Engaging Supervisors and Employees in the Reasonable Accommodation Process

1. Engaging Supervisors and Employees in the Reasonable Accommodation Process Mark Maxin, Esq. Office of the General Counsel Nuclear Regulatory Commission

2. Purpose of the Rehabilitation Act • Remove unnecessary workplace barriers for individuals with disabilities. • Physical obstacles • Obstacles in the form of unnecessary rules or procedures • The accumulated myths and fears about a medical condition are as disabling as the physical limitations that flow from actual impairment. Arline v. Nassau County, 480 U.S. 273 (1987)

3. Definition of Individual With a Disability • Individual with a disability means: • Physical or mental impairment • That substantially limits • A major life activity. 29 CFR 1630.2(g). • See also: • Record of disability • Regarded as disabled

4. ADA Amendments Act of 2008 • directs EEOC to revise that portion of its regulations defining the term "substantially limits”-current EEOC definition of “significantly restricts” MLA is to demanding • expands the definition of "major life activities" by including two non-exhaustive lists: • the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions"); • states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;

5. ADA Amendments Act (Cont) • clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; • changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; • provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

6. Scenario: Is the Employee an Individual with a Disability? • GG-6 Receptionist with Carpal Tunnel is unable to type for more than a few minutes at a time, has difficulty climbing stairs because she is unable to hold onto the rail, difficulty dressing because of numbness in her hands, and tends to drop things, like a plate or glass, if she looks away and does not concentrate on them. • GG-13 Nuclear Systems Engineer in NSIR with a back impairment is unable to lift more than 15 pounds. • GG-12 Attorney with depression has difficulty concentrating while drafting legal pleadings and focusing during lengthy meetings. • Broken limbs that heal normally, sprained joints, concussions, appendicitis, and seasonal or common influenza

7. Qualified Individual With A Disability • An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position the individual holds or desires. 42 U.S.C. 12102(8); 29 CFR 1630.2(m).

8. Qualified Individual With a Disability Essential Functions • Removal of function would fundamentally alter the position • Evidence that function is essential may include: • Written job descriptions • Amount of “on the job time” function consumes • Consequences if function not performed • Experience of past and current employees

9. Reasonable Accommodation • RA means any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. 29 CFR1630.2(o) • Application process • Performance of essential functions of job • Benefits and privileges of the workplace

10. Reasonable Accommodation • Examples of RA: • making existing facilities readily accessible and usable by individuals with disabilities; • job restructuring, leave, part-time or modified work schedules, reassignment to a vacant position (reassignment is an accommodation of last resort) acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies; interpreters; and • providing interpreter during job interview

11. Scenario: Should the Agency Grant the Reasonable Accommodation Request? • GG-13 Computer Programmer suffers from depression and has difficulty working in her cubicle when exposed to normal office noise levels. The employee requests to work at home for 4 days a week. • Receptionist with Carpal Tunnel is unable to type and requests that all her typing duties be assigned to the other 3 office clerk typists. • Hearing impaired employee requests an interpreter to attend an office party.

12. What’s Not a Reasonable Accommodation? • Don’t have to eliminate essential function • Don’t have to provide a perfect accommodation, just reasonable effective accommodation • Don’t have to lower essential performance requirements

13. Has There Been a Request for RA? • Don’t need “magic” words • Has the employee said that s/he needs an adjustment or change at work for a reason related to his/her medical condition?

14. Scenario: Is There a Request for RA? • An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." • An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." • An employee tells his supervisor “I would like a new chair because this present one is uncomfortable.”

15. Don’t Ignore Reasonable Accommodation Requests

16. What Supervisor Should Do Upon Receipt of a Request for RA • Make minimal inquiry into request • Contact the RAC and discuss request • Discuss agency RA procedures • Discuss whether to grant/deny/offer alternative RA • Prepare for interactive dialogue • Need for additional medical doc. • Need for NRC doctor advice • Need for NRC (Dr.)-employee (Dr.) consult • Utilize agency tools e.g. CAP program, JAN (Job Accommodation Network)

17. The RAC:Engaging the Supervisor and Employee in the RA Process • Listen to both parties • Understand the essential functions of the position in question • Understand the nexus between the requested accommodation and the medical condition • Is there sufficient medical documentation • Be prepared to explain the agency RA process • Keep an open mind • Discuss the role of medical information/confidentiality • Document Document Document • Emphasize the importance of the interactive dialogue • Discuss CAP or JAN as appropriate • Address the possibility of alternative accommodations

18. Interactive Process • 29 CFR 1630.2(o)(3): To determine the appropriate reasonable accommodation it may be necessary for the employer to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.

19. Medical Documentation • Additional documentation may be required if the medical condition or need for accommodation is not obvious • Employee refusal to provide such medical justifies denying the RA • No additional medical if disability/RA is obvious

20. Reassignment as a RA • An employee cannot do their job…is he a qualified individual with a disability?

21. Confidentiality Issues • Any and all information associated with an accommodation request may be discussed only with those who need to know

22. Misconduct or Poor Performance Must an employer withhold discipline or termination of an employee who, because of a disability, violated a rule of conduct or is performing unacceptably even with an RA?

23. Scenario: How Should the Supervisor Handle this Conduct Issue? • Employee arrives late to work at least twice a week for more than an hour at a time. This has been going on for months. You have warned the employee that this behavior is unacceptable but the misconduct persists. You call the employee into your office to hand him a proposed 10 day suspension when he informs you, for the first time, that he has depression. He subsequently provides medical documentation from his psychiatrist establishing that his tardiness was caused by his depression and that he needs to take off two months of leave and receive intensive daily therapy. What do you do?

24. Misconduct • General Rule: “Neither the Rehabilitation Act nor the ADA immunizes disabled employees from being disciplined for misconduct, provided the employer would impose the same penalty on a nondisabled employee” Williams (MSPB 2000) • Rule is job-related re: the position • Rule is consistent with business necessity • Rule is uniformly applied • May be required to discipline and then accommodate to allow employee to meet conduct rule(s) in the future

25. Hiring Issues • RA may be required in application process • During the hiring process and before a conditional offer is made, an employer generally may not ask an applicant whether s/he needs a reasonable accommodation for the job. • Exceptions to merit staffing for filling positions with targeted disabilities, contact Peggy Etheridge for more information

26. Y’all Come Back...