USDA Forest Service

DISABILITY AWARENESSand

REASONABLE ACCOMMODATION SEMINAR

July 20, 2011

Presented by: Sheila M. Young

Disability Employment Program Manager USDA Forest Service

Washington, DC

Reasonable Accommodation Laws, Regulations and Executive Orders Definitions

Individuals with Disabilities Reasonable Accommodation

Roles and Responsibilities

USDA Target Center Resources (Internal and External) Case Studies

Disability Etiquette

Summary

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TOPICS OF DISCUSSION

Rehabilitation Act of 1973

Americans With Disabilities Act (ADA) of 1990

Americans With Disabilities Act Amendment Act (ADAAA) of 2008

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LAWS AND REGULATIONS

Enforcement Guidance on ADA and Psychiatric Disabilities (March 1997)

Enforcement Guidance on Equal Employment Opportunity Commission (EEOC) Disability Related Inquiries and Medical Examinations (July 2000)

EEOC Policy Guidance on E.O. 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (October 2000)

Enforcement Guidance on Reasonable Accommodation and Undue Hardship (October 2002)

Executive Order (EO)13548 – Increasing Federal Employment of Individuals with Disabilities ( July 2010)

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POLICY AND EXECUTIVE ORDERS

AGENCY FOCUS

Hiring, placement, and advancement of Individuals with Disabilities (IWD)

Ensure reasonable accommodations and protections against discrimination

AGENCY GOALS

Reaffirm the USDA goal for the employment of IWD

Increase the employment of individuals with targeted disabilities

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An individual who:

“has a physical or mental impairment that substantially limits one or more of that person’s major life activity;

has a record of such impairment; or

is regarded as having such an impairment; and

can perform the essential functions of the position with or without an accommodation.”

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INDIVIDUAL WITH A DISABILITY

Substantially limiting if it “materially restricts” in the following areas:

Caring for oneself Performing manual tasks Seeing, hearing, eating, sleeping Walking, Standing, lifting, bending, speaking Breathing Learning Reading, concentrating, thinking Communicating Working

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MAJOR LIFE ACTIVITY

Operations of bodily functions but not limited to functions of the:

Immune system Normal cell growth Digestive Irritable Bowel Syndrome; Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive functions

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MAJOR LIFE ACTIVITY

Modifications or adjustments to a job or the application process

Modifications or adjustments that enable a qualified individual with a disability to perform the essential functions of his or her position

Modifications or adjustments that allow employees with disabilities to enjoy equal benefits and privileges of employment

Mandatory or voluntary training/staff meetings Employer-sponsored parties: Even if off-site and outside business hours Employer-sponsored programs/special events (i.e. annual CFC kick-off

assembly)

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REASONABLE ACCOMMODATION

Is the disability and the accommodation obvious?

Have you considered existing policies/programs to address routine issues?

Are there short-term solutions when additional review is required?

Resist the urge to dismiss requests out of hand.

Don’t play doctor!

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BASIC ACCOMMODATION ISSUES

THAT SHOULD BE CONSIDERED

Employee makes a specific written or verbal request

Supervisor observes employee having difficulty performing job functions

Decline in performance

Leave issues: Frequent, unplanned absences Exhausted all leave Requests advanced sick leave Requests extended absence or invokes FMLA

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REASONABLE ACCOMMODATION TRIGGERS

EFFECTIVE ACCOMMODATION

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Employer must provide an accommodation that meets the employee’s needs and removes a workplace barrier

Employee is NOT entitled to accommodation of their choice

If two or more accommodations would be effective, employer may choose between them

Critical that employer understand exact nature of the problem to determine all possible, effective accommodations

Assess whether accommodations, any/all possibilities, will constitute “undue hardship

Almost unlimited possibilities which may include:Sign Language Interpreters Modifications to existing equipment or purchase/lease of new equipment that

is accessible to individual with a disability Modifying workplace policies Changes in the working environment (e.g., flashing warning lights for

evacuations)Providing assistive technologyReassignment (accommodation of last resort)

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TYPES OF REASONABLE ACCOMMODATIONS

REASONABLE ACCOMMODATION

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Actions not required:

Removing an essential function (i.e., fundamental/critical job duty)

Lowering production standards (quantitative and qualitative)

Excusing misconduct/performance deficiencies

Providing personal use items, such as hearing aids, service animals

Not create new bureaucratic requirements

Establish procedures that permit flexibility in processing reasonable accommodation requests

Permit most expeditious consideration and delivery of reasonable accommodations

Appoint a Deciding Official for reasonable accommodation requests

Ensure all federal agency programs, training, events, and any other activities are fully accessible to all employees and any guests

Never make direct contact with a physician to obtain medical information when the employee does not provide it

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AGENCY MUST…

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AGENCY MUST…

Have an Application Process

Provide accommodations that enable an employee to perform essential functions his/her job or to gain access to the worksite

Benefits and Privileges of Employment: Mandatory or voluntary training/staff meetings Employer-sponsored parties: Even if off-site and outside business hours Employer-sponsored programs/special events (annual CFC kick- off

assembly, Special Emphasis Program Training, etc.)

UNDUE HARDSHIP

Significant difficulty or expense

Focus here is on resources and circumstances of agency as a whole, including impact on operations

Undue hardship refers to denial of a specific accommodation

Consider financial difficulty as well as reasonable accommodations that are extensive, substantial, or disruptive

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The Rehabilitation Act does not immunize disabled employees from being disciplined for misconduct, provided the employer would impose the same penalty on a non-disabled employee.

Rule is job-related to the position Rule is consistent with business necessity Rule is uniformly applied

May be required to accommodate to allow employees to meet conduct rule(s) in the future

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STANDARDS OF CONDUCT

As soon as the individual believes there is a need for one!!!

When an employee knows/suspects that a disability may be causing a performance or conduct problem.

When an employee needs to request leave or an extended absence because of a disability.

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WHEN SHOULD AN INDIVIDUAL REQUEST REASONABLE ACCOMMODATION

QUESTIONS?

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ROLES AND RESPONSIBILITIES

The Employee …

Submits request verbally or in writing

Engages in interactive process with manager or Disability Employment Program Manager (DEPM) or Mission Area Designee

Submits medical information to Mission Area Designee ONLY: Identifies medical condition Identifies impact of medical condition on major life activity Provides diagnosis/prognosis Identifies requested accommodation and statement of how it will

enable employee to perform the essential functions of the position21

ROLES AND RESPONSIBILITIES

The Manager…

Engages in interactive process with employee

Approves requested accommodation Requests assistance from the DEPM Receives written disability determination letter from Mission Area Designee Accepts or declines written recommendation, if provided, from Mission Area Designee

Considers other options if requested accommodation is not effective

Provides final review of requested accommodation and response to employee

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Process usually starts with a request from an employee/applicant No “magic words” needed Individual must tell employer that he/she needs something from the

employer because of his/her disability Need not be in writing May come from someone other than the individual needing the

accommodation (doctor’s note) Mission Area Designee may obtain medical documentation to determine if

the individual’s medical condition constitutes a disability and/or to verify the need for accommodation

Cooperative Process!

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INTERACTIVE PROCESS !!!!!!!!

ROLES AND RESPONSIBILITIES

DEPM…

Participates in interactive process with the requestor and manager

Consults with the individual and management official to determine appropriate accommodation

Consults with management to acquire the essential functions of position Creates reasonable accommodation case file on all reasonable

accommodation requests received

Provides workplace accommodations for employees with obvious disabilities

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ROLES AND RESPONSIBILITIES

DEPM…

Assesses the effectiveness of various accommodations 6-months to one-year from date accommodation was provided

Assists employee in completing the Form for USDA Target Center to receive assistive technology

Plans Disability Awareness Month Observances

Contacts external resources on an as-needed-basis

Assists with the development of MD 715 Part J – Plan

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Mission Area Designees…..

Participate in interactive process

Determine whether individual has a disability

Request written essential functions - identified by management

Consult with the individual and management official to recommend potential accommodation

Create and maintain disability determination case files

Request, receive and maintain medical documentation - confidentially

Implements the accommodation of last resort – “Reassignment Process”

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Roles and Responsibilities

Mission Area Designee…

Mission Area Designee will request the following information from the medical provider

Medical information should indicate: Medical condition Impact of medical condition on major life activity Diagnosis/Prognosis (nature, severity, duration) How accommodation will enable employee to perform the essential

functions of the job

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ROLES AND RESPONSIBILITIES

Mission Area Designee….

May request additional medical documentation: When disability and need for accommodation are not obvious When medical documentation provided is insufficient When it is job-related When consistent with business necessity

Failure to provide necessary information may result in denial of request

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ROLES AND RESPONSIBILITIES

Mission Area Designees ……

Assess accommodation effectiveness (6 mo - 1 yr from accommodation date)

Provide guidance and assistance to Disability Employment Program Managers

Submit responses either by e-mail or certified mail

Contact external resources on an as-needed-basis

Submit statistical reports to WO (weekly, monthly, & quarterly)

Assist with the development of MD 715 Part I – Plan

Weekly meeting with the WO Disability Program Team

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Roles and Responsibilities

Individuals who have access may not disclose this information except under certain conditions, (ex., medical emergency, employee provide signed statement naming recipients)

Health Insurance Portability and Accountability Act (HIPAA) does not apply to agency and the receipt of medical information when requesting reasonable accommodation

HIPAA applies to medical and/or health care providers only

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CONFIDENTIALITY OF MEDICAL RECORDS

The manager or supervisor should know only the nature of the accommodation

All medical records are subject to the confidentiality provisions of the Privacy Act

The Rehabilitation Act requires that all medical information be kept confidential

All medical information must be locked up in a secure location

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CONFIDENTIALITY OF MEDICAL RECORDS

Agencies required to consider reassignment

Considered the accommodation of last resort

Vacant funded position (up until selection)

Employee must be qualified for vacant funded position

Agency need not create a position

Employee does not need to be “best qualified” to be reassigned

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REASSIGNMENT OBLIGATION

USDA Target Center www.dm.usda.gov/oo/target

Department of Rehabilitative Services www.dors.org

The Job Accommodation Network (JAN) www.jan.wvu.edu

Office of Disability Employment Policy www.dol.gov/dol/odep

ADA Information Center www.dol.gov/odep

Workforce Recruitment Program (WRP) DOL Initiative http://wrp.gov

Equal Employment Opportunity Commission (EEOC) www.eeoc.gov

Office of Personnel Management (OPM) www.opm.org

Veterans with Disabilities http://www.woundedwarriorproject.org www.hireheroesusa.org

http://www.dol.gov/vets/welcome.html

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RESOURCES

When Referring to Individuals with Disabilities: Recognize individuality Use the term “disability” instead of “handicap” Treat adults with disabilities as adults Assume that individuals with disabilities do not need help in

accomplishing tasks unless they ask, then be ready to assist as they see necessary

Use positive, humanizing language when referring to people with disabilities

Inform everyone both applicants and employees, managers and supervisors that accommodations are available – It’s The Law

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DISABILITY ETIQUETTE

Medical documentation must remain confidential and in a secured location

Mission Area Designee receives medical documentation

Mission Area Designee determines if the person has a disability and makes recommendations to the Deciding Officials

Must apply the accommodation of last resort – “Reassignment”

Disability Employment Program Manager and Mission Area Designee provides guidance to managers, supervisors, and employees

Disability Employment Program Manager assist employees with obvious disabilities to acquire assistive technology

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SUMMARY

DEPM will assist employees during the reasonable accommodation process

Target Center provides assistive technology and ergonomic assessments on an as needed basis

HIPAA (Health Insurance Portability and Accountability Act) does not apply to agency protection of medical information, but does apply to health care providers, which would include federal medical clinics

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SUMMARY

QUESTIONS?

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For additional information contact: Sheila M. Young

Disability Employment Program Manager202-205-9927

or smyoung@fs.fed.us