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I. Determining Coverage

          _____ Ascertain whether the company employed fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year.

          _____ Count employees regardless of whether they are actually performing work for or are being paid by the employer on any particular day.

          _____ Determine whether the owner of the business will be counted as an employee if the tally is close to fifteen. The owner may be counted based on the following factors:

          — whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work;

          — whether and, if so, to what extent the organization supervises the individual’s work;

          — whether the individual reports to someone higher in the organization;

          — whether and, if so, to what extent the individual is able to influence the organization;

          — whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and

          — whether the individual shares in the profits, losses, and liabilities of the organization.

          II. The Hiring Process

          A. Make Sure All Job Applicants Can Compete Equally for Vacant Positions

          _____ Ensure that the facility is accessible to disabled job applicants so they can participate fully in the interview and screening process.

          _____ Establish procedures that will allow the employer to reasonably accommodate disabled individuals in the selection process. This would involve such things as providing necessary materials and/or special equipment to take an examination or fill out an application.

          B. Make Sure All Inquiries of Applicants Are Properly Focused

          _____ Consider the types of questions to be asked during the interview. Disability-related questions are unlawful.

          — Employers may ask about an applicant’s ability to perform specific job functions.

          — Employers may ask about an applicant’s nonmedical qualifications and skills, such as education, work history, and certifications and licenses.

          — Employers may ask applicants to describe or demonstrate how they would perform job tasks.

          _____ Determine whether disability-related questions are asked during the preemployment stage. Focus on whether the question(s) will likely elicit information about a disability.

          — A question on an application or during an interview concerning the individual’s need for a reasonable accommodation in order to perform the job in question is disability-related.

          — If a disability is apparent or the individual voluntarily discloses the existence of a disability, the employer may ask whether the individual needs reasonable accommodation and what type of accommodation would be needed to perform the essential functions of the job.

          — An inquiry about an applicant’s ability to perform any major life activities is disability-related.

          — Questions concerning workers’ compensation history are related to an individual’s disability.

          — Questions about an applicant’s lawful drug use are disability-related, although questions pertaining to current illegal drug use are lawful. Questions about lawful drug use are permissible if the question is asked in the context of the administration of a test for illegal drug use.

          — An employer may not ask third parties questions it cannot lawfully ask the applicant directly.


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