Friday, July 1
The Americans with Disabilities Act’s Impact on Social Worker Services (CEU)
The Americans with Disabilities Act’s Impact on Social Worker Services: Moving Beyond Parking and Bathrooms and Ramps
Social workers are ethically required to safeguard their client’s best interest and enhance a client’s well-being while also attending to a larger "moral community" and social justice concerns. These goals are shared by the Americans with Disabilities Act (ADA), a civil rights law passed in 1990 to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with physical and mental disabilities. Clearly, the ADA greatly impacts a variety of social worker services. The ADA is much more than parking and bathrooms and ramps. The ADA’s application in a myriad of situations facing social workers is demonstrated by the following examples.
1. A college student seeks treatment at the school’s health care facility for depression, including suicidal ideations and consults with a social worker. Another member of the medical staff wants to contact the dean and inform her about the situation.
ADA Implications: A similar situation was alleged to have occurred at George Washington University leading to the expulsion of the student for Code of Conduct and other violations. A lawsuit alleging discrimination under the ADA, Rehabilitation Act, Fair Housing Act, and other anti-discrimination laws was settled under confidential terms.
Social Worker Implications: A social worker could have advised the school regarding possible breach of confidentiality and discrimination concerns as well as helping the student obtain treat for her mental health.
2. A social work student with a learning disability needs reasonable accommodations such as: double testing time, materials on CD-ROM or in electronic format, receiving copies of teacher’s notes and materials in advance, and extra tutoring. The professor, a social worker who also teaches, fears that the accommodations would give the student an unfair advantage.
ADA Implications: These accommodations are often provided to students with disabilities.
Social Worker Implications (Student and Professor): Knowledge of the ADA would benefit both the social work student and professor.
3. An applicant for the Illinois Social Work Licensing Examination is asked the following question: “Have you had or do you now have any disease or condition that interferes with your ability to perform the essential functions of your profession… If yes, attach a detailed statement, including an explanation whether or not you are currently under treatment.” The applicant has bipolar disorder, but the condition is under control with medication and therapy and has not negatively impacted her school, training, or work activities. However, in the interest of full disclosure, she answers the question “Yes.”
ADA Implications: The author of this article represented an individual who was placed on probation for disclosing her bipolar disorder in the above situation. Her diagnosis of bipolar disorder and her probationary status were posted on the Illinois Department of Financial and Professional Responsibility website, but were removed after Equip for Equality became involved and raised ADA and confidentiality violations. The application question is problematic as essential functions are not defined and essential functions may vary significantly from social worker to social worker. In addition, there is no reliable evidence to support the proposition that applicants with a history of medical conditions, including mental illness, are more likely to violate professional standards than a person without such a history. The question remains on the state’s licensing application.
Social Worker Implications: Social work licensing applicants should be aware that if they have a medical condition that does not interfere with their ability to practice social work, they can ethically and honestly answer the above question “No.”
4. A client with an intellectual disability in state-funded facility for the past fifteen years seeks to live in the community, but is unsure of his rights, what is available, or what types of supports are needed.
ADA Implications: The U.S. Supreme Court ruled in 1999 that unjustified institutional isolation of a person with a disability constitutes segregation and is a form of discrimination under Title II of the ADA. In Illinois, Equip for Equality, together with the ACLU of Illinois, Access Living, and private law firms, has filed three community integration class actions against the state of Illinois alleging ADA/Olmstead violations. A Consent Decree in the class action on behalf of people with developmental/intellectual disabilities who live in, or are at risk in living in, private state-funded institutions was recently entered in the case of Ligas v. Maram, and will allow thousands of people with developmental disabilities to be served in the community. A Consent Decree in a second class action on behalf people with mental illness living in large private facilities was approved last year, and a class action on behalf of people with physical disabilities and mental illness living in traditional nursing homes in Cook County is currently pending.
Social Worker Implications: Social workers will likely be serving as consultants in assessing the needs of the individuals who need to live in the community and arranging for proper supports. NASW Illinois submitted letters in support of the proposed consent decrees in one of the class actions.
5. A social worker rents an office on the top floor of a two-story building without an elevator and is contacted by a potential client who uses a wheelchair.
ADA Implications: Titles II and III of the ADA require accessibility or alternative arrangements for providing services.
Social Worker Implications: The social worker may be required to investigate finding another office that is accessible or by providing alternative arrangements to meet the client, making sure find a private, accessible location for the meeting.
6. A high school graduate who receives social security disability benefits wants to work but is not sure how that will affect his social security or housing benefits.
Legal Implications: While unrelated to the ADA, the Ticket to Work and Work Incentives Improvement Act was passed in 1999 to make it easier for social security beneficiaries to return to work. The Ticket to Work Act allows individuals to obtain employment-related services from private and public organizations. It also allows beneficiaries to maximize financial benefits and maintain health care coverage while working.
Social Worker Implications: Knowledge of the Ticket to Work will enable the social worker to properly advise the client regarding their rights while working. This knowledge may lead to the client taking steps toward employment, maximizing the client’s well-being economically, socially, and in other ways.
7. A person with a personality disorder is not hired for a job at a rental house due to her low score on a personality test that she was required to take as part of the job application process.
ADA Implications: Use of the Minnesota Multiphasic Personality Inventory (MMPI) for job applicants was found to be unlawful under Title I of the ADA in the case of Karraker v. Rent-A-Center. Title I of the ADA prohibits medical examinations of job applicants prior to a conditional offer of employment and also prohibits using selection criteria that exclude or tend to exclude people with disabilities. Pre-employment tests may be discriminatory to other individuals as well, for example, a person with an intellectual disability who is not hired for a job due to a pre-employment test that they found confusing or a person who is deaf who has difficulties in understanding the test as their primary language is American Sign Language.
Social Worker Implications: Social workers are generally aware of the MMPI and can advise clients to seek legal information if a personality test may be preventing them from finding employment.
8. A teacher with post-traumatic stress disorder has trouble sleeping due to medication and needs an adjusted work schedule and/or time off from work. She also wants to bring her service animal to work and everywhere else she goes and wants to understand her legal rights. She has not previously disclosed her disability and is unsure how to approach the situation.
ADA Implications: Modification of work schedules or allowing psychiatric or other service animals that perform specific tasks may be reasonable accommodations under Title I of the ADA. A person is not required to disclose a disability unless it is in connection to reasonable accommodation request and the disability is not known by the employer or apparent or where the employer requests medical information for reasons that are job-related and consistent with business necessity. In addition to reasonable accommodation requests, appropriate disability disclosure situations arise when there is a reasonable basis for the employer to think the employee is unable to perform the essential functions of the job or poses a direct threat to the health or safety of the individual or others.
Social Worker Implications: Basic ADA knowledge would enable the social worker to advise a client needing reasonable accommodations to seek legal information about their rights. This knowledge may enable the client to maintain employment, maximizing the client’s well-being economically, socially, and in other ways.
In all of these situations, a social worker with ADA awareness would be in the best position to offer appropriate counseling, advice, and information. In addition, the ADA may also be important to social workers in their own professional and educational endeavors.
While ADA knowledge is imperative for social workers, social workers should make sure they do not give legal advice or otherwise practice law without a law license. Social workers should advise clients with disabilities who have potential discrimination claims to seek the assistance of an attorney who has ADA expertise so that clients can better understand their rights and responsibilities under the ADA, including statutes of limitation. However, by understanding the ADA, social workers will be in the best position to fulfill their ethical obligations, advise clients about their basic rights, and know when to advise a client to consult with attorneys or other professionals in order to safeguard their client’s best interest and enhance their well-being, while working to achieving social justice on a broader scale. The ADA is an important social work tool that cannot be overlooked.
More a more detailed analysis of the ADA’s impact on social workers, a three-hour workshop intensive will be prestented by Alan M. Goldstein on Disability Hot Topics for Social Workers: Best Practices for Effectively Serving Clients with Disabilities at the upcoming 2011 NASW Illinois Statewide Conference.
Alan M. Goldstein is a senior attorney at Equip for Equality (www.equipforequality.org) (EFE), the protection and advocacy agency for people with disabilities in Illinois. There he handles employment discrimination cases, reasonable accommodation issues, and denial of access cases at the federal, state, and administrative levels on behalf of individuals with disabilities. In addition, Alan provides employment-related training to individuals with disabilities, service providers, businesses, government agencies, and other organizations. Alan would like to thank EFE Legal Advocacy Director, Barry C. Taylor, for his assistance with this article.
Alan has spoken at local and national conferences for organizations including: National Disability Rights Network (NDRN), National Association of Social Workers (NASW), Society of Human Resource Managers (SHRM), and the Social Security Administration (SSA). As part of his volunteer efforts, Alan served as a U.S. Coach for the 1996 Powerlifting team in the Atlanta Paralympics for athletes with disabilities.
REFERENCES AND RESOURCES
Introductory Paragraph: Code Of Ethics Of The National Association of Social Workers, found at: http://www.socialworkers.org/pubs/code/code.asp. 42 U.S.C. § 12101(a)(7),(8).
Example 1: Nott v. George Washington University, Civil Case No. 05-8503, Superior Court of D.C. (2005). See Bazelon Center for Mental Health press release at: http://www.bazelon.org/In-Court/Closed-Cases/Nott-v.-George-Washington-University.aspx.
Example 2: 42 U.S.C. § 12101, et seq.
Example 3: See the Illinois Department of Financial and Professional Responsibility (IDFPR) Website for the Licensing Application, Page 14, Question 4. IDFPR is the Illinois licensing agency for social workers and other professionals. The author previously wrote about this issue in an article titled, “Does the Social Worker Licensing Application and Process Violate the Americans with Disabilities Act” that appeared in the July/August 2008 issue of the Networker, the NASW Illinois quarterly publication for social workers. The article can be found at: http://naswil.org/news/networker/featured/does-the-social-worker-licensing-application-and-process-violate-the-americans-with-disabilities-act/.
Example 4: Olmstead v. L.C., 527 U.S. 581 (1999); Ligas v. Maram, 05C 4331. See www.equipforequality.org for more information.
Example 5: 42 U.S.C. § 12131, et seq.; 42 U.S.C. § 12181, et seq.
Example 6: See http://ssa.gov/work/aboutticket.html and www.equipforequality.org/programs/tickettowork/ for more information about the Ticket to Work.
Example 7: Karraker v. Rent-A-Center, 411 F.3d 831 at 833 (7th Cir. 2005). 42 U.S.C. 12112(d)(2)(B); 29 C.F.R. §§ 1630.13(b), 1630.14(a), 1630.14(b)(3). The author co-wrote an article on this subject titled, “Personality Testing In Employment: Useful Business Tool Or Civil Rights Violation?” for the American Bar Association Labor And Employment Law Journal, The Labor Lawyer: A Journal Of Ideas And Developments In Labor And Employment Law; Volume 2, Number 2, Fall 2008; by Alan M. Goldstein and Shoshana D. Epstein.
Example 8: 42 U.S.C. § 12111(6); 29 C.F.R. § 1630.2(o). See also, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (2002), found at: http://www.eeoc.gov/policy/docs/accommodation.html; EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (2000), found at: http://www.eeoc.gov/policy/docs/guidance-inquiries.html. There also may be an argument that the use of an animal in the workplace as a reasonable accommodation need not meet the definition of “service animal” under Titles II and III of the ADA. See e.g., McDonald v. Dept. of Environmental Quality, 2009 WL 1680784 (Mont. Sup. Ct. June 17, 2009) (The court referenced the ADA in applying Montana law when noting that the "employment (Title I) regulations do not address service animals in substantial detail" and suggesting that the use of an animal in the workplace would be analyzed as an assistive device similar to “a wheelchair, scooter, or walker.”) The Job Accommodation Network from the U.S. Department of Labor is an excellent resource for possible reasonable accommodations, http://askjan.org/.
CEU Opportunity for Reading This Article!
NASW Illinois members can earn one CEU by completing an online quiz regarding this article! The free CEU opportunity is only valid until September 1, 2011, after which the CEU fee will change to $15.00. Nonmembers must pay the regular $10.00 rate for the CEU, which will increase to $15.00 after September 1, 2011.