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HomeMy WebLinkAboutORD-2011-020 Amendment to Personnel Ordinance, Article II for Disability & Reasonable Accommodation0gQ- ,Qoll -ago Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 Administrative Rules and Regulations Disability and Reasonable Accommodation I.ORDINANCE 1. Amend to add Article II, Sections 1.5 and 1.6 1.5 Prohibition against Coercion Interference and Intimidation Coercion, intimidation, harassment, threats, or interference with any employee or applicant in the exercise or enjoyment of, or because that person aided or encouraged any other persons in the exercise of, any rights granted or protected under this Article is prohibited. 1.6 Any employee found to have engaged in discriminatory actions shall be subject to disciplinary action as provided in this Ordinance. 2. Amend to add Article II. Section 3.0 Disability and Reasonable Accommodation 3.0 Disability and Reasonable Accommodation 3.1 In General. Discrimination against a qualified individual based on that individual's actual or perceived disability, record of disability, or relationship with an individual with a disability is unlawful in accordance with state and federal law, including the Americans with Disabilities Act (ADA) of 1990, ADA Amendments Act (ADAAA) of 2008, and their implementing regulations and prohibited by Orange County under this Ordinance. 3.2 Reasonable Accommodation. Orange County will take appropriate action to provide reasonable accommodations to a qualified individual with disabilities, unless doing so would cause undue hardship to the- County. 3.3 The County Manager will promulgate Administrative Rules and Regulations necessary to carry out the provisions of this section of the Personnel Ordinance consistent with all applicable federal and state laws and regulations governing disability discrimination. 3. Renumber the Remaining Ordinance Sections to reflect the Insertion of the Disability and Reasonable Accommodations Section of the Ordinance II. AUTHORITY The Orange County Personnel Ordinance, Article II, Section 9.0 provides that the County Manager will promulgate any rules or regulations necessary to carry out the provision of this section of the Personnel Ordinance. Page 1 3 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 4 III. RULE The purpose of this rule is to implement and give effect to Article II, Section 9.0 of the Orange County Personnel Ordinance "Americans with Disabilities Act Amendments Act ( ADAAA)." This policy is intended to carry out the purpose of the Orange County Personnel Ordinance Article II, Section 9.0 and to comply with applicable state and federal regulations governing disability discrimination. All state and local government employers with 15 or more employees are required to comply with the ADAAA. The Equal Employment Opportunity Commission (EEOC) has enforcement authority for the employment provisions of the ADAAA. These Administrative Rules and Procedures provide consistent application of the Ordinance to ensure that Orange County employees are treated in a manner that equals or exceeds the requirement of the ADAAA and any amendments thereto. IV. ADNIINISTRATIVE RULES AND REGULATIONS A. This policy applies to all qualified individuals with a disability who are employees or applicants. The ADAAA requires the County to take specific steps to ensure that an individual with a disability does not experience discrimination in the employment process. The County will provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the County ( "undue hardship "). In addition, the ADA guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, State and local government services, and telecommunications. All supervisors of Orange County must be familiar with the provisions of the ADAAA and are expected to adhere to it when making employment or service delivery decisions. B. Definitions 1. Disability: a. A physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an "actual disability "), or b. a record of a physical or mental impairment that substantially limited a major life activity ( "record of'), or c. when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor ( "regarded as "). The definition of disability will be interpreted broadly. Mitigating measures other than ordinary eyeglasses or contact lenses shall not be considered when assessing whether an individual has a disability. In addition, impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Page 2 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 5 2. "Physical or mental impairment ": A physical or mental disorder, illness, or condition. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems; such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 3. "Major life activities ": The regulations provide a non - exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating,, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, heroic, lymphatic, musculoskeletal, and reproductive functions. The regulations also state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas). 4. "Record of': An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of "disability." An individual also can meet the "record of definition of disability if she was once misclassified as having a substantially limiting impairment (e.g., someone erroneously deemed to have had a learning disability but who did not). 5. "Regarded as": An employer "regards" an individual as having a disability if it takes an action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual's impairment or on an impairment the employer believes the individual has, unless the impairment is both transitory (lasting or expected to last for six months or less) and minor. C. Obligations Under the ADAAA 1. Prohibition of Employment Discrimination Discrimination based on a person's disability with respect to any term, condition, or privilege of employment, including hiring, is prohibited under the ADAAA. Included under this would be the following: a. Classifying applicants or employees with disabilities in any way that adversely affects their opportunities or status. b. Participating in any arrangement with another organization that has the effect of discriminating against applicants or employees with disabilities. This would Page 3 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 6 include entering into service contracts when such contracts include arrangements that discriminate against a particular group of applicants or employees. c. Using standards or methods that have the effect of discriminating or perpetuating discrimination. d. Denying equal jobs or benefits because of a relationship or association with a person with a disability. This would include the situation of not hiring a person who has a sick dependent that would tap benefit resources or refusing to hire someone who is known to do volunteer work with someone who has a disability such as a person who has AIDS, epilepsy, etc. e. Refusing to make reasonable accommodation unless the accommodation would impose undue hardship. Also denying employment opportunities to an otherwise qualified individual with a disability to avoid making a reasonable accommodation would be prohibited. f. Using standards or tests that tend to screen out individuals with disabilities unless the tests -are job related and consistent with business necessity. g. Failing to select and administer tests in the most effective manner to ensure that the results accurately reflect skills, aptitude, etc. An example of this would be a situation where the standard recruitment procedure for a position includes a written test. If, due to a disability, as defined under the ADAAA, someone could not read the instructions and questions, then the test should be read to them. h. Denying health insurance benefits to a person covered under the ADAAA. i. Threatening, coercing, intimidating, or otherwise interfering with someone's rights under the ADAAA is prohibited. 2. Reasonable Accommodation As an employer, Orange County has an obligation. to make reasonable accommodations and cannot base an employment decision on an individual's need for reasonable accommodation. Reasonable accommodation includes making physical modifications to the facilities and providing equipment to assist in the performance of job duties. Also non - physical accommodations such as job restructuring, modifying work schedules, and reassignment to vacant positions would be included in types of accommodations. If an applicant or employee discloses a disability and requests accommodation, a dialogue should take place with the applicant or employee to determine what would be an appropriate and reasonable accommodation. An individual who is regarded as having a covered impairment is not entitled to reasonable accommodation. An individual needs to have a disability as defined under the ADAAA before being considered for reasonable accommodation. Page 4 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 An accommodation that would cause "undue hardship" would not be reasonable. Undue hardship refers to an action that is unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature of the program. When considering cost of an accommodation, Orange County cannot consider a cost that is borne by another agency or organization. In some instances a person with a disability may already have equipment which could be used at the work site or may have access to grants from another agency to purchase such equipment. Also, if two options for accommodation are available, it is the Orange County's right to choose the least. expensive option. However, advancement of the person on the job and future needs as the person develops in the position should be taken into consideration when determining what an appropriate and reasonable accommodation is. The accommodations made should not limit an employee's opportunities for advancement. If an applicant or employee initiates a discussion regarding reasonable accommodation, the supervisor should discuss with the applicant or employee what reasonable accommodation can be made. In all instances, the Human Resources Department should be consulted to discuss what would constitute appropriate and reasonable accommodation in any particular situation. 3. Employment Related Physical and Psychological Examinations Under the ADAAA, any physical or psychological examination prior to an offer of employment is prohibited. A job offer can be made on the condition that the applicant pass a physical and/or psychological examination if all entering employees in the same job category are subject to such an examination and/or inquiry regardless of disability. The job offer must first be made, and it is essential to clearly state that the offer is contingent on the results of the exam. Under any circumstance, an examination must meet the test of job relatedness and be consistent with business necessity. This would also be the criteria for any post - employment exams. In order to utilize employment related physical and- psychological exams as an employment criteria, an assessment of the position must first be made by an approved agency. Physical Agility tests, which may be used in screening for law enforcement or other safety sensitive positions, are not considered physical exams. Any physical/psychological exam beyond this must meet the above criteria. Medical inquiries must be made on separate forms from other application materials. Medical information must also be kept confidential and separate from other employee files. It will be critical that results of physical/psychological exams and drug testing be accessible only to individuals on a need -to -know basis. Results of employment related physical and psychological examinations must be forwarded to the Human Resources Department and be maintained separate from the employee's personnel file and secured with restricted access. Departments may not retain copies of any employee medical information under any circumstances. 4. Essential Job Functions Page 5 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 $ An employer may inquire as to an applicant's ability to perform essential job related functions. Further, an employer may ask an applicant to describe or demonstrate how, with or without reasonable accommodation; the applicant will be able to perform essential job- related functions. Determining essential job functions requires an analysis of the position to determine what functions are essential as a matter of business necessity. Determining essential functions of a position should be completed before recruitment is opened for a position. Those fundamental or essential job functions should then be documented on various instruments including position classification questionnaires, classification specifications, recruitment matrixes, and job announcements. A job function may be considered essential for any of several reasons. The primary reasons are as follows: 1) the reason the position exists is to perform that function; 2) there is a limited number of employees available among whore the performance of that job function can be distributed; and/or 3) the function is highly specialized so that the incumbent in the position is hired to perform that particular function. Some ways to substantiate this are through the amount of time spent performing the function and the consequences of not requiring a- person in the job to perform that function. For example, if lifting 50 pounds is an essential function of a position, it would be appropriate to ask an applicant, "Can you lift 50 pounds ten times an hour ?" However, it would be inappropriate to inquire, "Do you have any disabilities which would prohibit you from lifting 50 pounds at +a time ?" The first manner of inquiry does not solicit information as to why the person may not be able to perform -the function, merely if they are able to perform an essential function of the position. Note that if the inquiry is being made about lifting, then it should be an essential function of the job. Inquiries or assessments involving physical standards must first be approved by the Human Resources Department based nn job requirements and business necessities. If the function can be eliminated or removed from the job then the function is probably not essential and inquiries on the subject should be avoided as they cannot be used as a basis for screening out otherwise qualified applicants with disabilities. 5. Alcohol and Illegal Drug Usage Current use of an illegal substance is not considered a disability under the Act. However, if someone currently uses illegal drugs and has another covered disability, that person would be covered under the ADAAA based on the other covered disability. Under the ADAAA, Orange County still has the right to prohibit the use of alcohol or illegal drugs at the work place and may still prohibit employees from being under the influence of alcohol or illegal drugs at the work place. A drug user or alcoholic may be held to the same qualification standards for employment or job performance and behavior standards as other employees. If someone's substandard work performance is related to alcohol or illegal drug usage, that person may still be Page 6 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 9 disciplined for the work performance and held to the same standards as other employees. 6. Positions Involving Food Handling The ADA recognizes that persons with certain communicable diseases should not be employed in positions involving food handling. The Secretary of Health and Human Services has the responsibility for maintaining a list of diseases which are transmitted through the handling of food. Orange County may refuse to assign or may discontinue assigning an individual with such a disease to a job which includes food handling. 7. Prohibition Against Retaliation and Coercion Threatening, coercing, intimidating or otherwise interfering with someone's rights under the ADAAA is prohibited. The ADAAA specifically protects from retaliation individuals who oppose any act made unlawful by the ADAAA. In addition, anyone who makes a charge, testifies, or participates in any investigation covered under the ADAAA is protected from retaliation, intimidation and harassment. 8. Physical Barriers New buildings must be -built so that they are readily accessible to individuals with disabilities. Architectural barriers must be removed from existing buildings if such removal is "readily achievable." Readily achievable is a standard which allows organizations to determine if the changes can be made without great difficulty or expense. If a facility is undergoing renovation, then the renovated area must be made accessible.. County departments should be accessible to hearing impaired- individuals. Numbers for phone lines for the hearing impaired should be published in local phone. directories. In all instances, the Human Resources Department is available to assist departments in working through individual issues surrounding the ADAAA such as determining what reasonable accommodation would be for a particular position, defining the essential functions of a position, or determining appropriate pre - employment inquiries. V. PROCESS FOR PROVIDING REASONABLE ACCOMMODATION The process of identifying if, and to what extent, a reasonable accommodation is required should be flexible, and involve both Orange County and the individual with the disability. Determinations as to a particular individual's qualifications and any potential accommodation must necessarily be made on a case -by -case basis. To determine the appropriate reasonable accommodation, it will be necessary for Orange County to initiate an interactive process with the qualified individual once the individual has disclosed a disability or requested accommodation. This interactive process is helpful as the individual seeking the Page 7 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 10 accommodation may not be familiar enough with Orange County's equipment or work site to suggest an appropriate accommodation. Also, Orange County may not know enough about the disability or its limitations on the job at issue to suggest an accommodation. A. Forms: Forms are available to assist with the reasonable accommodation process. The Human Resources Department should be notified and involved in all but the simplest requests (such as a one -time purchase for the employee's workstation). 1. The Employee Accommodation Request is to be completed in every situation involving a request for reasonable accommodation by an employee or applicant. Upon completion, this form should be forwarded to the Human Resources Department, where it will be filed separately from personnel and other records. 2. The Employer Accommodation Decision Guide and the ADA Checklist may be used by the Human Resources Department to assist further with the interactive process and analysis of the request. B. Analysis. The Equal Employment Opportunity Commission suggests that an employer faced with a request for a reasonable accommodation from a qualified individual with a disability take the following analytical approach: 1. Prior to opening recruitment for a position, analyze the job to determine its purpose and essential functions. These must be documented on the classification specifications. 2. Consult with the individual with the disability to ascertain the precise job - related limitations imposed -by the disability and how those limitations can be overcome. 3. With the individual with the disability's assistance, identify potential accommodations and assess the effectiveness of each in enabling the individual to .perform the essential functions of the job. 4. Consider the individual with the disability's accommodation preferences and select and implement the accommodations most appropriate for both the employee and the employer. 5. The failure to provide reasonable accommodation may be justified where the covered entity can demonstrate that the accommodation would impose undue hardship on the operation of its business. This must be determined on a case -by -case basis, since what may pose an undue hardship for one employer may not pose a hardship for another employer or in another setting. "Undue hardship" is defined as any action requiring significant difficulty or expense, taking into account such factors as: a. The nature and cost of the accommodation needed; Page 8 Orange County Personnel Rules and Regulations Manual Issue Date: 6/22/2011 11 b. The overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; c. The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); d. The type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; e. The impact of the accommodation on the operation of the facility. All of these factors should be considered in determining whether providing an accommodation would impose an undue hardship on the County. The weight given to each factor will vary depending on the facts of the particular situation. This Section of the Rules and Regulations will become effective upon signing of this document. Frank W. Clifton, County Manager Date Page 9 2. below.) Public Comments a. Matters not on the Printed Agenda NONE .e o - -t a ti - 0 b. Matters on the Printed Agenda (These matters were considered when the Board addressed that item on the agenda 3. Petitions by Board Members (Three Minute Limit Per Commissioner) Commissioner Jacobs said that the County Commissioners received a copy of a resolution from Durham County and the City of Durham regarding the closing of Pickett Road to facilitate the New Hope Preserve Park. He would like to petition to bring this item back. Commissioner Jacobs said that the County Commissioners got a copy in late May from the Triangle J Council of Governments of the Resolution in Support of Requiring Watershed Protection and Regional Watershed Protection Fee. He would like to bring this item back also and bring it to the attention of the five water providers in Orange County. 4. Proclamations/ Resolutions/ Special Presentations NONE 5. Consent Agenda A motion was made by Commissioner Foushee, seconded by Commissioner Hemminger to approve those items on the consent agenda as stated below: a. Minutes The Board approved the minutes from April 19 and 26, 2011 as submitted by the Clerk to the Board. b. Appointments — None c. Motor Vehicle Property Tax Release /Refunds The Board adopted a refund resolution, which is incorporated by reference, related to 31 requests for motor vehicle property tax releases or refunds in accordance with NCGS. d. Property Tax Releases and /or Refunds The Board adopted a resolution, which is incorporated by reference, to release property values related to twenty -two (22) requests for property tax release and /or refund in accordance with North Carolina General Statute 105 -381. e. Amendment to the Orange County Personnel Ordinance, Article 11 to Add Provisions for Disability and Reasonable Accommodation The Board approved the addition of Article 11, Sections 1.5 and 1.6 and Section 3.0 Disability and Reasonable Accommodation to the Orange County Personnel Ordinance to formally adopt a policy in compliance with federal and state laws and regulations governing disability discrimination. f. Employee Cellular Device Policy The Board approved an Employee Cellular Device Policy for the reimbursement of business use of employees' cellular devices. a Orange County ABC Board Travel Policy The Board approved the Orange County Alcoholic Beverage Control (ABC) Board adoption and use of Orange County's travel policy. h. Agreements Between Chapel Hill Carrboro City Schools, Orange County Schools, and Health Department for School Nurses