Reasonable Accommodation

PURPOSE

This policy establishes the Department of General Services’ (DGS) procedures for providing Reasonable Accommodations (RA) to employees and job applicants with disabilities. The primary objective of this policy is to ensure equal employment opportunity for employees and applicants for employment without regard to disability.

Key Terms

Reasonable Accommodation

Reasonable Accommodation is any modification or adjustment to a job, the work environment that enables a qualified individual with a disability to have equal employment opportunity. RA ensures equal opportunity in the job application, examination, and hiring processes, and during employment that will enable a qualified applicant or employee with a disability to participate in the processes and perform the essential functions of the job. There are many types of accommodations. Each RA request is unique and must be evaluated individually on a case-by-case basis.

Examples of reasonable accommodations include, but are not limited to the following:

• Make existing facilities used by employees or job applicants readily accessible to and usable by individuals with disabilities.
• Job restructuring
• Part-time or modified work schedules
• Telework
• Reassignment to a vacant position for which the employee is qualified.
• Acquisition or modification of equipment or devices
• Appropriate adjustment or modification of examinations or training materials
• Provide qualified readers or interpreters.

Disability

Disability is a physical or mental impairment that limits one or more major life activities. 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.

Essential Functions

Essential Functions are those job duties so fundamental to the position that the individual cannot do the job without being able to perform them. A job function can be “essential” if:

• The position exists specifically to perform that function; or
• There are a limited number of employees who could perform the function if it were assigned; and/or
• The function is highly specialized and the incumbent in the position was hired for his or her expertise or ability to perform the function.

Interactive Process

Interactive Process is the timely, good faith process between the employer and the employee or applicant with a disability to explore a mutually beneficial reasonable accommodation that meets the needs of the employee and the employer.

Undue Hardship

Undue Hardship is an accommodation action that would be financially difficult or is unduly extensive, substantial, disruptive, or would fundamentally alter the nature or operation of the business. Employers have no responsibility to make accommodations for persons with disabilities who are employees or applicants for employment if said action would impose an undue hardship on the employer’s business operations. Requests will be assessed on a case-by-case basis to determine if an undue hardship exists.

Qualified Individual with a Disability

Qualified Individual with a Disability is an individual with a disability who meets the requisite skill, experience, education, and other job-related requirements of the position and who either holds or desires to hold such position, and who can perform the essential functions of the position with or without a reasonable accommodation.

Direct Threat

is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The determination that an individual poses a direct threat shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

In determining whether an individual would pose a direct threat, the factors to be considered include:

1. The duration of the risk;
2. The nature and severity of the potential harm ;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm

AUTHORITY

Americans with Disabilities Act

California Fair Employment and Housing Act

State Civil Service Act – Government Code Section 19230

POLICY

It is the policy of DGS to ensure employees and applicants for employment are not discriminated or retaliated against based on disability. DGS is committed to making department facilities accessible, and reasonably accommodating the known limitations of individuals with disability by providing accommodation that does not pose an undue hardship on the department or its business operations.

Applicability

This policy applies to all governmental officials and employees of DGS, and any of its divisions, offices, and programs. Within this policy, the term “DGS” applies to its divisions, offices, and programs.

PROCESS

Background

Effective January 1, 2001, California’s Fair Employment and Housing Act (FEHA) was amended to provide significantly broader protections to employees with disabilities. The amendments include an express declaration that the California statutes are intended to extend beyond the federal Americans with Disabilities Act (ADA) by broadening the definition of “disability,” delineating new and different unlawful employment practices arising from certain pre-employment and post-employment inquiries, and prohibiting failure to engage in a timely, good faith, interactive process with the employee to determine a RA for the disability.

The amendments make it an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the. employee or applicant to determine effective RAs, if any, in response to a request for RA by an employee or applicant with a known disability or medical condition. The RA may include such measures as making existing facilities readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, providing qualified readers or interpreters, and other similar actions. As a last resort, reassignment to a vacant position can be considered, provided the individual meets the minimum qualifications of the classification and can perform the essential functions of the job.

Medical Verification

As part of the RA process, it may be necessary for the requesting employee or applicant to submit medical information to substantiate and/or clarify the nature and extent of their disability and/or limitations.  Employees are not required to, nor shall they be requested to provide a diagnosis or genetic information.

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by the GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.    “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services

Medical verification shall include the following:

1. On the official letterhead of the qualified healthcare provider or healthcare providers organization.
2. Certification that the patient has a disability (do not include diagnosis).
3. Indication of whether limitations are permanent or temporary.
   • If temporary, provide an anticipated recovery date.
4. Description of how the patient’s limitation impairs their ability to perform the essential functions of their position (see duty statement).
5. Patient’s limitations must be described in detail as they currently exist and only in relation to the essential functions of the position.

   Examples:

   • Unable to lift more than 20 pounds.
   • Unable to type with the right hand.
   • Unable to sit for more than 2 hours.
   • Unable to concentrate in an excessively noisy environment.
   • Unable to follow spoken directions.
6. Recommendation of specific accommodation(s) and whether they are medically necessary (or medically advisable if related to pregnancy).
7. If it is recommended that equipment be purchased, include the cost, model number, and where the equipment may be obtained. If it is recommended that the worksite be modified, or specific duties be restructured or shared, describe the necessary action.
8. Healthcare provider’s credentials must be identified (M.D., R.N., Physical Therapist, etc.).

Pursuant to state and federal law, medical information obtained in the process of addressing requests for RA shall be kept confidential.  Employees and applicants may submit medical substantiation via email, regular mail, facsimile, in-person, or by other acceptable methods of delivery that allow confidentiality.

PROCEDURE

The Reasonable Accommodation Coordinator (RAC) shall participate in the interactive process at the request of the supervisor, employee, or applicant. The RAC is available to answer questions, explain this policy, and provide advice and guidance throughout the interactive process.

Employees and supervisors shall follow the following process to request a RA:

While the employee, and their healthcare provider, may request or recommend a specific RA, the employer may choose the RA, if it is effective. The employee does not have to accept an effective RA; however, in doing so, the employee may no longer be qualified to remain on the job.

Reasonable Accommodation for Employees and Supervisors:

Reasonable Accommodation for Employment Examinations:

Reasonable Accommodation for Employment Interviews:

If equipment or modifications to the work environment are approved, the individual’s supervisor is responsible for ensuring the equipment or modifications are implemented as soon as possible and should request that any purchase order or modification request be expedited.

On some occasions, it may be necessary for DGS to request clarification from the individual’s healthcare provider. In these instances, the individual will be requested to complete the Release of Medical Information (DGS 4) form. Only the RAC will request information from an individual’s healthcare provider and the information requested shall be limited to individual’s limitations, restrictions, or barriers they face when performing the essential functions of their position.

RESPONSIBILITIES

Employee

1. Inform their supervisor of the need for an accommodation and describe any work-related limitations or restrictions.
2. Provide appropriate medical verification to substantiate the request.
3. Participate in the interactive process by engaging with your supervisor, answering questions, and providing all relevant information (do not provide diagnosis or genetic information).
4. Keep your supervisor informed if your medical needs change or if an accommodation is not effective in allowing you to perform the essential functions of your position.

Supervisor

1. Inform the RAC when you become aware an employee or applicant may need a RA by email to ReasonableAccommodation@dgs.ca.gov.
2. In conjunction with RAC, engage in the timely, good faith interactive process with the employee or applicant and document these efforts on the Request for RA (OHR 1) form.
3. In conjunction with RAC, meet established time frames and forward all relevant information to the RAC as soon as possible to ReasonableAccommodation@dgs.ca.gov.
4. Ensure employees and applicants are not discriminated against due to their disability.
5. Monitor approved RA’s to ensure they are effective in allowing the requesting employee to perform all essential functions of their position. If the RA becomes ineffective, must re-engage with the employee to find an alternate RA that is effective.
6. Retain records of RA response letters for as long as they remain in effect.

Reasonable Accommodation Coordinator

1. Provide guidance and advice to employees, applicants, and supervisors throughout the interactive process.
2. Upon request, participate in the interactive process.
3. Ensure this policy is implemented fairly and consistently.
4. Issue formal RA request response letters on behalf of programs.
5. Retain records of all RA requests, interactive processes, and formal response letters in accordance with DGS policy and records retention schedule.
6. Update this policy as needed.