By Rochelle Kaplan, Esq. – Counsel for the National Association of Colleges and Employers , presented this information as a keynote speaker at the October 18, 2002 Conference, “Preparing Students with Disabilities for the Transition from College to the Work Force”.
The Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990 both relate to internships and similar field work requirements for students with disabilities.
- Internships can be considered employment under Title I of the ADA and a school program under Titles II and III – thus the need for support is mandated whether a student is in a public or private college and is considered both as a student and as an employee.
- The focus here is on the abilities of individuals (the students) in relation to the skills, functions, duties, and requirements of the jobs/programs and services.
What Faculty Must Do:
- Do not disclose the disability to the employer (the student can self-disclose if he/she/ so chooses.)
- Refer students based on skills, interests, and qualifications.
- Counsel students based on skills and interests, NOT on an assumption of the student’s abilities.
Major Provisions in Employment:
- No pre-employment inquiries – it is illegal to inquire if a person has a disability and also to assume that the person does, or to regard them as having a disability.
- No job segregation – employers cannot isolate or separate employees with disabilities from the other staff in a company.
- All standards, qualifications, and selection criteria must be job-related.
- Tests given to place employees in a job must measure skills and abilities.
- The recruiting process must be accessible – location of recruiting and all information regarding employment must be in accessible formats.
- Application and job interview questions must be job-related.
- Reference-checking must be job-related.
- Ability to perform the functions of the job
- Does the applicant meet the job requirements?
- Can the applicant perform the essential functions of the job?
- Safety/Health assessment factors: Is the individual at risk or likely to pose a risk in this setting? How long will the risk, if any, last? What medical knowledge does the employer need to know? Is it likely that safety risks or hazards will be occurring? Is this harm imminent?
- Cannot ask about physical or mental disabilities
- Cannot ask about chronic illness or impairments
- Origin, severity or prognosis of illness
- Drug or alcohol abuse or addiction
- Use of prescription drugs
- Prior injuries
The ultimate selection of an employee must be based on the actual skills and abilities needed to perform the essential functions of the position.
Reasonable accommodation discussions can be held after employment is offered and accepted. The determination is based on the modifications needed, with the support designed to meet the person’s needs on a case-by-case basis.
Common reasonable accommodations:
Most accommodations do not cost more than $500. – most are much cheaper.
- Accessible and usable facilities – a variety of placement sites would be needed.
- Part-time work schedule
- Equipment designed to make the workplace accessible – adjustable height table, assistive technology, adaptive software.
Undue hardship related to the expense of accommodation:
As a public college, any accommodation determined to be reasonable would likely not be considered as too much of a hardship. There are often many ways to accommodate the effects of a disability, and the costs of this provision varies greatly. The Disability Services office recommends the best and most efficacious type of support, but it may be inexpensive, low-technology, and easily used.
The guidelines for the test of undue hardship relate to:
- Nature and cost of accommodation
- Size of the business (usually 15 employees or less)
- Impact on the business’ operations.