Disability Employment Program Manager USDA Forest Service DISABILITY AWARENESS and REASONABLE ACCOMMODATION SEMINAR July 20, 2011 Presented by: Sheila M. Young Disability Employment Program Manager USDA Forest Service Washington, DC

Disability Etiquette Summary TOPICS OF DISCUSSION Reasonable Accommodation Laws, Regulations and Executive Orders Definitions Individuals with Disabilities Roles and Responsibilities USDA Target Center Resources (Internal and External) Case Studies Disability Etiquette Summary

Americans With Disabilities Act (ADA) of 1990 * 07/16/96 LAWS AND REGULATIONS Rehabilitation Act of 1973 Americans With Disabilities Act (ADA) of 1990 Americans With Disabilities Act Amendment Act (ADAAA) of 2008 * ##

POLICY AND EXECUTIVE ORDERS Enforcement Guidance on ADA and Psychiatric Disabilities (March 1997) Enforcement Guidance on Equal Employment Opportunity Commission (EEOC) Disability Related Inquiries and Medical Examinations (July 2000) EEOC Policy Guidance on E.O. 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (October 2000) Enforcement Guidance on Reasonable Accommodation and Undue Hardship (October 2002) Executive Order (EO)13548 – Increasing Federal Employment of Individuals with Disabilities ( July 2010)

Reaffirm the USDA goal for the employment of IWD * 07/16/96 AGENCY FOCUS Hiring, placement, and advancement of Individuals with Disabilities (IWD) Ensure reasonable accommodations and protections against discrimination AGENCY GOALS Reaffirm the USDA goal for the employment of IWD Increase the employment of individuals with targeted disabilities * ##

INDIVIDUAL WITH A DISABILITY An individual who: “has a physical or mental impairment that substantially limits one or more of that person’s major life activity; has a record of such impairment; or is regarded as having such an impairment; and can perform the essential functions of the position with or without an accommodation.”

MAJOR LIFE ACTIVITY Substantially limiting if it “materially restricts” in the following areas: Caring for oneself Performing manual tasks Seeing, hearing, eating, sleeping Walking, Standing, lifting, bending, speaking Breathing Learning Reading, concentrating, thinking Communicating Working

MAJOR LIFE ACTIVITY Operations of bodily functions but not limited to functions of the: Immune system Normal cell growth Digestive Irritable Bowel Syndrome; Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive functions

REASONABLE ACCOMMODATION Modifications or adjustments to a job or the application process Modifications or adjustments that enable a qualified individual with a disability to perform the essential functions of his or her position Modifications or adjustments that allow employees with disabilities to enjoy equal benefits and privileges of employment Mandatory or voluntary training/staff meetings Employer-sponsored parties: Even if off-site and outside business hours Employer-sponsored programs/special events (i.e. annual CFC kick-off assembly)

BASIC ACCOMMODATION ISSUES THAT SHOULD BE CONSIDERED Is the disability and the accommodation obvious? Have you considered existing policies/programs to address routine issues? Are there short-term solutions when additional review is required? Resist the urge to dismiss requests out of hand. Don’t play doctor!

REASONABLE ACCOMMODATION TRIGGERS Employee makes a specific written or verbal request Supervisor observes employee having difficulty performing job functions Decline in performance Leave issues: Frequent, unplanned absences Exhausted all leave Requests advanced sick leave Requests extended absence or invokes FMLA

EFFECTIVE ACCOMMODATION Employer must provide an accommodation that meets the employee’s needs and removes a workplace barrier Employee is NOT entitled to accommodation of their choice If two or more accommodations would be effective, employer may choose between them Critical that employer understand exact nature of the problem to determine all possible, effective accommodations Assess whether accommodations, any/all possibilities, will constitute “undue hardship

TYPES OF REASONABLE ACCOMMODATIONS Almost unlimited possibilities which may include: Sign Language Interpreters Modifications to existing equipment or purchase/lease of new equipment that is accessible to individual with a disability Modifying workplace policies Changes in the working environment (e.g., flashing warning lights for evacuations) Providing assistive technology Reassignment (accommodation of last resort)

REASONABLE ACCOMMODATION Actions not required: Removing an essential function (i.e., fundamental/critical job duty) Lowering production standards (quantitative and qualitative) Excusing misconduct/performance deficiencies Providing personal use items, such as hearing aids, service animals

AGENCY MUST… Not create new bureaucratic requirements Establish procedures that permit flexibility in processing reasonable accommodation requests Permit most expeditious consideration and delivery of reasonable accommodations Appoint a Deciding Official for reasonable accommodation requests Ensure all federal agency programs, training, events, and any other activities are fully accessible to all employees and any guests Never make direct contact with a physician to obtain medical information when the employee does not provide it

Have an Application Process AGENCY MUST… Have an Application Process Provide accommodations that enable an employee to perform essential functions his/her job or to gain access to the worksite Benefits and Privileges of Employment: Mandatory or voluntary training/staff meetings Employer-sponsored parties: Even if off-site and outside business hours Employer-sponsored programs/special events (annual CFC kick- off assembly, Special Emphasis Program Training, etc.)

UNDUE HARDSHIP Significant difficulty or expense Focus here is on resources and circumstances of agency as a whole, including impact on operations Undue hardship refers to denial of a specific accommodation Consider financial difficulty as well as reasonable accommodations that are extensive, substantial, or disruptive

STANDARDS OF CONDUCT The Rehabilitation Act does not immunize disabled employees from being disciplined for misconduct, provided the employer would impose the same penalty on a non-disabled employee. Rule is job-related to the position Rule is consistent with business necessity Rule is uniformly applied May be required to accommodate to allow employees to meet conduct rule(s) in the future

WHEN SHOULD AN INDIVIDUAL REQUEST REASONABLE ACCOMMODATION As soon as the individual believes there is a need for one!!! When an employee knows/suspects that a disability may be causing a performance or conduct problem. When an employee needs to request leave or an extended absence because of a disability.

QUESTIONS?

ROLES AND RESPONSIBILITIES The Employee … Submits request verbally or in writing Engages in interactive process with manager or Disability Employment Program Manager (DEPM) or Mission Area Designee Submits medical information to Mission Area Designee ONLY: Identifies medical condition Identifies impact of medical condition on major life activity Provides diagnosis/prognosis Identifies requested accommodation and statement of how it will enable employee to perform the essential functions of the position

ROLES AND RESPONSIBILITIES The Manager… Engages in interactive process with employee Approves requested accommodation Requests assistance from the DEPM Receives written disability determination letter from Mission Area Designee Accepts or declines written recommendation, if provided, from Mission Area Designee Considers other options if requested accommodation is not effective Provides final review of requested accommodation and response to employee

INTERACTIVE PROCESS !!!!!!!! Process usually starts with a request from an employee/applicant No “magic words” needed Individual must tell employer that he/she needs something from the employer because of his/her disability Need not be in writing May come from someone other than the individual needing the accommodation (doctor’s note) Mission Area Designee may obtain medical documentation to determine if the individual’s medical condition constitutes a disability and/or to verify the need for accommodation Cooperative Process!

ROLES AND RESPONSIBILITIES DEPM… Participates in interactive process with the requestor and manager Consults with the individual and management official to determine appropriate accommodation Consults with management to acquire the essential functions of position Creates reasonable accommodation case file on all reasonable accommodation requests received Provides workplace accommodations for employees with obvious disabilities

ROLES AND RESPONSIBILITIES DEPM… Assesses the effectiveness of various accommodations 6-months to one-year from date accommodation was provided Assists employee in completing the Form for USDA Target Center to receive assistive technology Plans Disability Awareness Month Observances Contacts external resources on an as-needed-basis Assists with the development of MD 715 Part J – Plan

Roles and Responsibilities Mission Area Designees….. Participate in interactive process Determine whether individual has a disability Request written essential functions - identified by management Consult with the individual and management official to recommend potential accommodation Create and maintain disability determination case files Request, receive and maintain medical documentation - confidentially Implements the accommodation of last resort – “Reassignment Process”

ROLES AND RESPONSIBILITIES Mission Area Designee… Mission Area Designee will request the following information from the medical provider Medical information should indicate: Medical condition Impact of medical condition on major life activity Diagnosis/Prognosis (nature, severity, duration) How accommodation will enable employee to perform the essential functions of the job

ROLES AND RESPONSIBILITIES Mission Area Designee…. May request additional medical documentation: When disability and need for accommodation are not obvious When medical documentation provided is insufficient When it is job-related When consistent with business necessity Failure to provide necessary information may result in denial of request

Roles and Responsibilities Mission Area Designees …… Assess accommodation effectiveness (6 mo - 1 yr from accommodation date) Provide guidance and assistance to Disability Employment Program Managers Submit responses either by e-mail or certified mail Contact external resources on an as-needed-basis Submit statistical reports to WO (weekly, monthly, & quarterly) Assist with the development of MD 715 Part I – Plan Weekly meeting with the WO Disability Program Team

CONFIDENTIALITY OF MEDICAL RECORDS Individuals who have access may not disclose this information except under certain conditions, (ex., medical emergency, employee provide signed statement naming recipients) Health Insurance Portability and Accountability Act (HIPAA) does not apply to agency and the receipt of medical information when requesting reasonable accommodation HIPAA applies to medical and/or health care providers only

CONFIDENTIALITY OF MEDICAL RECORDS The manager or supervisor should know only the nature of the accommodation All medical records are subject to the confidentiality provisions of the Privacy Act The Rehabilitation Act requires that all medical information be kept confidential All medical information must be locked up in a secure location

REASSIGNMENT OBLIGATION Agencies required to consider reassignment Considered the accommodation of last resort Vacant funded position (up until selection) Employee must be qualified for vacant funded position Agency need not create a position Employee does not need to be “best qualified” to be reassigned

RESOURCES USDA Target Center www.dm.usda.gov/oo/target Department of Rehabilitative Services www.dors.org The Job Accommodation Network (JAN) www.jan.wvu.edu Office of Disability Employment Policy www.dol.gov/dol/odep ADA Information Center www.dol.gov/odep Workforce Recruitment Program (WRP) DOL Initiative http://wrp.gov Equal Employment Opportunity Commission (EEOC) www.eeoc.gov Office of Personnel Management (OPM) www.opm.org Veterans with Disabilities http://www.woundedwarriorproject.org www.hireheroesusa.org http://www.dol.gov/vets/welcome.html

DISABILITY ETIQUETTE When Referring to Individuals with Disabilities: Recognize individuality Use the term “disability” instead of “handicap” Treat adults with disabilities as adults Assume that individuals with disabilities do not need help in accomplishing tasks unless they ask, then be ready to assist as they see necessary Use positive, humanizing language when referring to people with disabilities Inform everyone both applicants and employees, managers and supervisors that accommodations are available – It’s The Law

SUMMARY Medical documentation must remain confidential and in a secured location Mission Area Designee receives medical documentation Mission Area Designee determines if the person has a disability and makes recommendations to the Deciding Officials Must apply the accommodation of last resort – “Reassignment” Disability Employment Program Manager and Mission Area Designee provides guidance to managers, supervisors, and employees Disability Employment Program Manager assist employees with obvious disabilities to acquire assistive technology

SUMMARY DEPM will assist employees during the reasonable accommodation process Target Center provides assistive technology and ergonomic assessments on an as needed basis HIPAA (Health Insurance Portability and Accountability Act) does not apply to agency protection of medical information, but does apply to health care providers, which would include federal medical clinics

QUESTIONS? For additional information contact: Sheila M. Young Disability Employment Program Manager 202-205-9927 or smyoung@fs.fed.us