Good afternoon and thanks for joining us today. This program is hosted by your regional Disability and Business Technical Assistance Center as part of the ADA Distance Learning 2000 series. This month we are going to be talking about Unionized Environments and the ADA. Some housekeeping before we start, this program is currently being captioned on the Great Lake web site at www.adagreatlakes.org. Each site should have received in advance a session outline of the PowerPoint presentation by Ms. Andrea Haenlin-Mott from Cornell University. You can use that handout to follow along with her presentation today. At this point I''d like to introduce Andrea Haenlin-Mott. Andrea is currently the co-project director for the Northeast Disability and Business Technical Assistance Center, which serves New York, New Jersey, Puerto Rico and the Virgin Islands. She manages the training division of the DBTAC located at the Program on Employment and Disability, the School of Industrial and Labor Relations at Cornell University. Andrea has worked extensively with unionized environments in understanding and implementing the ADA and with balancing the regulation of the ADA with the National Labor Relations Act. As part of the national DBTAC network she receives regular updates and training from the Equal Employment Opportunity Commission, the Department of Justice, the U.S. Access Board and the Department of Transportation. Andrea, we are thrilled to have you on line with us today and I am going to turn it over to you to talk a little bit about the interplay between the Americans with Disabilities Act and Unionized Environments.
Thank you very much, Jennifer, I appreciate that nice introduction. I have quite a bit of ground to cover today. What I''ve tried to do through the PowerPoint presentation is try to cover a variety of different areas. I understand that we do have a varied audience today, some folks that have worked with these issues in the past, since there are some folks folks this is the first introduction to understanding the interactions of the ADA in unionized environment so I''ve tried to find a middle ground to be able to address these issues. So hopefully we''ll be able to do that and address any questions that you have through the question and answer session. I''m going to just barge right ahead here and start talking about coverage issues. This is slide number 2 in the PowerPoint presentation, and talk about the whole issue of covered entities. There are a number of documents that we had sent out in advance of this, in addition to the PowerPoint presentation and a couple of them I will refer to throughout this. So you may take notes and be able to refer to those later if it is something that you wanted to look up a little bit more. The first bullet I want to talk about is unions as covered entities. One of the documents is a letter from the Equal Employment Opportunity Commission that was in response to a medical inquiry question. Within that, it gave us some information about at least what EEOC considers in their regulations under the Title I provisions of ADA. As covered entities, unions, as the designated exclusive bargaining representative of the collective work force, have responsibilities under Title I. They also serve as employers. So in both of those aspects unions are considered covered entities, therefore, having to play a significant role in a unionized environment and facilitating the Americans with Disabilities Act and any kind of reasonable accommodations that may be needed by employees with disabilities. So within the scope of that, one of the biggest questions has been access to information and issues of confidentiality. For a lot of people with disabilities, people who have non-visible disabilities it is an issue of who has access to that information? Who is that information being shared with? The Americans With Disabilities Act, as many of you are well aware of, has some specific provisions on how that information is shared, the need to know issues of confidentiality and who has access to information. The document that I referred to is the letter from the Equal Employment Opportunity Commission that was off of their web site, I think this clarifies this a bit for us. This is something we''ve worked within the scope of a number of court cases, but I think they have clarified that best in understanding this when they talk about inquiries necessary to the reasonable accommodation process. It is important that unionized members of the union, folks that are in the leadership of unions have access to information so that they can play a role in the reasonable accommodation process. Obviously, the confidentiality provisions do extend to those members of the union who are in leadership roles and that are participating on whatever level. And we''ll talk a bit about joint labor management committees in a while. But whoever gets that information, it is important that folks have that to be able to have informed choices, informed responsibilities to help facilitate the reasonable accommodation process. But in doing so, that confidentiality then does extend them. Say if a shop steward or someone has access to medical information about an individual, and say it is a person with a non-visible disability and they are trying to facilitate a particular reasonable accommodation, say, an issue with adjustment of their time frame schedule for a period of time, they can''t share that information with anyone else. Obviously, they should have access to that information for the purposes of facilitating the reasonable accommodation process, but then they can''t share that with other members. They can''t use that to justify why so-and-so is leaving early or those types of things. The confidentiality provisions then do extend to them. So it is important I think that that document helps us clarify that a little bit. Also, the union should have access to documentation when the medical information documentation or the need is not obvious, when you have someone who does have a non-visible disability and it is really not clear what the nature of that disability is. It is important for them to be aware of what the situation is and issues of coverage, as well as the employer may need that. Some unions that we''ve worked with want full access to that information, others don''t. It just depends on the situation, what type of infrastructure they have with the facilitation of reasonable accommodations. I think I''ve talked a bit about the confidentiality requirements. The one point that I want to make on the need to know basis of who has access to that information, it is important to make sure that an individual, say, is grieving a particular reasonable accommodation request by another individual, say, you know, an issue of seniority or other aspects of trying to to facilitate an issue and you have one person with a disability who is requesting something and you have another person without a disability who feels as if they are being denied a seniority right or some type of terms or conditions of employment and they grieve the particular accommodation. Now, if they are in labor or in a management position of the union then obviously there is an issue of them having the right to know and having full access to that information, whether or not that will be used in a productive manner or or in a a nonproductive manner. So it is important that that matter is included when we are talking about confidentiality. I know we''ve got a varied audience today that are listening to this. I think we have folks from different advocacy organizations, independent living centers, as well as employers and hopefully some unions too that are trying to understand some of these issues maybe a little bit better than that. The one issue I want to talk about is this balance between the issues and priorities, the individual versus the collective good. For a lot of folks that are very familiar with the labor movement, it is movement is very much parallel with the disability rights movement, very much the same type of focus of understanding the historical aspects of it, sort of the flux that both of those groups have been through in the last number of years. And it is an issue of understanding those issues in order to facilitate this process a little bit better. I think it is important to know where folks are coming from and how important it is for people to understand where some union folks are coming from when they are talking about the collective good and how important it is to maintain that collective bargaining agreement. And it is important if we can try to facilitate the individual reasonable accommodation for a person with a disability, let us do that, but they have the concern about the collective good as well. So it is very much a a balancing of those issues and priorities. I think a lot of unions that I''ve worked with and a lot of unions across our country are real concerned about individuals as well, but they are concerned about collective good at the same time. I think it is important that we approach these issues, and for those of you who work with people in a unionized environment trying to understand this for a lot of times it is really the same type of thing but maybe a different kind of approach about how to get to those things. I''m now onto the third slide that is reasonable accommodation. I want to talk very quickly, for those of you who are not familiar with this, about the terms or conditions of employment under the National Labor Relations Act. Some of the conflicts that we potentially see with ADA and the National Labor Relations Act is with the duty to comply with the Americans With Disabilities Act, as well as the duty to bargain under the National Labor Relations Act. And there are a number of perspectives on this that I''m sure that a lot of folks have dealt with and maybe heard about to try to figure out exactly, okay, which one do we comply with first? If you talk with some folks from maybe the Equal Employment Opportunity Commission and folks that represent disability rights movement, ADA is the first focus. But for folks on the labor side a lot, it is an issue of we want to enforce the National Labor Relations Act, that is our ADA and for folks that are HR managers-they are in the middle trying to balance the two issues. The National Labor Relations Act talks about any modifications to the terms or working conditions. They have to notify the union to give them the right to bargain and the National Labor Relations Act also talks about not making any changes without consent of the union and any changes to the working conditions, terms or conditions of that. So it is more of a notice, letting us know what management is doing so that we can understand the impact of that on the collective work force. Some of the complications with ADA, for those of you who know the EEOC has said that the ADA reasonable accommodation process is an informal interactive process between the individual and the management personnel, be it a supervisor, be it HR manager, be it whoever, informal interactive process. Well in a unionized environment it is very important to make sure that the union also has that role because it is issues of unilateral accommodations. Those are things that are just automatically placed in facilitation. It is okay for issues that will not effect others, such as, you know, the many examples that we''ve heard of reasonable accommodation, such as putting blocks up on someone''s desk, providing sign language interpreters or other types of things that would involve one person, physical access to shoes or maybe some issues of programmatic access, providing software or some other things so that a person who has a disability can do their job. For the most part, unions don''t have any problems with that, but it is when it does affect the terms and working conditions of others that it really is something that the union needs to be involved with. So it depends on what type of unilateral accommodation it is as to how that could be a problem and be something to be explored further. Problems with direct dealing is a big question under the the Americans With Disabilities Act and the interaction of the National Labor Relations Act is well. Who requests this? What affect? Does the individual go directly to management? Are they dealing directly with management or do they have to go through the union? It depends. It depends on the contract language that folks have. For some things obviously you go directly to the supervisor or to management, whatever structure that happens to be. But for some other things that again will affect the terms, working conditions of others it is where does the person go to and I think that can be confusing for folks. I think the issue is that some of those direct dealing problems that are associated as folks, you know, may be an individual making direct reasonable accommodations arrangements with their supervisor that would change some of the work force elements for others, and that is an issue of direct dealing. Those are the types of things that would be grieved, but some of the other problems certainly wouldn''t. I think the bottom line is the collaborative cooperative process between the employer, the employee and the union. For some folks it can be hard to try to facilitate this process because there is different levels of knowledge. The individual with a disability, who has an ADA disability, may not know anything about the Americans with Disabilities Act. They may look to their union to be a little bit more informed. The union may not have experienced a lot of things. The union may. The union may have a lot of experience in trying to facilitate process but we can assume a lot of times HR managers do know. Sometimes management has had exposure to a lot of trainings and a lot of different procedures with things. So it is making sure that we can level that playing field for everybody in terms of knowledge so that folks can understand what their rights, responsibilities or obligations may be. I want to talk about that a little bit when we talk about joint labor management committee issues. But I want to go on ahead and talk about some reasonable accommodation conflicts. Again, I''m going to refer to what EEOC''s position has been and I think continues to be. The position of the Equal Employment Opportunity Commission is that when reasonable accommodations conflicts with seniority, their position is that the union''s reasonable accommodation obligation is to negotiate a variance to the collective bargaining agreement if no other accommodation exists and if it doesn''t pose an undue hardship for them to do so. Their position is to say okay, if say it is an issue of seniority and there you have a person with a disability who due to the nature of a visual disability they are dependent on public transportation and can''t work a third shift because public transportation is not reliable during those time frames and they need to be on first shift. EEOC''s position is it would probably conflict with seniority issues if the most senior people have access to first shift positions. In a non-unionized environment for the most part, if it is something that is considered reasonable, an employer would then try to find a position if the person is qualified for that position to place them on the first shift as a reasonable accommodation. In a unionized environment it has another step to it to be able to see that. EEOC''s position is to say okay, is there any flexibility in that? Is there a variance to that collective bargaining agreement that can be agreed to in order to facilitate that? That is the position of EEOC. There have been a number of court decisions, Epple v Consolidated, Washington Hospital had another one, one which Pacific Maritime was the biggest, most recent one that had sort of confirmed things. I''m not going to get into a lot of legal analysis of those issues, but suffice it to say that a number of district courts across the country, actually in the 3rd, 5th, 7th, 8th, 9th and 10th districts all have looked at issues of seniority and all have ruled in the same direction, pretty much saying that seniority rules when you''re looking at situations and issues of whether or not the ADA reasonable accommodation should prevail over someone who has more seniority in a particular position, that seniority rules. So in a situation where you have an individual as I''ve described earlier, who works third shift, needs a reasonable accommodation and the transfer to a first shift because of a disability and is not the most senior person to be able to apply for that position. And I''ll talk about the reassignment to a vacant position in just a moment. Say they are being transferred to the position, there is a vacant position and they are not the most senior person. A number of these court cases across the country, most of them have ruled that for those who have bonafide seniority programs, that you should not violate the collective bargaining agreement in order to comply with the Americans With Disabilities Act, essentially saying that person who needs that first shift position, that would not be something that would be reasonable. It is a little bit in conflict with what EEOC''s position is, but a number of district courts are really ruling in this direction and I guess we don''t envision it to change. What could be a possibility has been trying to facilitate another accommodation so the person isn''t just sort of out there. If there is something else that could be done in the form of reasonable accommodation to allow that person who could no longer work third shift or is having a difficulty getting to work for that third shift so that they can be accommodated, but maybe something else, maybe reassignment to that vacant position is not an option. So the reassignment to a vacant position is an option. It is one of those options that are discussed. But I think one of the things to remember is that reassignment to a vacant position is a reasonable accommodation option, but only if there aren''t any other options available. Bringing it back to the example that I''ve used of the person who is having difficulty getting to work on a third shift versus a first, is there any type of accommodation that can help that person get to third shift? Obviously it is not the employer''s obligation to get people to work. That would not be reasonable accommodation, but is there any other type of modification that could be done? Possibly. But the one thing to remember and one of the things that we see quite often is a question about vacancies. There is an argument that if a collective bargaining agreement provides that a particular job is to be filled by seniority it is really not considered to be vacant. It is not as if it is vacant because say you''ve got a quote "vacant position," and you''ve got five other people that could be placed in that because of their their seniority. That is not vacant, that is going to be filled by those seniority procedures. That flexibility in the reasonable accommodation process that we see in non-unionized environments, may be a little bit more difficult in a unionized environment. But the one thing we always say is, is there any way to try to facilitate accommodations for folks in their current position first? So often it is easier to say "well, you can''t do this anymore, let us look for something else" when there could be some rather simple reasonable accommodations that could be facilitated for that person. There are a number of other reasonable accommodation issues. Obviously, it is the same thing when we talk about reasonable accommodations in non-unionized environments or for other folks. There is issues like there is no duty to create new positions for people in a unionized environment as there is a non-unionized environment or bump folks out even if you have someone who is most senior. The ADA wouldn''t necessarily say well, I would bump this person out, maybe it would be a contract provision, maybe it would be an issue but not necessarily with the ADA. One of the things I think in my experience with working hands on with unions on many levels is this whole issue of creative issue solving. I hate to consider people problems. Not problems but issue solving. One of the things that I''ve seen is folks with disabilities that are in unionized environments have a different, I guess, level of protection than folks with disabilities in in non-unionized environments in that they have this process. If the union is well aware of the of the Americans with Disabilities Act, if they have an active role in facilitating reasonable accommodations, they can provide a service to their members that really can''t be provided in a non-unionized environment. They can be there to support those things and be involved in meetings, have their shop steward or whoever it is in their process really be an active participant in this process. It is important that the union personnel and leadership really have a role in this and also the role of the member to make sure that they are actively involved in this process; the member understands that getting back to the issue of confidentiality and sharing of information that they want the union to know this information and the union can be an active participant and assist with this process. Obviously there is times of conflict and there is times that people with disabilities have felt that the union is baring their reasonable accommodation, but a lot of times they are trying just to protect the bargaining agreement and to try to come up with some type of solution that can both protect that bargaining agreement but also facilitate reasonable accommodation for the employee who has a disability. I''m going to quickly go ahead and go to the next sheet, the slide talking about enforcement issues. I''m going to talk just very, very briefly about the Supreme Court decision that was handed down in November of 1998 that was Wright v Universal Maritime Service. That was an issue of arbitration. The situation with this particular case was that the man, Wright was a longshoreman and he was subject to a collective bargaining agreement as well as a seniority plan, which had an arbitration clause within that. When they refused to employ him following a settlement of a claim, he had a permanent disability benefit for some job-related injuries, he filed suit alleging discrimination and violation of the Americans with Disabilities Act. Initially the District Court had dismissed the case because he had failed to pursue this arbitration procedure provided by his collective bargaining agreement. This was within the 4th circuit, they affirmed that decision and then it went to the Supreme Court. The Supreme Court said no, the collective bargaining agreement''s general arbitration clause doesn''t require him to use that procedure for the alleged violation for the Americans with Disabilities Act. So for those of you who have been following Supreme Court issues and have been concerned about where things were going this is sort of in favor of some folks with disabilities saying yes, this arbitration clause is there, but you can still seek protection under the ADA. And those enforcement procedures in this particular case, Wright had filed a complaint with the Equal Employment Opportunity Commission and had gotten a right to sue letter and was pursuing a private right action. That was sort of the process that had come through and so that is just something to keep in mind and the facilitation of this, because a lot of times, you know, say his union wasn''t well aware of this. They may have gone to arbitration. In this particular case he had said that the union had told him just to go ahead and file a complaint with EEOC, but for some people in unionized environments, that ability to arbitrate could be a little bit better than going through the process of filing complaints or private rights of action in the event of what happens with EEOC and right to sue issues and some folks don''t have the resources to do that. In some instances folks are a bit more willing to go through arbitration because that would give it at least some type of resolution of issues, without the time factor involved. One other document, the next bullet I''m talking about is a Memorandum of Understanding that was one of the other documents that had a link to the to the Equal Employment Opportunity Commission''s web site. I''m not going to spend a whole bunch of time, it is rather straightforward, but it is just helpful to understand a bit of the agreement between the National Labor Relations Act and the Equal Employment Opportunity Commission. Just a couple of things about how they''ll handle complaints that relate to the ADA that may have potential conflicts with the NLRB. Talking about how legal counsel will consult with one another, how information will be shared, that process may be modified a little bit with a state referral issue and that very quickly is talking about when the National Labor Relations Act Board has deferred an unfair labor practice charge. EEOC will not defer those charges to their state enforcement agency, they are just not going to take it in one direction if they are not really pleased with the results of that. Then it is issues of fair representation which is another element for some unions is whether or not they are fairly representing their members, which is part of the provisions of the National Labor Relations Act, that they will represent their folks and the enforcement of their collective bargaining agreement and otherwise. Some of the issues, the potential areas of conflict with this is that some folks think that the union bars that reasonable accommodation, does or does not get involved in the reasonable accommodation process and issues of whether or not they are fairly representing their members. Another issue that this memorandum of understanding touches on a bit, but obviously there is probably a lot more we could talk about in the context of this, of what type of involvement folks have, how much information they get involved and again, the collective good versus the individual good and that is very much a case by case situation that we are able to see and try to facilitate. I''m looking now at the slide that talks about enforcement issues. I''m sorry. I''ve popped onto the next one, practice active approaches. This is something that given some of the issues that we''ve talked about real quickly here is really an issue of understanding, really an issue of access to information and part of the issue is understanding the interactions of other issues such as Family and Medical Leave Act, issues of Workers'' Compensation. In certain circumstances we''ve been finding in a lot of the one-on-one consulting that we''ve been doing with unions, as well as a the public training and education programs that we''ve been doing, is trying to facilitate this whole aspect of disability management that unions have to deal with. And a lot of times if, say, an individual is a person with a disability and they are having an issue with time away from work, you know, they may be a person who is under Workers'' Comp, so there is a compensation issue, that disability may be something that is covered under the Americans with Disabilities Act is a substantial limitation of a major life activity. At the same time maybe it is an issue of them not being at work so how does the Family Medical Leave Act kick in, what aspect of that is coming in? So it is really important and in the context of our time today we really can''t get into all of the issues but it is important to understand all of these issues in the interactions of the Family Medical Leave Act, how a serious medical condition and how the issues of possibly intermittently leave or blocks of time of leave may also be workers'' compensation or ADA issues at the same time. So it is important for unions and management to be well aware of these interaction issues, especially in the unionized environment because it may have another aspect of that, ADA, FLMA, workers'' comp and the collective bargaining agreement, to understand what all four of those issues are saying in trying to facilitate accommodations for workers with disabilities. I also want to talk about some contract language. I''ve got a couple of examples to talk about and that is how some unions have been addressing the issues of disability with contract language that specifically addresses how they are approaches to coordinating their obligations under the ADA and the National Labor Relations Act. The first one I''m going to read specifically talks about the issue of an agreement that the employer is to take those necessary steps to comply after agreement with the union. This is from Fisher and Porter Company and the United Auto Workers as part of the previous contract that they had. It says "no provision in this agreement will be construed to prevent the employer from taking the necessary steps after agreement with the union, to comply with the requirements of the Americans With Disabilities Act." Having this contract language within the contract, obviously is going to help facilitate this process within the bargaining agreement, it is something that really has an official step in the process and with that hopefully further understanding of both parties of how they will address these issues and how they will facilitate accommodations. One other talks about agreement that the employer and the union negotiate prior to implementation of any accommodations that affect bargaining union members. This one states that "the employer shall take the reasonable steps to provide reasonable accommodations to applicants and workers with disabilities as required by the ADA. Should such accommodation have an effect on bargaining unit members the employer shall first negotiate with the union prior to implementation." Again, both parties understand the issues they are going to be cooperatively working on. Just a couple of issues with contract language that might be helpful. Finally I want to talk a little bit about joint labor management committees. Some of the potential conflicts between ADA and National Labor Relations Act may be lessened or eliminated through collaborative long range planning by both unions and employers. There are just a few things that joint labor management committees can really help with. They can work together to conduct job analysis for all positions or at least some of those that have a lot of potential conflict either because the job descriptions are out of date, some technology has changed the way the jobs are performed or for other reasons. To really have joint labor management committees try to understand what those essential job functions are, that first step to understand what potential reasonable accommodations are out there and have both management and union involved in the process, really helps. They also could identify established networks such as vocational rehabilitation to be prepared to provide effective accommodations for people to really try to facilitate that as a proactive approach, more as a disability management approach. So we don''t say "wait a minute what is the Americans with Disabilities Act and how could this impact this particular person?" Some additional steps could really help that. This joint labor management committee could consider requests for accommodations on a case by case basis, again, confidential basis or in circumstances where the confidentiality issues aren''t necessarily compromised, they really can be an addition to really try to facilitate this process for folks. They have many different functions. Those are just a few that we talked about. But one of the things, getting on for more information, is training, making sure that both labor personnel and HR manager supervisors understand what the ADA requires and they may not agree, say with the position that I''ve described earlier of the Equal Employment Opportunity Commission, but maybe understanding what the ADA says in light of their particular collective bargaining agreement. Some of it is timely in the event of new contracts and negotiating new contracts to add some language in for folks so that this process can be smooth for both labor and management so that they can understand what their issues are, what their hot buttons are and try to do that. A lot of those issues can be addressed in training and I know that we''ve done a lot of programs where we are training both the joint labor management committee. They have established that they have a working relationship with both members and to understand what these issues are and work through some of these issues as a collective group. I''ve given out a lot of information in a very short amount of time but I''m ready for questions now if anyone has any?
Andrea, you covered a lot of information. One of the confusing questions that comes in a lot of times to the DBTAC''s is the issue that "I need an accommodation, who do I go talk to? Do I go talk to my supervisor? Do I go talk to my shop steward?" Can you clarify that process?
Yes, I can try. I think the one thing to remember is it probably depends on the structure of the particular union, of the extent of the need for accommodation. For the most part obviously going to both could be helpful, going to a shop steward and saying I need assistance and going to management with this particular request is one of those supports that I''m sure some folks in non-unionized environments wish they had. It is sort of like an issue where well, am I asking for the right thing, think this is what I understand. Or even if folks know elements of the Americans with Disabilities Act, knowing it and trying to get folks to implement it are really two different things. So maybe having the union be involved. But I think the key to that whole thing is making sure that the union understands what the ADA is, what their obligations in that reasonable accommodation process are and what obligations are of the employer and so that they can help facilitate those two things together. And it just depends, you know, it depends on the situation, it depends on how timely it is. Unfortunately, in some situations it sort of happens after the person is terminated, which makes it a little bit more difficult to do it and that is why some joint labor management committees have been very effective in trying to address these issues before they become problems.
What happens when you go to the union and you just can''t get them involved?
That is hard. It makes it really difficult because obviously as we saw with the Supreme Court case, you don''t necessarily have to go through arbitration to be able to do it in terms of the enforcement. I think the important thing is for the individual with a disability to be as informed as they possibly can. And again, we''ll talk about resources and calling the DBTAC''s to be able to understand some of those ADA issues and maybe where they fit into the scheme and then making sure that they notify the union of what it is that they know, what type of support that they need. When the union can''t be involved, then I think that is where they should go to their supervisor, to HR, management or whatever and then hopefully HR will understand that they can''t really do anything without getting the involvement of the union. But there are problems and complications. What I can tell you in trying to facilitate a lot of accommodations and working with direct situations on a day-to-day basis, as well as training, a lot of things can be worked out. Obviously, not too many people are really able to change some of those bonafide seniority clauses. But in other situations folks really can be able to make some accommodations with schedules, maybe somebody needs a schedule change for a period of six months and they need to change from third shift to first shift. They have somebody on first shift that wants to change for six months to third shift for whatever reason, usually the union is okay with that, depending on the situation, depending on the circumstances and if it is a voluntary adoption of these things. That is where a lot of time it being a cooperative process can avoid some things. I''ve seen things I thought we never could get worked out facilitated easily. But it is making sure both parties understand what their obligations are and understand what the ADA is really saying that really can help the process.
Great. Thanks Andrea, Katy do we have a question. .
The question I have is the comment about confidentiality, the filing of a grievance. I know if an employee files a grievance the union has the duty to bear representation, but I thought I heard you say that the grievant has right to access to confidential medical information. I''m not sure I''m comfortable with that.
I guess I don''t understand what you are saying. If say somebody is grieving a situation because a person with a disability received an accommodation.
Right.
What we are saying is that the union has access to that information but obviously the person who is the grievant shouldn''t have access to that person''s medical information. If they are grieving the process, that process should be kept away from that particular person who is grieving the issue of accommodations. They can''t say "wait a minute this guy doesn''t have a disability, you can''t see anything." I know when people think disability they think its obvious. They think wheelchair and all of those obvious disabilities. What the union can''t say "well, it is because of this person''s mental health disability, it is because of this..." and have that person who is grieving the particular situation have access to medical information or confidential information about that particular person. They can grieve it, the union can go through the process. The union can handle it in a number of ways talking about "well, that is confidential information we can''t share," or "this is part of our obligations to provide assistance to employees." I mean, it is sort of a skirting issue without saying "oh, this person is a person with a disability and under the ADA we have to do that." That is the same situation that we see with people who are in non-unionized environment saying, "well, why is this person able to come in late every day and not get in trouble, yet I come in late and I''m disciplined for it?" An employer can''t say "well, it is because of their disability." What they can tell them is we can''t share information with employees about other employees, that is bottom line confidentiality requirement. Hopefully the union can do the same thing.
Okay. Andrea, let me ask you this. Seniority always sends up bells and whistles and all types of scheduling arrangements and that, and especially this seems to come into play a lot of times when you are looking for preferential shifts. Can you clarify that? Let us say I''m entry level, I got hired to work third shift and now because I''m taking medications or something like that. Andrea, can you talk about the shift request?
Yes. It is hard. I mean, some of the district courts have addressed it. However, it has not gone before the Supreme Court. My understanding is since most of the district courts are very much in agreement with some of these issues. Some of the folks that we work with here at Cornell in our our Labor Ed program have discussed this, don''t feel like it will be an issue that will go before the Supreme Court. Because seniority seems to rule, that seems to be the issue in a lot of these court cases that have been decided. To be able to say "okay, we can''t facilitate this process, we can''t change this particular process, we have this issue of seniority." The seniority is something that many unions have worked long and hard to try to develop and maintain and really hold that very dear. If you do have somebody that comes in that is having an issue say with medication or having an issue with transportation to work or folks that are working rotating shifts have a disability that really is problematic with a combination of those things, what we have seen quite often in a a variety of these things is really you can''t change seniority rules. Bonafide seniority programs-you really can''t change that. If you can try to find another type of reasonable accommodation to try to help that person be successful in that particular position or another position, maybe another reassignment to another position that they would be senior for or have some seniority for or that there is no issue of seniority. Maybe have another position that is open that no one who has more seniority wants. Is there another way to try to facilitate that because pretty much, the ADA is not going to make folks completely eliminate seniority rights.
Great. Now, in your experience with working with the unions, especially out there on the east coast, and looking at what the labor market is today; we have so many windows that have hiring signs in them, are you finding that the unions generally are taking a proactive approach on making sure that their members are aware of their rights under the ADA? Do you see any changes, especially working with the unions now that we go into the tenth anniversary of the ADA.
That is a great question because I think it is getting better. Some of these cases and memorandums of understanding that we''ve been talking about, a lot of them have started from the very beginning about concerns about the the Americans with Disabilities Act. But the one thing I''ve got to say is that most unions weren''t necessarily opposed to the ADA and the prospect of it. I think they were opposed to lessening their perceived rights in the collective good. I think unions in general are being a bit more proactive with diversity programs. Some are not necessarily only aspects of diversity of people with disabilities, but diversity in terms of people of color, women and other minorities to be able to try to diversify their work force. Because it is diversified for a lot of places and I don''t have all the exact numbers and a lot of unionized work forces don''t just employ people of one color, people of one religion, people of one gender. So they are experiencing these issues. I don''t think we are where we could be. I think when it relates to people with disabilities because I think some of the complications are some of the issues of accommodations for people with disabilities are a little bit more complex. As we well know, a lot of accommodations under the Americans with Disabilities Act that we''ve seen in the last eight years have been accommodations for people who acquire their disabilities and that is where unions really probably didn''t see this as impacting them as many as the ADA really ha. Because folks who have Workers'' Comp related injuries or other types of injuries on the job or otherwise who are now needing to facilitate accommodations and it sort of happening by virtue of how people are acquiring their disabilities. We aren''t necessarily chopping down at that 68 percent unemployment rate among people with disabilities. And I don''t know if we can look to unions and some of the physical labor and the labor force that is really required of that as being the main issue to address it that way. But maybe. We''ll have to see. I think there is a lot more diversity programming and lot more awareness and education that probably could be more helpful.
Thanks Andrea. You also have provided us with some links to some on-line resources and I''ll throw it back to you in a second if you have a final closing comment. Up on the www.adagreatlakes.org web site, if you follow the links for the distance learning program there is a great publication that was put together, I believe it was by your program on the ADA and collective bargaining issues.
Yes.
And so that link is on-line. In addition you have the Memorandum of Understanding between the General Council of the of the National Labor Relations Board and EEOC and then two other links. The Opinion Letter from EEOC to the to the National Labor Relations Board on the ADA confidentiality requirements pertaining to medical information which would definitely be a great resource for supervisors to have as part of their desktop reference. And then also the direct link to the National Labor Relations Board as well. I''ll turn it back to you, Andrea, if you have a brief closing comment for us.
Okay. Those opinion letters and all of the other information with links really refers to a lot of the issues that I''ve addressed today. The one thing that I can say is for resources for folks or for more information I think it is important to call your Disability and Business Technical Assistance Center. Not every DBTAC has a ton of experience and work a lot with unions because obviously some areas of the country have more unions than others. Obviously in the northeast we have quite a few, but they can at least provide that information to labor or to management as to what the ADA actually says, as well as provide them with resources and other information. So give them a call. I''m sure they would be more than happy to help.
Great. Thanks so much for joining us today, Andrea. You are calling from the back roads of the beltway there in Washington and we are definitely using technology to bridge the miles as I overlook the Rocky Mountains here. But we appreciate everybody''s patience as we had a couple of glitches with the phone lines. So we do appreciate that and again, if you do have additional questions please do call your regional Disability and Business Technical Assistance Center at (800) 949-4232. Next month we hope that you will all be back. We will have Doug Wakefield from the U.S. Access Board and he is going to talk about electronic and information technology and the new requirements under Section 508 of the Rehabilitation Act. In addition we will have have a brief discussion also from representatives of the FCC Disability Rights Office talking about telecommunications and Section 255. So we are excited to have those folks joining us as presenters next month. We would encourage all of you to look at the coming year calendar as again we do have a general track, our architectural track and employment track that we hope that you will continue to participate in. And as I mentioned before, the transcript will be posted next week on the web site. So thank you all for calling in today and we hope to have you back next month.