# Presentation: 646774

##     The “Dos and Don’ts” ofEffective Reasonable Accommodation

- David M. Walton
- National EEO Manager, People with Disabilities
- Office of Diversity and Inclusion
- US Department of Veterans Affairs
- December 2008

## Questions to be Answered

- How can I un-complicate the process?
- Must I accommodate everyone?
- What is “REASONABLE”?
- Must I provide an accommodation that a doctor recommends?
- Who has what role/responsibility?
- Must all requests be in writing?
- Who grants/denies the accommodation?

## Legal/Other Requirements

- Rehabilitation Act of 1973
- Americans with Disabilities Act of 1990
- Executive Order 13164, July 2000
- VA Directive 5975.1 “Processing Reasonable Accommodation Requests from Employees and Applicants”

## Determining Whether an Employee is Covered by the Rehabilitation Act

- A _qualified individual with a disability_ is a person with:
- a covered physical or mental impairment that
- substantially limits one or more major life activities, and
- who can perform the essential functions of the job, with or without reasonable accommodation, and
- without endangering the health and safety of the individual or others.

**Notes:**
This definition contains a lot of terms and concepts; and as you can imagine, the EEOC and the courts have wrestled with defining the words and terms.  

## An “Individual with a Disability” is a Person Who:

- Has a physical or mental impairment or condition that substantially limits one or more major life activities; *or*
- Has a record of having such an impairment; *or*
- The employer treats as if he or she has such an impairment.

## Major Life Activities

- Walking
- Standing
- Sitting
- Seeing
- Hearing
- Caring for one’s self
- Interacting with others

- Speaking
- Breathing
- Cognitive thinking
- Performing manual tasks
- Working
- Learning
- Ability to safely reproduce

**Notes:**
Huh?  Where did that last one come from and what the heck has it got to do with work!  Remember, at this point we are ONLY trying to decide if the employee is covered by the Act.  As you might suspect, the list of activities that are considered to be major life activities grows longer and longer as more and more cases are decided.  HIV+, for instance, is one of the few impairments that is always considered to be a disability within the meaning of the Rehabilitation Act, even if there are no symptoms.  Why?  Because the courts have decided that the ability to reproduce safely is a major life activity.

Is diabetes a disability within the meaning of the Rehabilitation Act?  Maybe not, maybe so--it depends on whether the diabetes substantially limits the diabetic in performing a major life activity.

Is carpal tunnel syndrome a disability within the meaning of the Rehabilitation Act?  Maybe not, maybe so--it depends on whether the condition substantially limits the person in performing a major life activity.

How can diabetes and carpal tunnel syndrome be disabilities sometimes, but not other times?  It reminds me of a time I was in court.  My client was charged with possession of cocaine and marijuana with intent to distribute, a felony.  We haggled with the prosecutor, who agreed to reduce the charge to a misdemeanor, possession of marijuana, in exchange for a guilty plea.  The lab threw us all for a loop, however, when it discovered that the substances in my client’s possession were not cocaine and marijuana, but cocaine and oregano.  How could my client plead guilty to possession of marijuana when he did not have any marijuana?  As Ulysses Everett McGill would say, “we were in a tight spot.”  Then, the prosecutor saved the deal by suggesting that we agree to stipulate that the oregano was marijuana.  Attorney qualification standards.

## “Substantially Limits”:

- Unable to perform, or significantly limited in the ability to perform, an activity _**compared to an average person in the general population**_.  Limitation must be more than a temporary, short-term, and/or minor condition.

**Notes:**
The same impairment may be substantially limiting for one person, but not for another person.  In one case, a microbiologist filed a complaint on the basis of disability.  He claimed to have a visual impairment.  Of course, in his job, he used a microscope all of the time.  In fact, he had vision in only one eye.  He was, however, unable to demonstrate that he was substantially limited in the major life activity of seeing, because he testified that he could see perfectly with just one eye.

The same is true of mental impairments.  There could be to employees who have bipolar disorder.  One of them takes medication that controls all of the symptoms of the disorder.  He is not a qualified individual with a disability, under the definition of the Rehabilitation Act, because there is no major life activity that is substantially limited by the disorder.  The second employee takes no medication, and is substantially limited from performing several major life activities.

## Substantially Limited in a Major Life Activity?  What Activity?

- Wally Waller has an artificial leg.  He cannot walk except for brief periods of time and short distances.  Is he substantially limited in a major life activity?  What activity?

**Notes:**
Yes.  Wally is substantially limited in the major life activity of walking.  If there were a prosthetic leg that allowed him to walk normally, the answer might well be different.  An impairment that is fully corrected, as my vision is corrected by these blankety-blank reading glasses, is not a disability within the meaning of the Rehabilitation Act.

## Definitions of “Disability”:The Law Can Make Anything Complicated

- In every area of law that deals with disability, the definition of “disability” is different—_why_?
- If a person is disabled for the purpose of VA compensation or benefits, he is not necessarily disabled within the meaning of the Rehabilitation Act.
- If a person is disabled for the purpose of receiving OWCP   benefits, he is not necessarily disabled within the meaning of    the Rehabilitation Act.
- If a person is disabled for the purpose of disability retirement, he is not necessarily disabled within the meaning of the Rehabilitation Act.

**Notes:**
Why would the law adopt one all-purpose, general definition of “disability”?  That would make things too easy!  There was another U.S. Supreme Court case a couple of years ago.  Those of us who defend agencies against EEO complaints were lying in wait for this case--and, as usual, the Supremes trumped us.
This was the situation.  An employee applied for disability retirement.  In that application, she said, of course, that she was totally disabled from working, that no accommodation would work, she just could not work any more.  At the same time, she filed an EEO complaint, in which she said, of course, that if only her employer would accommodate her disability, she would be able to perform the essential functions of her job.  
Her employer argued that she couldn’t have it both ways.  She could not in one forum say that she was totally disabled and unable to work even with an accommodation, and in the other forum that she could  work if only her disability were accommodated.  Those of us who defend EEO complaints thought, “OK, now the U.S. Supreme Court--did you ever have to finally decide”?
And what did the Supremes say?  She can do both IF she can explain away the contradiction.  She can say that she cannot work and that she can work.  And why?  Because the definition of “disability” used by the Social Security Administration is not the same as the definition of “disability” in the Rehabilitation Act.

## A “Qualified” Individual with a Disability:

- Meets the necessary prerequisites of the job, such as education or work experience, licenses or certificates, training or skills, and/or other job-related requirements (good judgment, ability to work with others, etc.);  _AND_
- Is able to perform the essential functions of the job with or without accommodation. The same job function may be essential or not, depending, e.g., on how big the staff is.

**Notes:**
Whether a person is qualified for a job is a decision that is made at the time of the employment decision.  It is unlawful to speculate that an individual with a disability might be or become unable to perform the essential functions of a job.

But what are the essential functions of a job?  Identifying the essential functions of a job is not as easy as reading the position description.

Is dispensing narcotics and mood altering drugs an essential function of the position of nurse?  If it is, what do you do if a nurse’s license is restricted, so that he or she cannot dispense such drugs for one year?

## “Essential Functions”:  Another Wiggly, Squiggly Concept 

- If a nurse becomes unable to perform direct, physical patient care because of lifting restrictions resulting from a severe, permanent back injury, the lifting of patients may be an essential function of the job in a very small unit, or it may be only a marginal function of the job in a very large unit.
- If a job function is so highly specialized that the incumbent was hired solely because of his or her expertise or ability to perform that function, then that function is probably an essential function.

**Notes:**
For instance, if a lawyer were hired for the sole purpose of flying about the country and doing training on the law of disability discrimination and reasonable accommodation, and then that lawyer became unable to fly because of an intense phobia of flying, it is very likely that flying is an essential function of the job.  It does not matter that flying is not an attorney qualification standard or that flying is not in the position description for an attorney.

## Factors to Consider in Determining Whether a Job Function is Essential

- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time actually spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of any collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.

**Notes:**
“Essential functions” is a lawyer’s dream come true.  We have a list of factors to consider, but they are full of subjective terms, and none of them automatically prevails over the others.  You notice that the employer’s judgment as to which functions are essential is only one of many factors.  

## ...Without Endangering the Health or Safety of the Individual or Others

- In order to be a qualified individual with a disability, covered by the Rehabilitation Act, the individual has to be able to perform the essential functions of the job, with or without accommodation, without endangering the health or safety of the individual or others.

**Notes:**
Oh, you think this is simple, do you?  You think this is common sense?  Bring on the lawyers!

If a truck driver is losing his vision to glaucoma, can he continue to drive a truck without endangering the health or safety of himself or others?  Suppose he is six months from full retirement?  If he requests a full-time assistant truck driver, to actually drive the truck for him while he is on duty, can the employer accommodate him?  What if the employer has a gazillion dollar budget for employee salaries?

And what about the trial attorney who suffers from major depressive disorder, so that she weeps if her opposing counsel argues with her, bursts into tears if the judge asks her on what authority she bases her theory of the case, becomes suicidal if a motion is decided against her?  Law is a contentious profession.  Can she continue to try cases without further endangering her health?  Are her clients at risk?  

The surgeon who has narcolepsy?

The dental hygienist who has a seizure disorder?

## An Employer May Decline to Employ an Individual Based on Direct Threat

- An employer can decline to employ an individual who cannot perform the essential functions of his job without endangering the health and safety of himself or others, but only if:
- The threat of harm is imminent or highly probable,
-   not just remote or possible;
- The threat posed is of substantial harm; and
- The threat of harm cannot be reduced to an
-   acceptable level by reasonable accommodation.

**Notes:**
The determination of whether an individual poses a direct threat must be based on facts, not on stereotypes or generalized fears.  HOWEVER, in rare cases, management may legitimately hold that the accommodate an employee, even where the risk is less than highly probable if the the occurrence of the feared even would lead to a catastrophic result. Ex.  Airline pilot experiencing a heart attach with plane load of people.

The appropriate question is whether employment in a particular job would pose a  reasonable probability of substantial harm.

For example, we cannot refuse to hire or promote an individual who has a history of mental illness based on a generalized fear that the stress of the position might cause her to have a relapse.

## Whose Responsibility is it to Raise the Issues of Disability and Accommodation?

- The employee.
- The employee.
- In the absence of a threat to the health or safety of the employee or others, it is inappropriate for a supervisor or manager to attempt to accommodate or otherwise deal with a perceived or suspected medical problem unless and until the employee raises the issue.

**Notes:**
Danger is possibility of being accused of disparate treatment based on perceived disability.  However, one can always ask:  can I help you accomplish ________?

## Response to the Request

- Manager receiving request should:
- Acknowledge receipt
- Engage in interactive process
- Answer request if possible
- Ask for additional information if needed
- Ask for medical documentation if needed
- Other ways request is triggered

## Interactive Process

- Supervisor and employee must talk about request
- If employee is not comfortable with talking to supervisor he or she should be allowed to seek assistance from higher level supervisor or another agency-designated representative
- Process should be used anytime a request is made
- Process should be used prior to medical information being requested

## Time Frames and Tracking

- V A Directive 5975.1 requires accommodations be provided within 30 calendar days
- Should be as short as possible
- VA policy requires request be tracked
- Requests should not be allowed to “drag” on and on

## Requests for Medical Information

- Additional medical information can be requested by the employer to determine if the employee has a covered disability and/or to determine the limitations of the employee/applicant
- Medical documentation must be controlled and stored in a central location
- Medical information should not be requested if both the disability and the limitations of the employee/applicant are obvious

## How does the employerget the information?

- Ask the employee to describe the details of his disability, and what accommodation he would need to enable him to perform the essential functions of his job.  This may be all that is necessary if the disability is obvious.
- Require the employee to provide detailed medical documentation.  The employer is entitled to have as much documentation as it needs to make an informed decision with respect to the request for accommodation.
- Offer a fitness-for-duty examination or independent medical evaluation.

## Confidentiality Requirements

- All medical information must be kept confidential
- Number of agency officials with access to medical information should be strictly controlled and on a “need to know” basis
- Supervisor/DM does not need to have access to medical information
- Information needed to continue processing request

## Real Life Example

- An employee shouted and cursed at his co-workers.  This is not the first time.  The last time he did this, he was admonished.  This time, his supervisor proposed a reprimand.  The employee responded to the proposed reprimand by claiming that he has a mental illness that causes him to have such outbursts.
- What information does the employer need?

**Notes:**
The name of the mental illness;

What triggers the outbursts;

How often the individual can expect to have such outbursts;

How the outbursts are manifested (Violence?  Threats?  Abuse?);

Potential for danger to the employee and others;

Whether condition is temporary or permanent;

Whether condition is treatable;

What kind of accommodation the employee and his health care provider would suggest.  

## Deciding on an Accommodation

_**The agency is not required to provide the specific accommodation requested by the employee!**_  The agency may provide another accommodation that will allow the employee to perform the essential functions of his job.  The accommodation provided should be related to the disability and be assigned to assist the employee in performing the essential functions of his job.

**Notes:**
Let’s say I provide the agency with sufficient documentation to show that I suffer from seasonal depression disorder, and that I need natural sunlight to perform the essential functions of my job.

Let’s say that the accommodation I suggest is that I set up my computer right on the beach here in Florida, under a palm tree, and that I work from there.  Of course, I would agree to drink only virgin pina coladas until the end of the work day.

The agency is not obligated to accept my suggested accommodation.  It might, however, have to assign me to an office with a window.

## Computer/Electronic Accommodations Program (CAP)www.cap@tma.osd.mil 

- 	Provides computer/electronic assistive technology and devices to assist persons with hearing, visual, dexterity, cognitive & communications impairments.  Technology solutions and devices are provided to the agency _at no cost_ through the CAP program.

## Job Accommodation Networkhttp://janweb.icdi.wvu.edu 

- 	JAN  can provide information, free of charge, about many types of reasonable accommodations and will assist an agency in determining what accommodation might be suitable for a specific medical condition.

## Granting/Denying the Request

- Supervisor/DM should grant request as soon as possible
- If approved request requires equipment that must be ordered, a temporary accommodation should be considered
- Denials must be in writing
- If a request is denied, employee should be advised of the redress process

## Reassignment

- This is the accommodation of LAST RESORT
- Should only be used if no other accommodation can be found that is effective
- Must consider positions in the entire agency
- Must use the interactive process

## Funding

- VA has two methods of funding are various methods of funding accommodations
- Responsibility for funding non-technology related request is decentralized by administration or staff office

## Common Mistakes Made

- Failure to recognize request
- Timeliness of processing request
- Written requests cannot be required
- When employer has right to limited information
- All information need not be “medical”
- Poor analysis of information to determine disability

##  Coming Soon The ADAA

- Takes effect January 1, 2009
- Expands the definition of “major life activity” (MLA)
- Eliminates mitigating measures
- Clarifies that an impairment that is episodic or in remission may qualify as a disability if it substantially limits a MLA

**Notes:**
The operation of a major bodily function,
including but not limited to, functions of the
immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and
reproductive functions.

Mitigating Measures (Other than Ordinary Corrective Lenses) Will
Not Be Considered When Assessing Whether Someone is an
Individual With A Disability
􀂄 Section 3(4)(E)(i) of ADAAA: “The Determination of Whether an
Impairment Substantially Limits A Major Life Activity Shall Be Made
Without Regard to the Ameliorative Effects of Mitigating Measures
Such As:”
􀂄 I. Medication, Medical Supplies, Equipment or Appliances, Low
Vision Devices (Which Do Not Include Ordinary Eyeglasses or
Contact Lenses), Prosthetics Including Limbs and Devices,
Hearing Aides and Cochlear Implants or Other Implantable
Hearing Devices, Mobility Devices, or Oxygen

## What Changes Under the ADAA

- Broadens meaning of “regarded as” disabled
- Eliminates RA obligation for regarded as disabled
- Excludes temporary impairments that persist less than six months

**Notes:**
Section 3(3)(A) of the ADAAA An Individual Meets
the Requirement of Being Regarded As Disabled if the
“Individual Establishes that He or She Has Been
Subjected to an Action Prohibited Under this Act Because
of Actual or Perceived Physical or Mental Impairment
Whether or Not The Impairment Limits or is
Perceived to Limit a Major Life Activity.”
􀂄 Section 3(3)(B) However, the “Regarded As” definition
“shall not apply to impairments that are temporary

Section 6 (h) No Obligation to Reasonably
Accommodate an Individual Who Meets the Definition of
Disability Solely on the Basis that they are “Regarded As”
Disable

## What  Does Not Change Under the ADAAA

- Meaning of reasonable accommodation
- Undue hardship
- Qualified individual with a disability
- Essential functions
- Direct threat

## What  Does Not Change Under the ADAAA (Cont.)

- The employer’s right to medical evidence for non-obvious medical impairments (although one impact of the ADAAA may be to find more medical conditions as “obvious” disabilities)

## New EEO Regulations andLegislative History

- New EEO regulations will be issued
- Redefining “substantial limitation” and other definitions
- New guidance will eventually be issued by EEOC
- Legislative History: _[www.law.](http://www.law.georgetown.edu/archiveada)__[georgetown](http://www.law.georgetown.edu/archiveada)__[.edu/](http://www.law.georgetown.edu/archiveada)__[archiveada](http://www.law.georgetown.edu/archiveada)__ _

**Notes:**
Expected in 2009 Be on the lookout.

## Questions?

- David M. Walton
- National EEO Manager, People with Disabilities
-   Phone: (202)-461-9614
- E-mail: _[David.walton@va.gov](mailto:David.walton@va.gov)__ _