Flashcards in Mortuary Law- Chapter 12 Deck (37):
Americans with Disabilities Act requires funeral homes as public accomodations to...
make their facilities accessible to disabled members of the public. They also impose detailed regulations on the treatment of employees and applicants for employment who have disabilities.
Funeral homes that employ ___ or more employees fall under the coverage of the employment-related provisions of the ADA
funeral homes with less than 15 employees are _____ from the ADA's employment-related provisions.
With part time and casual labor how do you determine the number of employees?
if a funeral home employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or the preceding calendar year, it will be covered by the employment provisions of the ADA.
You must include what employees?
ALL employees, part time, casual etc.
Purpose of the employment provisions of the ADA
to prohibit employers from discriminating against disabled individuals in a ll phases of the employment relationship-job application, testing procedures, hiring, advancement, discharge, compensation, and job training. Do not give employees with disabilities preference over others. No preferences. Merely prohibits employer from considering that the person is disabled.
What are the requirements to be a "qualified individual with a disability" (protected under ADA)
must be able to perform the "essential functions" of the job with or without "reasonable accommodations" Employers are required to supply reasonable accommodations on the job to a disabled individual unless to do so would constitute "undue hardship"
regulations on the employment provisions of the ADA are by
the EEOC-Equal employment opportunity commission
any physical or mental impairment that substantially limits one or more life activities, a record of having such an impairment, or being regarded as having such an impairment
mental retardation;organic brain syndrome; emotional or mental illness; special learning disabilities; orthopaedic, visual, speech and hearing impairment; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; HIV infection; cancer; heart disease; diabetes; cosmetic disfigurement; anatomical loss; drug addiction; and alcoholism.
mental and physical impairments under the term "disability"
Even though drug addiction and alcoholism are disabilities, are individuals currently taking illegal drugs or alcohol protected by the ADA?
Disabilitiy does not include
homosexuality, bisexuality, transvestism, exhibitionism, gender identity disorders, or other sexual behavior disorders, compulsive gambling, kleptomania or pyromania.
what are the two steps to determine whether an individual is a "qualified individual with a disability?"
1. individual must have the prerequisites for the position to be filled, such as appropriate educational background, employment experience, skills, or licenses.
2. determine whether or not the individual can perform the essential functions of the position with or without reasonable accomodation
the two steps must be determined at the time of making the employment decision not..
based on speculation regarding the future employees inability to perform the job, the risk the employee may become disabled in the future, or the potential increase in health insurance cost which may result from the employee's disability.
in 2008 Congress issued the Americans With Disabilities Act Amendment Act (ADAAA) to
roll back restrictions that the supreme court had placed on the definition of a disability.
While the ADAAA retained the definition of a disability as physical or mental impairment that substaintially limits a major life activity, the law made a number of changes. They are...
1. expanded the category of major life activities to include basic activities such as eating, bending, concentrating, thinking, and communicating.
2. added major bodily functions such as cell growth, digestion, and neurological, respiratory and circulatory functions.
3. restricted employers from considering the use of mitigating factors when determining whether an impairment with medical equipment such as hearing aids, prosthesis, mobility devices, or medications, that does not eliminate that impairment from being regarded as a disability.
how the EEOC determines what the essential functions are:
will look at the first instance to the employer's judgement as to what functions of a particular job are essential.
-in order for employer's list of essential functions to be considered evidence, the list must be written prior to the advertising of the job opening or the interviewing of job applicants
essential functions of a job are job duties that are fundamental and not marginal. Factors to be considered are:
-the importance of the function to the overall job
-whether there are other employees who can perform the function in question
-whether there are other employees who can perform the function in question
-what is the relative amount of time that an employee holding the position would spend performing the particular function?
-what are the consequences of having other employees perform the function or of not having the function performed at all?
-do current holders of the job perform the function and, if so, how much time do they spend performing the function?
the list of essential functions must be provided in a written list to the applicant at the interview and the applicant must be asked whether he or she can perform those functions with or without reasonable accomodation.
it is the responsibility of the job applicant or the disabled employee to inform the employer that an accommodation is needed.
once this is done, the employer/employee must meet to determine:
-what are the precise job-related limitations imposed by the applicant/employee's disability and how can these limitations be overcome
-what potential accommodations are available and what will be their effectiveness in enabling the individual to perform the essential functions of the job
-what are the individuals accommodation preferences?
examples of types of accommodations
installing ramps, modifying work areas and restrooms so they are accessible; job restructuring; modified work schedules; reassignment to vacant positions; permitting the use of accrued paid leave or providing additional upaid leave for necessary treatment; providing reserved parking spaces; and acquiring or modifying equipment or devices such as page turners, lifting devices, telephone handset amplifiers, telecommunication devices for deaf persons, and raised or lowered furniture.
employers should note that a reasonable accommodation need not be the best accommodation possible...
but must sufficiently meet the job-related needs of the individual
the failure to provide reasonable accommodations may be justified where the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
for an accommodation to consititute an undue hardship it must require more than a "de minimis" expense or inconvenience. (case by case basis)
11 factors determining an undue hardship exists:
-nature and cost of the accommodation required
-the overall financial resources of the facility involved in the provision of the reasonable accommodation
-the number of the persons employed at the facility
-the effect of the reasonable accommodation on the expenses and resources
-the impact of the accommodation on the operation of the facility
-the overall resources of the employer
-the overall size of the employer's business with respect to the number of employees
-the number, type and location of its facilities
-the type of operation of the employer, including the composition, structure and function of its workforce
-the geographic separateness of the facility
-the administrative or fiscal relationship of the facility to the employer
undue hardship takes into account not only financial difficulties but
any substantial or disruptive interference
Title VII of the Civil Rights Act of 1964 prohibits discriminatory practices in employment based
on race, color, religion, sex, or national origin
Title VII was amended in 1978 by the
pregnancy discrimination act which makes it unlawful for an employer to discriminate against a pregnant woman in employment decisions.
Age Discrimination in Employment Act
prohibits an employer from refusing to hire, discharging, denying employment, or making an employment decision on the basis of an individuals age. ADEA provides protection for those 40 years old and older.
Civil Rights Act, including the pregnancy discrimination Act applies to all employers having 15 or more employees.
Age discrimination Employment Act is restricted to employers with 20 or more employees. (same test to see how many employees as the employment section of ADA)
Although funeral homes with less than 15 employees are exempt from the civil rights act, _____ states have enacted laws which are similar or even go beyond the civil rights act in protecting employees.
Trio of Civil RIghts laws generally prohibit an employer from basing employment-related decisions on
race, color, religion, sex, national origin, pregnancy or age.
Prior to 1991, if an employer could show that, although an impermissible factor had entered into an employment decision, the same decision would have been made based on other permissible factors, then no violation of the civil rights act occured.
HOWEVER, with the amendment of the Civil Rights Act in 1991, if there is any showing that a discriminatory motive entered into the decision, a violation of the Civil Rights Act has taken place.
document all employment related decisions so that there is a written record of why and how the decision was made.
Title VII of the Civil Rights Act was enforced by the Equal Employment Opportunity Commission
EEOC carries out its mission through a two step process-mediation and enforcement.
if an employee feels they are victims of discrimination, they must file a claim with the EEOC before
proceeding to court
charge must be filed within ___ months of the alleged discriminatory practice. EEOC then alerts the employer of the charge and will begin the broad investigation. Within 120 days after the charge is filed with the EEOC, the investigator will make a determination of "cause" or "no cause"
EEOC charge is dismissed. The complainant then receives a Right to Sue letter which allows the complainant 90 days to file a private action in federal court.