Seven Steps to Reasonable Accommodation

John Patrick Evans, CRC, Washington State Department of Social and Health Services Division of Vocational Rehabilitation

4/9/03

Workshop Materials:
Process Summary
Scope of Coverage

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Step 1: Post Notification

What is meant by posting notification?

• A means by which the consumer, applicant or employee with disability, is informed of the covered entities policies and procedures for requesting a public or reasonable accommodation.

Why should the covered entity post notification?

• To ensure that consumers with disabilities receive access and effective communication (facility access, alternate formats, interpreters, etc.) when participating in the covered entities programs, services and activities.
• To ensure equal employment opportunity for people with disabilities in the application, testing and selection process.
• To encourage workers with disabilities to request accommodations if needed to enable job performance.
• To provide workers with disabilities the same opportunities for benefits and privileges of employment as enjoyed by workers without disabilities.
• To empower people with disabilities to self-disclose and request accommodations when needed.
• To conduct a case-by-case, individualized assessment, of the person with disabilities request for accommodations.
• To promote equally applied policies and procedures in the community and work place.

What content should be included in the notification?

• Who is the notification directed to? e.g. "If you are a person with disability…"
• What the notification is intended for? e.g. "…in need of accommodations …"
• Why does the person need accommodations: e.g. "… to obtain access, effective communication or equal employment opportunity…"
• Where does the person with disability go to receive assistance. e.g. "…. please notify the department Human Resource representative …."
• When should the person with disability notify the covered entity? e.g. "….as soon as possible….."
• How should the person with disability notify the covered entity? e.g. "…by telephone at xxx-xxx-xxxx (V/TDD) or email at xxxxx@xxx.xx.xxx …."
• Why notify the covered entity? e.g. "…. to receive prompt assistance."

Example of Posted Notification from a covered entity:

 

If you are a person with disability in need of accommodations to obtain access, effective communication or equal employment opportunity please notify our ADA Coordinator or Human Resource representative as soon as possible by calling xxxxxxx (V/TDD) or email at xxxx@xx.xxx.xxx to receive prompt assistance.

Where or When might a notification be posted?

• Public Announcements
• Organization Brochures
• Employee Advisory Services
• Entrance Application
• Job Applications
• Medical Examination Notices
• New Employee Orientations
• Common Area Bulletin Boards
• Building Entrances
• Where Known Barriers Exist
• FMLA or Medical Leave Settings
• Performance Problems or Reviews
• Disability Separation Proceedings

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Step 2 - Request Accommodation

Making a request for reasonable accommodation

• Determine if the accommodation request should be done in-person or through writing (formal vs informal).
• Describe the disability related barrier and recommend reasonable solutions for barrier removal.
• Communicate your request with the appropriate authority in charge of consumer, applicant or employee accommodations.
• Provide as much advance notice as possible.
• Collaborate on solutions to barrier removal with a "team" attitude.
• Document and save correspondence for future reference.

Example of contents for a structured request:

• Introductory statement informing reader that the purpose of letter is to request a public or reasonable accommodation, due to disability.
• Statement of what type of disabling condition requires the need for the accommodation. Reference or attach medical verification as appropriate.
• Statement of the functional limitations resulting from the disabling condition.
• Statement of what the disability-related barrier is and how the barrier impacts equal opportunity.
• Statement of how the person with disability is otherwise qualified to participate in the covered entities program, service or activity.
• Statement of what solutions are recommended or requested to alleviate or remove the disability-related barrier.
• Statement of how to reach the author and time-lines.

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Step 3 - Determine Eligibility

Disability related inquiries or medical examinations may be necessary to determine the nature, severity or extent of the reported condition. Such inquires should focus on enabling the covered entity to confirm the existence of the condition (physical or mental), determine the conditions functional limitations, or to note concerns for health and safety to the individual or others. The covered entity, in partnership with the individual with disability, is assisted in this process by medical practitioners, disability specialists or other rehabilitation professionals trained to provide disability-specific information and technical assistance. These include rehabilitation engineers, certified substance abuse counselors, mental health professionals, etc. The following is a table of preferred medical practitioners.

MEDICAL PROBLEMS--PREFERRED PRACTITIONERS

Alcoholism and Drug Addiction--Qualified Alcohol and Drug Counselor
Allergy--Immunologist
Amputations and Other Orthopedic Joint Impairments--Physiatrist, Orthopedist
Arthritis--Rheumatologist
Bladder Dysfunction--Urologist
Cardiac Problems--Cardiologist, Internist
Cerebral Palsy--Physiatrist, Neurologist
Deafness or Hearing Impairments, Speech--Audiologist, Otologist, Otorhinolaryngologist, or Otolaryngologist
Dental Problems, i.e., Root Canals, Gum Disease, Complete Extraction's, Fillings and Prostheses, Braces--Endodontist, Periodontist, Oral Surgeon, General Dentist, Orthodontist
Diabetes--Internist
Epilepsy--Neurologist, Neuropsychologist
Eyes, Diseases of the Eye--Ophthalmologist
Eyes, Visual Problems Involving a Refractory State--Ophthalmologist, Optometrist
Facial Disfigurement and Other Cosmetic Problems--Plastic Surgeon, Psychiatrist, and Psychologist
Foot, Ankle Problems--Podiatrist, Orthopedist
Gastrointestinal Intestinal Disease--Internist, Gastroenterologist
General Health--General Practitioner, Family Medicine,
Osteopathic--Physician
Independent Living and Health Aids--Physical Therapist, Occupational Therapist, Rehabilitation Engineer
Kidney Disease and End Stage Renal Disease--Nephrologist, Internist
Mental Disorders--Psychiatrist or Psychologist
Mental Retardation--Psychologist
Muscular Dystrophy--Physiatrist
Muscular - Skeletal--Orthopedist, Osteopathic Physician, Physiatrist
Organic Brain Syndrome and Head Injuries--Psychologist, Neurophysiologist, Neurologist
Pain Management--Physiatrist, Psychiatrist, Psychologist, Neurologist, and Anesthesiologist
Respiratory Problems--Pulmonary Specialist, Internist
Skin Diseases--Dermatologist
Specific Learning Disabilities--Neurologist, Psychologist, Neuropsychologist
Speech Impairments--Otorhinolaryngologist, Otolarngologist, and Speech Pathologist
Spinal Cord Injuries--Orthopedist, Neurologist, and Physiatrist
Strength, Dexterity, Stamina, Mobility--Physical Therapist and Occupational Therapist, (evaluation and treatment only, not diagnostic), Physiatrist
Stroke and Hemiplegia--Physiatrist, Neurologist, Psychologist, and Neuropsychologist

Confidential Record Keeping

A confidential medical file may be needed to store official correspondence, the employees request for reasonable accommodation, disability related information received by the employer from employee or health care practitioner, case recordings and/or narratives of the employer/employee interactive process. The file may further include communications that occur between parties during the time period the employer is evaluating, negotiating and implementing the employee's request.

The purpose of the case documentation is to reflect throughout the reasonable accommodation process a record of information, decisions, events, and planned services focusing on the employee's job-related needs.

Narrative recording refers to the chronological reporting of information throughout the implementation of an employees request for reasonable accommodation. This may include an account of meetings conducted by the employer, assessment of data supporting decisions, progress of action plans, and other significant information needed to manage an employee's request.

Determine Eligibility--Purpose:

• Case-by-case determination
• Interactive process
• Individualized assessment
• Information collected on separate forms
• Confidentiality of disability related information
• Storage/Safe-keeping of information

Record keeping might include information on:

• Name of individual requesting accommodations
• Date request was made
• Reported Conditions (scope of assessment)
• Signed release for additional medical inquiries
• Contact Information (doctor, voc. counselor, therapist)
• Correspondence concerning accommodation request
• Functional limitations resulting from condition
• Limitations impact on "major life activities"
• Pre-existing Condition vs. On-the-Job Injury
• Setting ADA, WLAD, FMLA, Workers Comp. related
• Health and safety issues (to self, others or both)
• Essential job functions
• Eligibility statement
• Disability related employment barrier
• Recommendations for barrier removal
• Equally effective barrier removal alternatives
• Action plan & Review dates
• Temporary agreements / signatures
• Case closure proceedings
• Chronological / Narrative Reports
• Undue Hardship decisions

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Step 4 - Analyze Job Involved

Essential Job Functions - Guidelines

• Essential Functions are by definition those fundamental job duties (tasks and responsibilities) that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position.
• An essential job functions analysis should focus on the purpose of the job and the importance of actual job functions in achieving this purpose.
• Evaluating "importance" may include consideration of the frequency with which a function is performed, the amount of time spent on the function, and the consequences if the function is not performed.
• An essential function analysis may contain criteria on the manner in which a job currently is performed, but should not conclude that ability to perform the job in that manner is an essential function unless there is no other way to perform the function without causing Undue Hardship.
• An essential function analysis will be most helpful if it focuses on the results or outcome of the function, not solely on the way it customarily is performed. Concentrate on only those qualification standards that will carry out key tasks and responsibilities and without which the key tasks and responsibilities cannot be carried out.
• An essential function analysis may identify demands in the following job and business related areas:
  • Tasks & Responsibilities
    • Administrative Requirements
    • Tools & Equipment Used
    • Physical Demands
    • Mental/Cognitive Demands
    • Productivity Standards
    • Health & Safety Requirements
    • Work Place Conduct Requirements
      

Analyze Job: Tasks & Responsibilities

• What is the individual paid to accomplish?
  • Inspect asphalt plant operations
  • Provide supervision to 15 employees
• What are the tasks the employee will be held responsible for?
  • Filing / Correspondence
  • Responding to telephone inquires
  • Conduct annual evaluations
• What does the employee actually do to carry out tasks?
  • Use the computer
  • Answer telephone
  • Look up information in databases/files
  • Meet individually with each employee
• Describe The Material To Be Read:
  • Technical Reports and Manuals
  • Names/Mailing Addresses
  • Written Directions
• Describe Mathematical Functions To Be Performed:
  • Counting Items
  • Statistical Operations
  • Measuring Items
• Describe The Writing Assignments To Be Performed:
  • Grant Proposals
  • Technical Reports and Articles
  • Program Brochures

Analyze Job: Administrative Requirements

• There may be administrative requirements that are job related and consistent with business necessity.
  • Nature and Scope
  • Department / Division / Unit
  • Position Title & Classification
  • Grade / Level of Authority
  • Shift (day, night, swing, weekends)
  • Hours / Breaks
  • Work Station Location / Building / Floor
  • Certifications / Degrees / Licenses
  • Previous Work Experience
  • Specialized Knowledge, Skills or Abilities
  • Application / Testing / Interview(s)
  • Pre-Offer Examinations (Drugs/Alcohol)
  • Post-Offer Medical Examinations
  • Post-Offer Probationary Requirements

Analyze Job: Tools & Equipment

• The may be job related tools or equipment assigned to a position that incumbents typically use to complete tasks and responsibilities. Examples include:
  • Dump Trucks
  • Telecommunication Equipment
  • Computer
  • Copier
  • Material Grading Sieves
  • Power Tools (chain saw, auger)
  • Pick & Shovel
  • Front-end Loader
  • Power Generation Equipment
  • Flagger Paddle
  • Ear Plugs & Safety Glasses
  • Gun & Bullet Proof Vest

Analyze Job: Physical Demands

• There may be physical demands necessary to protect health and safety of self and others while performing essential job duties. Depending on the fundamental job duties of a position, criteria might include:
  • Lifting
  • Carrying
  • Push/Pull
  • Sitting
  • Standing (In Place)
  • On Feet
  • Walking
  • Bending
  • Turn/Twist
  • Kneeling
  • Squatting
  • Crawling
  • Climbing
  • Reaching (Out)
  • Reaching (Up)
  • Grasping
  • Wrist Turning
  • Pinching
  • Finger Manipulation
    

Analyze Job: Cognitive Demands

• There may be cognitive demands that are job related and consistent with business necessity and tied to successful performance the positions essential functions. Criteria may include:
  • Problem Solving Skills
  • Memory
  • Reading Comprehension
  • Editing
  • Expressive Communication Skills
  • Understand / Recall Verbal Instructions
  • Understand / Recall Written Instructions
  • Safety Awareness
  • Measurement Skills
  • Function Independently
  • Interact w/ Public or Coworkers In Person
  • Follow Instructions
  • Interact Effectively In Group Situations
  • Accept Supervisory Authority
  • Cope with Potentially Stressful Situations
  • Maintain Professional Work Place Conduct

Analyze Job: Productivity Requirements

• There may be productivity standards required of an incumbent that are linked to successful performance of essential functions. Consider the following:
  • An employer may establish production standards if these standards uniformly apply to all applicants and employees in that job.
  • A "job-related" standard or selection criterion may evaluate or measure all functions of a job and employers may continue to select, hire and retain people who can perform all these functions.
  • An employer may not intentionally select a particular level of production for the purpose of excluding an employee.
  • What is the employee expected to accomplish?
  • What is an acceptable error rate?
  • Consider standards that include:
    • Process
    • Time
    • Quality
    • Quantity
      

Analzye Job: Health & Safety Requirements

• There may be health and safety requirements linked to performance of the positions task and responsibilities. Criteria describing working conditions may include terms such as:
  • Inside / Outside
  • Cold / Heat
  • Wet / Dry
  • Noise / Vibrations
  • Hazards
  • Fumes / Dust / Odors
  • Confined Spaces
  • High Elevations
  • Iodizing Radiation
  • Safety Equipment
  • Slippery Surfaces
  • Special Clothing
  • Wetness
  • Near / Far Vision
  • Color Discrimination
  • Depth Perception
  • Hearing Sensitivity

Analyze Job: Work Place Conduct Requirements

• There may policies and procedures governing employee conduct on and off the job site that are linked to the position and business necessity. Criteria might include policies addressing:
  • Age Discrimination
  • Disability Discrimination
  • Illegal Abuse of Drugs & Alcohol
  • Personal Threats and Violence
  • Race Discrimination
  • Sex Discrimination
  • Unauthorized Weapons
  • Unprofessional Behavior
  • Illegal Use of State Property
• Work place conduct requirements must be equally applied to all employees within the same job category.

Analyze Job: Essential Function Analysis

• An Essential Function Analysis focuses on identifying fundamental job duties that are essential for successful performance.
  • Essential Functions tend to be:
    • Critical
    • Necessary
    • Fundamental
    • Integral
    • Crucial
    • Imperative
    • Indispensable
    • Primary
  • Marginal Functions tend to be:
    • Non-Essential
    • Minimal
    • Borderline
    • Passable
    • Extra
    • Incidental
    • Peripheral
    • Accessory
• Determine if an employee in the position is actually required to perform the function or job requirement consistently.
• Determine whether removing the function or job requirement would fundamentally alter the nature of the position.
• If an individual who holds the position is actually required to perform a function the employer asserts is an essential function, the inquiry will then center around whether removing the function would fundamentally alter that position.
• Reasons why removing a function could fundamentally alter the position:
  • The position exists to actually perform the function.
  • There are limited numbers of other employees available to perform the function, or among whom the function can be distributed.
  • A function is highly specialized, and the person in the position is hired for special expertise or ability to perform the function.
• An Essential Function Analysis may contain information on the manner in which a job currently is performed, but should not conclude that ability to perform the job in that manner is an essential function, unless there is no other way to perform the function without causing undue hardship.

Examples of essential functions that are conducted a small percentage of time:

• Airline Pilot: 25 percent of time requires take offs and landings. These are essential to the job.
• Fire Fighter: For the sake of argument, let's say only 5 percent of time is spent actually fighting a fire, yet no one would disagree that the tasks of fighting a fire are essential functions of the job.
• Police Officer: Only 5 percent of time may be spent using a gun, but use of a gun is an essential function.
• Teacher: Only 10 percent of time may involve talking to parents of students, but communication with parents is an essential function of the job.
• Cashier: An essential function may be processing customer's coupons, even though this may only occur 10 percent of the time.
• Lifeguard: An essential function is conducting CPR, even though the need to perform this procedure may rarely occur.

Analyze Job: Describing Essential Functions

• Use results-oriented language as much as possible (as opposed to describing the method used to obtain the results). For example, an essential function may be for an employee to relocate (as opposed to lift) 50 lb. archive boxes from storage areas to work stations.
• Concentrate on only those tasks that will carry out key responsibilities and without which the key responsibilities cannot be carried out. For example, an essential function may be for a supervisor to complete annual employee performance evaluations, through means of an individualized assessment and interactive process.
• Do not include those tasks that would be helpful, but not essential, if the incumbent could carry out. You may though identify these types of tasks as "marginal functions".
• Do not include any tasks the incumbent has done once and will never do again.
• Do not include those tasks for which you normally train on the job. You may, as a condition of employment, make it an essential function for an employee to successfully learn and implement a new task within a given time frame.
• Do not include a "wish list" of future tasks.
• Describe the job "as is", not how it "might be".
• Use clear, concise language.
• Keep the content job-related and consistent with business necessity.

To help you determine whether a given demand is an essential function, ask the following questions:

• Does the position exist to perform this job function?
• What is the employer's judgment regarding which functions or job requirements are essential?
• Would the position be fundamentally different if this function or job requirement was altered?
• Is the number of employees to whom this function or job requirement could be given limited?
• Is this a highly specialized function or job requirement?
• What percentage of time is spent performing this function or actually applying the job requirement?
• What would be the consequences if this function or job requirement was not included?
• Is there a current incumbent in this position who performs this function or meets the job requirement?
• Did the past incumbent of this position perform this function or meet the job requirement?

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Step 5 - Consult Individual with Disability

In employment settings, consulting the individual with disability often begins with a medical inquiry (disability/limitations), moving to a functional (abilities of the person) and vocational assessment (changes to the work environment or in the way things are customarily done) to identify reasonable accommodations that will enable the individual with disability to enjoy equal employment opportunity.

Medical Model >>>>>>>>>>>>>>>>> Functional/Vocational Model

Person w/ Disability >>>>>>>>>>>> Person w/ Disability

Health Care Practitioner >>>>>>>>> Rehabilitation Professional, Mental Health Counselor

Interactive Process >>>>>>>>>>>>> Interactive Process

Individualized Assessment >>>>>>> Individualized Assessment

Diagnosis >>>>>>>>>>>>>>>>>>>> Functional Limitations

Prognosis >>>>>>>>>>>>>>>>>>>> Reasonable Accommodation, Return-To-Work Programs

Health & Safety >>>>>>>>>>>>>>>> Essential Functions, Assistive Technology, Job Modification

In conjunction with individual with disability, review the relationship between the individual's functional limitations (resulting from the disability), and the positions essential job functions, to pin-point the disability-related employment barrier(s).

Reasonable accommodations serve to remove, reduce or alleviate disability-related employment barriers so as to enable an otherwise qualified individual with disability to perform the positions essential job functions.

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Step 6 - Identify Accommodations

• Key Considerations
  • Interactive Process
  • Enable Job Performance
  • Enable Equal Opportunity
  • Independent Living Vs Employment
  • Function Vs Method
  • Essential Vs Marginal
  • Technical Assistance
  • Community Resources
  • Equally Effective Options
  • Win-Win
• Possible Accommodations
  • Adjustment or modifications of examinations, training materials, or policies
  • Provision of qualified readers or interpreters
  • Acquisition or modification of equipment or devices
  • Changes to existing facilities to make them readily accessible to and usable by workers with disabilities
  • Job restructuring (re-assignment of marginal job functions)
  • Part-time or modified work schedules
  • Administrative leave
  • Work at home (telecommuting)
  • Re-assignment to a vacant position
  • Changes in office communications
  • Physical changes to the workplace
  • Workplace policy modifications
  • Adjustments in supervisory methods
• Re-Assignment to a Vacant Position
  • Step 1: Ensure documentation of an individualized assessment and interactive process demonstrating a good faith effort was made to provide and/or consider accommodation(s) in the employee's current position.
  • Step 2: Mutually agree in writing that re-assignment to a vacant position is the next best option for maintaining equal employment opportunity. Document and explain that his/her current position may be filled with a qualified person.
  • Step 3: Define the employers scope of vacancy search by identifying which job classes (laterally or downward) employee would like consideration for. Consider preferences for earnings, geographical areas or other criteria to help clarify the scope.
  • Step 4: Notify the employee when a vacant position occurs. Send job description for review. Indicate a time frame by which employee needs to get back to employer if he/she wants further consideration for the position. Include procedures for applying.
  • Step 5: Employee notifies employer he/she is interested in position and completes position application for employer review of qualifications.
  • Step 6: Determine if employee is otherwise qualified for vacant position and therefore satisfies the requisites of the job such as education, experience, skills, and other job-related requirements.
  • Step 7: Determine if the individual can perform the essential job functions of the position, with or without reasonable accommodation.

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Step 7 - Consider the Individual's Preference

• Key Considerations
  • Individual with disability often the best resource
  • Many accommodations work, while others don't
  • Some accommodations requests can be difficult to implement
  • Examine the accommodation for feasibility
  • Goal is to remove disability related employment barrier to enable equal opportunity
  • Promote empowerment and self-determination
  • Agree on action plan (plan A - B)
  • Temporary agreements
  • Employee/employer responsibilities
  • Time frames
  • Review dates
  • Written agreement
  • Employee/employer signature
  • Equally Effective
  • Undue Hardship
  • Direct Threat
  • Case closure
• Undue Hardship - Accommodation Request Denied
• Consider content for demonstrating undue hardship:
  • Date of official denial
  • Name, authority, phone number of individual approving denial
  • Name and authority of individual responsible for conducting the individualized assessment
  • Name of applicant or employee requesting reasonable accommodation
  • Date accommodation was requested by applicant or employee
  • Specific disability-related employment barrier
  • Type of accommodation(s) requested to remove employment barrier
  • Request for reasonable accommodation denied because (may check more than one box)
    • Medical Documentation Inadequate
    • Lack of Cooperation
    • Accommodation Ineffective
    • Accommodation Would Cause Undue Hardship
    • Accommodation Would Require Removal of an Essential Function
    • Accommodation Would Require Lowering of Performance or Production Standard
    • Other (Please identify)
  • Detail reason(s) for the denial of reasonable accommodation (specific, e.g., why accommodation is ineffective or causes undue hardship)
  • Was an equally effective accommodation identified as a means of removing the disability related barrier and enabling equal opportunity?
  • If yes, explain the reasons why the equally effective accommodation would be as effective at removing the employment barrier.
  • If the individual proposed one type of reasonable accommodation that is being denied and also rejected an offer of a different equally effective type of accommodation, why?
  • What actions should be taken to address disability related employment barrier?
    • Employee who requested reasonable accommodation
    • Supervisor or manager
    • Human Resource Consultant
    • EEO Official
  • Signature of Designated Authority
  • Date
  • Filing procedures