Questions and Answers: Promoting Employment of Individuals with Disabilities in the Federal Workforce
On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008. See the list of specific changes to the ADA made by the ADA Amendments Act. As a result of this new legislation, which will go into effect on January 1, 2009, minor changes have been made to this document. These changes are found in endnotes 5 and 11 and do not affect the overall content or guidance in this document.
- BACKGROUND ON SECTION 501
- "Model Employer" Mandate
- Non-discrimination, Accommodation, and Other Requirements
- AFFIRMATIVE RECRUITMENT, HIRING AND ADVANCEMENT
- REASONABLE ACCOMMODATION
- HEALTH AND SAFETY CONCERNS
- INTERACTION OF REHABILITATION ACT WITH OTHER AGENCY OBLIGATIONS
- CONDUCT RULES AND JOB PERFORMANCE
- JOINT LIABILITY ISSUES
- DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS
- DISABILITY-BASED HARASSMENT
- RETALIATION AND INTERFERENCE
- FILING A COMPLAINT OF DISCRIMINATION
In enacting Section 501 of the Rehabilitation Act of 1973, Congress charged each federal agency to promote the hiring and retention of individuals with disabilities in two ways: first, to be a model employer of individuals with disabilities through use of meaningful affirmative hiring, placement, and advancement opportunities; and second, to ensure employment non-discrimination and reasonable accommodation. To assist agencies in focusing this effort on severe disabilities that have historically been used to exclude qualified individuals from employment, the federal government has identified certain "targeted disabilities" for special emphasis in affirmative action programs. The "targeted disabilities," which were last listed on the Office of Personnel Management (OPM) Standard Form (SF) 256 in 1987,1 include: deafness; blindness; missing extremities; partial paralysis; complete paralysis; convulsive disorders; mental retardation; mental illness; and distortion of limb and/or spine. EEOC tracks statistics on the employment by federal agencies of people with these targeted disabilities because their unemployment and under-employment rates are so high.2 Tracking employment statistics for this population allows federal agencies to better monitor their own efforts at becoming and remaining model employers.
Despite these efforts, the percentage of federal employees with targeted disabilities has declined since it reached its peak of 1.24 percent in fiscal year 1994 (32,337 employees). In fiscal year 2007, federal employees with targeted disabilities comprised only 0.92 percent (23,993 employees) of the federal workforce. Moreover, although the federal workforce has increased by 128,973 employees from FY 1998 to FY 2007, a net increase of 5.2%, the number of federal employees with targeted disabilities decreased from 28,035 in FY 1998 to 23,993 in FY 2007, a net decrease of 14.42%.3
EEOC's LEAD (Leadership for the Employment of Americans with Disabilities) Initiative, launched in 2006, is a national outreach and education campaign to raise awareness about the declining numbers of people with disabilities in federal employment, to educate federal agencies and individuals with disabilities about special hiring authorities for individuals with targeted disabilities, and to provide information and resources on reasonable accommodation. Drawing on actual experiences to provide practical examples, this publication provides an overview of legal issues that affect the hiring and advancement of people with disabilities in the federal government. This document is intended as a reference tool for federal government managers and supervisors who, by hiring applicants with disabilities and ensuring equal employment opportunity for employees with disabilities, can reverse the current trend and fulfill the employment mandates of Section 501.
II. BACKGROUND ON SECTION 501
A. "Model Employer" Mandate
The statutory language of Section 501 mandates that federal agencies submit to EEOC for approval an annually updated "affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities." The Section 501 regulations require that the federal government be a "model employer" with respect to the employment of individuals with disabilities. To implement this mandate, EEOC's Management Directive 715 ("MD-715") directs covered agencies4 annually to review their EEO and personnel programs, policies, and performance standards in accordance with specified criteria to identify where their EEO programs can become more effective and to identify and eliminate barriers that hamper the advancement of any applicants or employees with disabilities. The results - which must specifically address how an agency will make substantial progress in promoting the employment of qualified individuals with disabilities at all levels of the federal workforce - are reported to EEOC for review and analysis. The text of MD-715, EEOC's MD-715 instructions, and a user-friendly guide entitled Frequently Asked Questions about MD-715, are available at http://www.eeoc.gov/federal/directives/md715.cfm.
To assist agencies in reporting under MD-715, EEOC's Office of Federal Operations (OFO) provides tools and assistance to agencies to help them analyze their work forces and uncover barriers to equal employment opportunities. Once barriers are identified by agencies, OFO collaborates with them to develop creative strategies to eliminate or reduce the impact of identified obstacles. Further, OFO works with agencies to promote workplace policies and practices that foster an inclusive work culture and prevent employment discrimination. This effort includes working with federal agencies to adopt and successfully implement the attributes of the EEOC's Model EEO Program under MD-715.
B. Non-discrimination, Accommodation, and Other Requirements
Section 501 is also a non-discrimination law that:
- protects qualified individuals with disabilities from disparate treatment or harassment based on disability;
- provides that, absent undue hardship, agencies must provide reasonable accommodation for the known physical or mental limitations of a qualified individual with a disability;
- limits the extent to which agencies may ask applicants and employees (not just individuals with disabilities) questions about disability or require them to take medical examinations;
- requires agencies to keep medical information about all applicants and employees (not just individuals with disabilities) confidential; and
- prohibits retaliation against all applicants and employees (not just individuals with disabilities) who oppose employer actions made unlawful under the Rehabilitation Act, or who participate or assist others in the EEO process.
Under Section 501, the term "disability" means: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of a substantially limiting impairment; or (3) being regarded (i.e. treated) as having a substantially limiting impairment.5This definition is broader than the above-listed "targeted" or severe disabilities that the federal government has identified for special emphasis in affirmative action and data collection. It is also broader than the severe disabilities eligible for Schedule A appointment authority discussed below. For example, an employee with diabetes that substantially limits her in the major life activity of eating would be an "individual with a disability" protected against discrimination under Section 501, even though she would not have a "targeted disability."6
Section 501 protects only "qualified" individuals with disabilities from disparate treatment, harassment, or denial of accommodation. An individual with a disability is qualified if he:
- has the requisite skills, education and training (i.e., meets the basic "qualification standards"); and
- can perform the essential (or fundamental) functions of a position held or desired, (meaning the current position, or one to which he could be reassigned) with or without accommodation.7
"In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities,"8 including "modifications or adjustments to a job application process," "the work environment," "the manner or circumstances under which a position held or desired is customarily performed, or to enable an employee with a disability "to enjoy equal benefits and privileges of employment."9 Employers may be required to remove a marginal, but not an essential, function as a reasonable accommodation. Relevant factors to consider in determining if a function is essential include but are not limited to the following: whether the reason the position exists is to perform that function; the number of people available to perform the function or among whom it can be distributed; the degree of expertise or skill required to perform the function; the employer's judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the time spent performing the function; the consequences of not requiring the employee to perform it; the terms of any applicable collective bargaining agreement; the work experience of past incumbents in the job; and/or the current work experience of incumbents in similar jobs. 29 C.F.R. Section 1630.2(n)(2) and (3). The fact that a function is listed in a job description as essential is relevant, but not necessarily controlling.
The following are answers to frequently-asked questions from managers and employees about affirmative action and non-discrimination provisions of the Rehabilitation Act applicable to applicants and employees with disabilities.
III. AFFIRMATIVE RECRUITMENT, HIRING AND ADVANCEMENT
1. Must a federal agency have an affirmative action program for individuals with disabilities that establishes specific hiring and advancement plans?
Yes. Section 501 of the Rehabilitation Act requires all agencies, regardless of their size, to have an affirmative action program plan for individuals with disabilities. Moreover, MD-715 requires those agencies with 1,000 or more employees to establish a special recruitment program with specific goals for the employment and advancement of individuals with targeted disabilities, and to submit their special program plan annually to the EEOC. These goals should be set in a way that will achieve measurable yearly progress, accounting for attrition and for the distribution of individuals with disabilities in the agency's overall workforce, and in particular segments and levels with an under-representation. Targeted disabilities are considered as a group, rather than separately by disability, when setting goals for special recruitment. Those agencies with fewer than 1,000 employees should maintain documentation of their Section 501 affirmative action program to allow EEOC to verify the compliance standards as set forth in MD-715. EEOC will approve or disapprove specific plans as appropriate, and will periodically conduct evaluations and program reviews to more closely assess MD-715 compliance. EEOC is also available to provide technical assistance to agencies on an ongoing basis, in order to facilitate program improvements.
For EEOC's recent assessment of agencies' efforts and specific suggested program improvements, see Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force (January 2008), http://www.eeoc.gov/federal/reports/pwtd.html.
2. What are some specific steps federal agencies may take to achieve their affirmative action goals for hiring and advancement of individuals with disabilities?
Some specific steps may include:
- establishing numerical hiring goals for people with targeted disabilities on an annual basis as required under Management Directive 715, and incorporating those goals into the strategic mission of the agency;
- engaging in outreach to, and targeted recruitment of, both internal and external candidates with disabilities;
- using excepted appointment authorities that apply to hiring people with targeted disabilities (see www.opm.gov/disability/appointment_disabilities.asp), discussed further below in question 4;
- taking disability into account as a selection factor where an applicant with a disability is otherwise qualified, whether or not the applicant has sought employment under one of the special appointment authorities or through the competitive process; and
- creating training and development plans for individuals with targeted disabilities once they are hired, to enhance advancement and retention.
3. In making hiring, promotion, or other employment decisions, may a federal agency give an advantage to individuals with disabilities?
Yes. Although an agency is not required to prefer individuals with disabilities for hire or promotion, it may do so. Favoring an individual with a disability over a non-disabled individual for purposes of affirmative action in hiring or advancement is not unlawful disparate treatment based on disability, and therefore does not violate the Rehabilitation Act. This rule stands in stark contrast to the legal standards under Title VII for making employment decisions based on race, color, sex, or national origin. For an explanation of the applicable standards under Title VII for affirmative hiring based on race or ethnicity, see EEOC Compliance Manual Chapter on Race and Color Discrimination, Section VI-C (Diversity and Affirmative Action) (4/19/06), http://www.eeoc.gov/policy/docs/race-color.html, and Management Directive 715, and confer with your agency counsel. One way of engaging in affirmative hiring of people with targeted disabilities is by using the Schedule A special appointing authority described below in question 4.
Example 1: An agency is filling a recently-vacated attorney position. The agency receives an application from an individual who had both legs amputated as the result of a car accident two years earlier. He meets the requisite qualifications for the job, but has not worked since his accident because he has been in rehabilitation. Even though the other qualified candidates have more recent experience, they are not individuals with targeted disabilities. The agency may offer the position to the individual with a disability in order to advance its affirmative hiring goals. This preferential treatment based on disability does not violate the EEO laws.
4. What is the "Schedule A" special appointing authority and how does it enable agencies to hire or promote individuals with disabilities?
The Schedule A special appointing authority provides a means by which agencies may prefer applicants with targeted disabilities. The regulations establishing this "excepted" appointing authority include provisions that allow agencies to hire people with severe physical disabilities, mental retardation, and psychiatric disabilities who are certified as likely to succeed in a particular job. Under Schedule A, the individual is appointed as an excepted service employee, and after two years of satisfactory service can then be converted to competitive status. In addition to enabling an agency to obtain a qualified employee and fulfill model employer goals, Schedule A allows agencies to hire qualified applicants with disabilities without posting a position, thereby reducing the time it may take to fill a vacancy.
Recent changes to OPM regulations have streamlined the non-competitive special appointment authority process, consolidating into one provision the Schedule A appointment authorities for individuals with mental retardation, severe physical disabilities, and psychiatric disabilities. For more information about non-competitive hiring authority, see Excepted Service - Appointment of Persons with Disabilities and Career and Career-conditional Appointment, 5 C.F.R. § 213.3102(u), and the question-and-answer guide available at http://www.opm.gov/disability/appointment_disabilities.asp. Specifically, the revised regulations allow agencies to:
- accept proof of disability and certification of job readiness from sources in addition to a state vocational rehabilitation office, such as a licensed medical professional, licensed vocational rehabilitation specialist, or any agency of the federal, state, District of Columbia, or U.S. territory governments that provides disability benefits;
- appoint an individual with a disability to a temporary position under the excepted service authority in lieu of obtaining a job readiness certification, and then convert the individual under the excepted service authority to a time-limited or permanent appointment at any time during the temporary appointment; and
- accept service under certain other types of appointments in the competitive or excepted service as proof of job readiness.
Additional provisions under Schedule A and other authorities that may make it easier for agencies to hire individuals with disabilities include, but are not limited to the following:
- student educational employment work-study programs, 5 C.F.R. §§ 213.3202(a) and (b)(10)(ii) (see OPM's information on "Hiring Authorities for Students with Disabilities" at http://www.opm.gov/disability/mngr_3-05.asp); and
- veterans preference hiring, including hiring disabled veterans into a Department of Veterans Affairs training program, 5 C.F.R. § 315.604, and preferential hiring of veterans with disability ratings of 30% or more, 5 C.F.R. §§ 316.302(b)(4) and 316.402(b)(4) (see OPM's "VetGuide" at http://www.opm.gov/veterans/html/vetguide.asp).
Appointment under Schedule A can be used even if the applicant with a disability has initially applied by submitting a resumé in response to a vacancy announcement rather than contacting a Selective Placement Coordinator, or even where an announcement has not yet been posted.
Example 2: One of the applicants for an administrative assistant position is blind. He does not have the requisite number of years of experience listed in the job announcement. However, he has extensive volunteer experience performing comparable administrative tasks for a non-profit organization, and is otherwise qualified for the job. To be a model employer, the agency should tell this candidate that he is eligible for appointment under Schedule A. If he is interested in using this process, the agency should use the Schedule A authority to appoint him to the position, even though he does not meet the stated experience requirements for competitive hire. Note that under the revised Schedule A appointment authority, an individual who has submitted proof of disability but not a certificate of job readiness can nevertheless be appointed on a temporary basis with later conversion to the competitive service. The agency may also, at its discretion, accept service under another type of temporary appointment in the competitive or excepted service as proof of job readiness.
Example 3: An agency is hiring an analyst and lists "top 10% of college graduating class" among its selection criteria. An individual with epilepsy who took six years to complete college rather than the usual four applies for the position. Her overall grade point average was not high enough to rank her in the top ten percent of her graduating class. However, during her first two years of college, the applicant experienced uncontrolled seizures which interfered with her ability to attend classes and complete assignments, which caused her to withdraw from several courses before completion. Following a year off during which she had surgery and began using a new medication, she returned to college and had significantly fewer and less severe seizures. Her grades improved dramatically. During her last two years in college, she obtained A's and B's in all of her courses, even while carrying a higher than normal courseload. The agency may take the necessary steps to appoint her to the position pursuant to its Schedule A authority instead of rejecting her application for failure to meet the competitive hiring criteria.
Example 4: An agency intends to fill a vacant GS-15 office director position. Rather than posting the position, the agency may use Schedule A to hire a current employee who is deaf and is qualified for the job. While the employee would become probationary under Schedule A, he would be subject to conversion back to the competitive service after the requisite period of time under Schedule A.
In addition to the provisions that enable agencies to hire individuals with disabilities, Schedule A also includes a special appointing authority for the hiring of readers, interpreters and other personal assistants who some individuals with severe disabilities may need as a reasonable accommodation. See 5 C.F.R. § 213.3102(ll).
5. Are veterans who are applying for or employed in civilian positions eligible for other special protections besides preference in hiring?
Yes. In addition to eligibility for hiring under civil service preference provisions, veterans applying for or employed in civilian positions are protected under the non-discrimination and accommodation provisions of Section 501 of the Rehabilitation Act if they meet that law's definition of an "individual with a disability," and also may have rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).10 Under USERRA, service members, veterans, and members of Reserve components recovering from injuries received during service or training may have up to two years from the date of completion of service to exercise certain rights to return to their jobs or apply for re-employment, and in certain circumstances employers must help them qualify for the position they would have held if their employment had not been interrupted by service. More information about USERRA rights and enforcement is available from the U.S. Department of Labor at http://www.dol.gov/vets/programs/userra/main.htm.
6. Must an agency hire an individual with a disability through a special appointing authority?
No. Individuals with disabilities may apply for federal employment through any of the special appointing authorities for which they qualify or through any other process available to all other applicants. However, an agency must treat an individual with a disability who has applied for or obtained employment through the process available to all applicants in a non-discriminatory way. This means that the agency (1) may not refuse to hire a qualified applicant because of a disability, (2) must make any reasonable accommodations necessary for the application process that do not impose an undue hardship, and (3) must make reasonable accommodations which do not impose an undue hardship, and that are necessary to enable the individual with a disability to perform the job and enjoy the benefits and privileges of employment. Agencies must also adhere to all of Section 501's standards regarding disparate treatment, harassment, denial of reasonable accommodation, improper disability-related inquiries and medical examinations, medical confidentiality, and non-retaliation.11
Section 501 applies to individuals hired through a special appointing authority whether they are still in the excepted service or after having been converted to the competitive service. Moreover, when considering selection for promotion or other advancement opportunities, a selecting official should never assume that an employee who was originally hired through a non-competitive process has more limited skills and abilities than the other candidates.
Example 5: Several internal candidates apply for promotion from an office automation position, GS-5, to an investigator position, GS-7-9-11. The selecting official rejects a qualified candidate because he knows she was originally hired through Schedule A and then non-competitively converted from excepted to competitive status. The official states that he prefers to select a candidate who was originally hired competitively "so there are no surprises." This decision is discriminatory non-selection based on disability in violation of Section 501.
7. How may agencies increase the number of individuals with disabilities in their applicant pools and affirmatively recruit individuals with disabilities to apply for vacancies?
Any hiring manager -- not just agency selective placement coordinators -- may engage in efforts to increase the number of applicants with disabilities and in affirmative hiring efforts for individuals with disabilities. For example, the Workforce Recruitment Program for College Students with Disabilities, co-sponsored by the U.S. Department of Labor's Office of Disability Employment Policy (ODEP) and the U.S. Department of Defense, connects federal sector employers nationwide with college students and recent graduates with disabilities. Annually, trained WRP recruiters from federal agencies conduct personal interviews with interested students of all majors on college and university campuses across the country, including graduate and law students. Information from these student interviews is compiled in a searchable database available at www.wrp.gov, to human resources specialists and other hiring officials in federal agencies. In addition, ODEP funds the Employer Assistance and Recruiting Network (EARN), www.EARNworks.com, a free service that connects employers looking for quality employees with skilled job candidates.
Hiring managers can also ensure that vacancy announcements are sent to disability-related publications that advertise job announcements to qualified individuals with disabilities (see www.nod.org for a list of various publications), independent living centers (www.ncil.org), state and local vocational rehabilitation agencies, federal One-Stop Centers (www.careeronestop.org/), and organizations of and for people with disabilities. Agencies can also send their vacancy announcements directly to EARN for wide distribution through disability-related publications and organizations.
8. May an agency indicate in a job announcement that it is seeking to recruit or hire qualified individuals with disabilities?
Yes. Agencies may include language in their vacancy announcements encouraging people with disabilities to apply for jobs, specifically stating that they are recruiting qualified applicants with disabilities, or indicating that they will prefer qualified applicants with disabilities for jobs. For example, an agency that has never hired someone with a targeted disability to perform a certain type of job may state in a vacancy announcement that it will give priority in hiring to individuals who are eligible for the position under the Schedule A special appointing authority for individuals with disabilities.
9. How may an agency track its progress in soliciting applications from, hiring, and retaining individuals with "targeted disabilities"?
Even though the Rehabilitation Act restricts when and how agencies may ask applicants or current employees for disability-related "medical information," it is permissible to identify individuals with disabilities in certain ways, including the following:
- agencies may use information from the voluntary "Self-Identification of Handicap" form (SF-256) issued by the Office of Personnel Management (OPM), or other information that individuals choose to disclose about the existence of disabilities (see also 29 C.F.R. § 1614.601(f)); or
- when tracking applications from individuals with disabilities as required under MD-715, or when considering the use of excepted appointing authorities or other special programs, the agencies may invite applicants to indicate if they have the types of disabilities covered by the program at issue.
When an agency surveys applicants or current employees to obtain disability information, it must clearly notify them that: (a) response to the invitation is voluntary and refusal to provide the information will not subject the individual to any adverse treatment; (b) the information will be kept confidential and used only for affirmative action purposes; and (c) individuals may self-identify at any time during their employment and failure to complete the SF-256 or to respond to pre-offer invitations will not excuse the agency from Rehabilitation Act requirements. Agencies may easily comply with this requirement by preparing a form cover letter issued along with the form. Federal agencies submit SF-256 forms to OPM, and these figures form the basis for annually-compiled statistics regarding the number of individuals with targeted disabilities employed by the federal government.
MD-715 encourages agencies to re-survey their workforces periodically for affirmative action purposes, inviting individuals with disabilities to complete the SF-256. Agencies that do this must clearly explain that provision of the information is voluntary and indicate how the information will be used. Agencies may ask individuals with disabilities who request or receive accommodation to complete the SF-256 under these same terms, but the agency cannot make completion of the form a condition of providing reasonable accommodation.
IV. REASONABLE ACCOMMODATION
10. What types of reasonable accommodations may individuals with disabilities need for the application process, to perform an essential function of a job, or to enjoy equal benefits and privileges of employment?
Although not all individuals with disabilities need accommodation, some common types of accommodation include:
- purchasing equipment or modifying existing equipment, as well as making written materials accessible through alternative formats, readers, or other means
Example 6: An agency obtains screen-reader computer software, a scanner, and an audible "caller ID" telephone device for an employee who recently lost his vision while in National Guard service (for information about obtaining such accommodations at no cost, see questions 13 and 18, below, regarding the Department of Defense's Computer Electronic Accommodations Program (CAP), http://www.tricare.mil/cap/).
- making changes to facilities or work areas
Example 7: An agency retrofits a cubicle work station to accommodate a newly-hired IT specialist with an above-the-knee amputation who uses a wheelchair.
- shifting to other employees responsibility for minor tasks (or "marginal functions") that an employee is unable to perform because of a disability ("job restructuring")
Example 8: An accounting clerk with two prosthetic arms is relieved of doing physical inventory of supplies. The function is performed once per year, and other employees are available to perform it. Instead, she is assigned additional data entry and accounting tasks related to the annual inventory which she is able to perform with voice recognition software.
- altering when and/or how a task is performed
Example 9: An agency employee with a back disability is provided a stool to sit on while operating a particular machine, rather than standing as other employees typically do when performing that task.
- allowing an employee to work from home or a remote location12
Example 10: A supervisor proposes to deny the telework accommodation request of an attorney with a disability, even though the essential functions of the position can be performed from home, because the supervisor thinks he will be unable to monitor the quality and quantity of the employee's work. The Disability Program Manager properly instructs the supervisor that this is not a permissible basis for denying the request, suggesting instead that the supervisor can require all teleworking employees to log and report specific assignments completed each day, the amount of time worked, and any other information necessary to permit the supervisor to evaluate the teleworking employee's performance and productivity.
Example 11: An agency researcher with multiple sclerosis teleworks two days per week, the maximum allowed under her office's telework policy. She requests full-time telework due to the effect of her deteriorating condition on her ability to commute. The agency determines that (1) she is an individual with a disability; (2) full-time telework is necessary due to her disability-related limitations; and (3) the essential functions of her job can be performed on a full-time basis from a location other than the usual workplace. Determining that no undue hardship exists, the agency modifies its telework policy for this employee to accommodate her need for full-time telework.13
- allowing an employee to use additional unpaid leave after accrued leave is exhausted for disability-related needs such as treatment, recuperation, or training14
Example 12: An employee who has exhausted his accrued leave and most of his FMLA leave requests several months of unpaid leave commencing March 1st for surgery and recuperation related to his disability. His treating physician estimates that he will be able to return in June or July, depending on the speed of his recovery. The agency determines that the length of leave requested does not pose an undue hardship in terms of expense or operations given the nature of the employee's position and the agency's resources, and grants the request.15
- modifying a workplace policy
Example 13: An agency provides a parking garage that employees can use for a monthly charge. Parking spaces are unassigned. An employee requests a reserved parking space next to the door because his disability restricts him from walking even relatively short distances. Determining that it will not impose an undue hardship, the agency reserves a parking space next to the door for this employee.
- modifying a supervisory method
Example 14: A groundskeeping employee with a learning disability needs to receive certain instructions verbally rather than in writing. Determining that it will not impose an undue hardship, the agency accommodates her disability by changing the method by which her supervisor conveys information.
- a schedule change or a switch to part-time work
Example 15: An agency grants the request of an employee with a psychiatric disability to switch to part-time work consistent with his doctor's recommendation.
- allowing a job coach
Example 16: A veteran who sustained a combat-related traumatic brain injury works in an agency cafeteria and has a job coach provided by a state vocational rehabilitation agency. The agency accommodates the employee by allowing the job coach to be present during new employee training, to visit the worksite periodically to observe the employee's performance of the job and provide guidance on meeting the agency's expectations, and to receive notice of, attend, and participate in the supervisor's meetings with the employee regarding any performance or conduct issues.
- as a last resort, reassignment to a vacant position for which the individual is qualified
Example 17: A material handler on a loading dock is diagnosed with a back impairment and is permanently restricted from lifting more than 15 pounds. His position, however, involves lifting 50-pound boxes on a regular basis and there is no effective accommodation that would enable the employee to perform this essential function. Because the agency need not eliminate the duty as an accommodation, it can instead reassign the employee to a vacant mailroom position for which he is qualified as a reasonable accommodation, as long as the reassignment would not violate a uniformly applied seniority system. For more information about reassignment and seniority systems, see question 27 below.
11. For what kinds of "benefits and privileges" of employment might an employee with a disability need accommodation?
"Benefits and privileges" of federal employment may include, but are not limited to, agency-sponsored training (whether provided by the agency or an outside entity), services (e.g., employee assistance programs, credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), social and professional functions, emergency evacuation plans, and workplace communications through e-mail, public address systems, or during meetings, whether or not that communication relates directly to performance of an employee's essential job functions. They may also include opportunities for advancement, such as details, temporary team leader or acting supervisor designations, and other special assignments.
Example 18: An agency offers its employees a training course provided by a private company with which the agency has contracted. An employee who is deaf wants to take the course and asks for computer assisted real-time translation ("CART," also known as "real-time captioning") services or a sign language interpreter. Even if the private company has an obligation as a public accommodation under Title III of the ADA to provide what is needed, the agency also has its own independent obligation under Section 501 of the Rehabilitation Act to provide the employee with a reasonable accommodation. (See questions 35-37 below regarding coordinating arrangements when there is more than one entity responsible for providing an accommodation.) The agency should coordinate with the private company to determine which entity will be responsible for providing the accommodation. If the private company agrees to provide the accommodation and then fails to do so, both the agency and the private company will be legally responsible, and vice versa. By contrast, if an agency merely invites a speaker from a private company or another federal agency to make a presentation, the inviting agency is likely the sole sponsor of the event and as such is the only entity responsible for accommodation. For information about what to do if another entity prevents a federal agency from providing accommodation, see question 36.
Example 19: An agency has prepared an emergency evacuation plan for its employees. Reasonable accommodation may require making individualized arrangements with employees with disabilities notwithstanding the existence of an otherwise uniform agency procedure for notification, mode of evacuation, continuing communications, and other matters.16 This might include, for example, providing a pager that enables a deaf employee to receive the same emergency evacuation instructions that other employees receive over a public address system, or using an elevator or specialized evacuation equipment for people who use wheelchairs.
Reasonable Accommodation Procedures
12. Is an agency required to have written reasonable accommodation procedures?
Yes. Executive Order (E.O.) 13164 requires that all executive branch federal agencies have written procedures for processing disability accommodation requests, providing employees as well as supervisors and managers with an easy-to-understand, step-by-step explanation of the reasonable accommodation process. Each agency must make these procedures readily available to all applicants and employees and accessible to individuals with disabilities, with timely notice given of any revisions. The procedures can be posted on the agency's website or intranet service and included in employee handbooks. They should also be available in designated locations such as agency libraries, EEO offices, and/or personnel offices. In addition, E.O. 13164 requires that agencies track specific detailed information regarding the action taken on each accommodation request, which allows agencies to detect where and why delays or errors may be occurring.
E.O. 13164 also requires that each agency (and agency component, if issuing separate procedures) submit its procedures, and any modifications it later makes to them, to the EEOC. Agencies should submit their procedures to the EEOC before final issuance to benefit from any feedback regarding their sufficiency. For more information, see Practical Advice For Drafting And Implementing Reasonable Accommodation Procedures Under Executive Order 13164 (2005), http://www.eeoc.gov/policy/docs/implementing_ accommodation.html, and Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (2000), http://www.eeoc.gov/policy/docs/accommodation_procedures.html.
In addition, OPM regulations (5 C.F.R. § 330.707(b)(14)) require federal agencies to include a reasonable accommodation statement on all vacancy announcements to inform applicants with disabilities that federal agencies will consider reasonable accommodation requests. Although agencies may use the wording of their choice to convey the availability of reasonable accommodation, OPM recommends the following: "This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis." The statement must not limit the availability of accommodations to specific impairments. In accordance with E.O. 13164, agencies should designate an individual as a contact for reasonable accommodation requests who has sufficient knowledge about the agency's internal procedures for reasonable accommodation requests to prevent misinforming or frustrating applicants seeking accommodation. OPM suggests that agencies include a general phone number, a TTY number, and an email address for the contact.
13. What steps can an agency take to ensure that its policies and procedures promote timely processing of accommodation requests?
The following are some examples of practices agencies can implement to reduce bureaucratic barriers that make it difficult for individual offices to provide effective accommodations, such as:
- entering into an agreement with the Department of Defense's Computer Electronic Accommodations Program (CAP), http://www.tricare.mil/cap/, to receive assistive technology and services for employees with disabilities at no cost;
- hiring staff sign language interpreters rather than relying on contracts, and/or making arrangements through CAP to obtain equipment needed for video remote interpreter services to use when a staff or contract interpreter is unavailable;
- creating a central pool of staff assistant slots that would not be included in a requesting office's personnel ceiling, to provide readers, interpreters, and other assistants throughout the agency;17
- implementing funding mechanisms that will avoid charging individual offices for the cost of accommodations, such as a full or partial centralized agency fund for accommodation costs;
- reviewing and modifying, in advance of a specific request, any policies that might affect the agency's ability to respond promptly to requests for reasonable accommodation (e.g., policies affecting purchasing or leasing of equipment, the hiring of, or contracting for, readers, interpreters, or other assistants, and the flexibility to approve leave or to restructure work schedules); and
- tracking and analyzing information on requests for accommodation consistent with the requirements of E.O. 13164 and MD-715.
14. What should all agency supervisors and managers know about recognizing a request for reasonable accommodation and responding appropriately?
Managers and supervisors should become familiar with their own agency's reasonable accommodation procedures, including their own responsibilities under those procedures for responding to requests for accommodation. A request for accommodation is made any time an applicant or an employee asks for some change in the workplace or in the way things are usually done because of a medical condition. A request may be made to an employee's supervisor, another supervisor/manager in the employee's immediate chain of command, the EEO office, or any other office or individual designated by the agency to receive requests or oversee the reasonable accommodation process. An agency's procedures may allow an applicant to make a request for accommodation to any agency employees with whom he has contact as part of the application process, either verbally or in writing. An employee does not waive the right to accommodation by not requesting accommodation before being selected for a position or beginning employment, even if he was told in advance what the job duties of the new position would be.
Because an accommodation request does not have to contain any magic words, managers and supervisors should consider whether the reasonable accommodation obligation applies before denying any request for an adjustment or change at work for a reason related to a medical condition.
Frequently overlooked or ignored accommodation requests include the following:
- requests for unpaid leave for an employee's own medical condition beyond what the Family and Medical Leave Act (FMLA) or an agency's leave policy would allow;
- requests that state the need for accommodation or describe a workplace related barrier but do not include a proposed solution; or
- requests that implicate both the Rehabilitation Act and other requirements (e.g., employer light/limited duty programs or workers' compensation).
If these are not recognized and treated as requests for accommodation, managers and supervisors risk exposing the agency to liability for denial of reasonable accommodation. Accordingly, this is a particularly important issue on which to provide initial and continuing training. Question 17 discusses agency requests for medical information in support of a request for reasonable accommodation.
15. May an agency make workplace changes for, or provide assistance to, someone who does not have a disability?
Yes. Although an agency is not legally required to provide an accommodation unless the requesting applicant or employee needs it because of a disability,18 agencies may, and often do, provide assistance (e.g., in the form of schedule changes, physical modifications to the workplace, or special or modified equipment) without making this determination. When this is done, an agency may tell the individual that its decision was made without considering whether the individual has a disability or is entitled to a reasonable accommodation, and that the decision does not affect any other legal rights the individual may have (e.g., to request a reasonable accommodation later, at which time the agency would be free to consider whether the individual has a disability prior to granting the request).
16. What should happen after an accommodation request has been made?
The individual and agency should engage in an "interactive process" to determine whether and what type of accommodation is appropriate. Each agency should describe in its reasonable accommodation procedures the steps to be taken in the interactive process. Of course, accommodations vary depending on the needs of the person with a disability and the nature of a job. Sometimes the appropriate accommodation will be readily apparent. Where the appropriate accommodation is not obvious, the agency should have an informal discussion with the requester to determine a suitable accommodation.
Once an applicant or employee requests a change related to work due to a medical condition, the agency official who has received the request should act promptly to handle it, usually based on steps outlined in the agency's reasonable accommodation procedures. Consult your own agency's procedures for the specific steps to follow. Bear in mind these keys to a successful interactive process:
- The decision maker should communicate with the individual where the specific limitation, problem, or barrier is unclear, where the effective accommodation is not obvious, or when choosing among different possible accommodations.
- Where an individual requesting reasonable accommodation can identify the problem, but not a solution, the agency should consult in-house experts such as an agency disability program manager or reasonable accommodation coordinator, or outside resources if necessary (e.g., the Job Accommodation Network, www.jan.wvu.edu).
- The employee shares responsibility for making the interactive process work by providing information that the agency reasonably needs to evaluate the accommodation request. For example, the agency may ask the employee for suggested accommodation solutions and preferences, or for supporting medical information where the disability or need for accommodation is not obvious or already known. (See question 17, below.)
- Where a requested accommodation is not effective or would pose an undue hardship, or is otherwise not legally required (e.g., removing an essential job function), the agency should continue the interactive process, exploring alternatives until either a reasonable accommodation is found or the agency determines no accommodation is available.
- The accommodation preference of the individual with a disability should be given primary consideration. However, the agency may provide a different accommodation as long as it is effective.
- If an accommodation is provided but it is ineffective, the employee should promptly notify the agency, and the agency should re-initiate the interactive process, just as it would if it received another accommodation request from the same employee.
17. May an agency ask an applicant or employee for medical information in support of an accommodation request?
Yes, if it is not obvious or already known that the requester is an individual with a disability and needs an accommodation, for example if the disability is apparent or the individual has previously provided such medical information with regard to past accommodation requests. It is up to each agency to decide who will be authorized to request and review medical information. All staff who review and evaluate medical documentation should receive training on how to comply with the Rehabilitation Act rules concerning the use and confidentiality of applicant and employee medical information.
The type of medical information an agency most often will need is:
- the past, present, and expected future nature, severity and duration of the impairment (e.g., functional limitations, symptoms, side effects of any treatments, etc.);
- the activities the impairment limits;
- the extent of the limitations; and
- why the individual requires reasonable accommodation or the particular reasonable accommodation requested, and how the reasonable accommodation will assist the individual to apply for a job, perform the essential functions of the job, or enjoy a benefit of the workplace.
An agency is entitled only to information sufficient to show that the applicant or employee has a disability and needs a reasonable accommodation. It may not ask for information unrelated to the condition for which the accommodation has been requested (e.g., an individual's entire medical record). When an individual requesting a reasonable accommodation provides insufficient documentation for the agency to process the request, it may ask for additional information. The agency may explain to the requesting individual why the documentation is insufficient and what information is needed, and allow the individual an opportunity to provide the information, or may ask the individual to sign a limited release of medical information and then either submit a list of specific questions to his health care professional or have the agency's own physician contact the requester's health care provider. If this does not result in sufficient information, the agency may require the requester to go to a health care provider of the agency's choice at the agency's expense.
Example 20: An agency states on its "reasonable accommodation request form" that individuals should attach "any supporting medical documentation." This will be an impermissible disability-related inquiry as to those individuals whose disability and need for accommodation is obvious or already known. Although this type of request for documentation will not necessarily violate the Rehabilitation Act with respect to individuals whose disabilities are not obvious, it is so vaguely worded that it will not serve the agency's needs, because an employee may provide either too little information, too much, or the wrong type of information. Therefore, a request for medical documentation of this sort should not be included on the reasonable accommodation request form. Instead, an agency official should determine, after reviewing the request form and having an initial discussion with the individual, whether or not the disability and the need for accommodation are unclear. If so, the official may seek appropriate medical documentation.
Example 21: Upon receipt of each request for accommodation, an agency sends a form letter to the individual's treating physician requesting information or documentation regarding findings from all previous examinations for the medical condition at issue, treatment, and responses to treatment; clinical findings from the most recent medical evaluation, including any of the following which have been obtained: findings of physical examination; results of laboratory tests; X-rays; EKGs and other special evaluations or diagnostic procedures; and, in the case of psychiatric evaluation or psychological assessment, the findings of a mental status examination and the results of psychological tests, if appropriate; diagnosis, including the current clinical status; prognosis, including plans for future treatment and an estimate of the expected date of full or partial recovery; an explanation of the impact of the medical condition on overall health and activities, among other things. This will be an impermissible disability-related inquiry as to those individuals whose disability and need for accommodation is obvious or already known. With respect to anyone whose disability and/or need for accommodation are not obvious, the request is too broad in that it asks for information that is unnecessary to determine if the individual has the specific disability for which accommodation has been requested and needs an accommodation.
Example 22: An employee gives her supervisor a note from her doctor stating that she has chemical sensitivity and requires telework as a reasonable accommodation, but without providing any other medical information. Because this conclusory information is insufficient to show that the employee's condition substantially limits a major life activity or that she needs telework as an accommodation, the agency may request reasonable medical information to determine whether she has a disability and why she needs that accommodation.
18. How should an agency determine whether a requested accommodation would pose an undue hardship?
An agency does not have to provide an accommodation that would pose an undue hardship, i.e., significant difficulty or expense, based on the overall agency resources and workplace operations. Most accommodations are not expensive: one-fifth cost nothing; more than half of them only cost between $1 and $500; and the median cost is approximately $240. Technological advances continue to reduce the cost of many accommodations. Sometimes the agency can obtain the accommodation at no cost or a reduced cost from a non-profit organization or government entity. Most federal agencies have an agreement with the Department of Defense's Computer Electronic Accommodations Program (CAP), http://www.tricare.mil/cap/, to receive assistive technology and services for employees with disabilities at no cost, although agencies incur costs for those accommodations not covered by CAP (e.g., sign language interpreters).
Some accommodations pose an undue hardship not due to cost but because of their impact on the agency or on a particular office or component of the agency where the employee works, including the impact on the ability of other employees to perform their duties or the impact on the ability to conduct business. Potential impact should be assessed based on objective information and with due consideration to any options or alternatives which might lessen the impact of the proposed accommodation.
Before denying an accommodation request based on cost or operational difficulty, an agency may want to have the decision reviewed by a higher-level official with broader authority and access to the agency's resource information than the official authorized to grant an accommodation request. The reasonable accommodation procedures mandated by E.O. 13164 provide that all denials of accommodation requests be in writing and provide a specific explanation of the grounds for denial. A conclusory statement that an accommodation would impact the agency's operations or its other employees is not sufficient to establish undue hardship.
NOTE: If providing a particular reasonable accommodation would result in undue hardship but another effective accommodation is available that would not, the agency must provide the other accommodation.
Agencies should also ensure that decision makers are aware of resources both inside and outside of the agency which can be consulted for accommodation suggestions before a request is denied or before resorting to an alternative. If the agency has an agreement for obtaining technology at no cost from CAP, the agency should ensure that all potential decision makers are aware of the agreement and the procedure for obtaining no-cost accommodations. Agencies should also encourage decision makers to consult with the Job Accommodation Network (JAN), 1-800-526-7234 (V/TDD), http://www.jan.wvu.edu, regarding possible no-cost or low-cost options.
Frequently Asked Questions Regarding Interpreters and Other Services for Deaf or Hearing-Impaired Individuals
19. When must an agency provide a sign language interpreter for an employee with a hearing disability?
Once a supervisor knows an employee with a hearing disability needs a sign language interpreter -- for example, because the individual has requested one -- an interpreter must be provided as a reasonable accommodation, absent undue hardship. At a minimum, the requirement to provide an interpreter for someone with a known need for one would apply to staff meetings, safety talks, and discussions relating to work procedures, policies, assignments, discipline, and performance, regardless of whether the individual has requested an interpreter. For meetings that the agency would not know the employee planned to attend, the agency can require the employee to notify the agency of the need for an interpreter.
NOTE: Accommodations necessary to provide effective communication may include: interpreters for different types of sign language, CART, captioning of videos and video-streamed presentations, use of video relay services and video remote interpreting services, or other accommodations. An agency's decision regarding what accommodation to provide for an employee who is deaf or has a hearing impairment, like any accommodation decision, is an individualized one. The appropriate accommodation may depend on the setting in which communication occurs and the ability of the employee to use certain means of communication (see Question 21), technological advancements that make once effective accommodations obsolete or ineffective, and other factors. Section 501 requires an agency to ensure that employees with disabilities have equal access to information provided to other similarly-situated employees without disabilities, regardless of whether they need it to perform their jobs. See question 11, above.
Example 23: A supervisor knows that one of the employees who reports to him is hearing impaired and needs a sign language interpreter. He calls her into a meeting in his office to critique her recent work performance, but fails to arrange for a sign language interpreter. Absent undue hardship, this violates the Rehabilitation Act.
20. Does an agency have to provide a "certified" sign language interpreter?
No. However, the interpreter must be "qualified." Someone who knows sign language, such as an employee who was not hired as a sign language interpreter but who may know some sign language, is not the same as a qualified sign language interpreter.19 A qualified interpreter is one who, whether or not he is certified, can effectively interpret so as to allow an employee with a hearing impairment access to the same information and the same opportunity to participate as other employees.
21. Is an agency required to provide CART or a sign language interpreter if a less expensive accommodation is available?
If there are two or more effective means of communicating, the agency may choose the easier or less expensive accommodation.
Example 24: A hearing impaired employee requests full-time sign language interpreter services because in addition to formal meetings, she sometimes has brief informal interactions with co-workers, for example to locate a file or exchange information about the status of a project. If using e-mail, typing on a computer, or exchanging handwritten notes would be an effective accommodation for these brief and infrequent communications, the agency may deny the request for a full-time sign language interpreter.
However, an agency should not assume that the same accommodation is effective in all situations. For example, someone with a hearing impairment who can lip read in one-on-one discussions involving simple matters may still need a sign language interpreter for longer, more complex discussions or for larger-group meetings. Moreover, although one employee with a hearing impairment may need a sign language interpreter, another employee who does not know or fluently use sign language may need CART or some other accommodation. The agency must provide the alternative accommodation in these circumstances, absent undue hardship.
22. May an agency refuse to hire an applicant with a hearing impairment because she will require full-time accommodation?
No. Absent undue hardship, an agency cannot refuse to hire an applicant simply because she will require an accommodation that entails expense on a continuing or full-time basis.
Example 25: A qualified deaf individual applies for a policy advisor position at a large federal agency. The position involves participating in many meetings and making presentations, including out of town, for which she would use a sign language interpreter on a regular basis. Given the size and resources of the agency, providing a full-time interpreter, including during business travel, does not constitute an undue hardship.
23. What if the accommodations that a hearing impaired applicant or employee needs are very expensive compared to other accommodations the agency typically provides?
The fact that an accommodation is very expensive compared to other accommodations does not necessarily mean it poses an undue hardship. Undue hardship will only result because providing the accommodation would impose on the agency significant expense or significant administrative or operational difficulty. Because this determination is based on an agency's overall resources, an agency will generally be able to provide the accommodations needed for an employee who is deaf or who has a hearing impairment without an undue hardship.20 Remember that although interpreter services may be obtained on a contract basis, an agency can also use its Schedule A non-competitive hiring authority to create staff assistant slots for interpreters, readers and personal assistants.21 Alternatively, interpreting services can be provided electronically through a video remote interpreter service.
Example 26: Using camera equipment and technical support provided by the CAP program, an agency can set up video remote interpreting services (VRIS) in order to provide sign language interpretation from an agency or private service interpreter at any time and on very short notice. The two-way internet video technology allows the hearing impaired individual to view on a TV or computer screen an interpreter who is at another location. When a hearing person speaks, the interpreter hears the comments by microphone and is viewed on the screen signing what has been said. If the individual with a hearing impairment signs any information, the interpreter can communicate it to hearing meeting participants through TV or computer audio equipment in the meeting room.
Frequently Asked Questions Regarding Reassignment
24. When should an agency consider reassignment as an accommodation?
An agency must reassign an individual with a disability to a position if he cannot be accommodated in his current job, a vacant funded position exists for which he is qualified, it would not be unreasonable in light of an agency's seniority system, and would not pose an undue hardship. "Vacant" means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.22
Reassignment is the accommodation of last resort. Unless an employee voluntarily agrees, an agency may not reassign an employee who could be reasonably accommodated in his or her current position. An agency does not have to bump another employee, or promote or create a new position for the employee with a disability. Reassignment is not limited to the facility, commuting area, sub-component, specific agency (within a Department), or type of work to which the individual with a disability is assigned at the time the need for accommodation arises. The scope of the vacancy search is limited only by undue hardship.
Example 27: An employee can no longer drive to his assigned facility due to a visual disability and the facility cannot be accessed by public transportation. Because the employee cannot perform the essential functions of his job at home, telework is not a reasonable accommodation. In the alternative, the agency offers him reassignment to a vacant equivalent position for which he is qualified at a facility to which he could commute by public transportation.
Example 28: After a surgical procedure left her with a vocal cord dysfunction that prohibited her from talking more than 15 minutes per day, a service representative asked that she be assigned only written correspondence duties as a reasonable accommodation. This is not an effective accommodation because answering the telephones and waiting on customers at the service window are essential functions of her position. Because there is no accommodation that would allow her to remain in her current position, the agency offers her reassignment to an available vacant position.
Reassignment should be to a position that is equal in pay and status to the one held or as close as possible if an equivalent position is not vacant.
Example 29: An agency's vacancy search reveals the availability of five different equivalent positions for which the employee is qualified. The agency may select which position to offer the employee as an accommodation, but may not offer a position in a less preferable geographic location if one is available within the employee's current commuting area.
If reassignment must be made to a lower-paying position or a position carrying less seniority due to the absence of an equivalent vacancy, the individual receives the lesser salary and seniority of the new position unless the employer has its own policy to the contrary for voluntary transfers.
Reassignment may not be used to limit, segregate, or classify individuals with disabilities in a discriminatory manner. For example, an agency may not make employees who are reassigned as a reasonable accommodation work in portions of a facility that are separate from the areas where other employees work. Nor may an agency reassign an employee with a disability to a "rehabilitation" position, performing ad hoc duties with no opportunities for overtime or promotion, where an appropriate vacancy exists that would offer these benefits.
25. Who is responsible for identifying vacant positions when a reassignment is needed as a reasonable accommodation?
The agency is responsible for conducting the vacancy search, because it is in the best position to determine what relevant positions are vacant.23 The employee should cooperate by providing on request any relevant information about his work-related limitations, his skills and qualifications, whether he is willing to consider positions outside his current geographical area, and, if necessary and if he is aware of any, possible accommodations that might allow performance of the new position.
The agency should consider positions that are currently vacant and those that are expected to become vacant within a reasonable time. However, the vacancy search itself need not last for a specified period of time. Sometimes, an agency may know that a specific position will become available (e.g., because a particular employee is expected to retire or take another job soon). In other instances, an agency may know that a position will become available based on information about the general frequency of turnover in particular jobs or job categories.
26. What is the most practical way for an agency to determine if reassignment is appropriate and available?
The responsible agency official should explain to the employee with a disability why the agency has concluded that the employee cannot be accommodated in his or her current position, and should find out (and document) what limitations, if any, the employee has with respect to the reassignment. For example, the responsible official should inquire:
- what types of work the employee is willing and qualified to perform, and what medical restrictions or limitations he has;
- whether the employee is willing to be reassigned outside the facility or outside the commuting area, and if so, to what locations;
- whether the employee is willing to be reassigned to a different type of position for which he or she may be qualified, and if so to what type(s);
- whether the employee is willing to be reassigned to a different sub-component of the department, and if so, to which one(s); and
- whether the employee is willing, if no position is available at his or her current grade level, to be reassigned to a lower-graded position, and if so, down to what grade.
The agency can then conduct the search within the parameters the employee has set. This method considers the employee's preferences while minimizing the scope of the vacancy search. If the agency conducts a search within the parameters developed with the employee and no appropriate position is found, the agency should determine whether the employee wants to expand the scope of the search.
27. What should an agency do if it appears that a proposed reassignment may conflict with its seniority system?
A proposed reassignment that conflicts with a seniority system will not be a "reasonable" accommodation unless there are "special circumstances" that undermine other employees' expectations of consistent, uniform treatment. For example, "special circumstances" may exist where an agency retains the right to alter the seniority system unilaterally, and has exercised that right fairly frequently, where a seniority system contains other exceptions, or where the seniority system includes a means of seeking exceptions. Where no conflict exists and other requirements for reassignment have been satisfied, the reassignment must be made. For example, no conflict would exist if the seniority system permits medical transfers without regard to seniority.
V. HEALTH AND SAFETY CONCERNS
28. When may an agency exclude an individual with a disability from a position due to a health or safety risk?
An agency may refuse to hire or retain an individual with a disability if he would pose a direct threat to health or safety (i.e., a significant risk of substantial harm to self or others that can not be eliminated or reduced by reasonable accommodation). A slightly increased, moderate, speculative, or remote risk of harm to the individual or others is not a direct threat. Thus, if an agency excludes an individual with a disability based on health or safety concerns, the risk posed by the individual must rise to the level of a direct threat.
The agency must conduct an individualized assessment of an applicant's or employee's present ability to perform the essential functions of the job safely, based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. Factors to be considered include the following:
- (1) the duration of the risk;
- (2) the nature and severity of the potential harm;
- (3) the likelihood that the potential harm will occur; and
- (4) the imminence of the potential harm.
In addition, if a direct threat to safety does exist, an agency must consider whether a reasonable accommodation would remove the direct threat.
Example 30: A newly-hired computer specialist with epilepsy has a seizure during work, after which he rests at his desk for approximately 45 minutes before resuming work. When the agency asks about his medical condition to assess the potential for harm to the employee or to his co-workers, the employee tells the agency that the seizures occur approximately once per month and that he can anticipate when they are about to occur, giving him time to move to a safe location. In addition, he is able to resume his work usually within one hour following the seizure. The employee does not pose a significant risk of substantial harm to himself or others because there is no likely, imminent, and significant risk of harm.
Example 31: An agency makes an applicant a conditional offer of employment as a law enforcement officer. During a post-offer medical exam, the agency learns that the applicant has monocular vision and is concerned that he lacks adequate depth perception and peripheral vision to perform the essential functions of the job safely. The agency inquires into the applicant's abilities and work history, including his past performance as a municipal police officer, and determines that this individual is qualified for the job and does not pose a direct threat to safety.
Example 32: Despite the regular use of steroids, a correctional officer continues to have severe, chronic asthma. A medical evaluation reveals that the nature and dosage of her steroid use puts her at a high risk for contracting severe forms of tuberculosis, a disease which is prevalent in the particular prison population at the facility where she works. It is impossible for the agency to eliminate the correctional officer's contact with inmates infected with tuberculosis, given the nature of her job and the operation of this facility. The agency does not violate the Rehabilitation Act when it concludes that working in that facility would pose a direct threat to her own health. However, rather than terminating the employee or requiring her to take disability retirement, the agency must consider whether she can be reassigned to another facility as a reasonable accommodation.
While an agency never has to hire or retain an individual who is not qualified to perform the position held or desired (see question 32 below), when conducting a direct threat evaluation an agency should not rely exclusively on an assessment of the individual for other purposes, such as workers' compensation benefits or veterans' benefits determination, to establish the degree of risk, if any, posed by an individual.
Example 33: A job applicant with a substantially limiting impairment was denied a letter carrier position because an agency doctor classified him as being at "moderate risk" of injury. This assessment alone does not establish the existence of a direct threat to health or safety because it does not apply the "significant risk of substantial harm" standard, and therefore cannot be the basis for refusing to hire the applicant.
VI. INTERACTION OF REHABILITATION ACT WITH OTHER AGENCY OBLIGATIONS
29. Will an agency meet its reasonable accommodation obligations to a worker with a disability by complying with the Family and Medical Leave Act, the agency's light and limited duty program, a workers' compensation program, or the terms of a collective bargaining agreement?
Compliance with the FMLA or with the requirements of a workers' compensation program, limited or light duty program, or the terms of a collective bargaining agreement will sometimes, but not always, satisfy an agency's Rehabilitation Act obligations.
Example 34: An employee with renal failure has exhausted all accrued leave and has only 4 weeks of unpaid FMLA leave remaining available for the twelve-month period. He requests, and the agency provides, an additional 10 weeks of leave to receive and recuperate from a kidney transplant (using the 4 weeks of remaining FMLA leave and then 6 weeks provided as a reasonable accommodation, absent undue hardship).24 Providing FMLA leave alone would not have satisfied the agency's Rehabilitation Act obligations; to the extent FMLA leave was insufficient or unavailable, the agency had to provide additional unpaid leave absent undue hardship to meet the accommodation needs of a qualified individual with a disability.
Example 35: An employee files a workers' compensation claim and is placed on limited duty, which exempts him from performing some essential functions of his job. After five months, his limited duty is no longer available because he has reached maximum medical improvement, but the agency is advised of the remaining medical restrictions that prevent him from performing some of the essential functions of his original position even with accommodation. Concluding that he is an individual with a disability, the agency should now determine if reassignment to a vacant equivalent position for which he is qualified is possible, before resorting to reassignment to a lower-salaried job, disability retirement, or termination. The Rehabilitation Act prohibits the agency in this situation from terminating the employee if there is a vacant position to which he can be reassigned as the accommodation of last resort.
30. May an agency follow another federal law or regulation that conflicts with the Rehabilitation Act?
Yes, but only if the other federal law or regulation actually requires some action inconsistent with the Rehabilitation Act. The "other federal laws defense" is inapplicable to workplace policies that are not mandated by law or by regulations having the force and effect of law.
Example 36: If federal occupational safety and health regulations require that employees working in a federal correctional facility special operations response team be able to wear respirators in emergency response situations, an agency would not have to hire for the job an individual whose disability prevents him from wearing the respirator.
An agency may defend a qualification standard (whether in regulations or policies) that screens out an individual with a disability but that is not mandated by federal law by showing that the standard is job-related and consistent with business necessity. This means that the standard accurately measures the individual's ability to perform the job's essential functions or, where the standard is adopted for safety reasons, that the applicant would pose a direct threat (i.e., a significant risk of substantial harm).
OPM Standard Form 3112D: Agency Certification of Reassignment and Accommodation Efforts:
What does it mean to accommodate, and what, pray tell, constitutes an “effort” to do so? Is the agency’s obligation to pursue avenues of reassignment or accommodation satisfied by the mere completion of SF 3112D and, if not, does the agency merely pay lip-service in its obligation, or are continuing efforts required to be actively undertaken? […] Read More …
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