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

Presented by Denise Sudell, Esq. Senior Policy Advisor, Disability Issues USDOL, Civil Rights Center
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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 disabilityrelated information – Storing: where and how the law requires you to keep disability-related information about customers, applicants, and employees

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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)
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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
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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)

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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.)
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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
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“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”
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Asking

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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])
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Provision of services vs. employment (cont’d)
• Both types of legal standards (servicerelated and employment-related) will apply to programs and activities in the OneStop system • Which standards apply will depend on the type of activity

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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
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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
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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”

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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

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

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

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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)

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Exceptions to the general “Don’t Ask” rule
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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

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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)

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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

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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 . . .

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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

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Telling
Disclosure of medical and disability-related information

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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)
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Whom may you tell about a customer’s disability? (cont’d)
– Others – only on a “need-to-know” basis (interpreted narrowly)

• Confidentiality is paramount!

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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!
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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 OneStop 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
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Storing

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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)
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Using

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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
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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
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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
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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
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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 • Office of Disability Employment Policy (ODEP) U.S. Department of Labor http://www.dol.gov/odep • ETA DDWP website (http://www.doleta.gov /disability/)
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Where to Get More Information
• The 411 on Disability Disclosure: A Workbook for Youth with Disabilities • Disability Inquiries in the Workforce Development System

– http://www.ncwd-youth.info/resources_&_Publications/411

– info brief summarizing legal requirements – http://www.ncwd-youth.info/assets/info_briefs/infobrief_iss

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How To Contact Me
• E-mail: sudell.denise@dol.gov • Phone: 202-693-6554 (voice) 800-877-8339 (relay service for TTY)

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