NUTS AND BOLTS OF REASONABLE ACCOMMODATION

1. NUTS AND BOLTS OF REASONABLE ACCOMMODATION Statewide Reasonable Accommodation Coordinator OFFICE OF CIVIL RIGHTS STATE PERSONNEL BOARD (916) 653-1262

2. Employees with Disabilities in the State Civil Service (as of 3/31/02) Need 7,894 more employees with disabilities to reach labor force parity.

3. Employees with Disabilitiesin the State Civil Service(as of 3/31/02 ) 16,849 State Employees Have a Disability

4. Hiring of Persons with Disabilities in State Service [ Through 3/31/02 ] Hires Hiring Rate: 4.2% 4.1% 3.9% 4.2% 3.8% 3.7% 4.1% 5.6%

5. What is Reasonable Accommodation? Reasonable Accommodation is a modification or adjustment … • To the application process (i.e., selection process); or • To the work environment or the circumstances under which the job is customarily performed ...which enables individuals with disabilities to enjoy equal benefits and privileges of employment.

6. REASONABLE ACCOMMODATION IS REQUIRED BY LAW! • Americans with Disabilities Act of 1990 • Civil Rights Restoration Act of 1991 • Rehabilitation Act of 1973 • Pregnancy Discrimination Act of 1978 • California Fair Employment and Housing Act • Civil Service Act (Gov Code Section 19230)

7. Important Supreme Court Decision University of Alabama v. Garrett (2001) State employees cannot seek damages against their employers under the Americans with Disabilities Act of 1990 in Federal court.

8. Fair Employment and Housing Act v. Americans with Disabilities Act • AB 2222 (2000) makes the FEHA statutes prohibiting disability discrimination controlling in the State civil service. • FHEA protections against discrimination are broader than protections under the ADA. • ADA protections are the minimum than can be provided.

9. FEHA v. ADA - Cont’d • FEHA has broader definition of a person with a disability - “Limits” v. Substantially Limits” [ G.C. §12926.1(c) ] • FEHA adds “Medical Condition” to the protected coverage [G.C. §12926(h) ] • The FEHA does not require the consideration of mitigating measures to determine eligibility for legal protection. [ G. C. § 12926(k)(1)(B)(i) ) • Mandates that the employer must engage in an “interactive process” with an employee requesting accommodation ( G.C. §12940(n) ]

10. Inquiries About Disabilities • Law forbids any questions about disability until after a job offer is made and accepted. • Following an accepted job offer, the employer can ask disability related questions or require medical exams, but must treat all job applicants in a consistent manner. • Actions taken by the employer based on disability information must be job-related and consistent with business necessity.

11. Reasonable Accommodation is not necessarily a one time consideration.Impairments can become more severe as people age, requiring changes in the accommodation.

12. Who is a Individual with a Disability? [ADA v. FEHA] An individual with a disability is one who… (1) Has a physical or mental impairment or medical condition that substantiallylimits one or more major life activities; (2) Has a record or history of such an impairment or condition; (3) Is regarded as having such an impairment or condition.

13. Court Decisions Affecting ADA Accommodation Requirements Three 1999 U.S. Supreme Court decisions held a person does not have an ADA covered disability if the impairment does not substantially limit a major life activity after using mitigating measures, i.e., eye glasses, medication, etc. • Sutton v. United States Airlines (eyeglasses) • Murphy v. United Parcel Service (medication) • Albertson’s v. Kirkingburg (monocular vision)

14. Who is Eligible for Reasonable Accommodation Consideration? All Qualified Employees with a physical or mental disability or medical condition. A qualified employee with a physical or mental disability or medical condition is one … • Who possesses the requisite job qualifications and • Who can perform the essential functions of the job with or without reasonable accommodation.

15. When are you Not Required to Accommodate? • The individual is not disabled. • The individual is not a “qualified person with a disability”. • The person does not need the accommodation to perform the essential functions of the job. • The person would pose a “Direct Threat” to the health or safety of self [self not covered by ADA] or others. • The accommodation would impose an “Undue Hardship” on the department.

16. What are the Essential Functions of a Job? • The fundamental job duties (Without the functions, wouldn’t have the same job) • A function may be essential because: (1) The position exists to perform the function. (2) There are limited number of employees available to perform the function. (3) The function is highly specialized and the person was hired for his/her expertise.

17. What is a “Direct Threat”? A significant risk of substantial harm to self or others that cannot be eliminated or reduced to an acceptable level by reasonable accommodation. ( “self” not covered by ADA, but is covered by FEHA )

18. “Direct Threat” Considerations • The nature and severity of the potential harm. • The duration of the risk. • The likelihood that the potential harm will occur. • The imminence of the potential harm.

19. What is “Undue Hardship”? “Undue hardship” means significant difficulty or expense in the provision of the accommodation. Unduely costly Extensive Substantial Disruptive Would fundamentally alter the nature or operation of business

20. Types of Reasonable Accommodation • Job Restructuring (Eliminate Nonessential Functions) • Modified Work Schedules • Assistive Devices or Equipment • Readers or Interpreters • Making Facilities Accessible • Alternate Job Placement • Anything Else That Works!!!

21. Responsibility for Reasonable Accommodation • Applicants and employees are primarily responsible for making known their need for accommodation and providing information to justify its provision. • The employer (supervisor or RA Coordinator) must provide a timely response to the request for RA [10 days for exam applicants; 20 days for employees].

22. The Accommodation Process • Analyze the job and determine the essential functions. • Engage in an Interactive Process as required by G.C. Section 12940(n). • Consult the individual to ascertain the precise job-related limitations (Obtain medical information where needed). • Consult the individual (and health care providers when needed) to identify accommodation options.

23. What is an Interactive Process? • Requires personal discussion between the department and the employee about the accommodation needs. • Discussions should be in person or by telephone when necessary. • Written communication alone is not satisfactory. • Requires an ongoing dialogue to keep employee informed about the request.

24. The Reasonable Accommodation Process - Continued... • Assess the effectiveness of each potential accommodation option. • Consider the accommodation preference of the individual. • Select an accommodation option that meets the needs of both the individual and the department.

25. The Role of the Doctor in Reasonable Accommodation • Not responsible for making employment decisions. [Employer’s responsibility] • Not responsible for determining whether or not it is possible to make reasonable accommodation. [Employer’s responsibility] • May advise on whether a person can perform specific tasks safely. • May advise on possible reasonable accommodation options.

26. Department Reasonable Accommodation Procedures The SPB requires departments to have written procedures with the following features (Gov Code Sec. 19233): • Instructions on how to request accommodation. • A description of the process for review and approval of requests. • A description of the responsibilities of managers reviewing the requests. • Information on where to get info on the process and how to appeal denials of requests.

27. Supervisors and Managers Have Significant Responsibility for Reasonable Accommodation To a great extent, the success of dealing with a reasonable accommodation request depends on the employee’s supervisor or manager.

28. Hints for Effective Reasonable Accommodation • Don’t delay in dealing with RA requests. • Don’t make assumptions about disabilities. • Get your facts. Deal only with the facts regarding the specific request. • Maintain good communications (Keep your employee informed on status of request). • Get assistance when you need it. (RA Coordinator, EEO Office, Legal Office, etc.) • Be a help, not a barrier. • Treat individuals as you would want to be treated if circumstances were reversed.

29. Hints Continued... • Treat individuals as you would want to be treated if circumstances were reversed. • Don’t mix accommodation issues with performance or other issues. • Don’t delay in returning a person to work who has been medically cleared to work. • Use good “common sense”. Don’t make a small issue a big problem. • Keep accurate records (meetings, discussions, etc.)

30. Appeal Rights Denial of reasonable accommodation is appealable to: (1) The State Personnel Board (2) The Department of Fair Employment and Housing (3) U.S. Equal Employment Opportunity Commission (EEOC)

31. Some Important Resources • The Department Reasonable Accommodation Coordinator [The supervisors first resource.] • The Department Legal Office • The SPB Statewide Reasonable Accommodation Coordinator - (916) 653-1262 • The Department of Rehabilitation ADA Technical Assistance Section - [916] 263-8674 • Job Accommodation Network - 1 [800] 526-7234