TABLE OF CONTENTS
SECTION 1. PURPOSE.
.01 This Order establishes Department of Commerce (the Department) policies for providing reasonable accommodation on the basis of disability to qualified individuals who are employees or applicants for employment. It also designates responsibilities and describes procedures for submitting and responding to requests for reasonable accommodation.
.02 This is a complete rewrite which updates and clarifies the provisions of the Order.
SECTION 2. AUTHORITY.
The Rehabilitation Act of 1973, as amended, requires Federal agencies to provide reasonable accommodation accommodation on the basis of disability to qualified individuals. 29 United States Code (U.S.C.) Section 791 et seq.; 29 Code Federal Regulations (CFR) Part 1614.203; Title I (Employment) of the Americans with Disabilities Act (ADA) of 1990, as amended, 42 U.S.C. §§ 12101 et seq.; 29 C.F.R. part 1630; Executive Order 13164, 65 Federal Register 46565; and the Americans with Disabilities Act Amendments Act (ADAAA) of 2008, PL 110-325 (S. 3406).
SECTION 3. POLICY.
It is the policy of the Department to provide equal opportunity for individuals with disabilities in accordance with the Rehabilitation Act of 1973, as amended, and to fully comply with other legal and regulatory requirements to ensure that all aspects of employment, including the application process, are made fully accessible to all employees and applicants. No qualified employee may be denied the benefits of a program, training, or activity conducted, sponsored, funded, or promoted by the Department, or otherwise be subjected to discrimination on the basis of disability. The Department is committed to providing reasonable accommodation to applicants and employees with disabilities. Unless the Department can demonstrate that a particular accommodation would impose an undue hardship on the operation of its programs, the Department will provide accommodation to a qualified individual who is an:
a. applicant who requests an accommodation in order to participate in the application process;
b. employee who requests an accommodation to enable him or her to perform the essential functions of the job or to gain access to the workplace; or
c. employee who requests an accommodation to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.
SECTION 4. DEFINITIONS.
.01 Benefits and Privileges of Employment include, but are not limited to, employer sponsored: (1) training, (2) services (e.g., employee assistance programs, credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), and (3) parties or other social functions (e.g., parties to celebrate retirements and birthdays, and office outings). If an employee with a disability needs a reasonable accommodation in order to gain access to, and have an equal opportunity to participate in, these benefits and privileges, then the employer must provide the accommodation unless it can show undue hardship.
.02 Undue Hardship. Agencies do not have to provide reasonable accommodation that would impose an undue hardship on the operation of the agency. An undue hardship means that a specific accommodation would require significant difficulty or expense. This determination, which must be made on a case-by-case basis, considers factors such as the nature and cost of the accommodation needed and the impact of the accommodation on the operations of the agency.
.03 Disability. An individual is considered to have a ''disability'' if that individual (1) has a physical or mental impairment that substantially limits one or more of that person's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. In this policy, all references to ''disability'' refer to only those impairments that meet the ADA/Rehabilitation Act definition of ''disability'' as amended by the ADA Amendments Act of 2008 (ADAAA). The expanded definition of ''disability'' is to be interpreted broadly and does not require an extensive analysis. Agencies are not required to provide an accommodation to an individual who meets the definition of “disabled” solely on the basis that he or she is regarded as disabled.
.04 A Deciding Official is a supervisor, manager, principal or servicing human resource manager who has the authority to determine whether an accommodation will be provided and, if so, what the appropriate accommodation will be.
.05 A Requestor is an applicant or employee with a disability who requests reasonable accommodation.
.06 A Reasonable Accommodations Coordinator (RAC) is a representative from the operating unit human resources office who acts as an impartial advisor and has specific responsibilities as part of the reasonable accommodation process.
.07 Tolling means to suspend the running of a time period.
.08 Mitigating Measures are medications and assistive devices that an individual uses to eliminate or reduce the effects of a functional impairment caused by a disability. The only mitigating measures that may be considered in determining a requestor’s disability status are ordinary eyeglasses or contacts intended to fully correct the vision of an employee or applicant for employment. Other mitigating measures may not be considered in the determination of a requestor’s disability status.
The ADAAA’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of ''disability.'' All other determinations – including the need for a reasonable accommodation and whether an individual poses a direct threat – can take into account both the positive and negative effects of a mitigating measure. However, if an individual with a disability uses a mitigating measure that results in no negative effects and eliminates the need for a reasonable accommodation, an agency will have no obligation to provide one. An agency cannot require an individual to use a mitigating measure, but failure to use a mitigating measure may affect whether an individual is qualified for a particular job or poses a direct threat.
.09 Essential Functions of a job are the occupational duties that are fundamental to the position to the extent that the individual could not do the job without being able to perform them. A job function may be considered ''essential'' if, among other things: the reason the position exists is to perform that function; there are a limited number of available employees who could perform the function if it were assigned to them; or the function is specialized and the incumbent is hired based on his or her expertise or ability to perform it.
.10 Major Life Activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.
.11 Physical or Mental Impairment.
a. The term physical or mental impairment means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine;
b. Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities; or
c. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
.12 The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.
.13 Reasonable Accommodation. The term reasonable accommodation means:
a. Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
b. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
c. Modifications or adjustments that enable an agency's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
Reasonable accommodation may include but is not limited to:
1. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
2. Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
.14 Record of Impairment. An individual has a record of a disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. The Department is required to accommodate qualified individuals with a record of impairment, provided the accommodation is needed and is related to the past disability. Having physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within normal range and are not the result of a physiological disorder do not create a record of impairment. Environmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record also do not create a record of impairment. Advanced age, in and of itself, does not create a record of impairment.
.15 Regarded as Disabled. An individual is ''regarded as having such an impairment'' if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. The Department is under no obligation to accommodate an individual who meets the definition of ''disabled'' solely on the basis that he or she is regarded as disabled. In addition, it may be a defense to a charge of discrimination by an individual claiming coverage under the “regarded as” prong of the definition of “disability” that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) “transitory and minor.” For the purposes of this determination in the context of the “regarded as” prong, “transitory” is defined as lasting or expected to last six months or less.
.16 Substantially Limits. To determine whether an individual is ''substantially limited'' in any major life activity, the Equal Employment Opportunity Commission (EEOC) provided the following rules of construction: 1) the term “substantially limits” shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the ADA; 2) an impairment is a disability if it substantially limits (rather than significantly restricts, as in the past) the ability of an individual to perform a major life activity as compared to most people in the general population; 3) whether an impairment substantially limits a major life activity should not demand extensive analysis; 4) the determination of whether an impairment substantially limits a major life activity requires an individualized assessment; 5) the comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require the presentation of scientific, medical, or statistical evidence, though the presentation of such evidence is not prohibited; 6) except in the cases of ordinary eyeglasses or contact lenses, the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative (beneficial) effects of mitigating measures; 7) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; 8) an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment; and 9) the six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the definition of “disability” under the “actual disability” prong or the “record of” prong. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this Section.
Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working. To show a substantial limitation on working, the individual must show that the impairment substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities.
SECTION 5. PROCEDURES FOR SUBMITTING REQUESTS FOR REASONABLE ACCOMMODATION.
The reasonable accommodation process begins as soon as the request for the change or the identification of a barrier is made. A request does not need to use any special words, such as reasonable accommodation, disability, or Rehabilitation Act. Requests may be made orally or in writing.
An employee may make a request for reasonable accommodation to his or her supervisor, another supervisor or manager in his/her immediate chain of command, his/her Office or Division Director, or the Reasonable Accommodations Coordinator (RAC). Applicants may request an accommodation from any Department employee with whom the applicant has come in contact with during the application process. Accommodations will be provided in recurring situations without requiring a new request from the employee each time.
A request for accommodation may be made by a family member, health professional, or other representative on the individual’s behalf with the individual’s consent. Whenever possible the Department will confirm the request with the person with the disability.
SECTION 6. WRITTEN REQUESTS FOR RECORD KEEPING PURPOSES.
To enable the Department to maintain accurate records regarding requests for accommodation,employees seeking a reasonable accommodation are asked to follow the oral request with completion of the Request for Reasonable Accommodation Form CD-575, Part A: Confirmation of Request (see Exhibit 1). The RAC is responsible for initiating the CD-575 and will complete the requestor’s section of the form for the requestor if, for example, the requestor requires assistance or otherwise does not complete the form.
Requests for accommodation will be addressed promptly even if the requestor does not complete Form CD-575.
SECTION 7. DETERMINING WHICH OFFICIAL SHOULD RESPOND TO THE REQUEST.
As the first step in processing a request for reasonable accommodation, the official who receives the request must determine who will be responsible for handling it and forward it, if necessary. The first person receiving the request may or may not be the person with authority for granting the accommodation; therefore, it must be referred to the deciding official in a timely manner. If the deciding official is denying a request for accommodation, refer to Section 12. The person who receives the request for accommodation should use the following information to determine the appropriate deciding official:
a. Requests for accommodation from applicants will be decided by the Human Resources Specialist responsible for the recruitment and/or selection process after consulting with the RAC.
b. Requests for accommodation from employees will be decided by the immediate supervisor whenever possible.
c. Requests by employees and applicants which involve personnel actions, large expenditures, or other high level determinations will be decided by the appropriate Office or Division Director.
d. Requests for removal of architectural barriers, including reconfigured work spaces will be decided by the building management office of the employee’s duty station.
e. Requests for accessible parking will be decided through the organization handling parking issues in the employee’s duty station (see DAO 217-8, ”Employee Parking, Ridesharing, and Mass Transit Benefit Programs”).
The RAC will be available to provide advice and assistance to employees as well as decision makers in processing all requests for reasonable accommodation, including requests for reasonable accommodation involving travel arrangements. All deciding officials should consult with the RAC and the Office of the General Counsel.
All deciding officials must have designated alternates to continue receiving and processing accommodation requests when they are not available. Deciding officials should ensure that requestors are informed of who has been designated as the alternate deciding official. The mandatory time frames will not be suspended or extended because of the unavailability of a deciding official.
SECTION 8. PROCEDURES FOR RESPONDING TO REQUESTS FOR REASONABLE ACCOMMODATIONS - THE INTERACTIVE PROCESS.
A Department official who receives a request for reasonable accommodation and has the authority to provide the requested accommodation may do so without delay or further processing if, for example, the need for accommodation is obvious and provision of the requested accommodation is straightforward.
To determine the appropriate reasonable accommodation it may be necessary for the agency to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. The deciding official and the RAC shall meet with the requestor promptly after receipt of the request to explain the process and, if necessary, obtain additional information. It is equally incumbent on each participant in the reasonable accommodation process, requestors and deciding officials alike, to actively engage in the interactive process in order to attain results.
Ongoing communication is particularly important where the specific limitation, problem, or barrier is unclear; an effective accommodation is not obvious; or the parties are considering different possible reasonable accommodations. The deciding official may, as part of the interactive process, offer alternative means of providing reasonable accommodation and discuss their effectiveness in removing the workplace barrier that is impeding the requestor. If an employee or applicant requests an accommodation that is not effective, would pose an undue hardship, or is otherwise not legally required (e.g., removing an essential job function), the deciding official should continue the interactive process and explore alternatives until either a reasonable accommodation is found or the deciding official determines that reasonable accommodation is not possible.
SECTION 9. REQUEST FOR MEDICAL INFORMATION.
Medical information may be necessary in some cases in order to evaluate whether the requestor has a covered disability and whether the requestor needs an accommodation because of that disability. The Department shall not request medical information when the disability and need for accommodation are obvious. However, when it is not obvious whether the requestor has a covered disability or whether the requestor needs an accommodation because of that disability, the RAC (not the supervisor) may request documentation describing: the impairment; the nature, severity, and duration of the impairment; the activity or activities the impairment limits; and the extent to which the impairment limits the requestor’s ability to perform the activity or activities; the accommodation needed; and whether the use of a mitigating measure eliminates the need for a reasonable accommodation. If requested, it is the responsibility of the employee or applicant to provide appropriate medical information related to the functional impairment at issue and the requested accommodation where the disability and/or need for accommodation is not obvious.
To ensure compliance with the Genetic Information Nondiscrimination Act of 2008 (GINA), all requests for medical information should include the following statement in accordance with 29 C.F.R. §1635.8(b)(1)(i)(B):
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
The definition of "disability" should be construed broadly in favor of expansive coverage. Although whether an impairment is a disability is determined based on an individualized assessment, this determination should not demand extensive analysis. Although there is no ''per se'' disability, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of disability. For example, it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.
The RAC shall determine if medical documentation is necessary to process the accommodation request. The RAC will use this information to make determinations regarding whether the requestor has a covered disability, whether the requestor needs an accommodation because of that disability, and what accommodation(s) would be effective. The RAC may work with various medical consultants, such as medical professionals from Federal Occupational Health (FOH) and the Department’s health units, if necessary, in making these determinations.
Documentation is sufficient if it describes the nature, severity, and duration of the requestor’s impairment; the activity or activities that the impairment limits; the extent to which the impairment limits the requestor’s ability to perform the activity or activities; and the accommodation(s) needed. Requestors are not required to submit information or documentation unrelated to the request for accommodation, and, in most situations, the RAC cannot request the requestor’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.
If the information a requestor submits in response to the RAC’s initial request for medical documentation does not clearly describe the nature of the disability or the need for reasonable accommodation, the RAC may request reasonable supplemental documentation. In doing so, the RAC must explain why the documentation the requestor submitted was insufficient. If the requestor still does not provide sufficient information, the RAC may require the requestor to go to a health care provider of the agency’s choice at the agency’s expense. Failure to provide appropriate documentation or to cooperate with the Department’s efforts to obtain such documentation could result in denial of the reasonable accommodation request.
Where appropriate, the RAC may ask a requestor to sign a limited release allowing the RAC or a Department medical consultant to obtain specific information from the requestor’s health care provider directly. Such a release must be limited to information related to the disability at issue and the need for accommodation. If a requestor has signed a release, the RAC should not determine the information the requestor provided is insufficient without first attempting to obtain the necessary information from the requestor’s health care provider directly.
Once the RAC has the information needed to determine whether the requestor has a covered disability, whether the requestor needs an accommodation because of that disability, and what accommodation(s) would be effective, the RAC will advise the deciding official of the RAC’s determinations and recommendations. Although the deciding official may need to know the RAC’s recommendations regarding whether the requestor has a covered disability, what the requestor’s restrictions are, and what accommodation(s), if any, would be effective, the deciding official will not ordinarily need to know what the underlying disability is or any details about requestor’s medical condition.
The RAC may disclose medical documentation to Department officials who have an official need to know, including but not limited to Department medical consultants, officials in the Office of the Inspector General, Office of the General Counsel (OGC), and the Office of Occupation Safety and Health, and Office of Security.
SECTION 10. TIME FRAMES FOR PROCESSING REQUESTS AND PROVIDING REASONABLE ACCOMMODATIONS.
The reasonable accommodation process begins as soon as the request for the change or identification of a barrier is made, whether orally or in writing. The time necessary to process a request will depend on the nature of the accommodation requested and whether there is a need to obtain supporting information. Failure to timely process and respond to a request for reasonable accommodation may result in disciplinary action, up to and including removal from the Federal Service, in accordance with DAO 202-751, “Discipline.”
a. Normal Time Frames. If a request can be processed without supporting medical information and no extenuating circumstances apply, the request ordinarily should be approved or denied in no more than 20 business days from the date the employee makes the request. The accommodation, if approved, should be provided within 10 business days of the date the request was approved.
b. Expedited Time Frames. In certain circumstances, a request for reasonable accommodation requires an expedited review and decision in a time frame that is shorter than 20 business days. Examples of circumstances requiring expedited processing include provision of accommodations during the job application process or to enable an employee to attend a meeting or event on a specific date.
c. Extenuating Circumstances for Tolling Time Frames.
1. Reasonable accommodation requests with medical documentation requirements may require tolling the time line temporarily. If it has been determined that it is necessary to obtain medical documentation to determine whether the requestor has a covered disability and/or to determine the functional limitations, the time period for the decision process will be tolled until appropriate medical documentation is provided.
2. Extenuating circumstances beyond the need for obtaining medical documentation may also require tolling the time frames such as limited situations where prompt processing and delivery of an accommodation is delayed due to events that could not have reasonably been anticipated or avoided (absence from the office is not an extenuating circumstance). The deciding official must notify the requestor of any extenuating circumstance or delay and give an approximate date to the requestor when a decision should be expected. If there is a delay in providing an accommodation which has been approved, the deciding official should determine if temporary measures can assist the employee.
The following are examples of extenuating circumstances:
(a) The procurement of equipment or services is delayed because of requirements under the Federal Acquisitions Regulations and Department procurement policies;
(b) The employee with a disability needs to work with the equipment on a trial basis to ensure that it is effective before the actual purchase;
(c) The delivery of goods and services is not due to any action of the Department. Exception: if the Department of Defense Computer Electronic Accommodation Program (CAP) is not able to provide the accommodation within the required time frame, the Department should make arrangements to purchase the accommodation without CAP’s assistance;
(d) An accommodation involves the removal of architectural barriers which may require additional time to address historic preservation issues; and
(e) Review of medical documentation by the Department’s medical officer or an expert hired by the Department is required.
SECTION 11. GRANTING THE REASONABLE ACCOMMODATION REQUEST.
It is unlawful to fail to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the accommodation would impose an undue hardship on the Department’s operation of its business.
The deciding official is required to provide an effective accommodation, not necessarily the accommodation desired by the employee or applicant. The deciding official may, as part of the interactive process and at the RAC’s advisement, offer alternative suggestions for reasonable accommodation and discuss their effectiveness in removing the workplace condition that is impeding the requestor. If more than one accommodation is effective, the preference of the requestor should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose among effective accommodations. Deciding officials will provide the requestor with a written decision on the accommodation request. As soon as the deciding official determines whether the reasonable accommodation will be provided, the decision should be communicated to the requestor in writing. Barring the need for medical documentation or other extenuating circumstances, the written decision should be provided within 20 business days of the request. Documentation of this decision must also be recorded on Part B of Form CD-575. Parts A and B of Form CD-575 and all of the other documentation needed for information and reporting requirements should be forwarded to the RAC.
An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.
SECTION 12. DENIAL OF THE REASONABLE ACCOMMODATION REQUEST.
The deciding official, in collaboration with the RAC, shall consult with OGC before denying a request for accommodation.
The notice of denial to the requestor shall be in writing and include specific reasons for the denial, such as the reason a requested accommodation would not be effective or why it would result in undue hardship. Other reasons for denial may include: inadequacy of medical documentation to support the request for accommodation; the requested accommodation requiring the removal of an essential function; or the requested accommodation requiring the lowering of a performance or production standard.
If the deciding official has denied a specific requested accommodation, but offered an alternative which the requestor rejected, the denial notice must explain both the reasons for the denial of the requested accommodation and the reasons that the deciding official believes that the alternative accommodation would be effective. The denial notice must also inform the individual that he/she has the right to seek redress in an appropriate forum, which depending on the nature of the action, may include the Equal Employment Opportunity (EEO) process, the Merit System Protection Board, the U.S. Office of Special Counsel, or a negotiated grievance procedure.
SECTION 13. RECONSIDERATION OF A DENIAL OF REASONABLE ACCOMMODATION.
If an accommodation request is denied, an employee may, within 30 business days, appeal the decision. This appeal for reconsideration should be submitted in writing to the employee’s immediate supervisor or to a supervisor within the employee’s chain of command, and must include a copy of the decision issued to the employee and any additional information or arguments the employee wishes to submit. The supervisor must acknowledge receipt of the appeal for reconsideration within 5 business days. The requestor will receive in writing the final decision regarding the appeal within 30 business days after the appeal was filed.
Pursuing this reconsideration of a denial will not toll or extend mandatory time limits for initiating EEO complaints or other grievance procedures.
SECTION 14. INFORMATION TRACKING AND REPORTING REQUIREMENTS.
After final determination of the reasonable accommodations request, the deciding official will complete the second part of the Request for Reasonable Accommodation Form CD-575, Part B and forward it to the servicing RAC.
The RAC’s shall maintain a confidential case file of all accommodation requests in compliance with EEOC and Departmental procedures and the Rehabilitation Act of 1973, as amended. These case files are necessary to evaluate the efficacy and consistency of the reasonable accommodation process. Information gathered from Form CD-575 will be compiled and analyzed annually for the Report on Provision of Reasonable Accommodation and transmitted to the Departmental Office of Civil Rights.
The records will be maintained for three (3) years after the employee separates from the agency or after an appeal, if requested, is concluded, whichever is later. Applicant records will be maintained for three years after an applicant submits an application for employment, or all appeals concluded, whichever is later.
The confidential case file will include, but is not limited to, the following items in addition to the completed CD-575, pertinent medical documentation, and pertinent emails or communication between the applicant or employee and agency officials.
a. the number of reasonable accommodations, by type, that have been requested in the application process and whether those requests have been granted or denied;
b. the jobs (occupational series, grade level, and agency component) for which reasonable accommodations have been requested;
c. the types of reasonable accommodations that have been requested for each of those jobs;
d. the number of reasonable accommodations, by type, for each job that have been approved, and the number of accommodations, by type, that have been denied;
e. the number of requests for reasonable accommodations, by type, that relate to the benefits or privileges of employment, and whether those requests have been granted or denied;
f. the reasons for denial of requests for reasonable accommodation;
g. the amount of time taken to process each request for reasonable accommodation; and
h. the sources of technical assistance that have been consulted in trying to identify possible reasonable accommodations.
SECTION 15. REASSIGNMENT.
Reassignment is another form of reasonable accommodation that is provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation. However, reassignment may not be used to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities.
An employee must be “qualified” for the new position. An employee is “qualified” for a position if s/he: (1) satisfies the requisite skill, experience, education, and other job-related requirements of the position, and (2) can perform the essential functions of the new position, with or without reasonable accommodation. The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.
There is no obligation for the Department to assist the employee to become qualified. Thus, the Department does not have to provide training so that the employee acquires necessary skills to take a job. The Department, however, would have to provide an employee with a disability who is being reassigned with any training that is normally provided to anyone hired for or transferred to the position.
Before considering reassignment as a reasonable accommodation, the RAC should first consider those accommodations that would enable an employee to remain in his/her current position. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship. However, if both the Department and the employee voluntarily agree that transfer is preferable to remaining in the current position with some form of reasonable accommodation, then the Department may transfer the employee.
“Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the Department knows that it will become available within a reasonable amount of time. A “reasonable amount of time” should be determined on a case-by-case basis considering relevant facts, such as whether the employer, based on experience, can anticipate that an appropriate position will become vacant within a short period of time. A position is considered vacant even if an employer has posted a notice or announcement seeking applications for that position. The employer does not have to bump an employee from a job in order to create a vacancy; nor does it have to create a new position.
The Department is not required to give an employee a promotion through a reasonable accommodation reassignment. Thus, an employee must compete for any vacant position that would constitute a promotion.
Reassignment to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) is required if the employee is qualified for the position. If there is no vacant equivalent position, the Department must reassign the employee to a vacant lower level position for which the individual is qualified. An employer, however, is not required to maintain the reassigned individual with a disability at the salary of the higher graded position if it does not so maintain reassigned employees who are not disabled. Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, benefits, and geographic location. If it is unclear which position comes closest, the RAC should consult with the employee about his/her preference before determining the position to which the employee will be reassigned. Reassignments may be made to a vacant position outside of the employee’s commuting area if the employee is willing to relocate. As with other transfers not required by management, the Department will not pay for the employee’s relocation costs.
Reassignment shall first be attempted within the employee’s bureau. If reassignment is not possible within a specified bureau, consideration for reassignment shall be made available throughout the Department. Reassignment options will be coordinated through the Departmental administrative and human resources personnel and the RAC.
Human resources personnel should identify current vacant positions and those that shall become vacant in the foreseeable future (60 calendar days) to which the employee could be reassigned.
SECTION 16. EXCLUSIONS TO THE POLICY.
The Department is not required to excuse conduct that would result in the taking of disciplinary action. In addition, an individual who poses a direct threat to the health and safety of him/herself or others, with or without accommodation, such that the individual poses a significant risk of substantial harm, is not qualified. Determining whether an individual poses a direct threat requires an individualized assessment based on objective, scientific information. See Section 4.08 for the impact that mitigating measures have on direct-threat determinations. Because the determination as to whether specific conditions or impairments are qualifying disabilities, question should be referred to the RAC, and/or OGC as necessary.
Current alcohol users who are unable to perform job duties or constitute a direct threat to the property and safety of others may be appropriately disciplined, discharged, or denied employment.
A person who currently uses illegal drugs does not qualify as a qualified person with a disability when the agency acts on the basis of such use. However, a person who is in or has completed drug rehabilitation and is no longer using illegal drugs is covered under this policy. (Drug means a controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substance Act (21 U.S.C. § 812)).
Disability does not include: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs. Homosexuality and bisexuality are not impairments and so are not disabilities. Pregnancy is not a disability because it is not the result of a physiological disorder. However, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities requiring reasonable accommodation (such as leave or modifications that enable an employee to perform her job).
SECTION 17. CONFIDENTIALITY REQUIREMENTS.
Under the Rehabilitation Act and Privacy Act, all medical documentation and other information regarding the reasonable accommodation process must be kept confidential and only disclosed on a strict need-to-know basis. This means that all medical information including information about functional limitations and reasonable accommodation, obtained in connection with a request for reasonable accommodation must be kept secure in files separate from the individual’s Official Personnel File. All medical information and the completed Form CD-575 will be kept by the RAC as confidential case files, separate from personnel records.
The confidentiality provisions apply to any medical information obtained from a disability-related inquiry or medical examination, as well as any medical information voluntarily disclosed by an employee or applicant. Confidential medical information is not limited to a diagnosis or prognosis. For example, it may include information about medical tests that does not include a specific diagnosis, or information about a form of reasonable accommodation provided to an employee.
Any medical information transmitted electronically shall be handled as personally identifiable information in accordance with Departmental policy.
Any Department employee who obtains or receives such information is strictly bound by these confidentiality requirements. Whenever medical information is disclosed, the disclosing individual must inform the recipients about the confidentiality requirements. All records will be maintained in accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a), and EEOC and Departmental requirements. Any information regarding these records or any aspect of the accommodation process may be disclosed only to:
a. Supervisors, managers, and RAC's who have a need to know about the eligibility of an individual to receive reasonable accommodation; the necessary restrictions on the work or duties of the employee; and any recommended accommodations, excluding medical information which should only be disclosed in extremely limited circumstances;
b. First aid and safety personnel if the medical condition might require emergency treatment. The ADA has provisions that require employers to keep medical information about applicants and employees confidential. These provisions, however, include an exception that allows an employer to share medical information with first aid and safety personnel. This exception allows an employer to share information about the type of assistance an individual needs in the event of an evacuation with medical professionals, emergency coordinators, floor captains, colleagues who have volunteered to act as ''buddies, '' building security officers who need to confirm that everyone has been evacuated, and other non-medical personnel who are responsible for ensuring safe evacuation. These individuals are entitled to the information necessary to fulfill their responsibilities under the employer's emergency evacuation plan. Note that this exception is different from the sharing of reasonable accommodation information. It applies solely to emergency evacuation procedures.
c. Office of Civil Rights, Office of Human Resources Management, and/or OGC officials, if necessary to investigate the agency’s compliance with the Rehabilitation Act;
d. Workers Compensation Offices, if needed, to evaluate a claim or for insurance purposes; and
e. A Department medical officer when consulting with him/her regarding the interpretation of medical documents.
f. Office of Inspector General, if needed to carry out its duties under the Inspector General Act of 1978, as amended.
An employer may ask individuals who indicate a need for assistance because of a medical condition to describe the type of assistance they think will be needed. One way that this can be done is by giving all employees a memo with an attached form requesting information. The employer also may have a follow-up conversation with an individual when necessary to obtain more detailed information. For example, it would be important for an employer to know whether someone who uses a wheelchair because of mobility limitations is able to walk independently, with or without the use of crutches or a cane, in an emergency situation. It also would be important for an employer to know if an individual will need any special medication, equipment, or device (e.g., an assisted wheelchair carrier strap or a mask because of a respiratory condition) in the event of an emergency. Of course, an employer is entitled only to the information necessary for it to be prepared to provide assistance. This means that, in most instances, it will be unnecessary for an employer to know the details of a requestor’s medical condition.
SECTION 18. RESPONSIBILITIES.
.01 Under Secretaries, Assistant Secretaries, Deputy Assistant Secretaries, Bureau Directors, and other key officials, within their respective organizations, will provide sufficient resources to ensure effective implementation and management of a process for responding to requests for reasonable accommodations.
.02 The Chief Financial Officer and Assistant Secretary for Administration shall:
a. Approve policies, directives and other materials outlining the Department's reasonable accommodation responsibilities;
b. Fulfill, on behalf of the Secretary, the responsibilities as head of an operating unit, i.e., the Office of the Secretary. These duties are outlined in paragraph .03 below;
c. Ensure training for all managers, supervisors and team leaders regarding their roles in processing requests for reasonable accommodations, including how to submit requests for assistive technology to the Department of Defense CAP; and
d. Periodically evaluate the effectiveness of the process for responding to requests for reasonable accommodations.
.03 Heads of operating units shall:
a. Foster an environment that supports reasonable accommodation;
b. Consult with the servicing human resources manager to identify and appoint a RAC and backups;
c. Provide funds for reasonable accommodation; and
d. Ensure compliance with provisions of this Order.
.04 Deciding officials and RAC’s must consult with the Office of the General Counsel regarding requests for reasonable accommodation and prior to any denial of a request for a reasonable accommodation.
.05 The Director for Civil Rights shall:
a. Develop and issue Department policy and procedures for reasonable accommodation;
b. Advise Department officials regarding laws, regulations and Department policies pertaining to reasonable accommodation and complaints of discrimination;
c. Provide access to the Department’s EEO Manager in charge of the Disability Employment Program on policy questions about reasonable accommodation; and
d. Issue reports as required by EEOC.
.06 Reasonable Accommodations Coordinators shall:
a. Serve as a resource and impartial advisor in the reasonable accommodations process. The RAC may not serve as a deciding official in any reasonable accommodation request.
b. Ensure that managers, supervisors and human resources managers understand the law and regulations regarding reasonable accommodation. Provide advice on Department policy and on current issues in reasonable accommodation case law, such as whether a specific disability is covered by the Rehabilitation Act of 1973, as amended; whether the impairment substantially limits a major life activity; and whether there are alternative methods of accommodation that would effectively meet the need.
c. Obtain and evaluate documentation supporting an accommodation request (such as medical documentation demonstrating that the requestor is an individual with a disability), whenever the disability or need for accommodation is not obvious, as part of the reasonable accommodation interactive process.
d. Ensure that Form CD-575 is completed appropriately. Develop a case file on the employee or applicant, maintain a database and produce reports as required by law and regulations.
e. Coordinate the collection of medical information. Medical information may be necessary in some cases in order to evaluate whether a specific disability is covered by the Rehabilitation Act of 1973, as amended.
f. Designate alternates to provide reasonable accommodation advice when needed and should ensure that deciding officials and requestors know who has been designated as an alternate RAC. The mandatory time frames will not be suspended or extended because of the unavailability of a RAC.
g. Ensure that requests are properly and expeditiously processed, as well as properly documented.
h. Consult with an OGC representative when processing reasonable accommodation requests and prior to denying a request for accommodation.
i. Function, when advising employees and managers, as an impartial liaison in collaborating and processing requests for reasonable accommodations.
At no time shall a RAC serve as an employee relations specialist/technical representative in any personnel adverse action, grievance, or other type of complaint relating to an acceptance or a denial of a reasonable accommodation.
.07 Deciding Officials shall:
a. Enter into the interactive process with the requestor;
b. Consult with OGC before denying accommodation or determining that an accommodation would pose an undue hardship;
c. Adhere to confidentiality requirements;
d. Adhere to required time frames; and
e. Coordinate with the RAC and others as necessary.
.08 Human Resources Managers shall:
a. Ensure that all vacancy announcements include a reasonable accommodation statement. Per 5 C.F.R. § 330.104(18), an agency may use wording of its choice in its statement that conveys the availability of reasonable accommodation, but it may not list types of medical conditions or impairments appropriate for accommodation;
b. Ensure that all staff members who are involved in the application process are properly trained on how to recognize requests for reasonable accommodation and respond appropriately within required time frames;
c. Discharge responsibilities of managers and supervisors, as they apply to qualified applicants;
d. Identify funded vacant positions that are available for reassignment and are suitable to the requestor’s qualifications; consult with the affected employee to determine limits of search scope, job qualification and reasonable accommodation needs; and determine whether the employee is qualified for a particular job;
e. Consult with the heads of the operating units serviced by the human resources office to identify suitable personnel to perform the duties of a RAC (and backups, as necessary) for each respective operating unit;
f. Oversee the processing of reassignment requests as a last resort reasonable accommodation within their respective bureaus; and
g. Ensure that requests are properly and expeditiously processed, as well as properly documented.
.09 Employees with disabilities who desire accommodation shall:
a. Initiate the reasonable accommodation process.
b. Upon request, provide sufficient medical documentation of the disabling condition.
.10 Applicants with disabilities who desire accommodations shall:
a. Initiate the reasonable accommodations process.
b. Upon request, provide sufficient medical documentation of the disabling condition.
SECTION 19. ASSISTANCE.
Questions concerning this Order or requests for alternative formats may be directed to the Departmental Office of Civil Rights, (202) 482-5691 (V/TDD/TTY).
SECTION 20. EFFECT ON OTHER ORDERS.
This Order supersedes Department Administrative Order 215-10, dated March 24, 2009.
Signed by: Director for Civil Rights
Approved by: Senior Advisor to the Deputy Secretary
Office of Primary Interest: Office of Civil Rights