U.S. Department
of Justice
Reasonable Accommodation Policy and Procedure
This Reasonable Accommodation policy and procedure apply to the Executive Office for United States Attorneys (EOUSA) and all United States Attorneys’ offices (USAOs).
1. Background
Pursuant to Executive Order 13164, the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, 29 C.F.R. Part 1630, and 42 U.S.C. §§ 12101, et seq. [1], Federal agencies are directed to establish procedures for providing reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment. On September 23, 2019, the Department of Justice (DOJ), Justice Management Division (JMD) issued a Policy Statement and Instruction on Reasonable Accommodation and the process. In accordance with the DOJ Policy Statement and Instruction, the following procedures set forth the reasonable accommodation policy and process within EOUSA and the USAOs.
2. Records Retention
Federal records generated under this document are subject to the retention periods prescribed by the General Records Schedules (GRS) or SF-115 Agency Records Schedules governing such records, as further specified below (if applicable).
3. Legal Citations
4. Related References
5. Policy
A. General
It is the policy of the USAOs and EOUSA to provide reasonable and effective accommodations for qualified individuals with disabilities who are employees or applicants for employment, and to take all reasonable steps to ensure these individuals are offered the resources necessary to be successful and productive members of the USAO / EOUSA workforce. Reasonable accommodations enhance the ability of qualified individuals with disabilities to apply for jobs, perform the essential functions of the job, and enjoy equal benefits and privileges of employment.
This policy describes the procedures the USAOs and EOUSA should use for processing requests for accommodations. This policy is intended to complement the DOJ Policy Statement on Reasonable Accommodation and the DOJ Instruction on the Reasonable Accommodation Process, which was issued in September 2019. If there is any aspect of the reasonable accommodation process that is not specifically addressed in this policy and procedure or if this policy and procedure is inconsistent with DOJ policies or procedures, then individuals should refer to the DOJ Policy Statement on Reasonable Accommodation and the DOJ Instruction on the Reasonable Accommodation Process for guidance. For a list of resources, see Appendix A to the DOJ Instruction, Reasonable Accommodation Process. For additional information regarding reasonable accommodation, see Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (EEOC, July 27, 2000) and Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (EEOC, revised October 17, 2002).
Accessible formats, e.g., braille or large print, of this policy are available upon request.
This policy does not create any right or benefit, substantive or procedural, enforceable at law by a party against the United States.
6. Procedures, Roles and Responsibilities
A. Definitions
Please refer to the DOJ Policy Statement and Instruction on Reasonable Accommodation for any term that is not specifically defined in this policy. All definitions should be read as consistent with the DOJ Policy Statement and Instruction on Reasonable Accommodation.
1. Applicant: An individual who has applied to a position or positions within a USAO or EOUSA, including those who have been selected for an interview, whether the position(s) is paid or unpaid.
2. Concurring Official: A second-level supervisor or other designated official who is required to review and concur with a decision to deny a reasonable accommodation request or with a decision to provide an alternative accommodation. A concurring official should be a second-level supervisor or a member of the executive management team.
3. Deciding Official: An individual who is authorized to make determinations regarding reasonable accommodation requests. Generally, this is the United States Attorney, but can be delegated down to the level of the employee’s first-line supervisor. If the person requesting a reasonable accommodation is an applicant, then the deciding official is the Administrative Officer (AO), unless otherwise indicated by the United States Attorney (USA) or EOUSA Director.
4. Disability: With respect to an individual: (i) a physical or mental impairment that substantially limits one or more major life activities of such individual; or (ii) a record of an impairment; or (iii) being regarded as having such an impairment.
5. Employee: An individual employed by the Federal government, specifically the USAO or EOUSA, and is subject to the supervision, jurisdiction, and control of the United States Attorney for the USAO or the EOUSA Director. This term excludes contractors.
6. Episodic or In Remission: The state of occurring intermittently or of being suspended. An impairment that is episodic or in remission is considered a disability if that impairment would substantially limit a major life activity when active. Thus, an impairment such as epilepsy or cancer may constitute a disability if it would substantially limit a major life activity while active. Episodic conditions that impose only minor limitations, even when they are active, would not meet the definition of disability.
7. Essential Job Functions: Fundamental job duties of the employment position the individual with a disability holds or desires. They do not include marginal functions of the position. Refer to the DOJ Instruction, Reasonable Accommodation Process for examples of when a job function may be considered essential.
8. Major Life Activities: Include, but are not limited to:
a. Caring for oneself; performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and
b. The operation of a major bodily function, including functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.
In determining other examples of major life activities, the term “major” must not be interpreted strictly to create a demanding standard for disability. Whether an activity is a major life activity is not solely determined by whether it is of “central importance to daily life.”
9. Personal Assistance Services: Assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.
10. Physical or Mental Impairment: (a) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic and lymphatic, skin, and endocrine. (b) Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disability.
11. Qualified Individual with a Disability: A person who meets the appropriate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation.
12. Reasonable Accommodation: A modification or adjustment to a job or to the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Also includes adjustments to ensure that a qualified individual with a disability has rights and privileges in employment that are equal to those of nondisabled employees. When an employee makes it known they need an adjustment or change at work due to a medical condition, the deciding official should consider this as a request for a reasonable accommodation.
13. Reasonable Accommodation Coordinator: Acts as the primary contact for accommodation requests, and serves as a resource to employees, managers, and supervisors regarding matters pertaining to reasonable accommodations. Maintains all records related to reasonable accommodation requests.
14. Substantially Limits: An impairment that limits the ability of an individual to perform a major life activity compared to most people in the general population.
15. Targeted Disability: A targeted disability is a subset of the larger disability category. These targeted disabilities include: developmental disabilities; traumatic brain injuries; deafness or serious difficulty hearing; blindness or serious difficulty seeing even when wearing glasses; missing extremities; significant mobility impairments; partial or complete paralysis; epilepsy or other seizure disorders; intellectual disabilities; significant psychiatric disorders; dwarfism; and significant disfigurement.
16. Undue Hardship: Occurs when the provision of an accommodation would cause significant difficulty or expense to an Agency. The employer considers the following factors when determining if providing accommodation is an undue hardship:
i.The nature and net cost of the accommodation needed;
ii.The overall financial resources of the Agency involved in the provision of the reasonable accommodation, the number of persons employed in the Agency, and the effect on expenses and resources;
iii.The overall financial resources and size of the Agency with respect to the number of its employees, and the number, type, and location of its operational components;
iv.The Agency’s operations, including the composition, structure, and functions of the workforce; the geographic separateness; and the administrative or fiscal relationship of the operational component to the organizations; and
v.The impact of the accommodation upon the component, including the impact on the ability of other employees to perform their duties and the impact on the operational component’s ability to conduct its business.
B. Roles and Responsibilities
1. Role of the Employee or Applicant
Generally, it is the obligation of the employee or applicant to make the initial request for reasonable accommodation, although a reasonable accommodation request may be submitted by a third party representing the employee. Upon making a reasonable accommodation request, the employee or applicant should engage in the interactive process with Agency officials, respond to requests for information, and keep the Agency updated about their contact information.
2. Role of the Deciding Official
The Deciding Official makes the determination on requests for accommodations and ensures that accommodations are provided when approved and appropriate.
3. Role of the Reasonable Accommodation Coordinator
The Reasonable Accommodation Coordinator (RAC) facilitates the interactive process between the deciding official and the person requesting an accommodation. This may include clarifying requests for accommodation so that an effective accommodation can be provided. Coordinates with the appropriate personnel to ensure workspace is accessible to persons with disabilities. Assists, if designated to do so, with procuring furniture, equipment, and services, such as sign language interpreters. Maintains reasonable accommodation-related materials, maintains all records related to reasonable accommodation requests, and compiles cumulative data for tracking purposes. The RAC ensures that the appropriate forms and documents are completed for every request. The RAC will answer the requesting employee’s/applicant’s questions about the process and their procedural rights. The RAC is not permitted to provide substantive or legal advice to requesting employees or applicants.
Each USA and the EOUSA Director should designate no fewer than two (2) RACs within EOUSA and each USAO (a primary and an alternate).
The RACs are required to annually review this policy and the DOJ Instruction on the Reasonable Accommodation Process, and to participate in any associated training.
C. Authority to Approve or Deny Requests
1. The Director, EOUSA, is the source of authority for granting or denying reasonable accommodation requests. The Director expressly delegates this authority to each United States Attorney for their respective districts.
2. The Director delegates the authority for general oversight of the USAO/EOUSA accommodation policy and functionality to the EOUSA Chief Human Resources Officer.
3. Further delegations consistent with this policy are presumed. However, those delegations may be expressly revoked or modified by each respective United States Attorney. Any revocation or modification should be memorialized and maintained in a suitable record keeping system.
D. Reasonable Accommodation Process
1. Initiating a Request for Reasonable Accommodation
a. Employees
Generally, it is the responsibility of the employee to request a reasonable accommodation, although a third party may request a reasonable accommodation on behalf of the employee. A request need not contain special words such as “reasonable accommodation,” “disability,” or “Rehabilitation Act.” A request for reasonable accommodation may be done in writing or orally to the employee’s first-line supervisor, other manager in the employee’s chain of command, or the designated RAC. Employees should use DOJ Form 100A, Reasonable Accommodation Request (Appendix A), to submit a request in writing. An accessible format of Form 100A is available. If an employee initially makes the request orally, it should be followed with a written request using DOJ Form 100A for record keeping purposes. Requests for accommodation may also be made by email, letter, or memorandum to the first-line supervisor, other manager in the employee’s chain of command, or the designated RAC.
There may be circumstances where it is obvious that an employee has an impairment that is impacting the employee’s ability to perform the essential functions of the job. In such instances, the supervisor should initiate the interactive process.
An employee may request a reasonable accommodation at any time during their employment, and does not need to have a particular accommodation in mind before making a request. An employee should request a reasonable accommodation when they learn there is a workplace barrier that is preventing them, due to a disability, from effectively competing for a position, performing a job, or having equal access to the privileges and benefits of employment.
i. Recurring or On-going Accommodations
Employees who have recurring or on-going requests for accommodation do not have to submit a new accommodation request each time if it involves the same or similar accommodation that was previously provided and if the original accommodation was approved with the knowledge that the accommodation would be recurring or on-going. Employees should give appropriate advance notice each time the recurring accommodation is needed, unless otherwise arranged with the deciding official. Where feasible, employees should notify the deciding official at least 7 to 10 business days before the date the accommodation is needed to allow sufficient time to coordinate the accommodation. Examples of recurring or on-going requests include, but are not limited to, sign language interpreter services, readers, and accommodations for participation in training programs (e.g., providing printed handouts in large font or ensuring access to assistive technologies at training sites).
b. Applicants
An applicant should inform the Human Resources Point of Contact (POC) as soon as they realize the need for a reasonable accommodation for some aspect of the hiring process. Someone else can make the request if the applicant is unable to do so. An applicant may request an accommodation orally or in writing. Upon receipt of an accommodation request from an applicant, the Human Resources POC should send the request to the AO or other designated official by the USA or EOUSA Director no later than 2 business days after receiving the request.
c. Third Party Requests
A family member, friend, health care professional, or other representative acting on the individual’s behalf may request a reasonable accommodation on behalf of an individual with a disability. When a third party makes an accommodation request on behalf of an employee or applicant for employment, the deciding official should confirm with the employee or applicant whether they want the reasonable accommodation before proceeding. If this is not possible, the deciding official will process the request as appropriate and will consult directly with the individual who needs the accommodation as soon as practicable.
2. Receipt of a Reasonable Accommodation Request
Upon receipt of a reasonable accommodation request, the deciding official should consult with the designated RAC and the EOUSA General Counsel’s Office (GCO) for further guidance. The deciding official should also consult with the Human Resources (HR) Office when an accommodation is requested in conjunction with an anticipated or pending performance or conduct-based action. Copies of all accommodation requests must be promptly forwarded to the designated RAC for record keeping purposes.
The request for a reasonable accommodation is not always explicitly stated. When an employee makes it known they need an adjustment or change at work due to a medical condition, the deciding official should consider this as a request for a reasonable accommodation. The deciding official should look for a nexus or connection between the medical condition (i.e., specific limitation or restriction caused by the mental or physical impairment), and its impact on the employee’s ability to perform the essential job functions or to access a privilege or benefit of employment. If it remains unclear what the employee is requesting, the deciding official may ask the employee to clarify what is being requested and to explain in detail why clarification is necessary.
Deciding officials should begin processing oral accommodation requests immediately, even while waiting for the employee to complete DOJ Form 100A or provide other written documentation. Deciding officials should acknowledge the request in writing, identify who will make the decision on the request, and describe what will happen during the process. Deciding officials should consult with Section E below for time frames on processing and providing reasonable accommodations. Deciding officials should communicate early and regularly with the employee throughout the reasonable accommodation process.
3. Interactive Process
The interactive process is a collaborative effort where the deciding official and individual seeking an accommodation engage in dialogue to clarify what the individual needs and identify potential reasonable accommodations. For example, after a request for accommodation has been made, the deciding official should communicate with the individual making the request to identify an effective accommodation that will allow the employee to perform the essential functions of the job.
The interactive process may include:
a. An analysis of the particular job to determine its purpose and essential functions;
b. A consultation with the employee to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation;
c. An identification of potential accommodations and, in conjunction with the employee, an assessment of the effectiveness of those accommodations in enabling the employee to perform the essential functions of the job;
d. Consideration of the preference of the employee and the selection and implementation of an accommodation that is appropriate for the employee and the employer; and
e. The overall needs of the office.
4. Medical Information
a. Whether Medical Information is Necessary
When the need for the requested accommodation is obvious, it is generally not necessary for the employee to provide medical documentation. The deciding official may request medical information to document a claimed disability and the need for accommodation when:
i.The functional limitations caused by the disability and the need for accommodation are not obvious or have not been previously disclosed;
ii.The information submitted by the employee or applicant is insufficient to document the disability or the need for the reasonable accommodation or the functional limitations the disability causes;
iii.The extent, duration, or effectiveness of a requested accommodation is not clear.
b. Requesting Medical Information
Where the disability or need for accommodation is not obvious or already known, it is the responsibility of the employee or applicant requesting reasonable accommodation to timely provide appropriate medical information related to the functional impairment and the requested accommodation. If the employee or applicant fails to provide documentation or information where it has been properly requested, the deciding official may deny a reasonable accommodation request.
The deciding official must consult with the EOUSA GCO to determine whether additional medical or other information is needed. The request for medical information will follow the requirements set forth in the EEOC Enforcement Guidance “Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act,” (July 27, 2000).
The deciding official may work with various medical consultants, such as medical professionals from Federal Occupational Health (FOH) [2], if necessary, in evaluating a reasonable accommodation request and/or the medical documentation submitted in support of such a request.
Requests for medical information must pertain to the following:
i. The nature, severity, and duration of the individual’s impairment;
ii.The activity or activities that the impairment limits;
iii.The extent to which the impairment limits the individual’s ability to perform the activity or activities; or
iv.The reason the individual requires reasonable accommodation or the particular reasonable accommodation requested, as well as how the reasonable accommodation will help the individual apply for a job, perform the essential functions of the job, or enjoy a benefit of the workplace.
Documentation unrelated to the disability claimed should not be requested.
c. Responses to Requests for Medical Information
An employee, who receives inquiries or questions from the deciding official related to the request for reasonable accommodation, should respond and provide the necessary information within 10 business days.
If the employee or applicant does not provide sufficient documentation from their own health care provider or other appropriate professional to substantiate the existence of a disability and the need for a reasonable accommodation, the deciding official may deny the request or request additional information. Medical information is insufficient if, at a minimum, it does not specify the existence of a disability and explain the need for a reasonable accommodation. If a health professional fails to provide needed documentation in a timely manner, the Agency will not be expected to adhere to the timeline set forth in Section E of this policy.
5. Approval or Denial of Reasonable Accommodation Request
If the reasonable accommodation will be approved, deciding officials should notify the employee or applicant in writing that their accommodation request is approved and provide an estimated time frame of when the accommodation will be available, if appropriate. The approval documentation should be provided to the RAC for appropriate recordkeeping. Deciding officials are strongly encouraged to consult with the EOUSA GCO prior to approving a reasonable accommodation request.
If the reasonable accommodation request is denied, or an alternative accommodation is offered, the deciding official should complete DOJ Form 100B (Appendix B). An accessible format of Form 100B is available. The written denial notice must be given to the employee or applicant at the time the request for reasonable accommodation is denied. The written denial notice must explain the reasons for the denial and notify the employee or applicant of any available internal appeal, informal dispute resolution processes, and their right to file an EEO complaint pursuant to 29 C.F.R. 1614.106 or to invoke other statutory processes, as appropriate. See Section J of this policy for more information on filing an EEO complaint.
Denials of reasonable accommodation requests must include instructions on how to file an EEO complaint and explain that the individual must initiate contact with an EEO Counselor within 45 calendar days of the denial, regardless of whether the applicant or employee participates in an informal dispute resolution process. 29 C.F.R. § 1614.203(d)(3)(iii)(C) and (D).
The written denial notice will be provided in an accessible format when requested. All denials must have a concurring official (second-line supervisor or other specifically designated management official) review and concur with the decision. The concurrence should be noted on a separate piece of paper and attached to DOJ Form 100B. Prior to denying a request, the deciding official must consult with the EOUSA GCO.
When a specific accommodation is denied and a different accommodation is offered in its place, the deciding official should complete DOJ Form 100B and provide a written notice explaining both the reason for the denial of the requested accommodation and the reason(s) why they believe the chosen accommodation will be effective. A concurring official must also review and concur with the decision. The concurrence should be noted on a separate piece of paper and attached to DOJ Form 100B. Prior to denying a specific accommodation and offering a different accommodation, the deciding official must consult with the EOUSA GCO.
Before a deciding official denies a reasonable accommodation based on cost, the deciding official must consider all resources available to the Department as a whole, excluding those designated by statute for a specific purpose that does not include reasonable accommodation. Prior to denying a request, the deciding official must consult with the EOUSA GCO.
E. Time Frames for Processing Requests and Providing Reasonable Accommodation
1. Response to the Request
The deciding official should contact the employee or applicant no later than 3 business days after a new request is received to acknowledge and begin discussing the accommodation request, and to start gathering the necessary information. If the accommodation request is submitted to someone who is not the deciding official, then the person who received the request should forward the request to the deciding official no later than 2 business days from the date of receiving the request. Deciding officials should communicate early and regularly with the employee throughout the reasonable accommodation process.
If the deciding official does not acknowledge a request for reasonable accommodation within 15 business days from the date of the request, then the employee or applicant may contact the second-line supervisor, the RAC, or the EOUSA Equal Employment Opportunity Staff (EEO Staff). Once the employee or applicant has received an acknowledgment of their reasonable accommodation request, the employee or applicant may track the processing of their accommodation request by contacting the individuals identified in the Acknowledgment Notice. The Acknowledgment Notice identifies the name and contact information of the deciding official and the Reasonable Accommodation Coordinator.
2. Disposition and Provision of Accommodation
A final decision and provision of the accommodation should be made within 30 business days of the request, barring extenuating circumstances. Where an accommodation can be provided in less than the maximum time frame, failure to provide an accommodation in a prompt manner may result in a violation of the Rehabilitation Act.
When a deciding official determines that reasonable accommodation will be provided, the decision should be immediately communicated in writing to the requestor. When all the facts and circumstances known to the deciding official make it reasonably likely that the employee will be entitled to a reasonable accommodation, but the accommodation cannot be provided immediately, the deciding official must provide an interim accommodation that allows the employee to perform some or all of the essential functions of the job, absent undue hardship.
The District or EOUSA Staff where the accommodation request arose is responsible for funding and obtaining the accommodation. Deciding officials should work with the appropriate personnel in their respective offices to obtain the accommodation, e.g., Budget Officer, Administrative Officer, Human Resources Specialist.
3. Extending the Time Frames
When extenuating circumstances are present, the time for processing a request for reasonable accommodation or providing the accommodation will be extended as necessary. Extenuating circumstances are those circumstances that could not reasonably have been anticipated or avoided or that are beyond the Agency’s ability to control. These circumstances might include situations where equipment must be back-ordered or other legitimate delays. Extensions should be limited to those that are truly necessary and only for as long as required to deal with the extenuating circumstance.
When processing the request or providing the accommodation will take longer than anticipated, the deciding official must inform the requestor of the reason for the delay and keep that individual informed of the date on which the process should be completed and when they will receive the accommodation. When a delay occurs, the deciding official must provide an interim accommodation that allows the employee to perform some or all of the essential functions of the job, absent undue hardship.
4. Requests for Expedited Review
When a need is urgent, an employee may make a request for an expedited review and decision in a time frame that is shorter than the 30 business days set forth in this policy. Such requests must explain the urgency of the need, e.g., the need for a sign language interpreter for a meeting scheduled to take place within 5 days, for imminent work-related travel, or for an imminent surgery or medical treatment.
F. Reassignment as a Reasonable Accommodation
Reassignment is an accommodation of last resort that is considered only if there are no other effective accommodations that would enable an employee with a disability to perform the essential functions of their current job or if all other possible accommodations would impose undue hardship. Reassignment is available to employees, not applicants, and may only be made to a vacant, funded position. Reassignment to a vacant position for which an employee is qualified, and not just permission to compete for such position, is a reasonable accommodation. The law does not require the Agency to create a new position or to move others from their jobs to create a vacancy. For specific guidance on the reassignment process, see DOJ Instruction 1100.01.01: Reasonable Accommodation Process.
1. Reassignment Availability
The ability of USAOs or EOUSA to reassign an employee who is no longer medically qualified to hold the position he or she encumbers is limited. However, every effort should be made to identify potential suitable positions for which the employee is qualified and can perform the essential functions with or without accommodation.
2. Position Equivalency
While every effort should be made to identify a potential suitable position at the same grade, pay and status as the position encumbered by the employee, should no such positions be available, the USAO or EOUSA should attempt to identify suitable positions at a lower grade, level of pay, or status, with approval of the employee.
3. Relocation
Reassignment may be made outside the employee’s local commuting area if the employee is willing to relocate. As with other transfers not required by management, however, the USAO or EOUSA may not pay for the employee’s relocation costs unless DOJ policy provides for such payments for non-disabled employees.
4. Reassignment Process
a. Preliminary Information Collection
Upon determination that there are no effective accommodations that would enable an employee with a disability to perform the essential functions of their current job, the deciding official should work with the office’s HR Officer and EOUSA Personnel to identify and collect the following information:
i. Whether the employee is willing to accept a reassignment as a reasonable accommodation;
ii. A copy of the employee’s current resume; and
iii. The employee’s approved search parameters, such as: geographic limitations, grade or salary limitations, and/or limitations in duties.
b. Conducting a Component-Wide Search
i. When the information identified above has been received, if the employee is willing to accept a reassignment, the deciding official should work with the office’s HR Officer and EOUSA Personnel to identify positions within the employee’s search parameters that are currently vacant or are expected to become vacant within 60 days. A position is considered vacant until a formal job offer has been made to a job candidate.
ii. Open recruitment and selection processes must be placed on hold for any positions identified within the employee’s search parameters.
iii. This search should be conducted within 15 days of confirmation that the employee is willing to accept a reassignment.
iv. If a suitable position is identified, the employee will be extended a written offer for the position. If multiple positions are identified, the USAO or EOUSA may notify the employee and allow the employee to express a preference. Ultimately, however, the HR Officer and EOUSA Personnel will determine the best placement, taking into account the employee’s preference and the agency’s needs.
v. If the employee rejects the position offered, the employee fails to respond to the written offer within 10 business days, or no suitable position is identified following both a Component-wide and Department-wide search (as described below), the employee will be notified in writing that he or she may pursue disability retirement through the Office of Personnel Management (OPM) or voluntarily separate in lieu of removal.
c. Conducting a Department-Wide Search
i. If no suitable positions are identified within EOUSA or the USAO community, EOUSA Personnel will assist the office to conduct a Department-wide search for a vacant, funded position within 15 business days of determining that no suitable positions exist within the component.
ii. The Reasonable Accommodation Reassignment contact in EOUSA Personnel will reach out to all component Human Resources personnel within the Department and provide them with the employee’s resume and search parameters. Each component is expected to respond within 15 business days as to whether or not they have identified a suitable position.
iii. EOUSA Personnel will review position descriptions and other relevant information pertaining to any positions identified, and will confer with the employee and with EOUSA GCO, as appropriate, to determine whether the employee can perform the essential functions of an identified position with or without accommodation.
iv. If a suitable position is identified, EOUSA Personnel and/or the USAO’s HR Officer will notify the employee. If more than one suitable position is identified, EOUSA Personnel and/or the USAO’s HR Officer may notify the employee and allow the employee to express a preference among the positions. The employee will have 3 business days to express a preference among multiple positions. Ultimately, however, EOUSA Personnel and the component’s HR Officer will determine the most appropriate placement after considering the employee’s preference and Departmental needs.
v. Open recruitment and selection processes must be placed on hold for any positions identified within the employee’s search parameters.
vi. If an appropriate position is identified, the component’s HR Officer will extend a written offer to the employee. If a security clearance is required, the employee will receive a conditional offer of employment pending successful adjudication of the background investigation and other relevant suitability factors. The employee will have 10 business days from the receipt of the written offer to accept it.
vii. If the employee rejects the position offered, fails to respond to the written offer within 10 business days, or no suitable position within the employee’s search parameters is identified following a Department-wide search, the USAO’s HR Officer and/or the deciding official will inform the employee that the agency’s reasonable accommodation reassignment efforts were unsuccessful. The employee will be notified that he or she may pursue disability retirement through OPM or voluntarily separate in lieu of removal.
G. Personal Assistance Services
Personal assistance services (PAS) are services needed by a person with a targeted disability to perform essential job functions. PAS requests are provided as a reasonable accommodation, unless doing so would pose an undue hardship. These services include general administrative tasks, carrying items, lifting and moving equipment and files, and other tasks needed to perform specific job functions. PAS may also be provided during work hours or work-related travel if the person with a targeted disability needs assistance to eat, to put on and remove clothing, to use the restroom, and/or to transfer from a wheelchair to a taxi or other modes of transportation.
PAS must be provided by a personal assistance service provider. A personal assistance service provider may be required to provide PAS to more than one individual and may be required to perform tasks unrelated to the PAS, if doing so does not result in a failure to provide PAS in a timely manner.
H. Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (PWFA) requires agencies to provide reasonable accommodations to a qualified employee or applicant with a known limitation related to pregnancy, childbirth, or related medical conditions, absent undue hardship.
1. A qualified employee under the PWFA is an employee or applicant who, with or without accommodation, can perform the essential functions of the employment position, except that:
a. any inability to perform an essential function is for a temporary period;
b. the essential function could be performed in the near future; and
c. the inability to perform the essential function can be reasonably accommodated.
2. A “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of a disability from the ADA.
I. Request for Reconsideration
If a reasonable accommodation request is denied, the employee may request reconsideration of the decision. Employees are encouraged to use the voluntary informal dispute resolution process to obtain prompt reconsideration of denied requests for reasonable accommodation. A request for reconsideration or voluntary participation in the informal dispute resolution process does not toll the deadlines for filing an EEO complaint, a Merit Systems Protection Board (MSPB) appeal, an administrative grievance, or any other administrative process.
1. First Level Reconsideration
If the employee seeks reconsideration, they must ask the deciding official to reconsider the decision within 10 business days of notification about the decision. The employee should present additional information, if any, to support their request at that time. The deciding official will respond to the request for reconsideration within 10 business days. The deciding official should notify the employee or applicant, in writing, of their decision on the reconsideration request. The RAC should append the written notification and the reconsideration request to the other documents associated with the accommodation request. No concurrence is necessary in this process.
2. Second Level Reconsideration
If the deciding official does not reverse the decision, the employee may ask the second-line supervisor, or other official designated for this purpose (formerly known as the Informal Appeals Officer), to review the denial and reconsider the decision. The employee must seek this second level reconsideration within 5 business days of notification about the decision in the first level reconsideration. The second-line supervisor or other designated official will respond to the request for reconsideration within 5 business days. The second-line supervisor or other designated official should notify the employee or applicant, in writing, of their decision on the second level reconsideration request. The RAC should append the written notification and the second level reconsideration request to the other documents associated with the accommodation request. No concurrence is necessary in this process.
3. Alternative Dispute Resolution Process
Alternatively, the employee may request a mediator to assist the employee and deciding official with reaching an agreement about an accommodation request. Requests to participate in the alternative dispute resolution (ADR) process must be made within 10 business days of notification of the denial. The request should be submitted to the deciding official. Upon receipt of a request to participate in the ADR process, the deciding official should contact the EOUSA EEO Staff and the EOUSA GCO within 3 business days. An employee’s participation in the ADR process does not satisfy the requirements for timely filing an EEO claim, an appeal before the MSPB, an administrative grievance, or any other administrative process.
J. Contractors
Under normal circumstances, USAOs and EOUSA do not provide accommodations to contractors. If a request for reasonable accommodation is submitted by a contractor, the deciding official should consult with the office’s Contracting Officer and EOUSA GCO, as appropriate.
K. EEO Complaint
An employee or applicant for employment who believes they were unlawfully denied an accommodation, did not receive an accommodation, or experienced an undue delay in processing and granting an accommodation may file a complaint of discrimination and/or failure to accommodate. A claim alleging the denial of a personal services assistant may be made, and will be addressed, using the federal sector EEO complaint process. An employee or applicant may also file a complaint alleging retaliation as a result of requesting an accommodation or otherwise participating in the process to obtain one.
An employee or applicant who desires to file a complaint of discrimination must contact the EOUSA EEO Staff within 45 calendar days of the alleged discriminatory action (denial of reasonable accommodation). Pursuant to 29 C.F.R. §1614.105, the right to file a complaint will be lost unless the employee or applicant initiates contact with the EOUSA EEO Staff within the 45 calendar days, regardless of whether the employee or applicant participates in an informal dispute resolution process. The EOUSA EEO Staff’s phone number is (202) 252-1450. The employee or applicant may also file a mixed case complaint with the EOUSA EEO Staff or an appeal with the MSPB if they believe that the denial, delay, or lack of effective accommodation resulted in an adverse action appealable to the MSPB.
7.Confidentiality Requirements and Records Custody
A. Confidentiality of Medical Information
All medical information, including information about the disability and functional limitations that an Agency obtains in connection with a request for reasonable accommodation, must be kept confidential and in a file separate from the individual’s official personnel file or supervisor’s desk file. This file should be locked and not accessible to unauthorized persons. This applies to both applicants and employees, regardless of whether they are determined to be individuals with disabilities or whether their requests were approved. Any employee who obtains or receives such information is strictly bound by these confidentiality requirements.
Persons who have access to medical information in relation to an accommodation request may not disclose this information. Other employees who have an official need to know may be told about necessary restrictions on the work or duties of the employee and about the necessary accommodations, but medical information should be disclosed only if strictly necessary. Exceptions are:
1. When release is required by law or court order.
2. First aid and safety personnel may be informed, when appropriate, if the disability requires emergency treatment or disclosure is needed for emergency preparedness.
3. Government officials may be given information necessary to investigate compliance with the Rehabilitation Act.
4. Workers’ compensation offices or insurance carriers may be given the information in certain circumstances.
5. Agency EEO officials may be given the information to maintain records and to evaluate and report on the Agency’s performance in processing reasonable accommodation requests.
Whenever medical information is disclosed, the individual disclosing the information must inform the recipients about the confidentiality requirements and the obligation of the recipients to safeguard the information accordingly.
B. Records Custody
The deciding official, RAC, or other designated personnel will maintain custody of the records, including medical records, obtained or created during the processing of a request for reasonable accommodation through the duration of the process. At the end of the process, all such records should be provided to the RAC for record keeping purposes. All records will be maintained in accordance with the Rehabilitation Act, Privacy Act, and EEOC guidance.
8. Tracking and Reporting Requirements
A. Tracking
Executive Order 13164 requires the Agency to track the processing of requests for reasonable accommodation. The information is used to evaluate the Agency’s performance in responding to requests for reasonable accommodation. Records that contain medical information are fully subject to the confidentiality restrictions of the Rehabilitation Act and the Privacy Act.
The designated record keeper will be the RAC. Upon completion of a reasonable accommodation request, all documents and medical information related to the request should be provided to the RAC. The RAC will maintain these records for the duration of the individual’s employment. The records must be kept in a reasonable accommodation file separate from the individual’s personnel file or supervisor’s desk file. This file should be locked and not accessible to unauthorized persons.
The EOUSA EEO Staff will develop cumulative records, without individual identifiers, based on the records maintained by the RAC. The EOUSA EEO Staff will collect the information for the cumulative records on an annual basis. These cumulative records will be kept for a minimum of 3 years, and will be made available to the Equal Employment Opportunity Commission upon the Commission’s request.
B. Reporting
The RAC should ensure that the following information is documented and maintained about each request for accommodation:
1.The specific reasonable accommodation requested, if any;
2.The job (occupational series, grade level, and office) sought by the requesting applicant or held by the requesting employee;
3. Whether the accommodation was needed to apply for a job, perform the essential functions of the job, or enjoy the benefits and privileges of employment;
4. Whether the request was granted (which may include an accommodation different from the one requested) or denied;
5. The identity of the deciding official;
6. The identity of the concurring official, if any;
7. If denied, the basis for the denial;
8. Outcome of any reconsideration requests;
9. Outcome of any ADR requests; and
10. The number of days taken to process the request.
Appendices
Appendix A - DOJ Form 100A
Appendix B - DOJ Form 100B
Footnotes
[1]The Americans with Disabilities Act (ADA) of 1990, as amended by the Americans with Disabilities Act of 2008 (ADAAA), 42 U.S.C. §§ 12101 et seq., addresses employment discrimination against persons with disabilities in the private sector, and state and local governments. The substantive employment standards of the ADA are applicable to the Federal agencies through the Rehabilitation Act, 29 U.S.C. §§ 791, et seq.
[2]Federal Occupational Health is a non-appropriated agency within the Program Support Center (PSC) of the U.S. Department of Health and Human Services (HHS). See https://foh.psc.gov/about.html.