The Dos and Donts of Effective Reasonable Accommodation

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The Dos and Donts ofEffective Reasonable
Accommodation

• David M. Walton
• National EEO Manager, People with Disabilities
• Office of Diversity and Inclusion
• US Department of Veterans Affairs
• December 2008

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Questions to be Answered

• How can I un-complicate the process?
• Must I accommodate everyone?
• What is REASONABLE?
• Must I provide an accommodation that a doctor
  recommends?
• Who has what role/responsibility?
• Must all requests be in writing?
• Who grants/denies the accommodation?

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Legal/Other Requirements

• Rehabilitation Act of 1973
• Americans with Disabilities Act of 1990
• Executive Order 13164, July 2000
• VA Directive 5975.1 Processing Reasonable
  Accommodation Requests from Employees and
  Applicants

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Determining Whether an Employee is Covered by the
Rehabilitation Act

• A qualified individual with a disability is a
  person with
• a covered physical or mental impairment that
• substantially limits one or more major life
  activities, and
• who can perform the essential functions of the
  job, with or without reasonable accommodation,
  and
• without endangering the health and safety of the
  individual or others.

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An Individual with a Disability is a Person Who

• Has a physical or mental impairment or condition
  that substantially limits one or more major life
  activities or
• Has a record of having such an impairment or
• The employer treats as if he or she has such an
  impairment.

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Major Life Activities

• Walking
• Standing
• Sitting
• Seeing
• Hearing
• Caring for ones self
• Interacting with others

• Speaking
• Breathing
• Cognitive thinking
• Performing manual tasks
• Working
• Learning
• Ability to safely reproduce

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Substantially Limits
Unable to perform, or significantly limited in
the ability to perform, an activity compared to
an average person in the general population.
Limitation must be more than a temporary,
short-term, and/or minor condition.
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Substantially Limited in a Major Life Activity?
What Activity?
Wally Waller has an artificial leg. He cannot
walk except for brief periods of time and short
distances. Is he substantially limited in a
major life activity? What activity?
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Definitions of DisabilityThe Law Can Make
Anything Complicated

• In every area of law that deals with disability,
  the definition of disability is differentwhy?
• If a person is disabled for the purpose of VA
  compensation or benefits, he is not necessarily
  disabled within the meaning of the Rehabilitation
  Act.
• If a person is disabled for the purpose of
  receiving OWCP benefits, he is not necessarily
  disabled within the meaning of the
  Rehabilitation Act.
• If a person is disabled for the purpose of
  disability retirement, he is not necessarily
  disabled within the meaning of the Rehabilitation
  Act.

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A Qualified Individual with a Disability

• Meets the necessary prerequisites of the job,
  such as education or work experience, licenses or
  certificates, training or skills, and/or other
  job-related requirements (good judgment, ability
  to work with others, etc.) AND
• Is able to perform the essential functions of the
  job with or without accommodation. The same job
  function may be essential or not, depending,
  e.g., on how big the staff is.

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Essential Functions Another Wiggly, Squiggly
Concept
If a nurse becomes unable to perform direct,
physical patient care because of lifting
restrictions resulting from a severe, permanent
back injury, the lifting of patients may be an
essential function of the job in a very small
unit, or it may be only a marginal function of
the job in a very large unit. If a job function
is so highly specialized that the incumbent was
hired solely because of his or her expertise or
ability to perform that function, then that
function is probably an essential function.
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Factors to Consider in Determining Whether a Job
Function is Essential

• The employers judgment as to which functions are
  essential
• Written job descriptions prepared before
  advertising or interviewing applicants for the
  job
• The amount of time actually spent on the job
  performing the function
• The consequences of not requiring the incumbent
  to perform the function
• The terms of any collective bargaining agreement
• The work experience of past incumbents in the
  job and/or
• The current work experience of incumbents in
  similar jobs.

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Without Endangering the Health or Safety of the
Individual or Others
In order to be a qualified individual with a
disability, covered by the Rehabilitation Act,
the individual has to be able to perform the
essential functions of the job, with or without
accommodation, without endangering the health or
safety of the individual or others.
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An Employer May Decline to Employ an Individual
Based on Direct Threat

• An employer can decline to employ an individual
  who cannot perform the essential functions of his
  job without endangering the health and safety of
  himself or others, but only if
• The threat of harm is imminent or highly
  probable,
• not just remote or possible
• The threat posed is of substantial harm and
• The threat of harm cannot be reduced to an
• acceptable level by reasonable accommodation.

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Whose Responsibility is it to Raise the Issues of
Disability and Accommodation?
The employee. The employee. The employee. In
the absence of a threat to the health or safety
of the employee or others, it is inappropriate
for a supervisor or manager to attempt to
accommodate or otherwise deal with a perceived or
suspected medical problem unless and until the
employee raises the issue.
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Response to the Request

• Manager receiving request should
• Acknowledge receipt
• Engage in interactive process
• Answer request if possible
• Ask for additional information if needed
• Ask for medical documentation if needed
• Other ways request is triggered

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Interactive Process

• Supervisor and employee must talk about request
• If employee is not comfortable with talking to
  supervisor he or she should be allowed to seek
  assistance from higher level supervisor or
  another agency-designated representative
• Process should be used anytime a request is made
• Process should be used prior to medical
  information being requested

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Time Frames and Tracking

• V A Directive 5975.1 requires accommodations be
  provided within 30 calendar days
• Should be as short as possible
• VA policy requires request be tracked
• Requests should not be allowed to drag on and
  on

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Requests for Medical Information

• Additional medical information can be requested
  by the employer to determine if the employee has
  a covered disability and/or to determine the
  limitations of the employee/applicant
• Medical documentation must be controlled and
  stored in a central location
• Medical information should not be requested if
  both the disability and the limitations of the
  employee/applicant are obvious

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How does the employerget the information?

• Ask the employee to describe the details of his
  disability, and what accommodation he would need
  to enable him to perform the essential functions
  of his job. This may be all that is necessary if
  the disability is obvious.
• Require the employee to provide detailed medical
  documentation. The employer is entitled to have
  as much documentation as it needs to make an
  informed decision with respect to the request for
  accommodation.
• Offer a fitness-for-duty examination or
  independent medical evaluation.

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Confidentiality Requirements

• All medical information must be kept confidential
• Number of agency officials with access to medical
  information should be strictly controlled and on
  a need to know basis
• Supervisor/DM does not need to have access to
  medical information
• Information needed to continue processing request

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Real Life Example

An employee shouted and cursed at his co-workers.
This is not the first time. The last time he
did this, he was admonished. This time, his
supervisor proposed a reprimand. The employee
responded to the proposed reprimand by claiming
that he has a mental illness that causes him to
have such outbursts. What information does the
employer need?
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Deciding on an Accommodation
The agency is not required to provide the
specific accommodation requested by the employee!
The agency may provide another accommodation
that will allow the employee to perform the
essential functions of his job. The
accommodation provided should be related to the
disability and be assigned to assist the employee
in performing the essential functions of his job.
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Computer/Electronic Accommodations Program
(CAP)www.cap_at_tma.osd.mil

• Provides computer/electronic assistive
  technology and devices to assist persons with
  hearing, visual, dexterity, cognitive
  communications impairments. Technology solutions
  and devices are provided to the agency at no cost
  through the CAP program.

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Job Accommodation Networkhttp//janweb.icdi.wvu.e
du

• JAN can provide information, free of charge,
  about many types of reasonable accommodations and
  will assist an agency in determining what
  accommodation might be suitable for a specific
  medical condition.

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Granting/Denying the Request

• Supervisor/DM should grant request as soon as
  possible
• If approved request requires equipment that must
  be ordered, a temporary accommodation should be
  considered
• Denials must be in writing
• If a request is denied, employee should be
  advised of the redress process

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Reassignment

• This is the accommodation of LAST RESORT
• Should only be used if no other accommodation can
  be found that is effective
• Must consider positions in the entire agency
• Must use the interactive process

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Funding

• VA has two methods of funding are various methods
  of funding accommodations
• Responsibility for funding non-technology related
  request is decentralized by administration or
  staff office

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Common Mistakes Made

• Failure to recognize request
• Timeliness of processing request
• Written requests cannot be required
• When employer has right to limited information
• All information need not be medical
• Poor analysis of information to determine
  disability

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Coming Soon The ADAA

• Takes effect January 1, 2009
• Expands the definition of major life activity
  (MLA)
• Eliminates mitigating measures
• Clarifies that an impairment that is episodic or
  in remission may qualify as a disability if it
  substantially limits a MLA

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What Changes Under the ADAA

• Broadens meaning of regarded as disabled
• Eliminates RA obligation for regarded as disabled
• Excludes temporary impairments that persist less
  than six months

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What Does Not Change Under the ADAAA

• Meaning of reasonable accommodation
• Undue hardship
• Qualified individual with a disability
• Essential functions
• Direct threat

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What Does Not Change Under the ADAAA (Cont.)

• The employers right to medical evidence for
  non-obvious medical impairments (although one
  impact of the ADAAA may be to find more medical
  conditions as obvious disabilities)

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New EEO Regulations andLegislative History

• New EEO regulations will be issued
• Redefining substantial limitation and other
  definitions
• New guidance will eventually be issued by EEOC
• Legislative History www.law.georgetown.edu/archiv
  eada

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Questions?

• David M. Walton
• National EEO Manager, People with Disabilities
• Phone [phone]
• E-mail David.walton_at_va.gov