Reasonable Accommodation by zhangyun

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									     Reasonable Accommodation

           Office of Diversity and Inclusion*

                              U.S. Department of Veterans Affairs
* The Of f ice of Diversity and Inclusion was f ormerly the Of f ice of Diversity and EEO.
            Federal Laws Regarding
          Reasonable Accommodation
    The Rehabilitation Act of 1973 and the Americans with
    Disabilities Act (ADA) of 1990 seek to:

   Ensure that people with disabilities enjoy employment
    opportunities equal to those of employees without
    disabilities.
   Provide people with disabilities with reasonable
    accommodations to permit them to be successful in
    performing the essential functions of their jobs.
   The ADA defines Reasonable Accommodation as a
    change or modification to the work environment or in the
    way things are customarily done that enables an individual
    with a disability to enjoy equal employment opportunities.
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Reasonable Accommodation
   It is the policy of VA to provide equal opportunity to all
    qualified individuals with disabilities in accordance with
    the Rehabilitation Act of 1973 and to fully comply with
    all other legal and regulatory requirements.
   No qualified individual with a disability may be denied
    the benefits of a program, training, or activity
    conducted, sponsored, funded, or promoted by VA, or
    otherwise be subjected to discrimination.
   To this end, reasonable accommodations will be
    provided to qualified individuals with disabilities, unless
    doing so poses a direct threat to requester or other
    employees or an undue hardship on the Agency.

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Reasonable Accommodation
Americans with Disabilities Act Amendments Act
of 2008 (ADAAA)
   ADAAA restores the original intent of Congress regarding the definition of
    disability, as reflected in the Rehabilitation Act (Rehab Act) of 1973.
   Broadens the coverage that existed under the Americans with Disabilities Act
    (ADA) and the Rehab Act.
   Broadens the meaning of “regarded as” disabled
        No impairment, but employer erroneously treats person like he or she has an
         impairment that substantially limits a MLA
        An impairment, but employer erroneously treats the person like his or her impairment
         substantially limits a MLA
        Clarifies that VA is not required to accommodate individuals whose claim is solely
         based on being regarded as disabled
   Broadens the meaning of an actual disability
        Broadens the definition of “substantial limitation”
        Expands the definition of “major life activity”
        Eliminates mitigating measures
        Clarifies that an impairment that is episodic or in remission may qualify as a disability
         if it substantially limits a major life activity
        An impairment that limits only one major life activity is now enough to qualify as a
         disability




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             Additional Federal Law in
                     This Area
    In 1998, the Rehabilitation Act was amended to include
    Section 508 which requires that all electronic and
    informational technology developed, procured, maintained,
    and used by the Federal government be accessible to
    individuals with disabilities. This includes:

   Web-based intranet & internet information & applications
   Telecommunication products (phone systems)
   Video & multimedia products (webcasts)
   Office equipment (copiers)
   Desktop & portable computers

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    Who is a Person with a Disability?

A disabled person is one who:

 has a physical or mental impairment which
  substantially limits one or more major life
  activity; and/or
 has a record of such an impairment; and/or
 is regarded as having such an impairment.


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Examples of Major Life Activities
The ADAAA clarified that “Major Life Activities” refers to those activities
that are of central importance to daily life. These include, but are not
limited to:

   Walking                                Learning
   Working                                Communicating
   Thinking                               Reading
   Eating                                 Bending
   Seeing                                 Standing
   Hearing                                Working
   Speaking                               Concentrating
   Breathing                              Performing manual tasks
   Sleeping                               Lifting
   Caring for oneself                     Interacting with others

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Additional Major Life Activities
Specified in the ADAAA
   The operation of a major bodily function, which includes, but is not
    limited to:
        Functions of the immune system
        Normal cell growth
        The following functions:
             Digestive
             Bowel
             Bladder
             Neurological
             Brain
             Respiratory
             Circulatory
             Endocrine
             Reproductive Functions




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Other Key Concepts
   Reasonable Accommodation – Any change or adjustment in the work environment
    or in the way things are customarily done that would enable a qualified individual with
    a disability to enjoy equal employment opportunity.

   Qualified individual with a disability – Someone who (1) satisfies the requisite skill,
    experience, education, and other job-related requirements of the position and (2) can
    perform the essential functions with or without the accommodation.

   Essential Functions – Duties that are so fundamental to the position that the job
    cannot be done without performing them.

   Reassignment – A reasonable accommodation that is provided to employees who,
    because of a disability, can no longer perform the essential functions of their current
    position, even with reasonable accommodation. Reassignment is available only to an
    employee who meets the minimum qualifications for the position. Reassignment is
    made non-competitively only to existing positions in VA as a whole. This is the
    accommodation of last resort and should only be considered once all other options
    have been exhausted.

   Undue Hardship – An accommodation that is excessively costly, extensive,
    substantial, disruptive, or that would fundamentally alter the nature or operation of the
    agency‟s business. Federal case law has held that cost shall not be a consideration
    for an agency the size of the VA because it is the VA budget as a whole that will be
    examined, and not the individual office budget where the request is made, that will be
    considered.
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Requests for Accommodation
   An employee can request reasonable accommodation from his/her
    supervisor or another supervisor or manager in the immediate chain of
    command.

   An employee‟s representative, medical provider, or family member may
    request a reasonable accommodation on behalf of the employee.

   Once the request has been made to a manager or supervisor, that
    individual should immediately acknowledge the request.

   The supervisor or manager should then review, evaluate and make a
    decision within the timeframes and in accordance with the procedures listed
    in VA Directive and Handbook 5975.1, “Processing Requests for
    Reasonable Accommodation by Employees and Applicants with
    Disabilities.”



                                                                             10
      Requests for
Reasonable Accommodation
   When an individual requests a modification or adjustment in
    the work environment because of a medical condition or
    disability, he or she is requesting a reasonable
    accommodation.

   The initial request for accommodation can be verbal or
    written. A verbal request immediately starts the process.

   For record keeping purposes, it is prudent to request that
    the employee put their request in writing although the failure
    to provide written confirmation should not stop the
    manager/supervisor from beginning the process.

   The manager/supervisor receiving a request for reasonable
    accommodation should immediately respond to that
    request, whether it is written or verbal. They should
    immediately work on the request and expedite a decision.




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Handling the Request for Accommodation –
Interactive Process
Once a request is presented, the manager/supervisor should immediately initiate an
   interactive dialogue with the requestor, during which they can discuss:
      whether the employee has a physical or mental impairment;
      the limitations associated with the medical impairment at issue;
      the frequency and duration of any limitations associated with the medical
        impairment at issue;
      what accommodation(s) is(are) being requested;
      how the accommodation(s) requested will assist in performing the essential
        functions of the job;
      all of the alternatives that exist to assist the employee in performing the essential
        functions of their job; and
      who the “decision maker” will be.

     Keep in mind that there are time is of the essence in making a decision on a
       request for reasonable accommodation and protracted and unneccesary
       delays can result in agency liability.




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Interactive Process (cont.)
   The manager/supervisor should request assistance of ORM, employee relations,
    labor relations, OGC, and ODI in considering requests for reasonable
    accommodation.
   Many accommodations can be provided at little or no cost to the agency and there
    are services that can assist in obtaining cost effective equipment (listed towards the
    end of this presentation).
   The specific accommodation being requested does not have to be granted, but an
    alternative should be offered which achieves goal of enabling the employee to
    perform the essential functions of their job.
   The offices above can assist in finding alternatives that may be more cost effective
    for VA and still achieve an effective outcome for the employee.
   During this entire process, the manager/supervisor should communicate with the
    employee at each stage and be open to alternative proposals and suggestions as
    they arise.
   Cost will not be a defensible reason for failing to consider providing a reasonable
    accommodation because courts will look at the budget of VA as a whole, and not the
    individual office budget, in considering an undue hardship excuse in failing to provide
    the accommodation.



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                        Request for Reasonable Accommodation


Test Your Knowledge…

1.   An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting
     time because of medical treatments I'm undergoing.― Is this a request for a reasonable
     accommodation?
     Yes, this is a request for a reasonable accommodation. Although the employee has not explained why
     the medical treatments are required, her statement implicitly links her difficulty in getting to work at her
     scheduled starting time to a medical condition.

2. An employee tells his supervisor that he would like a new chair because his present one is
   uncomfortable. Is this a request for a reasonable accommodation?
   No. Although this is a request for a change at work, his statement is insufficient to put the supervisor on
   notice that he is requesting reasonable accommodation. To make this a request for a reasonable
   accommodation, he needs to link his request for the new chair with a medical condition.

3. An employee who is blind requests adaptive equipment for her computer as a reasonable
   accommodation. The supervisor must order this equipment and is informed that it will take
   three months to receive delivery. No other company sells the adaptive equipment the employee
   needs. The supervisor notifies the employee of the results of its investigation and that the
   equipment has been ordered. Did the supervisor respond to the employee's request for
   reasonable accommodation in a timely manner?
   Yes. Although it will take three months to receive the equipment, the supervisor has moved as quickly
   as s/he can to obtain it and thus there is no ADA violation resulting from the delay. The supervisor and
   employee should determine what could be done so that the employee can perform his/her job as
   effectively as possible while waiting for the equipment.

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Requesting and Using Medical Information

   When a disability and/or the need for reasonable accommodation is
    not obvious, or otherwise already known, the employee may be asked
    to submit sufficient medical documentation about the disability and
    associated limitations. If a ‘decision maker’ believes that medical
    information is necessary, it is appropriate to seek assistance from
    ORM, employee relations, labor relations, OGC, or ODI before
    proceeding.

   When requesting medical information, the supervisor/manager may not
    request the complete medical record of the employee. The only
    information that should be requested is:

          A short description of the disability;

          How the disability limits the employee’s major life activities as
           well as the ability to do the job or participate in VA activities,
           or the applicant’s ability to apply or interview for the job; and

          How the requested accommodation is expected to improve the
           situation.




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Requesting and Using Medical Information


     Once sufficient medical documentation is received, the
      supervisor/manager will evaluate it, with a Medical
      Consultant, if necessary.

      NOTE – ‘Decision Makers,’ as well as any
      other personnel involved in the process,
      should remember that all medical information,
      including medical information voluntarily
      disclosed by an applicant or employee, MUST
      BE KEPT CONFIDENTIAL!




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             Requesting and Using Medical Information
Test Your Knowledge…

1.   A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing
      strategies. In order to remember what is discussed at these meetings, he must take detailed notes but,
      due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability
      and requests a laptop computer to use in the meetings. Can the supervisor request medical
      documentation?
      Yes. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the
      employee to provide reasonable documentation about his impairment; the nature, severity, and duration of the
      impairment; the activities that the impairment limits; and the extent to which the impairment limits the employee's
      ability to perform these activities. The supervisor also may ask why the disability necessitates use of a laptop
      computer rather than an alternative accommodation such as a tape recorder, to help the employee retain the
      information from the meetings.

2.   An employee brings a note from her treating physician explaining that she has diabetes and that, as a
     result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to
     avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include extreme
     thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness.
     Depending on the results of the blood test, the employee might have to take insulin. The note requests
     that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary,
     to take insulin. Can the supervisor ask for additional medical documentation?
     No. The doctor's note constitutes sufficient documentation that the person has a substantially limiting impairment
     and the requested reasonable accommodation is needed. The supervisor should not ask for additional
     documentation.


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            Requesting and Using Medical Information


Test Your Knowledge (Continued)…

3.   An employee gives her supervisor a letter from her doctor, stating that the employee
     has asthma and needs the supervisor to provide her with an air filter. Can the supervisor
     ask for additional medical documentation?
     Yes. This letter contains insufficient information as to whether the asthma is an ADA disability
     because it does not provide any information as to its severity (i.e., whether it substantially limits a
     major life activity). Furthermore, the letter does not identify precisely what problem exists in the
     workplace that requires an air filter or any other reasonable accommodation. Therefore, the
     supervisor can request additional documentation.




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                          Modifying Work Sites


                                                        Providing Readers
Accessible Facilities                                    and Interpreters




    Flexi-Time
                           EXAMPLES OF                          Flexi-Place
                           REASONABLE
                         ACCOMMODATIONS
  Modifying
    Work
                                                                 Assistive
  Schedules
                                                                 Devices


                                  Reassignment
                 (only used as the „accommodation of last resort‟)
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                Categories of Reasonable Accommodation
Test Your Knowledge…

1.   A cleaning crew works in an office building. One member of the crew wears a prosthetic
     leg that enables him to walk very well, but climbing steps is painful and difficult.
     Although he can perform his essential functions without problems, he cannot perform
     the marginal function of sweeping the steps located throughout the building. The
     marginal functions of a second crewmember include cleaning the small kitchen in the
     employee's lounge, which is something the first crewmember can perform. Can the
     supervisor switch the crewmember's marginal functions?
     Yes. The supervisor can switch the marginal functions performed by these two employees.
2.   A salesperson took five months of leave as a reasonable accommodation. The company
     compares the sales records of all salespeople over a one-year period, and any employee
     whose sales fall more than 25% below the median sales performance of all employees is
     automatically terminated. The supervisor terminates the salesperson because she had
     fallen below the required performance standard. The company did not consider that the
     reason for her lower sales performance was her five-month leave of absence; nor did it
     assess her productivity during the period she did work (i.e., prorate her productivity). Is
     this a violation of the ADA?
     Yes. Penalizing the salesperson in this manner constitutes retaliation and a denial of
     reasonable accommodation.
3.   An employee with an ADA disability needs 14 weeks of leave for treatment related to the
     disability. The employee is eligible under the FMLA for 12 weeks of leave (the maximum
     available) so this period of leave constitutes both FMLA leave and a reasonable
     accommodation. Under the FMLA, can the supervisor deny the employee the fourteenth
     week of leave?
     Yes. However, because the employee is also covered under the ADA, the supervisor cannot
     deny the request for the fourteenth week of leave unless it can show undue hardship. The
     supervisor may consider the impact caused by the initial 12-week absence, along with other
     undue hardship factors.
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                             Mistakes to Avoid


   Assuming that disability is the same as inability. The key consideration is
    whether an employee is able to perform the essential duties of a position —not
    whether s/he has a disability.

   Assuming that an employee has an actual disability. Some disabilities are
    obvious, but many are not; and in some cases employees label a correctable
    condition or temporary impairment a disability when it's not. So, pay close
    attention, and don't be afraid to ask for help from your EEO Office or HR experts.

   Failing to explore multiple accommodations. Don't make the mistake of simply
    settling into a struggle over whether you will adopt the one and only
    accommodation requested by an employee. Work with the employee, ORM,
    employee relations, labor relations, OGC, or ODI to see if there are other feasible
    accommodations that are equally effective.

   Failing to refer an apparently disabled individual to the EAP. Although ultimate
    responsibility for dealing with, for example, an alcohol-related disability, rests
    with the employee, supervisors are responsible for making employees aware of
    available help when it appears likely to be necessary.




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                   Mistakes to Avoid (continued)


   Tolerating unacceptable performance or conduct. The courts, the Merit Systems
    Protection Board (MSPB), and the Equal Employment Opportunity Commission
    (EEOC) have all emphatically pointed out in recent years that employees with
    disabilities must live up to the same standards of conduct and performance as
    other employees. There is no reason for you to accept less.


   Tolerating unacceptable health or safety risks. An accommodation is neither
    reasonable nor responsible if it would result in your allowing an employee with
    disabilities or co-workers to be placed at a health or safety risk.


   Telling other employees that an employee is receiving an accommodation: ADA
    prohibits employers from disclosing an employee’s "medical" information (with
    limited exceptions). Disclosing that someone is being provided an ADA-
    reasonable accommodation is therefore disclosing that the person has a
    disability. Simply disclose that a modification has been made to comply with
    Federal law.




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Reasonable Accommodation Resources


  DOD Computer Accommodation Program
  (CAP)
  Telephone: 703-681-8813
  Website: www.tricare.osd.mil/cap

  Provides computer-related equipment to any VA
  employee at no cost to the agency.

  Requires submitting forms and medical
  documentation as necessary directly to CAP.




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Reasonable Accommodation Resources

   Jobs Accommodation Network
   Telephone: 1-800 -JAN-7234
   Website: www.jan.wvu.edu

   Provides accommodation information including
   suggestions for specific medical conditions,
   available services and answers to legal
   questions. Also provides suggestions for
   individual worksite accommodations by phone.




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                    Contact Information
Georgia Coffey
                                        Georgia.Coffey@va.gov
Deputy Assistant Secretary, Office of
Diversity and Inclusion (ODI)
Rafael Torres
                                        Rafael.Torres@va.gov
Deputy Assistant Secretary, Office of
Resolution Management (ORM)

Deborah McCallum                        Deborah.mccallum@va.gov
Assistant General Counsel,
Professional Staff Group IV

Larry Abels
                                        Larry.Abels@va.gov
Director, Employee Relations, Office
of Human Resources Management




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