Disabilities in the workplace: Federal agencies release new resource guide for employers

By Joan Farrell, JD, Senior Legal Editor

Earlier this month, the White House announced the release of a resource guide to assist employers in recruiting, hiring, retaining, and promoting people with disabilities. The online guide is part of a federal “Curb Cuts to the Middle Class Initiative” through which federal agencies, including the EEOC, are working to increase employment opportunities for individuals with disabilities.
The online guide brings together in one document numerous tools and resources available for employers. In addition to providing information on recruiting people with disabilities, the guide provides information on best practices for interviewing applicants, retaining employees with disabilities, and providing reasonable accommodations. It also contains links to disability awareness training and disability etiquette training programs—both of which may be helpful for employers to use in their workplace diversity programs.
As the guide points out, employers can often take their existing programs—such as retention strategies—and tweak them to focus on the needs of employees with disabilities. As an example, the guide notes that onboarding or new employee orientation programs can include disability-specific information such as reasonable accommodation procedures and orientation materials that are in accessible formats. The guide indicates that structured onboarding programs have been shown to ease the transition of veterans with disabilities into the civilian workplace.
In addition, return-to-work programs that employers already have in place for employees returning from injuries covered by workers’ compensation insurance can be expanded to include programs that help employees with nonoccupational injuries return to work.
The guide offers links to several resources that employers can use to help structure a return-to-work program for employees with disabilities, including the Job Accommodation Network (JAN) —a free consulting service funded by the U.S. Department of Labor's Office of Disability Employment Policy—that has a wealth of online information on reasonable accommodation in the workplace. JAN also has a toll-free number employers can use to obtain free, confidential assistance on reasonable accommodation.
It’s important, too, for employers to remember that in addition to requiring reasonable accommodation and prohibiting discrimination based on an individual’s disability, the ADA also contains prohibitions that apply regardless of whether an individual has a disability. For example, the ADA prohibits employers from making disability-related inquiries or requiring medical exams except in certain limited circumstances.
Before an employer extends a job offer to an applicant, these inquiries and exams are strictly prohibited. Once an offer is made—but before the prospective employee starts work—the employer generally can ask any medical questions and require a medical exam without violating the ADA. When an individual becomes an employee, these exams and inquiries are permitted only when they are job related and consistent with business necessity.
Here are some steps employers can take to make sure they stay in compliance with the ADA:

• Make sure job descriptions are accurate, up-to-date, and designate essential functions
• During job interviews, focus on the applicant’s ability to perform essential job functions
• Provide training on the ADA’s requirements to all employees involved in the hiring process
• Provide periodic refresher training on the do’s and don’ts of making medical inquiries and what to do when an employee volunteers information about a disability
• Make sure supervisors understand the interactive process and when an employee’s disclosures may trigger the employer’s obligation to engage in the process
• Carefully document the reasons leading to an adverse employment decision that affects an employee or applicant with a disability—including any decision to deny reasonable accommodation

508 Compliancy

Technology has changed a lot since 2000, when the U.S. Access Board issued its first accessiblity guidelines for federal IT.

On Wednesday, the Access Board released its long-awaited proposed rule to update accessibility guidelines for federal information and communication technology (ICT) subject to Section 508 of the Rehabilitation Act. It also provides similar updates for telecommunications equipment covered by Section 255 of the Communications Act.
"The Board's proposal is responsive to widespread changes and innovations in the IT and communication industries," said Sachin Dev Pavithran, vice chairman of the Access Board, in a release. "It is important that the 508 Standards and 255 Guidelines stay abreast of the ever-evolving technologies they cover so that accessibility for people with disabilities is properly addressed."
The proposed rule incorporates the latest version of the international Web Content Accessibility Guidelines (WCAG).
"We're proposing to reference that as the Web standard for accessibility plus the standard to determine whether documents and software are accessible," said David Capozzi, executive director of the Access Board.
WCAG 2.0 is used by many other countries and has been referenced by the Department of Transportation in its rule making under the Air Carrier Access Act for airline websites.
The original version of WCAG came out in 2000, which was about the same time the Access Board was finalizing its own set of WCAG-inspired Web standards in the first version of Section 508. This time around, the Board decided to incorporate WCAG 2.0 rather than stick with its own separate guidelines.
"Rather than mimicking the standards, we did a direct reference, which I think goes a lot further toward providing harmonization with international standards," Capozzi said.
The proposed rule also adds Real Time Text (RTT) functionality to the Board's accessibility guidelines for products providing real-time voice communications.
"That's kind of like the new version of TTYs for people who are deaf or hard of hearing," Capozzi said. "Real Time Text is different from text that most people would think of where, when you're sending a text from one person to another or from one person to a group, you'd type the whole message and then you'd send it. Whereas Real Time Text you send character-by-character as you're typing."
Feds using RTTs will be able to communicate quicker and in a more conversational manner than they had previously with TTYs.
The proposed rule also addresses the types of electronic content that are covered by Section 508.
For example, if an individual files an emailed complaint with a federal agency that has enforcement authority, that agency's email reply would be covered under the rule change.
"An email blast from, for example, the Office of Personnel Management that sends out emails to all federal agencies alerting them to some new OPM memo or a memo from the Office of Management and Budget that goes to all the agencies alerting them to some new policy change, those would be covered as well," Capozzi said.
Some of the changes being proposed are more subtle. For example, information technology or "IT" will now be referred to as "ICT" for information and communication technology, which is how many other nations refer to this type of technology
In addition, the Access Board is moving away from identifying specific products in its guidelines.
"The current standards address technology kind of product by product, so it looks at what the product is instead of what the product does," Capozzi said. "And so, the new proposed standards are more functional-based as opposed to product-specific requirements."
The Access Board took this approach as a way to keep the guidelines from becoming obsolete as technology continues to rapidly evolve.
"We're trying to make these last a little bit longer, so that it's not relating to the product itself, but what the function is," he said. "The functions probably won't change that dramatically."
The Access Board is accepting public comments on the proposed rule for 90 days. It's also hosting two public hearings, one on March 5, at the Manchester Grand Hyatt Hotel, Mission Beach A & B, in San Diego, California, and the other on March 11, at the Access Board Conference Center, in Washington, D.C. The Board will also host a public webinar on March 31.