reasonable accommodation office of diversity and inclusion* u.s. department of veterans affairs *...
TRANSCRIPT
Reasonable Accommodation
Office of Diversity and Inclusion* U.S. Department of Veterans Affairs* The Office of Diversity and Inclusion was formerly the Office of Diversity and EEO.
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Federal Laws Regarding Reasonable Accommodation
The Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of 1990 seek to:
Ensure that people with disabilities enjoy employment opportunities equal to those of employees without disabilities.
Provide people with disabilities with reasonable accommodations to permit them to be successful in performing the essential functions of their jobs.
The ADA defines Reasonable Accommodation as a change or modification to the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.
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Reasonable Accommodation
It is the policy of VA to provide equal opportunity to all qualified individuals with disabilities in accordance with the Rehabilitation Act of 1973 and to fully comply with all other legal and regulatory requirements.
No qualified individual with a disability may be denied the benefits of a program, training, or activity conducted, sponsored, funded, or promoted by VA, or otherwise be subjected to discrimination.
To this end, reasonable accommodations will be provided to qualified individuals with disabilities, unless doing so poses a direct threat to requester or other employees or an undue hardship on the Agency.
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Reasonable AccommodationAmericans with Disabilities Act Amendments Act of 2008 (ADAAA)
ADAAA restores the original intent of Congress regarding the definition of disability, as reflected in the Rehabilitation Act (Rehab Act) of 1973.
Broadens the coverage that existed under the Americans with Disabilities Act (ADA) and the Rehab Act.
Broadens the meaning of “regarded as” disabled No impairment, but employer erroneously treats person like he or she has an
impairment that substantially limits a MLA An impairment, but employer erroneously treats the person like his or her impairment
substantially limits a MLA Clarifies that VA is not required to accommodate individuals whose claim is solely
based on being regarded as disabled Broadens the meaning of an actual disability
Broadens the definition of “substantial limitation” Expands the definition of “major life activity” Eliminates mitigating measures Clarifies that an impairment that is episodic or in remission may qualify as a disability
if it substantially limits a major life activity An impairment that limits only one major life activity is now enough to qualify as a
disability
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Additional Federal Law inThis Area
In 1998, the Rehabilitation Act was amended to include Section 508 which requires that all electronic and informational technology developed, procured, maintained, and used by the Federal government be accessible to individuals with disabilities. This includes:
Web-based intranet & internet information & applications Telecommunication products (phone systems) Video & multimedia products (webcasts) Office equipment (copiers) Desktop & portable computers
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Who is a Person with a Disability?
A disabled person is one who:
has a physical or mental impairment which substantially limits one or more major life activity; and/or
has a record of such an impairment; and/or is regarded as having such an impairment.
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Examples of Major Life ActivitiesThe ADAAA clarified that “Major Life Activities” refers to those activities that are of central importance to daily life. These include, but are not limited to:
Walking Working Thinking Eating Seeing Hearing Speaking Breathing Sleeping Caring for oneself
Learning Communicating Reading Bending Standing Working Concentrating Performing manual tasks Lifting Interacting with others
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Additional Major Life Activities Specified in the ADAAA The operation of a major bodily function, which includes, but is not
limited to: Functions of the immune system Normal cell growth The following functions:
Digestive Bowel Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive Functions
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Other Key Concepts Reasonable Accommodation – Any change or adjustment in the work environment
or in the way things are customarily done that would enable a qualified individual with a disability to enjoy equal employment opportunity.
Qualified individual with a disability – Someone who (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position and (2) can perform the essential functions with or without the accommodation.
Essential Functions – Duties that are so fundamental to the position that the job cannot be done without performing them.
Reassignment – A reasonable accommodation that is provided to employees who, because of a disability, can no longer perform the essential functions of their current position, even with reasonable accommodation. Reassignment is available only to an employee who meets the minimum qualifications for the position. Reassignment is made non-competitively only to existing positions in VA as a whole. This is the accommodation of last resort and should only be considered once all other options have been exhausted.
Undue Hardship – An accommodation that is excessively costly, extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the agency’s business. Federal case law has held that cost shall not be a consideration for an agency the size of the VA because it is the VA budget as a whole that will be examined, and not the individual office budget where the request is made, that will be considered.
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Requests for Accommodation
An employee can request reasonable accommodation from his/her supervisor or another supervisor or manager in the immediate chain of command.
An employee’s representative, medical provider, or family member may request a reasonable accommodation on behalf of the employee.
Once the request has been made to a manager or supervisor, that individual should immediately acknowledge the request.
The supervisor or manager should then review, evaluate and make a decision within the timeframes and in accordance with the procedures listed in VA Directive and Handbook 5975.1, “Processing Requests for Reasonable Accommodation by Employees and Applicants with Disabilities.”
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Requests for Reasonable Accommodation
When an individual requests a modification or adjustment in the work environment because of a medical condition or disability, he or she is requesting a reasonable accommodation.
The initial request for accommodation can be verbal or written. A verbal request immediately starts the process.
For record keeping purposes, it is prudent to request that the employee put their request in writing although the failure to provide written confirmation should not stop the manager/supervisor from beginning the process.
The manager/supervisor receiving a request for reasonable accommodation should immediately respond to that request, whether it is written or verbal. They should immediately work on the request and expedite a decision.
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Handling the Request for Accommodation – Interactive Process
Once a request is presented, the manager/supervisor should immediately initiate an interactive dialogue with the requestor, during which they can discuss: whether the employee has a physical or mental impairment; the limitations associated with the medical impairment at issue; the frequency and duration of any limitations associated with the medical
impairment at issue; what accommodation(s) is(are) being requested; how the accommodation(s) requested will assist in performing the essential
functions of the job; all of the alternatives that exist to assist the employee in performing the essential
functions of their job; and who the “decision maker” will be.
Keep in mind that there are time is of the essence in making a decision on a request for reasonable accommodation and protracted and unneccesary delays can result in agency liability.
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Interactive Process (cont.) The manager/supervisor should request assistance of ORM, employee relations,
labor relations, OGC, and ODI in considering requests for reasonable accommodation.
Many accommodations can be provided at little or no cost to the agency and there are services that can assist in obtaining cost effective equipment (listed towards the end of this presentation).
The specific accommodation being requested does not have to be granted, but an alternative should be offered which achieves goal of enabling the employee to perform the essential functions of their job.
The offices above can assist in finding alternatives that may be more cost effective for VA and still achieve an effective outcome for the employee.
During this entire process, the manager/supervisor should communicate with the employee at each stage and be open to alternative proposals and suggestions as they arise.
Cost will not be a defensible reason for failing to consider providing a reasonable accommodation because courts will look at the budget of VA as a whole, and not the individual office budget, in considering an undue hardship excuse in failing to provide the accommodation.
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Test Your Knowledge…
1. An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing.“ Is this a request for a reasonable accommodation?Yes, this is a request for a reasonable accommodation. Although the employee has not explained why the medical treatments are required, her statement implicitly links her difficulty in getting to work at her scheduled starting time to a medical condition.
2. An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Is this a request for a reasonable accommodation?No. Although this is a request for a change at work, his statement is insufficient to put the supervisor on notice that he is requesting reasonable accommodation. To make this a request for a reasonable accommodation, he needs to link his request for the new chair with a medical condition.
3. An employee who is blind requests adaptive equipment for her computer as a reasonable accommodation. The supervisor must order this equipment and is informed that it will take three months to receive delivery. No other company sells the adaptive equipment the employee needs. The supervisor notifies the employee of the results of its investigation and that the equipment has been ordered. Did the supervisor respond to the employee's request for reasonable accommodation in a timely manner?Yes. Although it will take three months to receive the equipment, the supervisor has moved as quickly as s/he can to obtain it and thus there is no ADA violation resulting from the delay. The supervisor and employee should determine what could be done so that the employee can perform his/her job as effectively as possible while waiting for the equipment.
Request for Reasonable Accommodation
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Requesting and Using Medical Information
When a disability and/or the need for reasonable accommodation is not obvious, or otherwise already known, the employee may be asked to submit sufficient medical documentation about the disability and associated limitations. If a ‘decision maker’ believes that medical information is necessary, it is appropriate to seek assistance from ORM, employee relations, labor relations, OGC, or ODI before proceeding.
When requesting medical information, the supervisor/manager may not request the complete medical record of the employee. The only information that should be requested is:
A short description of the disability;
How the disability limits the employee’s major life activities as well as the ability to do the job or participate in VA activities, or the applicant’s ability to apply or interview for the job; and
How the requested accommodation is expected to improve the situation.
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Requesting and Using Medical Information
Once sufficient medical documentation is received, the supervisor/manager will evaluate it, with a Medical Consultant, if necessary.
NOTE – ‘Decision Makers,’ as well as any
other personnel involved in the process,
should remember that all medical information,
including medical information voluntarily
disclosed by an applicant or employee, MUST
BE KEPT CONFIDENTIAL!
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Requesting and Using Medical Information
Test Your Knowledge…
1. A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing strategies. In order to remember what is discussed at these meetings, he must take detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability and requests a laptop computer to use in the meetings. Can the supervisor request medical documentation?
Yes. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee to provide reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activities that the impairment limits; and the extent to which the impairment limits the employee's ability to perform these activities. The supervisor also may ask why the disability necessitates use of a laptop computer rather than an alternative accommodation such as a tape recorder, to help the employee retain the information from the meetings.
2. An employee brings a note from her treating physician explaining that she has diabetes and that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness. Depending on the results of the blood test, the employee might have to take insulin. The note requests that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin. Can the supervisor ask for additional medical documentation?
No. The doctor's note constitutes sufficient documentation that the person has a substantially limiting impairment and the requested reasonable accommodation is needed. The supervisor should not ask for additional documentation.
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Requesting and Using Medical Information
Test Your Knowledge (Continued)…
3. An employee gives her supervisor a letter from her doctor, stating that the employee
has asthma and needs the supervisor to provide her with an air filter. Can the supervisor ask for additional medical documentation?
Yes. This letter contains insufficient information as to whether the asthma is an ADA disability because it does not provide any information as to its severity (i.e., whether it substantially limits a major life activity). Furthermore, the letter does not identify precisely what problem exists in the workplace that requires an air filter or any other reasonable accommodation. Therefore, the supervisor can request additional documentation.
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EXAMPLES OF EXAMPLES OF
REASONABLE REASONABLE
ACCOMMODATIONSACCOMMODATIONS
Modifying Work Sites
Providing Readers
and Interpreters
Assistive
Devices
Flexi-Time
Accessible Facilities
Modifying
Work
Schedules
Flexi-Place
Reassignment(only used as the ‘accommodation of last resort’)
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Categories of Reasonable Accommodation
Test Your Knowledge…
1. A cleaning crew works in an office building. One member of the crew wears a prosthetic leg that enables him to walk very well, but climbing steps is painful and difficult. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. The marginal functions of a second crewmember include cleaning the small kitchen in the employee's lounge, which is something the first crewmember can perform. Can the supervisor switch the crewmember's marginal functions?Yes. The supervisor can switch the marginal functions performed by these two employees.
2. A salesperson took five months of leave as a reasonable accommodation. The company compares the sales records of all salespeople over a one-year period, and any employee whose sales fall more than 25% below the median sales performance of all employees is automatically terminated. The supervisor terminates the salesperson because she had fallen below the required performance standard. The company did not consider that the reason for her lower sales performance was her five-month leave of absence; nor did it assess her productivity during the period she did work (i.e., prorate her productivity). Is this a violation of the ADA?Yes. Penalizing the salesperson in this manner constitutes retaliation and a denial of reasonable accommodation.
3. An employee with an ADA disability needs 14 weeks of leave for treatment related to the disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum available) so this period of leave constitutes both FMLA leave and a reasonable accommodation. Under the FMLA, can the supervisor deny the employee the fourteenth week of leave?Yes. However, because the employee is also covered under the ADA, the supervisor cannot deny the request for the fourteenth week of leave unless it can show undue hardship. The supervisor may consider the impact caused by the initial 12-week absence, along with other undue hardship factors.
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Mistakes to Avoid
Assuming that disability is the same as inability. The key consideration is whether an employee is able to perform the essential duties of a position —not whether s/he has a disability.
Assuming that an employee has an actual disability. Some disabilities are obvious, but many are not; and in some cases employees label a correctable condition or temporary impairment a disability when it's not. So, pay close attention, and don't be afraid to ask for help from your EEO Office or HR experts.
Failing to explore multiple accommodations. Don't make the mistake of simply settling into a struggle over whether you will adopt the one and only accommodation requested by an employee. Work with the employee, ORM, employee relations, labor relations, OGC, or ODI to see if there are other feasible accommodations that are equally effective.
Failing to refer an apparently disabled individual to the EAP. Although ultimate responsibility for dealing with, for example, an alcohol-related disability, rests with the employee, supervisors are responsible for making employees aware of available help when it appears likely to be necessary.
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Mistakes to Avoid (continued)
Tolerating unacceptable performance or conduct. The courts, the Merit Systems Protection Board (MSPB), and the Equal Employment Opportunity Commission (EEOC) have all emphatically pointed out in recent years that employees with disabilities must live up to the same standards of conduct and performance as other employees. There is no reason for you to accept less.
Tolerating unacceptable health or safety risks. An accommodation is neither reasonable nor responsible if it would result in your allowing an employee with disabilities or co-workers to be placed at a health or safety risk.
Telling other employees that an employee is receiving an accommodation: ADA prohibits employers from disclosing an employee’s "medical" information (with limited exceptions). Disclosing that someone is being provided an ADA-reasonable accommodation is therefore disclosing that the person has a disability. Simply disclose that a modification has been made to comply with Federal law.
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Reasonable Accommodation Resources
DOD Computer Accommodation Program (CAP) Telephone: 703-681-8813Website: www.tricare.osd.mil/cap
Provides computer-related equipment to any VA employee at no cost to the agency.
Requires submitting forms and medical documentation as necessary directly to CAP.
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Reasonable Accommodation Resources
Jobs Accommodation NetworkTelephone: 1-800 -JAN-7234 Website: www.jan.wvu.edu
Provides accommodation information including suggestions for specific medical conditions, available services and answers to legal questions. Also provides suggestions for individual worksite accommodations by phone.
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Contact Information
Georgia CoffeyDeputy Assistant Secretary, Office of Diversity and Inclusion (ODI)
Rafael TorresDeputy Assistant Secretary, Office of Resolution Management (ORM)
Deborah McCallumAssistant General Counsel, Professional Staff Group IV
Larry AbelsDirector, Employee Relations, Office of Human Resources Management