Best Practices in the Employment of People
with Disabilities in the Federal Government
JAN welcomes Jeanne Goldberg, Senior Attorney Advisor,
from the U.S. Equal Employment Opportunity Commission.
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
1
Basic Provisions
Protections for individuals with disabilities
• No disparate treatment or harassment based
on a physical or mental impairment (as long
as not both transitory and minor)
• Reasonable accommodation absent undue
hardship (for impairments that substantially
limit a major life activity)
• Qualification standards that screen out an
individual based on disability must be jobrelated and consistent with business
necessity
2
Basic Provisions
Protections for all applicants and employees
of covered entities:
• Rules about when employer can ask for
medical information, and how much
(“disability-related inquiries and medical
exams”)
• Medical information kept confidential
• No retaliation
3
Qualified
• Employer never has to retain an employee in
a position if not “qualified.”
• To be “qualified,” employee must satisfy the
requisite skill, experience, education, and
other job-related requirements, and be able to
perform the essential (or fundamental)
functions of a position (with accommodation, if
needed).
4
Qualified
This issue most often arises when:
• Employee requests to be excused from
performing job duty due to medical condition;
or
• Employer believes employee is not able to
perform job duty due to medical condition
5
Qualified
• Employer never has to eliminate an essential
function of a job as an accommodation.
• Employer never has to or lower production
standards (quantity or quality) as an
accommodation.
• Individualized assessment: Do not make
assumptions about what an applicant or
employee can or cannot do based on their
medical condition.
6
Qualified
But remember:
Employee can be “qualified” even if needs
accommodation to perform the job.
7
Essential Functions
Relevant information in determining whether
a function is essential may include:
• Employer’s judgment
• Terms of a written position description
• Terms of a collective bargaining agreement
• Experience of current or past employees
• Amount of time spent performing the function
• Consequences of not performing the function
8
Essential Functions
If accommodation requested involves
removing a duty, is it an essential function?
• If so, it need not be removed, but can
employee be accommodated to perform it?
• If employee cannot be accommodated in
current position, can he be reassigned to a
vacant position for which he is qualified (the
accommodation of last resort)?
9
Safety and Fitness Concerns
Direct Threat: An employer may reject a job
applicant or exclude an employee with a
disability from a particular position if the
person poses a direct threat to health or
safety (i.e., a significant risk of substantial
harm to self or others)
NOTE: An individual is not a “direct threat” if
there is a reasonable accommodation the
employer could provide absent undue
hardship that would reduce the risk below this
level
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Assessing Direct Threat
What to consider:
• The particular applicant's or employee's
present ability to safely perform the essential
functions of the job based on objective
evidence and reasonable medical judgment
• The duration of the risk, the nature and
severity of the potential harm, the likelihood
that the potential harm will occur, and the
imminence of the potential harm
11
Recent Case Illustrations
Qualified:
• Wardia v. Dept. of Juvenile Justice (6th Cir.
Jan. 3, 2013).
• Keith v. County of Oakland (6th Cir. Jan. 10,
2013).
• Scavetta v. King Soopers, Inc. (D. Colo. Jan.
28, 2013).
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Accommodation Requests
Recognizing Accommodation Requests:
Accommodation request is a request for some
sort of change for a medical reason; request
need not be in writing and need not contain any
“magic words”
“Tips” for recognizing requests
13
Recent Case Illustration
Sufficient Notice:
• Individual does not have to call medical
condition a “disability”; inadequate notice
when employee does not say enough for
employer to know a medical condition is at
issue. Syndnor v. Fairfax County, Va., 2011
WL 836948 (E.D. Va. Mar. 3, 2011).
• Oral request for accommodation okay despite
contrary employer policy. Kravits v. Shinseki,
2012 WL 604169 (W.D. Pa. Feb. 24, 2012).
14
Recent Case Illustration
Insufficient Notice:
• Plaintiff notified employer of panic disorder
and agoraphobia, but never requested any
accommodation, stating that “if [the employer]
believed that I needed certain
accommodations . . . [it] would come to me
and say so.” Garner v. Chevron Phillip
Chemical Co., 2011 WL 5967244 (S.D. Tex.
Nov. 29, 2011).
15
Recent Case Illustration
Consequences of Employer’s Failure to
Communicate and Clarify:
• Employer’s failure to tell employee that
request submitted on wrong form, or to
provide time to return paperwork, can render
the employer responsible for the breakdown
in the interactive process. Cox v. Wal-Mart
Stores, Inc., 441 Fed. Appx. 547 (9th Cir.
2011).
16
Recent Case Illustration
Consequences of Employer’s Failure to
Communicate and Clarify:
• Employer’s denial of request on ground that
information provided was not specific
enough, without advising employee and
asking for the additional details needed, can
render the employer responsible for the
breakdown in the interactive process. ValleArce v. Puerto Rico Ports Auth., 651 F.3d 190
(1st Cir. 2011).
17
Timing of Requests
•
•
•
•
Request may be made at any time during the
application process or during employment,
including if the employee is having performance
difficulties
But accommodation is always prospective –
request is too late once performance or conduct
warrants termination
An employee does not lose the right to request
an accommodation because he did not do so
during the application stage
Employees may make more than one request for
reasonable accommodation
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Disability
Does the Requesting Employee Have a
Disability?
• When considering if an individual who has
requested accommodation has an
impairment that “substantially limits a major
life activity” or has a record of same,
remember the changes made by the ADA
Amendments Act of 2008
• Now the definition of disability “shall be
construed broadly” and “should not demand
extensive analysis”
19
Disability
Congress Made 4 Changes To “Substantially
Limited in a Major Life Activity”:
1. Need not be a “severe” limitation or
“significantly restricted”
2. Major life activities include “major bodily
functions”
3. Ameliorative effects of mitigating measures
not considered
4. Impairments that are “episodic” or “in
remission” are substantially limiting if they
would be when active
20
Pre-ADAAA Case Law
Don’t Rely on Pre-ADAAA Case Law on
Coverage
• See EEOC revised ADA regulations 29
C.F.R. Part 1630 and Q & A:
http://www.eeoc.gov/laws/regulations/adaaa
_qa_small_business.cfm
• See webinar handout with examples of postADAAA case law
21
Medical Information
When and How Much Medical Information
Can the Employer Ask for in Support of An
Accommodation Request?
• ADAAA has not changed the legal rules
regarding when and how much medical
information employers can request if
accommodation is requested.
• If not obvious or already known, an employer
may obtain reasonable documentation that
an employee has a disability and needs the
accommodation requested.
22
Medical Information
• Employer may ask employee to obtain
information from treating health care provider,
or ask employee to sign limited release
allowing employer to contact doctor directly.
• For example, employer might seek to verify
diagnosis and limitations, follow up to clarify
limitations as well as what accommodation
might be effective, and for how long it may be
needed.
23
Accommodation Procedures
• Required for federal agencies under EO
13164
• Can be useful for other employers
• If adopting internal reasonable
accommodation procedures outlining your
process, consider indicating who is
authorized to request and review medical
information from employee and/or
employee’s health care provider, and to have
any follow-up communications
24
Examples of Accommodations
• Physical modifications
• Sign language interpreters and readers
• Assistive technology and modification of equipment or
devices
• Modified work schedules
• Making exceptions to policies
• Job restructuring (swapping or eliminating marginal
functions)
• Changing supervisory methods
• Job coach
• Telework
• Leave
• Reassignment to a vacant position
25
Actions Not Required
• Lowering production or performance standards (but prorate production requirements for period of leave as an
accommodation, and provide accommodation if requested
to meet the standards)
• Excusing violations of uniform conduct rules that are jobrelated and consistent with business necessity (but provide
accommodation if requested to meet the standard)
• Removing an essential function
• Monitoring an employee’s use of medication
• Providing personal use items
• Changing someone’s supervisor (though changing
supervisory methods may be required)
• Actions that would result in undue hardship (i.e., significant
difficulty or expense)
26
Undue Hardship
Consider the following factors:
• Nature and cost of the accommodation
(“significant difficulty or expense”)
• Resources available to the employer overall
(not just individual department)
• Impact of the accommodation on operations
27
Interactive Process
• Employer should engage in an interactive
process with the individual asking for the
accommodation.
• May involve determining (1) whether the
requester has a disability, (2) whether
requested accommodation is medically
needed, and/or (3) what accommodations are
possible.
• Implications of “good faith” provision in 42
U.S.C. Section 1981a.
28
Selecting an Accommodation
• Employer has discretion to choose among
equally effective accommodations where
there is more than one possibility.
29
Keys to the Interactive Process
• Respond to requests promptly, as undue
delay may constitute a denial of
accommodation.
• Determine the limitations at issue caused by
the medical condition for this individual, what
accommodation he or she needs for those
limitations, and determine if it can be provided
without undue hardship.
• Communicate, exchange information, search
for solutions, consult resources as needed.
• AskJAN.org
30
Recent Case Illustrations
Mistakes in the Interactive Process:
• Flatly turning down requested
accommodation and failing to offer available
alternative. Colwell v. Rite Aid Corp., 602
F.3d 495 (3d Cir. 2010).
• Ignoring request because employer believes
employee does not have a disability.
Zombeck v. Friendship Ridge, 2011 WL
666200 (W.D. Pa. Feb. 14, 2011).
31
Keys to the Interactive Process
• If requestor only knows the problem, not the
solution, employer must search for possible
accommodations
• If requestor specifies particular
accommodation but it is one that legally need
not be provided (e.g., request to lower
production standards), employer must offer
an alternative accommodation if one exists
that would not pose an undue hardship -search for and consider alternative
accommodations
32
Recent Case Illustration
Cost Issues:
• EEOC v. Creative Networks, LLC (D. Ariz.
Sept. 20, 2012).
33
Recent Case Illustration
Breakdown in the Interactive Process:
• Goonan v. Federal Reserve Bank of New
York (S.D.N.Y. Jan. 7, 2013).
34
Recent Case Illustrations
Attendance Issues:
• Samper v. Providence St. Mary Vincent
Medical Center (9th Cir. 2012).
• Thomas v. Bala Nursing and Retirement
Center (E.D. Pa. 2012).
35
Reactions By Co-Workers
• Employer cannot disclose disability (or fact that
something is being done as a reasonable
accommodation) to managers or co-workers without a
need to know.
• Employer cannot deny accommodation because coworkers may be resentful. Carter v. Pathfinder Energy,
662 F.3d 1134 (10th Cir. 2011).
• Sometimes reasonable accommodation may require
providing a change that the employer denies to other
employees who request for non-medical reasons.
Ekstrand v. School Dist. of Somerset, 2012 WL 2382313
(7th Cir. June 26, 2012).
• Special rule for seniority systems: US Airways, Inc. v.
Barnett (2002).
36
Recent Case Illustration
Conduct Issue:
• McElwee v. County of Orange (2d Cir. Nov.
15, 2012).
37
Reassignment
• Accommodation of last resort
• Position must be vacant
• Must be equal in terms of pay, status, etc., or
as close as possible
• Is not limited geographically
• Employee must be qualified for the new
position, but does not have to be best
qualified
38
Reassignment
• Vacant means that the position is available or
will become available within a reasonable
time
• Employer does not have to reassign to a
position that would be a promotion
• Employer does not have to bump another
employee to create a vacancy
• Reassignment that would violate seniority
system generally is not reasonable
• Employer does not have to pay cost of
relocation, unless it does so for other
employees who transfer voluntarily
39
Recent Case Illustrations
Reassignment:
• Petted v. Dept. of Veterans Affairs, EEOC
Appeal No. 0120090266 (Dec. 14, 2011),
request for reconsideration denied, EEOC
Request No. 0520120240 (Dec. 7, 2012).
• Sanchez v. Vilsack (10th Cir. Sept. 19, 2012).
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Contact Information
Jeanne Goldberg
Senior Attorney Advisor
Office of Legal Counsel
U.S. Equal Employment Opportunity Commission
jeanne.goldberg@eeoc.gov
(202)663-4693
41
Federal Winter Webcast Series
Contact
 (800)526-7234 (V)
(877)781-9403 (TTY)
 AskJAN.org & jan@askjan.org
 (304)216-8189 via Text
 janconsultants via Skype
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