MODERATED AMERICANS WITH DISABILITIES ACT (ADA)

commiecorvus

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This in no way serves as advice or suggestions on the part of The Break Room.
We would hope that when it comes to your job and your disability you would be smarter than using a website like ours to make important decisions.

Call your local DVR or the AAOC, talk to them before you make major decisions.

All the information here is factual and gleaned from dozens of websites.

It is provided here to end some of the conversations that have sprung up over the years and stop new threads before they get started.

So that being said, a bunch of stuff you might want to know about the ADA but didn’t know how to ask.



The ADA protects over 53 million Americans who have disabilities.

The term "disability" means, with respect to an individual who has/is:

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment

The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals based on race, color, sex, national origin, age, and religion.

Who does ADA Title I protect?

Title I of the ADA prohibits discrimination in employment against people with disabilities.
It requires employers to make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee, unless such accommodation would impose an undue hardship on the employer.
Reasonable accommodations include such actions as making work-sites accessible, modifying existing equipment, providing new devices, modifying work schedules, restructuring jobs, and providing readers or interpreters.

Examples of accommodations:

Deaf applicants may need a sign language interpreter during the job interview.

An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.

A blind employee may need someone to read information posted on a bulletin board.

An employee with cancer may need leave to have radiation or chemotherapy treatments.

An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one.
If an employer believes that a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem and if the employee needs a reasonable accommodation.
Once there is a request reasonable accommodation, the employer and the individual should discuss the individual's needs and identify the appropriate reasonable accommodation.
Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.

Title I of the ADA also covers:

Medical Examinations and Inquiries
Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions.
A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.

Medical records are confidential.

The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation is considered medical information subject to the ADA’s confidentiality requirements.

Drug and Alcohol Abuse

Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts based on such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

Disclosure

Disclosing a disability may be a consideration when starting a new job; transitioning from school, another job, or unemployment; or retaining a job after acquiring a disability.
For individuals who may still be struggling with accepting their medical condition, making the decision to disclose can be overwhelming. Because some impairments are not visible, individuals may face such challenges as understanding their impairments and determining what types of accommodations are available.
As with any new experience, preparation is vital. The following provides an overview of the dos and don'ts of disclosure.
Note that disclosing is a very personal decision, but some of the following tips may be helpful in making that decision.
Contact JAN for additional information related to job accommodations, the Americans with Disabilities Act (ADA), and other resources.

Do disclose when you need an accommodation:

Deciding when to disclose can be a difficult choice for a person with a disability. If you have a hidden disability such as brain injury or post-traumatic stress disorder, knowing when to disclose your condition can be a real dilemma.

Accommodations

Under the ADA you can request an accommodation at any time during the application process or while you are employed.
You can request an accommodation even if you did not ask for one when applying for a job or after receiving a job offer.
So when should you disclose that you have disability?
In general, you should disclose your disability when you need to request a reasonable accommodation - when you know there is a workplace barrier that is preventing you, due to a disability, from competing for a job, performing a job, or gaining equal access to a benefit of employment like an employee lunchroom or employee parking.

Do know who to disclose to:

This can be tricky. Many employers have their own in house procedures that detail how they handle accommodation requests.
Check your employee handbook or your company’s intranet for this information. In addition, if you have an EEO office or a human resources department, they can assist you.
The other option is to talk to your manager or supervisor directly.

Do know how to disclose:

According to the Equal Employment Opportunity Commission (EEOC), you only have to let your employer know that you need an adjustment or change at work for a reason related to a medical condition. You can use "plain English" to make your request and you do not have to mention the ADA or use the phrase "reasonable accommodation."
Once you disclose, then the interactive process should begin.
At this point, your employer can ask for limited information about your disability and your need for accommodations.

Do not disclose too soon:

Many people with hidden disabilities may feel that they are not being completely honest with an employer if they do not tell everything about their disability up front at the time of their interview.
Just remember that you are not obligated to do so.
When you disclose, just provide basic information about your condition, your limitations, and what accommodations you may need.

Do not disclose too late:

Do not wait to disclose until after you begin to experience work performance problems.
It is better to disclose your disability and request accommodations before job performance suffers or conduct problems occur.
Employers do not have to rescind discipline that occurred before they knew about the disability nor do they have to lower performance standards as a reasonable accommodation.
Remember, the purpose of an accommodation is to enable a qualified person with a disability to perform the essential functions of the job.
So, disclose when you first realize you are having difficulties.

Do not disclose to everyone:

Remember that you have a right to keep information about your disability private. It is not necessary to inform coworkers and colleagues about your disability or your need for accommodations.
While they may be aware of the accommodations, especially if you need to take extra breaks or you have a flexible starting time, they are not entitled to know why.
The ADA requires your employer to keep your disability and medical information confidential and to give it to managers and supervisors only on a need-to know basis.

MOST IMPORTANTLY, DO YOUR HOMEWORK:

No one knows more about your disability then you do so tell your employer what you think you need, but also research other accommodations options such as a flexible start time or working from home part of the time. For additional information on the types of accommodations you could ask for.

All information from A to Z of Disabilities and Accommodations - http://AskJAN.org/media/atoz.htm

What is a Reasonable Accommodation?



Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

  • providing or modifying equipment or devices,
  • job restructuring,
  • part-time or modified work schedules,
  • reassignment to a vacant position,
  • adjusting or modifying examinations, training materials, or policies,
  • providing readers and interpreters, and
  • making the workplace readily accessible to and usable by people with disabilities.
Mitigating Measures

The determination as to whether a person has a disability under the ADA is made without regard to mitigating measures, such as medications, auxiliary aids and reasonable accommodations. If an individual has an impairment that substantially limits a major life activity, she is protected under the ADA, regardless of the fact that the disease or condition or its effects may be corrected or controlled.

Confidentiality

The ADA’s confidentiality provisions do not permit employers to tell coworkers that an employee with a disability is receiving a reasonable accommodation.
It is imperative that managers be trained about how to respond to such questions because it is reasonable to assume they may be asked questions by an employee’s coworkers where the accommodation involves modification of a work schedule or dress code, or any other change in the workplace that a coworker may perceive as holding the employee with a disability to a different performance or conduct standard.
Employers already keep many types of information confidential despite inquiries from their workers, such as personnel decisions like the reason an employee left a job or was transferred.
This situation should be treated in similar fashion.
An employer could respond that she does not discuss one employee’s situation with another in order to protect the privacy of all employees, but she could assure the coworker that the employee is meeting the employer’s work requirements.


Sample Accommodation Request Letter

The following is an example of what can be included in an accommodation request letter and is not intended to be legal advice.



Date of Letter

Your name

Your address

Employer's name

Employer's address

Dear (e.g., Supervisor, Manager, Human Resources, Personnel):

Content to consider in body of letter:

Identify yourself as a person with a disability

State that you are requesting accommodations under the ADA (or the Rehabilitation Act of 1973 if you are a federal employee)

Identify your specific problematic job tasks

Identify your accommodation ideas

Request your employer's accommodation ideas

Refer to attached medical documentation if appropriate*

Ask that your employer respond to your request in a reasonable amount of time

Sincerely, Your signature

Your printed name

Cc: to appropriate individuals



You may want to attach medical information to your letter to help establish that you are a person with a disability and to document the need for accommodation.

______________________________________________________________________________________________________________________________________________________________________________________________


A WTF is going on Letter

Dear (Employer),

I am writing to inquire about the status of the accommodation request I submitted on (date submitted). Please feel free to contact me if you have any questions. I am willing to provide you with further information, if necessary, in order to process the request and assure the accommodations are put into place quickly.

Thank you for your prompt attention.

Sincerely,

(Employee)

Retaliation

According to the EEOC, individuals who oppose unlawful employment discrimination, participate in employment discrimination proceedings, or otherwise assert their rights under the laws enforced by the EEOC are protected against retaliation.
Therefore, if your employer retaliates against you for requesting an accommodation, you should report the retaliation to someone higher up in the company or agency or contact the EEOC immediately.



Q. Can an employer refuse to hire me because he believes that it would be unsafe, because of my disability, for me to work with certain machinery required to perform the essential functions of the job?

A. The ADA permits an employer to refuse to hire an individual if she poses a direct threat to the health or safety of herself or others.
A direct threat means a significant risk of substantial harm.
The determination that there is a direct threat must be based on objective, factual evidence regarding an individual's present ability to perform essential functions of a job.
An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future.
The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

Equal Employment Opportunity Commission
P.O. Box 7033
Lawrence, Kansas 66044
(800) 669-4000 (Voice), (800) 669-6820 (TDD)

For more specific information about ADA requirements affecting public accommodations and State and local government services contact:

Department of Justice
Office on the Americans with Disabilities Act
Civil Rights Division
P.O. Box 66118
Washington, DC 20035-6118
(202) 514-0301 (Voice)
(202) 514-0381 (TDD)
(202) 514-0383 (TDD)


When you are going to ask for an accommodation write some things down.

Define the issue:


Is it possible to modify the job? Yes No


Describe:


Is it possible to modify the schedule? Yes No

Describe:

Is it possible to modify the existing facility? Yes No

Describe:


Is it possible to modify the product or service? Yes No

Describe:

How will these things solve the issue?


Is it possible to use or combine available services, schedules, products. etc? Yes No

Describe:

Are there available products/schedules/methods that can be used differently than they currently are used?


Is it possible to modify a product? Yes No


Describe:



Is it possible to design something new? Yes No

Describe:

Plans for job accommodation:

1.

2.

3.

Useful websites

Disability Discrimination - https://www.eeoc.gov/laws/types/disability.cfm

ADA - Your Employment Rights as an Individual With a Disability - https://www.eeoc.gov/facts/ada18.html

The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities - https://www.eeoc.gov/facts/performance-conduct.html

Autism Spectrum - https://askjan.org/disabilities/Autism-Spectrum.cfm
 
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As someone who has gone through this process, when I made my request for accommodation, my HR requested documentation from my PCP (primary care physician) stating the nature of my disability, and what accommodations would be necessary. Oddly, despite my PCP marking my condition as permanent, I have been told that Target policy requires that I present new documentation of the continuing nature of my disability every six months. I have questioned this, but I do give them a new letter from the doctor as often as possible, even though the doctor rolled his eyes to the heavens every time I told him that I needed another copy
 

commiecorvus

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As someone who has gone through this process, when I made my request for accommodation, my HR requested documentation from my PCP (primary care physician) stating the nature of my disability, and what accommodations would be necessary. Oddly, despite my PCP marking my condition as permanent, I have been told that Target policy requires that I present new documentation of the continuing nature of my disability every six months. I have questioned this, but I do give them a new letter from the doctor as often as possible, even though the doctor rolled his eyes to the heavens every time I told him that I needed another copy

I think they were making that shit up.
They may have to do the paperwork every six months but you don't.
If the doctor marked it as a permanent condition, they can use that every time.

SSDI on the other hand actually has people who have been deaf since birth reestablish that they are still deaf every five years.
You gotta love the federal government.
 
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I still am trying to understand all this.

Before I self-termed from my store in 2018, HR lost my paperwork and wanted new proof of disablity from me. They wanted a mobility form filled by my PCP.... for my mental disability. My doc was so confused what I wanted out of them.
 

GoodyNN

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Commie is right. This *is* the For Dummies version. Attorneys spend huge amounts of time and money in education to specialize in ADA law and still have more to learn all the time. They also charge very high rates compared to their less specialized peers.
 

GozerZuul

FORMER fLOW tm. MOVED ONTO WALLY WORLD.
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thanks Commiecorvus for this. the ADA and HIPAA can be a bit odd from a layman's point of view but i think this being here is a good step to provide info to all.
 
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I still am trying to understand all this.

Before I self-termed from my store in 2018, HR lost my paperwork and wanted new proof of disablity from me. They wanted a mobility form filled by my PCP.... for my mental disability. My doc was so confused what I wanted out of them.
I had this happen a few years ago. There was a change in HR, and I noticed that I was scheduled for a cart attendant shift in the middle of winter (I can't have prolonged exposure to cold temperatures). I spoke to the new HR about this, and they couldn't find any record of my ADA documentation. This was when I was told that they were only kept on file for six months, and I couldn't expect my accommodation to be honored if I didn't re-submit it. Needless to say, I made the earliest possible appointment with my PCP, and made sure that I had multiple copies, both to re-submit between appointments, and so I would always have one for my files as proof of its existence.
 

Fyi

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Thank you commiecorvus, for posting this.

There are a few disabled people at my store that are 100% going to be termed because they have been deemed not valuable to modernization by management, and yes they have documentation and some even have job coaches.

These are people that have worked for target for on average 10 years. They have learned to be competent in the jobs they were hired for but they have disabilities that prevent them from doing certain tasks such as cashiering, working on ladders etc.

The employees are 100% loyal to the company are grateful for their jobs and never complain.

I believe that target has an obligation to employee disabled persons. If a company is going to preach inclusiveness in their marketing they should be willing to hire those same people to work at their stores.

This is just another example that target does not care about ANY employees any more. If they are willing to get rid of these people who take pride in having a stable job and actually work to the best of their abilities the company is truly finished.

I hope the media starts writing about this and it leads to lawsuits so the general public can see what a terrible company target truly has become.
 

Fyi

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We don’t, though. Only certain things are forwarded to HROC and medical notes are not one of them.
After an ADA review all paperwork pertaining to the review and after partnering with the HRBP should be kept in the tms file for the duration of their employment with target and a year after termination. If the paperwork isn’t available they are breaking the law.
 
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Fyi

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I had this happen a few years ago. There was a change in HR, and I noticed that I was scheduled for a cart attendant shift in the middle of winter (I can't have prolonged exposure to cold temperatures). I spoke to the new HR about this, and they couldn't find any record of my ADA documentation. This was when I was told that they were only kept on file for six months, and I couldn't expect my accommodation to be honored if I didn't re-submit it. Needless to say, I made the earliest possible appointment with my PCP, and made sure that I had multiple copies, both to re-submit between appointments, and so I would always have one for my files as proof of its existence.
Posting this again so people see it:

After an ADA review all paperwork pertaining to the review and after partnering with the HRBP should be kept in the tms file for the duration of their employment with target and a year after after termination. If the paperwork isn’t available they are breaking the law.
 

commiecorvus

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Posting this again so people see it:

After an ADA review all paperwork pertaining to the review and after partnering with the HRBP should be kept in the tms file for the duration of their employment with target and a year after after termination. If the paperwork isn’t available they are breaking the law.

Yeah, quoting this again, again for fucking good measure.
Anyone who gets told they need to fill out forms again or that the paperwork is missing needs to have a 'come to Jeshua' conversation with HR.
The law is exactly as @Fyi states.
 

Fyi

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Yeah, quoting this again, again for fucking good measure.
Anyone who gets told they need to fill out forms again or that the paperwork is missing needs to have a 'come to Jeshua' conversation with HR.
The law is exactly as @Fyi states.
I see a ton of questions and topics on the forum from tms that don’t realize they have certain rights guaranteed to them by the federal government. You definitely can’t rely on your TL, Stl, Etl and sometimes even Hr to be giving you the correct information. (Whether thats from ignorance, lying or purposely leaving out info is another story)

I can’t stress enough that ADA law is a huge freaking deal and Target does not take it seriously at all.

I’d recommend anyone that has any type of claim should really research their rights under the law and try to document any conversations they have with leadership.

@commiecorvus posted a ton of great info to help protect yourself
 
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Fyi

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If any team member feels like that are being “performanced out” because they have ADA restrictions or anything else weird going on please direct message me
 
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I don't know if this is right, or legal, but the HRBP of my area was using the "workability" report for ADA issues.
You'd have an ADA conversation with HR (where you felt like they were determining if they could fire you...) then get the paperwork for your Dr to fill out (which clearly was only designed for like broken limbs and stuff, and impossible to fill out for complex issues) and then it's on file for 6 months.
A lot of people had to transition to intermittent FMLA protection, and then you were at the mercy of a completely incompetent 3rd party Target goes through, and still asked to fill it out every 6 months even if the "serious medical issue" was labeled as permanent.
The 3rd party absolutely harasses you about getting "reevaluated" and "rediagnosed" during that time period, too, like a permanent disability could just magic itself away.

For anyone on FMLA, please know that you have to start calling your claims people months before your six month span runs out, because they often WILL NOT send you new paperwork without requesting it yourself when the time frame is up, and will just close your case without contacting you.

Target has so significantly changed their job expectations that it's nearly impossible for many people with ADA issues to be accommodated.
They knew what they were doing, and they deserve all the negative media attention possible for this.
At a time the government wants to move to severely limit disability payments, payments that don't come close to covering even the bare essentials for most people, and are pressuring everyone to get a job, "entry level" employers like Target are doing everything in their power to prevent people who want to work from working. Target is stripping basic human dignity from people who actually brought a lot of hard work, loyalty, and value to their stores and their communities, so they can pinch a few more pennies.
 

can't touch this

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Always love to read all about the hijinks these woke capitalists like getting up to when they think nobody's looking
 
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Thank you for this. These resources are so often arcanely obscured. Never enough, but at least we can document what's out there.
 
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