Reasonable Accommodations for Individuals with Disabilities
TABLE OF CONTENTS
- Legal Obligations
- When are Reasonable Accommodations Required?
- Who is Responsible for Requesting Reasonable Accommodations?
- The Reasonable Accommodation Process
- To Whom Does An Individual Direct A Request for Reasonable Accommodation?
- Must a Request for Reasonable Accommodation Be Made in Writing?
- Is There a Deadline by Which an Individual Must Request Reasonable Accommodation?
- What Must an NSF Employee Do Upon Receiving a Request for Reasonable Accommodation?
- When Does the Agency's Reasonable Accommodation Process Commence?
- Is Medical Documentation Required to Process a Request?
- What Happens if the Medical Documentation Provided is Incomplete or Insufficient?
- May NSF Have the Medical Information Reviewed by its own Medical Expert?
- Will the Medical Information Provided to ODI Remain Confidential?
- What Happens if the Requester Refuses to Provide Medical Information Upon ODI's Request?
- Who is Responsible for Making the Decision on a Reasonable Accommodation Request?
- Does the DPM Make this Determination on His/Her Own?
- Will Reassignment to Another Position Within NSF Ever Be Considered as a Reasonable Accommodation?
- What are the Time Limits for ODI to Issue a Decision on a Reasonable Accommodation Request?
- How Will An Employee be Notified about the DPM's Decision on A Request?
- May a Requester File a Request for Reconsideration of a Decision to Deny Reasonable Accommodation?
Appendix A: Utilizing Sign Languange Interpreters
Appendix B: EEOC Form 557, Confirmation of Request For Reasonable Accommodation
Appendix C: EEOC Form 557A, Resolution of Reasonable Accommodation Request
Appendix D: EEOC Form 557B, Reasonable Accommodation Information Reporting Form
Appendix E: Medical Documentation Request Form
The National Science Foundation (NSF) is committed to providing reasonable accommodations for persons with disabilities, not only for employees and applicants but also for individuals conducting business at NSF. This includes, for example, panelists, members of advisory committees, participants in workshops held at NSF, speakers, and visitors with appointments with NSF staff.
NSF is responsible for providing reasonable accommodations through a central fund managed by the Office of Diversity and Inclusion (ODI).
These procedures describe reasonable accommodations in line with federal laws as applied to employees and applicants for employment, as well as individuals conducting business with NSF as indicated above.
The Rehabilitation Act of 1973 (Rehabilitation Act), as amended, protects qualified individuals with disabilities from employment discrimination in the federal government. The Rehabilitation Act also protects from discrimination individuals with disabilities who seek access to federal programs and services. Additionally, the standards applied under Title I of the Americans with Disabilities Act of 1990 (ADA), as amended, are used to determine (1) applicability for providing reasonable accommodations under the Rehabilitation Act, and (2) violations of the Rehabilitation Act with respect to a complaint alleging discrimination.
On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.
The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of Equal Employment Opportunity Commission (EEOC) ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.
Under the Rehabilitation Act, a federal agency is required to provide reasonable accommodations for qualified individuals with a disability.
Acccording to the ADA and the Rehabilitation Act, an individual with a disability is a person who has:
- a physical or mental impairment that substantially limits one or more major life activities of such individual1;
- a record of such an impairment; or
- is regarded as having such an impairment2.
The term "substantially limits" refers to the person having significant restrictions as to the condition, manner, or duration under which the individual can perform a major life activity in comparison to a person without the disability.
The determination of whether an impairment substatially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as:
- medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
- use of assistive technology;
- reasonable accommodations or auxiliary aids or services3;or
- learned behavioral or adaptive neurological modifications.
With respect to employment, a qualified individual with a disability is a person who meets the requisite skill, experience, education and other job-related requirements, and who, with or without reasonable accommodation, can perform the essential functions of such position.
A reasonable accommodation is a modification or adjustment to a job or the work environment that will enable a qualified individual with a disability to participate in the employment application process, to perform job functions, or to conduct business at NSF. Reasonable accommodations also include adjustments to assure that a qualified employee with a disability has equal access to the benefits and privileges available to applicants and employees without disabilities.
The term reasonable indicates that an organization is not expected to provide an accommodation that imposes an "undue hardship" on the operation of the organization. The phrase "undue hardship" is used to describe a change that would be unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the organization. Removing an essential job function or providing personal use items, such as a hearing aid that is needed on and off the job, are not considered reasonable.
Types of accommodations include:
- alternate work schedules
- providing telework outside of the collective bargaining agreement/NSF policy on the use of telework
- altering how job duties are performed
- moving to a different work space
- sign language interpreting and Real Time Captioning (CART)
- alternatively formatted (Braille, electronic text, large print) meeting documents
- removing an architectural barrier
- providing assistive technology equipment or furniture
- providing a reassignment to another job
Reasonable accommodations are required in three aspects of employment:
- to ensure equal opportunity in the application process;
- to enable a qualified individual with a disability to perform the essential functions of a job and other work-related activities; and
- to enable a qualified employee with a disability to enjoy equal benefits and privileges of employment.
Reasonable accommodations also are extended to individuals conducting business at NSF, as described earlier. Reasonable accommodations should be offered when the organization becomes aware there is a workplace barrier that is preventing the individual, due to the disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment. Generally, the agency will become aware of the individual's need for accommodation from the individual. After receiving a request for reasonable accommodation, ODI will participate in an informal dialogue with the individual to determine what accommodation, if any, would be appropriate.
Every reasonable accommodation must be determined on an individual basis. With respect to employment, a reasonable accommodation must always take into consideration two unique factors:
- the specific abilities and functional limitations of a particular individual with a disability; and
- the specific functional requirements of a particular job.
Generally, it is the responsibility of the qualified individual who needs the accommodation to inform the organization that an accommodation is needed. A request for accommodation, however, may be made by a family member, health professional, or other representative acting on the individual's behalf when the individual is unable to personally make the request. A request does not have to include special words such as "reasonable accommodation" or "disability." If an employee with a known disability is not performing well or is having difficulty in performing a job, the organization should assess whether this is due to a disability or performance based. Under such circumstances, the organization may refer the individual to ODI to determine whether there is a need for an accommodation.
As soon as the decision maker determines that a reasonable accommodation will be provided, that decision should be immediately communicated to the individual. If the accommodation cannot be provided immediately, the decision maker must inform the individual of the projected time frame for providing the accommodation. This notice does not need to be in writing.
No. A request for a reasonable accommodation may be made either in writing or orally. Individuals requesting reasonable accommodation, however, are strongly encouraged to complete the "Confirmation of Request for Reasonable Accommodation (EEOC Form 557)" (see Appendix B) to help ensure accuracy of records.
No. An individual may request an accommodation whenever he/she chooses to do so. The request need not be made within a certain amount of time after the individual first perceives the need for an accommodation. There are exceptions when dealing with requests for sign language interpreting services (see Appendix A).
Upon receiving a request for reasonable accommodation from an individual, an NSF employee must forward the request to the Disability Program Manager (DPM) in the ODI. All requests should be forwarded as soon as practicable, but, in any event, no later than two business days from the receipt of the request. ODI manages the reasonable accommodation program, and for consistency in the process, prefers to not authorize supervisors to grant requests for reasonable accommodations on their own volition.
The reasonable accommodation process will commence once ODI receives a verbal or written request directly from an individual requesting accommodation, or indirectly via another NSF manager or supervisor. The process will not be delayed or suspended if the request is not accompanied by EEOC Form 557, which primarily is for record keeping purposes only.
Please note that reasonable accommodations that are required for an individual on a regular basis (e.g. sign language interpreter, captioning, personal assistant) do not require written confirmation. Please see Utilizing Sign Language Interpreters for more information (Appendix A). Once ODI receives a reasonable accommodation request for the above services, it will inform the requester that they have been scheduled.
ODI will review the request for reasonable accommodation upon receipt. If the individual's disability is clear, and the need for accommodation is obvious, ODI will generally not need to request medical documentation to process the request.
ODI, however, may require the requester to provide medical documentation when needed to evaluate the accommodation request. Specifically, NSF may request an individual requesting accommodation to provide appropriate medical information related to the functional impairment and the requested accommodation where the disability and/or the need for accommodation is not obvious or already known.
It is not appropriate for NSF to ask for medical information that is not related to the individual's request for reasonable accommodation. Therefore, the Medical Documentation Request Form had been prepared to ensure the agency collects only information that is necessary to process an individual's reasonable accommodation request. Once this form is completed, the medical care provider will return it to the requester, and the requester has the responsibility of returning the completed form to ODI for review.
If the information provided by the medical care provider is insufficient to determine whether the individual has a "disability within the meaning of the law," whether an accommodation is needed, and/or how the requested accommodation would assist the employee to perform the essential functions of the position or to enjoy the benefits and privileges of the workplace, the DPM has the right to forward to the requestor a request for supplemental medical information from the medical care provider. In this situation, the DPM will explain specifically to the requester what additional information is needed. When appropriate, the DPM will provide the requester with a Medical Documentation Request Form with questions tailored specifically to elicit the medical information that NSF requires to process that individual's particular request. The individual is responsible for having his/her medical care provider answer the questions. If sufficient medical information is not provided by the individual, the DPM may ask the individual requesting accommodation to sign a limited release permitting the DPM to contact the provider for additional information.
Yes. NSF has the right to have the medical information provided by the requester reviewed by its own medical expert at NSF's expense.
Yes. The information provided in support of reasonable accommodation requests is confidential and is available only to the designated agency staff that is responsible for coordinating accommodation requests and providing accommodation services.
The Rehabilitation Act requires that all medical information be kept confidential. This means that all medical information that an agency obtains in connection with a request for reasonable accommodation must be kept in files separate from the individual's personnel file. In addition, individuals who have access to information necessary to make a decision about whether to grant a requested accommodation may not disclose this information except as follows:
- supervisors and managers who need to know may be told about necessary restrictions on the work or duties of the employee and about the necessary accommodation(s);
- first aid and safety personnel may be told if the disability might require emergency treatment;
- government officials may be given information necessary to investigate the agency's compliance with the Rehabilitation Act; and
- agency EEO officials may be given the information to maintain records and evaluate and report on the agency's performance in processing reasonable accommodation requests.
The failure to provide appropriate documentation or failure to cooperate with ODI may result in denial of the accommodation request.
The DPM, located in NSF's ODI, is responsible for deciding on an individual's reasonable accommodation request in concert with applicable agency officials and based on information submitted. The DPM will be recused from the processing of an EEO complaint in connection with a reasonable accommodation request.
No. When the need for accommodation is not obvious, the DPM will engage in an interactive process with the requester and the requester's first-line supervisor to determine whether an individual is entitled to an accommodation and, if so, the type of accommodation that is appropriate in a particular situation.
Communication is of greatest importance throughout the entire reasonable accommodation process to ensure all situations are understood and are handled appropriately. Throughout the course of the interactive process, both parties are encouraged, where appropriate, to include others in the discussions, particularly in cases where a specific limitation, problem, or barrier is unclear; where an effective accommodation is not obvious; or where the parties are choosing between different possible reasonable accommodations. The following list consists of those who may be included in the interactive process:
- Disability Program Manager (DPM)
- Human Resource Management (HRM)
- Office of General Counsel (OGC)
- Medical Officer, NSF Health Unit
- Member of the employee's family
- Employee's representative
- Job Accommodation Network (JAN)4
- Computer/Electronic Accommodations Program (CAP)5
Reassignment will be considered if NSF determines that no other reasonable accommodation will permit the employee with a disability to perform the essential functions of his or her current position. Reassignment is a "last resort" accommodation that will be considered if there are no other effective accommodations.
To determine if there are positions available for reassignment, the decision maker will contact HRM and the individual requesting the accommodation to identify equivalent positions. To determine if an employee will be qualified for another position s/he: (1) must satisfy the requisite skill, experience, education, and other job-related requirements of the position, and (2) be able to perform the essential functions of the position with or without reasonable accommodation. ODI will work closely with HRM to inquire about any positions that are currently vacant or may become vacant for a period of 60 days. If there are no equivalent positions, a vacant lower-level position for which the person is qualified will be considered. If there are no vacant positions before the end of the 60 days, then NSF will terminate the search for a vacant position.
NSF strives to make decisions on requests for reasonable accommodation as expeditiously as possible. With the exception of requests for reassignments, a decision on a request for reasonable accommodation will be made within 30 business days of the date on which ODI receives the request. This time limit, however, is frozen while awaiting requested medical documentation from the requester or the requester's medical provider.
Sometimes there are "extenuating circumstances", which are factors that could not reasonably have been anticipated or avoided in advance of the request for the accommodation. These can include situations in which equipment must be back-ordered. In cases where there is a delay in processing a request for, or delivering, a reasonable accommodation, the agency will notify the individual of the reason for the delay. To the extent possible, NSF will also keep the individual informed of the date on which the agency expects to complete the process.
In addition, if there is a delay, NSF will consider whether there are temporary measures that can be taken to assist the individual with a disability, such as a temporary job restructuring or the use of equipment that might permit the individual to perform some of the functions of his/her job.
The DPM will provide a decision on an individual's reasonable accommodation request to the requester in writing. If the DPM grants an individual's request, the DPM will complete the "Reasonable Accommodation Information Reporting Form" (Appendix D), and will provide a copy of this form to the requester and the requester's immediate supervisor.
If an individual's request is denied, the DPM will notify the requestor by using the "Resolution of Reasonable Accommodation Request Form" (see Appendix C). A copy of this form will be given to the requester and the requester's immediate supervisor.
The form will be completed in plain language and will state the reason for denial. If a specific reasonable accommodation was denied but a different one is offered in its place, NSF will explain both the reasons for the denial of the initial requested accommodation and the reasons that it believes the chosen accommodation will be effective. This form will also inform the individual that s/he has the right to an appeal and to file an EEO complaint.
If an individual is dissatisfied with the resolution of the reasonable accommodation request, the individual can ask the Director, ODI, for reconsideration. An individual must request reconsideration with 10 business days of receiving the Resolution of Reasonable Accommodation Request Form. Note that requesting reconsideration does not extend the time limits for initiating, administrative statutory or collective bargaining claims. (See Appendix C for more details).
APPENDIX A: UTILIZING SIGN LANGUAGE INTERPRETERS
SCHEDULING INTERPRETER SERVICES. The individual or office scheduling a meeting or event which will require interpreting services (staff meeting, training, office function, etc.) is responsible for directing the request, via e-mail, to the Disability Program Manager (firstname.lastname@example.org).
Advance scheduling - preferably two weeks - is strongly encouraged, to the extent possible. Although it is not possible to foresee every occasion for which interpreting services may be required, failure to schedule interpreting services well in advance may result in the necessity to reschedule meetings until interpreter services are available.
If a meeting or event will last longer than one hour, arrangements must be made for more than one interpreter to be present, or the meeting or event must be scheduled to include sufficient rest periods, including a "sign-free" lunch break, if necessary. Generally, one interpreter can work 45-60 minutes and will then need a 15-minute break. A break during a meeting or event does not constitute a rest period for the interpreter if s/he is expected to continue working (e.g., deaf and hearing parties wish to communicate during the break and look to the interpreter to facilitate the exchange).
An employee who knows sign language or who is taking a sign language class is not an acceptable substitute for an NSF contract interpreter.
WORK EVENTS OUTSIDE THE WORKPLACE. NSF will provide an interpreter for an employee who is deaf or hard of hearing who, as part of his/her job, attends a meeting or event outside of the workplace. If s/he attends a conference or training program sponsored by an outside organization, the sponsoring organization is principally responsible for providing interpreters. NSF will provide interpreting services if the sponsoring agency fails to do so. Employees can also request readers and other assistants who perform physical tasks that an employee cannot perform because of a disability. These requests should also be made at least 2 weeks in advance of the date service is required.
OFFICE SOCIAL FUNCTIONS AND SPECIAL EVENTS TO WHICH THE INTERPRETERS ARE INVITED. Interpreting services are routinely requested for office or Agency social functions or special events - e.g., Holiday Party, Retirement Ceremony - scheduled during official government time and which might be attended by employees who are deaf or hard of hearing.
INTERPRETING PHONE CALLS. Employees who are deaf or hard of hearing as well as employees who need to communicate with deaf and hard of hearing individuals can utilize the telecommunication relay service to interpret business-related phone calls.
1 Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
A major life activity also includes 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.
2 An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
This shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
3 The term auxiliary aids and services includes:
- qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
- qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
- acquisition or modification of equipment or devices; and
- other similar services and actions.
4 JAN is a service provided by the U.S. Department of Labor's Office of Disability Employment Policy (ODEP). JAN is one of several ODEP projects.and its mission is to facilitate the employment and retention of workers with disabilities by providing employers, employment providers, people with disabilities, their family members, and other interested parties with information on job accommodations, entrepreneurship, and related subjects. JAN can be reached at (800) 526-7234 (Voice), (877) 781-9403 (TTY), or via its website at http://askjan.org/.
5 The National Science Foundation has an interagency agreement with the Department of Defense Computer/Electronic Accommodations Program (CAP). Through CAP, employees with disabilities, including telecommuters, are eligible for the various services. CAP maintains the CAP Technology Evaluation Center (CAPTEC) where employees and their supervisors can evaluate and become familiar with assistive technology and facilitate the process of choosing the appropriate equipment. CAPTEC, located in the Pentagon, contains several computer workstations equipped with a wide variety of technology designed to accommodate persons with disabilities. CAP can be reached at (703) 693-5160 (Voice), (703) 693-6189 (TTY), or via its website at http://www.tricare.mil/cap/index.cfm.