by Elizabeth A. Olivier, Esq.

On October 20, 2004, the EEOC released a Fact Sheet discussing how the ADA might apply to job applicants and employees with “intellectual disabilities.”  The Fact Sheet states that an individual is considered to have an intellectual disability when:  (1) the person’s IQ is below 70-75; (2) the person has significant limitations in adaptive skill areas as expressed in conceptual, social, and practical adaptive skills; and (3) the disability originated before the age of 18.  The term is used to describe the condition once commonly referred to as “mental retardation.” 

The EEOC’s stated goal in releasing this Fact Sheet was to dispel myths, fears and misperceptions that can stand in the way of employment opportunities and lead to harassment on the job.  The Fact Sheet provides a comprehensive discussion of how employers can comply with specific requirements of the ADA in their dealings with individuals with intellectual disabilities.  It addresses topics such as when an intellectual impairment is covered by the ADA, when and how employers may obtain and use medical information, and ways an employer can accommodate an individual with an intellectual disability.  The following more specific guidance is among that included in this document.

• Employers should not routinely ask for medical information from an employee known to have an intellectual disability just because the employee has performance problems.  Poor job performance should generally be dealt with according to the employer’s existing quality performance policy, and medical information can be sought only when the employer has a reasonable belief, based on objective evidence, that a medical condition may be the cause of the performance problems.
  
• Employers may consider the following types of reasonable accommodations for employees with intellectual disabilities:  job restructuring (switching marginal functions that the employee is unable to perform); providing special training techniques, such as giving instructions at a slower pace, giving the employee additional time to finish the training, breaking job tasks into sequential steps, and using charts, pictures or colors; providing a job coach; permitting the employee to work a modified work schedule, if necessary, for example to attend counseling or other treatment sessions; permitting the employee to bring someone to a job evaluation or disciplinary meeting to help them ask questions and explain the job evaluation results or the purpose of the meeting; acquiring or modifying equipment or devices; and relocating or adjusting work station placements as necessary to accommodate limitations.
  
• Although the ADA generally provides that employees are responsible for communicating a request for a reasonable accommodation to the employer, an employer has a legal obligation to initiate discussion about the need for an accommodation and to provide one, if available, if the employer:  (1) knows that the employee has a disability; (2) knows, or has reason to know, that the employee is experiencing workplace problems because of a disability; and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
  
• Employers do not have to remove essential job functions, lower production standards, excuse violations of conduct rules that are job related and consistent with business necessity, or provide employees with personal use items such as wheelchairs, eyeglasses, and other devices needed both on and off the job, in order to accommodate employees with intellectual disabilities.

Given the EEOC’s concern that individuals with intellectual disabilities are facing barriers in the workplace posed not by their mental impairments, but by people’s attitudes, employers should familiarize themselves with this document.  Entitled “Questions and Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act," the publication is available at http://www.eeoc.gov.