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Reasonable Accommodation. Training Objectives. Understand laws protecting employees and/or applicants for employment with a disability. Understand the definition of disability (physical and/or mental) as defined by the Equal Employment Opportunity Commission (EEOC).
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Training Objectives • Understand laws protecting employees and/or applicants for employment with a disability. • Understand the definition of disability (physical and/or mental) as defined by the Equal Employment Opportunity Commission (EEOC). • Understand the definition of “qualified” individual with a disability as defined by EEOC. • Understand the definition of reasonable accommodation. • Understand the process of requesting a reasonable accommodation. • Definition of undue hardship.
Significant Management Concerns * Proper determination of a qualified individual with a disability. * Agency-wide reassignment as a type of reasonable accommodation.
References Rehabilitation Act of 1973 Americans with Disabilities Act of 1990 Pregnancy Discrimination Act DON Interim Guidance (Feb 2005) NAVSHIPYDNORINST 12720.4 dated 6 Sept 07 Executive Order 13164 (July 2000) (Required Federal agencies to establish effective written procedures for processing requests for reasonable accommodation.)
Rehabilitation Act of 1973 Requires Federal agencies to provide reasonable accommodation to qualified employees and applicants with disabilities, unless to do so would cause an undue hardship.
Americans With Disabilities Act (ADA) OF 1990 Title I of the ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA's nondiscrimination standards also apply to Federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.
Pregnancy Discrimination Act • The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.
NAVSHIPYDNORINST 12720.4Procedures for Reasonable Accommodation • New instruction dated 6 Sept 2007. • Reaffirms NNSY’s policy and procedures for providing reasonable accommodation for those qualified individuals with disabilities. • Sets forth procedures for reviewing and analyzing disability issues presented by civilian employees and determining what, if any, reasonable accommodation is required.
Who is a “Qualified” Applicant or Employee with a Disability? “Qualified” means the employee or applicant meets the requisite knowledge, skills, and experience of a position and can perform the “essential functions” of the position with or without reasonable accommodation.
What is an impairment? Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine. Also any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
What is a major life activity? A function that the average person performs throughout their daily lives. Such activities include caring for oneself, seeing, hearing, walking, breathing, speaking, learning, sitting, standing, lifting, and reaching.
What is an Essential Function? • Position exists to perform that function and employee actually performed the function. • Limited number of employees available to whom the performance of the job function can be distributed. • Highly specialized so that the incumbent of the position was hired for his/her expertise or ability to perform the particular function.
What is Reasonable Accommodation? Modifications or adjustments to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions without causing or incurring undue hardship on the operation of the employer’s business.
What is Reasonable Accommodation? • Includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
Examples of “Reasonable Accommodation” • Making existing facilities more accessible. • Restructuring non-essential duties of a job. • Utilizing part-time or modified work schedules. • Adjusting or modifying training material or policies. • Acquiring or modifying equipment. • Last resort - reassigning to a vacant position. • Uncertainty about the effectiveness of an accommodation may require a trial period rather than refusing a requested accommodation. • Note: Accommodation does not have to be an employee’s choice as long as it adequately/medically accommodates the employee.
Reassignment • Reassignment is a “last resort” accommodation. • Must be considered when an employee cannot perform the essential functions of the position. • Reassignment may be made ONLY to a vacant position within the activity; if no vacancy exists, a wider search will be performed. • The employee MUST BE QUALIFIED for the new position.
Use of Alternate Dispute Resolution (ADR) • ADR may be used to assist management and the affected employee in resolving issues related to reasonable accommodation. • ADR provides mediation using a third party to facilitate a solution that is mutually agreed upon by management and the affected employee. • ADR reduces adverse impact to productivity and efficiency and quality of work life caused by work related issues including reasonable accommodation.
Modifying Work Sites Restructuring Jobs Accessible Facilities REASONABLE ACCOMMODATION Modifying Application Procedures Assistive Devices Flexible Leave Schedules/ Work Schedules
Identifying a Need for Reasonable Accommodation Performance/conduct declines. Employee verbally notifies management/HRO. Extended absences/illnesses/medical. Employee submits “Request for Reasonable Accommodation” form.
Supervisory Advice • It is important to note that an individual may use “plain English” and not mention the Rehabilitation Act or ADA or even use the phrase “reasonable accommodation.” Example: An employee asks for leave because he is “depressed and stressed.” The employee has communicated a request for a change at work (time off) for a reason related to a medical condition. This statement is sufficient to put the employer on notice that the employee is requesting reasonable accommodation. • If any red flag is raised ask for assistance from the Human Resources Office (HRO).
Human Resources Office • Provides advice and guidance to managers and supervisors when an employee identifies a problem at work related to a mental or physical impairment and requests accommodation. • Labor/Employee Relations (LER) specialists consult with management during the interactive process with employees and may arrange Alternative Dispute Resolution techniques to resolve conflicts and issues. • LER Specialists assist management in writing notices and letters. • LER Specialists provide guidance to managers/ supervisors as they identify reasonable alternatives for a disabled individual to remain in the same position or other vacant positions to which the employee could be reassigned.
Human Resources Office • If no accommodation is possible and no positions are identified as possible placements, HRO will request the Human Resources Service Center (HRSC) to assist in determining a reassignment for the individual outside the activity. • HRO will keep management apprised of the HRSC job search.
Employee’s “Right to Privacy” • Never request medical documentation • without HRO guidance. • Retain medical documentation in a secure location. • Never discuss an employee’s medical • condition without consulting with HRO.
The Accommodation Request • The accommodation request is a statement (does not initially have to be in writing) made to a supervisor that an individual needs an adjustment or change atwork or in the application process for a reason related to a medical condition. • SUPERVISORS/MANAGERS: Once the request is made this begins the interactive process between management and the individual. You must act upon the request. Your next step is to contact your assigned LER Specialist at HRO for advice. THE AGENCY CAN BE HELD LIABLE FOR INACTION, DELAY OR FAILURE TO TAKE REQUESTS SERIOUSLY!
Interactive Process Request the employee complete a “Request for Reasonable Accommodation” form. Request the employee provide medical documentation as outlined in NNSY Instruction 12720.4, Enclosure (3). Ask clarifying questions: What is the physical/mental impairment? Does the impairment substantially limit a major life activity/function? What are the limitations? Request an Assessment Team be convened. Contact the HRO for guidance. Document dialogue/dates and follow-up reminders.
Assessment Team • Ad-hoc group convened specifically for a particular case: • Consists of Senior Line Manager, LER Specialist, Placement Coordinator, Medical Placement Coordinator and the Occupational Health Physician. • May also include other HRO Specialists, Health Practitioners or Legal Counsel, as necessary. • Conducts an analysis as to whether an individual is disabled as defined by the regulations. • After a determination is made, the Assessment Team will complete a “Medical Assessment Checklist for Determining Qualified Individual with a Disability” form and provide it to the appropriate management official.
How to Decide if Reasonable Accommodation Can Be Made? Individualized Assessment • What are the physical or mental limitations of the individual? • What are the available options for accommodation? • Can the Command provide the accommodation without causing an undue hardship? • Can the employee perform the work safely without being a threat to themselves or others?
“Disability Analysis Conducted” “Is the individual a qualified applicant or employee with a disability?” NO– accommodation not required under law. YES– continue the process of interaction with the employee to explore methods of reasonable accommodation (keep HRO advised).
Job Searches • If the employee can not be accommodated in current position: • Management/HRO conducts a job search of • Command-wide vacant positions first. • Commanding Officer certifies unavailability of • position for reassignment. • Management offers expanded job search: • Major Command - Commuting Area • Navy-Wide - Local Commuting Area • Navy-Wide - Could be Nationwide • Employee has to be willing to relocate and pay own relocation costs.
“Undue Hardship” • Extensive, substantial disruption to business. • Fundamentally alters the nature of the business. • Accommodation requires significant difficulty/expense. • Case-by-case consideration.
It’s Free!! CAP OFFERS • Information on disabilities • Accommodation solutions • Needs assessment • Assistive technology Information at the tip of your fingers on: www.tricare.osd.mil/cap
Reasonable Accommodation is intended to remove barriers to employment and hiring. Quick Review • The person must have a disability and provide appropriate documentation when requested. • Requests may be made orally or in writing AND need only be made once if the condition is continuous. • Remember to treat each request on a case-by-case basis.
Quick Review • Supervisors must talk with the employee to identify options; consult with experts if needed. • Provide accommodation as soon as feasible. • If there are delays, keep the employee informed. • Medical documentation is confidential and must be treated as such. • Work with the employee if documentation is incomplete or insufficient. • All denials must be made in writing.
Some Final Comments • Reasonable Accommodation is an area of human resources management and EEO that is very dynamic. • Take all requests for accommodation seriously, act on them quickly, and keep the employee informed. • Remember:Please seek advice from your servicing HRO.
Point of Contact Information • Labor/Employee Relations Department, HRO Norfolk, NNSY Directorate, Code 1116 • Telephone Number: 396-3518
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