## Both types of legal standards (service-related and employment-related) will apply to programs and activities in the One-Stop system
Which standards apply will depend on the type of activity

- Which standards apply will depend on the ***type of activity***

**Provision of services****vs. employment (cont’d)**

**Notes:**
UNIQUE POSITION – BOTH types of standards may apply to you, depending on what you’re doing at any given time

## It’s all about the context!

*Important:*  Some practices that are *legal**** *** in the context of providing services . . .
- . . . are *illegal*  in the context of *employment-related**** ***activities

**Notes:**
So basically if you’re One-Stop staff, what you are allowed to do depends on what hat you’re wearing at any given time
We’ll talk a bit more about this in a few minutes, when we discuss specific reasons for laws

## Which activities fall under“provision of services”?

*Examples* of activities to which*** ****service-related**** ***standards apply:
- Assessment of skills, prior work experience and employability
- Creation of service strategy
- Supportive programs such as child care, transportation, housing assistance, benefits counseling

## Which activities fall under“employment-related” standards?

*Employment-related**** ***standards apply to:
- Employment-related training
- Job placement/referral and related activities of One-Stop agencies/programs/activities that are acting as “employment agencies”

## Which activities fall under“employment-related” standards? (cont’d)

- What is *employment-related training*?
- Definition is *broad*:  “training that allows or enables an individual to obtain employment” (29 CFR § 37.4)
- Examples:
- Occupational skills training
- On-the-job training
- Job readiness training

**Notes:**
Unclear whether applies to other types of training, such as:
	• Basic educational skills training
	• ESL training

But since the definition is so broad, safest course is to assume that all these types of training are covered

## Which activities fall under“employment-related” standards? (cont’d)

- A One-Stop agency/program is acting as an*“employment agency” *when it *regularly* has as a *“principal function”*:
*procuring employees* for at least one employer, or
*procuring work opportunities* for customers

**Notes:**
Think about this . . . job referrals, job orders, etc.

## Where services-related standards apply,

- Where *services-related* standards apply,
- you have broad latitude
- in asking questions
- related to disability
- or medical conditions

## When you’re providing services ...

- In the *services *context, disability-related inquiries are *legal**** ***– and *recommended*
*Screening* customers who have particular types of employment problems for signs of hidden disabilities
- Determining eligibility for *targeted programs*
- Determining whether – and which -- *reasonable accommodations *would help customers succeed in employment

**Notes:**
You need to look for barriers to employment success – hidden disabilities may constitute such barriers
Determining whether – and which -- reasonable accommodations would help customers succeed in employment

Example – psychiatric disabilities – 
* inappropriate interaction withupervisors, co-workers, family, friends, and strangers on the street (and staff in TANF and WtW programs), such as over-reactions to negative feedback
* Poor communication skills, which can result in misunderstandings or failure to follow directions
Short attention span and inability to sustain concentration on a task

## When you’re providing services ... (cont’d)

- You *must* ask customers to provide four types of demographic information (29 CFR 37.37(b))
- Race/ethnicity
- Gender
- Age
- Disability status
*Customers aren’t required to answer!*

## What must you tell the customerbefore asking these questions?

*Whenever* disability-related information is collected/requested, staff must clearly inform the person that:
- providing the information is voluntary, *and*
- the information will be kept confidential as provided by law, *and . . . *
- (cont’d on next slide)

## What must you tell the customerbefore asking these questions?(cont’d)

*And . . .*
- refusal to provide the information will not subject the applicant, employee or participant to any adverse treatment, *and*
- the information will be used only in accordance with the law.

## You might want to tell the customer. . .

- It’s a good practice to tell the customer *why* you are asking medical or disability-related questions
- That way, the customer has the information s/he needs in order to decide whether to disclose his/her medical or disability-related information

## Where employment-related standards apply,

- Where *employment*-related standards apply,
- the questions
- you may ask
- are much more limited

## Generally, you must not ask

- In *employment-related* contexts, disability-related inquiries are *illegal**** ***(except in certain circumstances)
*Examples *of when you cannot *ask* disability-related questions:
- When you are a One-Stop staffer deciding whether to refer a customer to a particular job
- When you are an employer or training instructor and a customer is not performing well

**Notes:**
“This employer doesn’t like to hire people with ADHD, so let me ask questions to figure out if this customer has ADHD”  -- ALSO works in REVERSE

If you’re an employer or training instructor in that position, what can you do?  You can refer that person back to the One-Stop program with a recommendation for an assessment 

This means that your programs need to be structured to allow for those types of referrals-back

## What may you ask?

- You *may* ask questions about:
- Whether the customer can perform specific job functions, has needed experience / education / licenses
- Non-disability-related impairments (*e.g.*, “How did you break your leg?”)
- If the person has disclosed a disability or has an obvious disability, you can ask whether the person will need accommodations for the application process (*not* for the job)
- Current illegal use of drugs (alcohol-related questions are limited)

**Notes:**

You can ask questions about drinking habits UNLESS the particular question is likely to elicit information about alcoholism, which is a disability. An employer may ask an applicant whether s/he drinks alcohol, or whether s/he has been arrested for driving under the influence, because these questions do not reveal whether someone has alcoholism. However, questions asking how much alcohol an applicant drinks or whether s/he has participated in an alcohol rehabilitation program are likely to elicit information about whether the applicant has alcoholism. 
Also, if person has obvious disability or has disclosed a hidden disability, you can ask whether the person will need reas accomm for the application process

Illegal use of drugs –
Not necessarily disclose whether person is addicted to drugs/alcohol
•	Person currently using drugs illegally is not “individual with a disability”
We can get into this issue more later if we have time and people want to discuss it

## Exceptions

**Exceptions**
**to the general**
**“****Don’t Ask” rule**

## Exception One:Questions you must ask

- Demographic data – required by 29 CFR 37.37(b)(2)
- Must be asked of *every* applicant, registrant, eligible applicant/registrant, participant, terminee, applicant for employment, and employee
- Response is NOT REQUIRED
- Must be kept separate from other info about the individual

## Exception Two:Questions you may ask

- Recipients may *invite* applicants for employment/training to disclose disability if all of these criteria are met:
- Recipient must be either:
- taking remedial action to correct the effects of past discrimination, or
- taking voluntary action to overcome the effects of conditions that resulted in limited participation by people with disabilities in the recipient's program or activity, or
- taking affirmative action under section 503 of the Rehab Act
*And . . . (cont’d next slide)*

## Exception Two (cont’d)

- Criteria for inviting self-identification (cont’d from previous slide):
- Recipient must inform the applicant clearly that the information will be used solely for remedial actions or voluntary or affirmative action efforts

## What you must tell the customerbefore asking these questions

- Same information as in service context:
- providing the information is voluntary, *and*
- the information will be kept confidential as provided by law, *and*
- refusal to provide the information will not subject the applicant, employee or participant to any adverse treatment, *and*
- the information will be used only in accordance with the law
**Plus** . . .

## What you must tell the customerbefore asking these questions

- Plus . . .
*Why* you are asking for the information
*What* you will *do with* the information

## Telling

- Disclosure of
- medical and
- disability-related information

## Whom may you tell about a customer’s disability?

- Extremely limited in *either* context (services or employment)
*Supervisors, managers, trainers* (in *your* agency or at a training provider) – *but* only to explain limitations or reasonable accommodations
*First aid and safety personnel **– but *only if the condition may require emergency treatment (including evacuation)
*(cont’d on next slide)*

**Notes:**
This counts IN YOUR OWN OFFICE as well as when you’re dealing with employers and training providers (can talk in general – “I’m working with a customer who . . .” – but NOT reveal that person’s identity)

## Whom may you tell about a customer’s disability? (cont’d)

*Others* – only on a “need-to-know” basis (interpreted narrowly)
*Confidentiality is paramount!*

**Notes:**
This counts IN YOUR OWN OFFICE as well as when you’re dealing with employers and training providers (can talk in general – “I’m working with a customer who . . .” – but NOT reveal that person’s identity)

## Who you must not tell

- You *must not* *tell* (disclose medical or disability-related information to) an employer:
- to whom you are referring a customer
- who is considering hiring a customer
*Confidentiality is paramount!*

**Notes:**
This counts IN YOUR OWN OFFICE as well as when you’re dealing with employers and training providers (can talk in general – “I’m working with a customer who . . .” – but NOT reveal that person’s identity)

## Exceptions to “don’t-tell” rule

- You may tell (disclose to) an employer
*	**only* if . . .
- the job-seeker customer has made an *independent decision* to disclose to the employer; *and*
- the job-seeker has specifically *asked* the One-Stop Center or its staff to make the disclosure on his or her behalf; *and*
- the disclosure request has been *initiated by* the job-seeker, *not* by the One-Stop Center

## Storing

## How must you store medical or disability-related information?

- This information *must be*:
- Kept in separate files (apart from all other information about a customer, applicant, or employee)
- Stored securely, with limited access
- Electronic files:  password-protected
- Hard files:  kept locked
- Available only to persons with a *need to know* (those you’re permitted to *tell*)

## Using

## How may you use information about a customer’s disability?

*Service-related* context – broader range
- You *may *use it to figure out:
- Reasonable accommodations/modifications
- Auxiliary aids and services
- Assistive technology

## How may you use information about a customer’s disability? (cont’d)

*Employment* context – much more limited
- You *cannot* use it as the *sole basis* for deciding whether:
- to refer a customer to a particular job
- to suggest a particular career path to a customer

## How may you use information about a customer’s disability? (cont’d)

*Employment* context – much more limited
- You *may *talk with a customer about:
- whether s/he will need accommodations for the application process
- whether s/he is interested in special employment programs for persons with his/her disability

## What is steering?

- Based *solely* on a person’s disability:
- Referring her to a particular job/employer
- Directing her to a particular profession/ career path
*Steering is illegal!*
- Deciding on an *individualized basis**** ***is appropriate – and required by law

**Notes:**
Similarly – illegal to automatically refer all customers with disabilities to Voc Rehab, or to special programs
You may not make decisions based on the discrimination you think a person with a disability will face in a particular job or profession

 segregation vs. integration

## Where to Get More Information

- Civil Rights Center (CRC)
- 	U.S. Department of Labor
- 	200 Constitution Avenue N.W.
- 	Room N-4123
- 	Washington, D.C. 20210
- 	_[http://www.dol.gov/dol/oasam/crchome.htm](http://www.dol.gov/dol/oasam/crchome.htm)_
- Office of Disability Employment Policy (ODEP)
- 	U.S. Department of Labor
- 	_[http://www.dol.gov/odep](http://www.dol.gov/odep)_
- ETA DDWP website (_[http://](http://www.doleta.gov/disability/)__[www.doleta.gov](http://www.doleta.gov/disability/)__[/disability/](http://www.doleta.gov/disability/)_)

## Where to Get More Information

- The 411 on Disability Disclosure: A Workbook for Youth with Disabilities
- _[http://www.ncwd-youth.info/resources_&_Publications/411.html](http://www.ncwd-youth.info/resources_&_Publications/411.html)_
- Disability Inquiries in the Workforce Development System
- info brief summarizing legal requirements
- _[http://www.ncwd-youth.info/assets/info_briefs/infobrief_issue9.pdf](http://www.ncwd-youth.info/assets/info_briefs/infobrief_issue9.pdf)_

**Notes:**
The “411” workbook is available on CD-ROM – we have copies here – they’re also available at the information table

## How To Contact Me

- E-mail:  _[sudell.denise@dol.gov](mailto:sudell.denise@dol.gov)_
- Phone:  202-693-6554 (voice)
-   800-877-8339 (relay service for TTY)