Reasonable Accommodation

Training Objectives Understand laws protecting employees and/or applicants for employment with a disability. Understand the definition of disability (physical and/or mental) as defined by the Equal Employment Opportunity Commission (EEOC). Understand the definition of “qualified” individual with a disability as defined by EEOC. Understand the definition of reasonable accommodation. Understand the process of requesting a reasonable accommodation. Definition of undue hardship.

Significant Management Concerns * Proper determination of a qualified individual with a disability. * Agency-wide reassignment as a type of reasonable accommodation. We will discuss in more detail, the reasonable accommodation process and your responsibility for ensuring that requests for reasonable accommodation are appropriately addressed. In the meantime, the most pressing concerns for management is engaging in the interactive process with the employee and implementation of the Navy’s expanded job search process. The next slides will highlight the process.

References Rehabilitation Act of 1973 Americans with Disabilities Act of 1990 Pregnancy Discrimination Act DON Interim Guidance (Feb 2005) NAVSHIPYDNORINST 12720.4 dated 6 Sept 07 Executive Order 13164 (July 2000) (Required Federal agencies to establish effective written procedures for processing requests for reasonable accommodation.) The Rehabilitation Act of 1973 provides legal protection for individuals with disabilities and specific program requirements for the Federal Service – Executive Branch. The Americans With Disabilities Act includes the Federal Service in areas where the Rehabilitation Act is silent. Included is the responsibility of providing reasonable accommodation for employees and applicants with disabilities. Executive order 13164 directs agencies to develop reasonable accommodation operating guidance. The DoN has issued interim guidance. Final regulations are still pending. Disability Discrimination is actionable under the law. This includes the lack of response or denial of an employee or applicant’s request for reasonable accommodation. This presentation will mainly focus on your responsibilities, as managers and supervisors, for reasonable accommodation.

Rehabilitation Act of 1973 Requires Federal agencies to provide reasonable accommodation to qualified employees and applicants with disabilities, unless to do so would cause an undue hardship.

Americans With Disabilities Act (ADA) OF 1990 Title I of the ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA's nondiscrimination standards also apply to Federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

Pregnancy Discrimination Act The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.

NAVSHIPYDNORINST 12720.4 Procedures for Reasonable Accommodation New instruction dated 6 Sept 2007. Reaffirms NNSY’s policy and procedures for providing reasonable accommodation for those qualified individuals with disabilities. Sets forth procedures for reviewing and analyzing disability issues presented by civilian employees and determining what, if any, reasonable accommodation is required.

Who is a “Qualified” Applicant or Employee with a Disability? “Qualified” means the employee or applicant meets the requisite knowledge, skills, and experience of a position and can perform the “essential functions” of the position with or without reasonable accommodation. The applicant or employee must be qualified for the position and the individual must be able to successfully perform the essential functions required of the position. It is imperative that managers understand the essential functions of a position. Position descriptions may not be conclusive evidence of essential functions. In any case, there will no longer be detailed position descriptions under the new National Civilian Personnel System. Supervisors in discussion with their employees must identify the essential functions of a position. Other factors such as percentage of time a function is performed, how many other individuals perform the function or how often the function is performed can also be a determinant. Individuals that cannot perform essential functions of a position with or without accommodations are not considered qualified disabled individuals. Individuals who cannot perform incidental or marginal functions would be considered qualified for the position, since incidental or marginal functions can be reassigned and are not essential to the success of the position.

What is an impairment? Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine. Also any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. All disabled individuals are not necessarily considered disabled for the purpose of reasonable accommodation. Before reasonable accommodation is explored, an analysis of the disability must be conducted. Your Labor Relations Specialist will assist you. First, you must determine that the individual has an impairment under the Act.

What is a major life activity? A function that the average person performs throughout their daily lives. Such activities include caring for oneself, seeing, hearing, walking, breathing, speaking, learning, sitting, standing, lifting, and reaching. Once the employee has been determined to have an impairment, we must determine if the impairment “substantially limits a major life activity.” We must identify what activities the impairment limits and the nature, severity and duration of the impairment. This is an important piece to the analysis as many disabilities do not impact a major life activity.

What is an Essential Function? Position exists to perform that function and employee actually performed the function. Limited number of employees available to whom the performance of the job function can be distributed. Highly specialized so that the incumbent of the position was hired for his/her expertise or ability to perform the particular function.

What is Reasonable Accommodation? Modifications or adjustments to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions without causing or incurring undue hardship on the operation of the employer’s business. Each request for reasonable accommodation is different from any other. This is why an individualized assessment is conducted to obtain information about the disability and the kinds of accommodation options available. Examples of modifications are raising or lowering a workstation; obtaining an amplifier for the telephone, dragon software for computer, or a magnified computer screen, etc. Other kinds of accommodations could be adjustment in work schedule to allow special transportation needs, or additional breaks to take medication or administer medical tests. An employer is not required to lower quality or quantity standards nor is it required to supply personal use items such as glasses, hearing aids, wheelchairs, etc. An employer must know and be aware of the disability and determine if the individual is qualified prior to providing a reasonable accommodation. However, once an employer or manager becomes aware of a request, they must work diligently and in a timely fashion to move the process to completion.

What is Reasonable Accommodation? Includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

Examples of “Reasonable Accommodation” Making existing facilities more accessible. Restructuring non-essential duties of a job. Utilizing part-time or modified work schedules. Adjusting or modifying training material or policies. Acquiring or modifying equipment. Last resort - reassigning to a vacant position. Uncertainty about the effectiveness of an accommodation may require a trial period rather than refusing a requested accommodation. Note: Accommodation does not have to be an employee’s choice as long as it adequately/medically accommodates the employee. Examples of these accommodations would be adding a ramp or chair or lowering a desk/workbench making the existing facilities more accessible to a qualified disabled employee, reviewing job requirements and removing marginal duties or the manner in which essential functions are performed, modifying the work schedule to a stable schedule for a qualified employee who has difficulty adjusting to continual work shift changes within the department, providing an interpreter/reader to assist an employee in learning the requirements of a position and as a last resort a reassignment to another position where the qualified employee can work. Another example which is quite common is voice activated software to assist in keyboarding skills.

Reassignment Reassignment is a “last resort” accommodation. Must be considered when an employee cannot perform the essential functions of the position. Reassignment may be made ONLY to a vacant position within the activity; if no vacancy exists, a wider search will be performed. The employee MUST BE QUALIFIED for the new position.

Use of Alternate Dispute Resolution (ADR) ADR may be used to assist management and the affected employee in resolving issues related to reasonable accommodation. ADR provides mediation using a third party to facilitate a solution that is mutually agreed upon by management and the affected employee. ADR reduces adverse impact to productivity and efficiency and quality of work life caused by work related issues including reasonable accommodation.

REASONABLE ACCOMMODATION Modifying Work Sites Restructuring Jobs Accessible Facilities REASONABLE ACCOMMODATION Modifying Application Procedures Assistive Devices Flexible Leave Schedules/ Work Schedules

Identifying a Need for Reasonable Accommodation Performance/conduct declines. Employee verbally notifies management/HRO. Extended absences/illnesses/medical. Employee submits “Request for Reasonable Accommodation” form. Employees will rarely come to you to discuss a disabling condition. Employees are generally private about medical conditions. Some employees may not realize that they should provide information concerning their disability to the manager if the condition affects their employment in any way. Usually issues will surface when the employee experiences difficulty performing job tasks or the supervisor notices a decline in performance. Supervisors should not make assumptions about a suspected disability, but should focus on the performance and ask questions like, “Is there any reason that your performance has declined?” “Can I provide you any assistance?” It is the employee’s responsibility to inform the supervisor that they may need accommodation. It’s important to note that there must be a request for reasonable accommodation. However, it does not have to be writing or with the specific words. A request can be something like, “My doctor says that I need to take several breaks during the day” or “Since I injured my leg, I’m not able to climb scaffolding any more.” These are considered requests for reasonable accommodation. In some cases, the employee might simply ask for a very straight forward accommodation. For example an employee might ask for a stool because of their leg problems. In these cases, if it is something easily accomplished, the supervisor can provide the employee with an arrangement without going through the process. A word of caution – DO NOT CALL THIS AN ACCOMMODATION. IT MUST BE CALLED AN ARRANGEMENT. For more complex accommodations, complete a “Request for Reasonable Accommodation” form with the employee and forward it to your PMA. Your PMA will guide you through the process.

Supervisory Advice It is important to note that an individual may use “plain English” and not mention the Rehabilitation Act or ADA or even use the phrase “reasonable accommodation.” Example: An employee asks for leave because he is “depressed and stressed.” The employee has communicated a request for a change at work (time off) for a reason related to a medical condition. This statement is sufficient to put the employer on notice that the employee is requesting reasonable accommodation. If any red flag is raised ask for assistance from the Human Resources Office (HRO).

Human Resources Office Provides advice and guidance to managers and supervisors when an employee identifies a problem at work related to a mental or physical impairment and requests accommodation. Labor/Employee Relations (LER) specialists consult with management during the interactive process with employees and may arrange Alternative Dispute Resolution techniques to resolve conflicts and issues. LER Specialists assist management in writing notices and letters. LER Specialists provide guidance to managers/ supervisors as they identify reasonable alternatives for a disabled individual to remain in the same position or other vacant positions to which the employee could be reassigned.

Human Resources Office If no accommodation is possible and no positions are identified as possible placements, HRO will request the Human Resources Service Center (HRSC) to assist in determining a reassignment for the individual outside the activity. HRO will keep management apprised of the HRSC job search.

Employee’s “Right to Privacy” Never request medical documentation without HRO guidance. Retain medical documentation in a secure location. Never discuss an employee’s medical condition without consulting with HRO. Although the signature of the employee on the request for accommodation form releases medical information to those who have a need to know, medical documentation is covered by the Privacy Act. Therefore it is imperative that you treat any medical documentation you receive with specific care. All medical information associated with the request for reasonable accommodation is kept in a totally separate file in the HRO office. All e-mail discussing the persons’ disability should be deleted and trashed. All hand written notes, should be sent on the the HRO office. You must never discuss your employee’s medical condition with anyone outside the HRO specialist handling your case. Should employees ask why certain individuals were provided “special treatment” (accommodations) you may not disclose that person’s medical/psychological condition. The appropriate response is that, “it is in the best interest for us to do things that way.” MAJOR POINT: Turn all medical information over the HRO.

The Accommodation Request The accommodation request is a statement (does not initially have to be in writing) made to a supervisor that an individual needs an adjustment or change at work or in the application process for a reason related to a medical condition. SUPERVISORS/MANAGERS: Once the request is made this begins the interactive process between management and the individual. You must act upon the request. Your next step is to contact your assigned LER Specialist at HRO for advice. THE AGENCY CAN BE HELD LIABLE FOR INACTION, DELAY OR FAILURE TO TAKE REQUESTS SERIOUSLY!

Interactive Process Request the employee complete a “Request for Reasonable Accommodation” form. Request the employee provide medical documentation as outlined in NNSY Instruction 12720.4, Enclosure (3). Ask clarifying questions: What is the physical/mental impairment? Does the impairment substantially limit a major life activity/function? What are the limitations? Request an Assessment Team be convened. Contact the HRO for guidance. Document dialogue/dates and follow-up reminders. When completing the request form, you must get information that will assist in the determination as to whether the employee is an individual with a disability for which reasonable accommodation must be provided. You will need to ask probing questions concerning the impairment and how the impairment limits a major life activity and more specifically, how their disability affects their performance at work. You should inform the employee that there may be a need to request specific medical documentation. The employee will be responsible for obtaining and releasing that information so that management can provide an appropriate accommodation. Your servicing Labor Relations Specialist and/or OGC will assist you (MAJOR POINT: get these advisors involved early). .

Assessment Team Ad-hoc group convened specifically for a particular case: Consists of Senior Line Manager, LER Specialist, Placement Coordinator, Medical Placement Coordinator and the Occupational Health Physician. May also include other HRO Specialists, Health Practitioners or Legal Counsel, as necessary. Conducts an analysis as to whether an individual is disabled as defined by the regulations. After a determination is made, the Assessment Team will complete a “Medical Assessment Checklist for Determining Qualified Individual with a Disability” form and provide it to the appropriate management official.

How to Decide if Reasonable Accommodation Can Be Made? Individualized Assessment What are the physical or mental limitations of the individual? What are the available options for accommodation? Can the Command provide the accommodation without causing an undue hardship? Can the employee perform the work safely without being a threat to themselves or others? Once you have determined that the employee meets the requirements for accommodation, you must research accommodation options available. Your Labor Relations Specialist and/or OGC will be able to assist you with this effort. In addition, you should solicit options from the employee as well as medical professionals. When considering options for accommodation, you must be sure that the employee can safely perform the work. Once you have identified suitable options, you must select the option that would sufficiently allow the individual to perform the essential job duties. It is important to note that you are not required to provide the accommodation desired by the individual. Your decision should be based on suitability as well as cost.

“Disability Analysis Conducted” “Is the individual a qualified applicant or employee with a disability?” NO – accommodation not required under law. YES – continue the process of interaction with the employee to explore methods of reasonable accommodation (keep HRO advised). If the individual is found to not be a qualified disabled individual, there is no entitlement to reasonable accommodation. However, it has been the agency practice to make arrangements to employees when practical, but it is not called an accommodation. If the individual meets the definition of a qualified disabled individual, the interactive process will continue in attempt to find a reasonable accommodation.

Job Searches If the employee can not be accommodated in current position: Management/HRO conducts a job search of Command-wide vacant positions first. Commanding Officer certifies unavailability of position for reassignment. Management offers expanded job search: Major Command - Commuting Area Navy-Wide - Local Commuting Area Navy-Wide - Could be Nationwide Employee has to be willing to relocate and pay own relocation costs. If it is determined an employee can not be accommodated in their current position, the supervisor must consider reassignment to another position as an accommodation. The HRO will provide the supervisor with assistance in locating a vacant position for reassignment within the Command. When looking at a reassignment, the employee must meet the job qualification requirements and must be able to perform the essential functions of the position with or without an accommodation. If a position is not located, the employee may request that an expanded job search be conducted.

“Undue Hardship” Accommodation requires significant difficulty/expense. Case-by-case consideration. Extensive, substantial disruption to business. Fundamentally alters the nature of the business. Employers and employees should work together in evaluating proposed accommodations. Only an accommodation which allows the qualified disabled applicant or employee to recognize the same benefits as everyone else is required. Most accommodations can be made with little or no cost to the activity. In rare cases, an employer can deny an accommodation based on “undue hardship.” However, the law looks at the resources available to the employer to evaluate “undue hardship.” KEY POINT: Undue hardship is difficult to prove, but the interactive process will help you explore other forms of accommodations that may work just as well.

Information at the tip of your fingers on: It’s Free!! CAP OFFERS Information on disabilities Accommodation solutions Needs assessment Assistive technology The Under Secretary of Defense for Personnel and Readiness established CAP in 1990 as the centrally-funded reasonable accommodations program for employees with disabilities in the DoD. The Computer/Electronic Accommodations Program (CAP) provides assistive technology and services to DoD employees with disabilities at no cost to the activity. CAP increases access to information and works to remove barriers to employment opportunities by eliminating the cost of assistive technology and accommodation solutions. Information at the tip of your fingers on: www.tricare.osd.mil/cap

Quick Review Reasonable Accommodation is intended to remove barriers to employment and hiring. The person must have a disability and provide appropriate documentation when requested. Requests may be made orally or in writing AND need only be made once if the condition is continuous. Remember to treat each request on a case-by-case basis.

Quick Review Supervisors must talk with the employee to identify options; consult with experts if needed. Provide accommodation as soon as feasible. If there are delays, keep the employee informed. Medical documentation is confidential and must be treated as such. Work with the employee if documentation is incomplete or insufficient. All denials must be made in writing.

Some Final Comments Reasonable Accommodation is an area of human resources management and EEO that is very dynamic. Take all requests for accommodation seriously, act on them quickly, and keep the employee informed. Remember: Please seek advice from your servicing HRO.

Point of Contact Information Labor/Employee Relations Department, HRO Norfolk, NNSY Directorate, Code 1116 Telephone Number: 396-3518

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