The federal government has put affirmative action back on the table with the EEOC proposed rule for Affirmative Action for Individuals with Disabilities in the Federal Government. Previously, I have written here on the Office of Federal Contracting Compliance Program rule for federal contractors. When it comes to the Rehabilitation Act, here is how it works. § 501 of the Rehabilitation Act applies to the federal government employment operations when it comes to disability discrimination (the ADA does not apply to the federal government, but rather the disability discrimination rules come entirely from the Rehabilitation Act). The rules with respect to employment against persons with disabilities under § 501 are the same as the rules with respect to title I of the ADA. The Rehabilitation Act requires affirmative-action. Until now, there wasn’t really any meat on the bone so to speak. The EEOC exercising its authority with respect to affirmative action under the Rehabilitation Act now issues proposed rules. As a proposed rule, it has to be put out for a period of commenting. In this case, the commenting period ends April 25, 2016. Of course, the wild card in all of this is that we have a presidential election rapidly approaching. One wonders whether a final rule would be issued prior to the installation of a new president, especially if a different party than the one currently in the White House wins. At any rate, I thought I would highlight some of the provisions of the proposed rule and add some of my own thoughts of course.

1. It is very significant that § 501 of the Rehabilitation Act, which applies to federal employees, states that the rules used to decide whether disability discrimination occurs are the same as those under title I of the ADA. The reason this is very significant is because title I of the ADA speaks of causation in terms of, “on the basis of.” That is, motivating factor can come into play with respect to disability discrimination in employment against a federal employee. This is very different than the language of § 504 (the provision of the Rehabilitation Act that prohibit discrimination against persons with disabilities by entities taking federal funds), which speaks of causation in terms of, “solely by reason of disability,” which on its face precludes motivating factor.

2. The proposed rule requires that there be appropriate staff to respond to all disability-related issues relating to the application and placement processes, including questions about reasonable accommodations and appointment under hiring authorities that take disability into account.

3. Agencies must have written reasonable accommodation procedures. Those procedures must include a statement containing: expedited processing and noting that interim accommodations will be provided when possible; instructions for managers in how to recognize and report requests for reasonable accommodations; explanation of applicable confidentiality requirements; processing deadline; information on how to challenge the denial under the federal equal employment opportunity complaint process; and a statement that requesters will be notified of the basis for denial.

4. Agencies must provide all employees with contact information of the employees inside the agency responsible for ensuring compliance with § 508 of the Rehabilitation Act and the architectural barriers act of 1968. This information must also contain clear instructions on how to file complaints under existing rules and requires agencies to assist employees in filing a complaint with another federal agency where investigation shows that the other entity is responsible for the disability discrimination.

5. Agencies are required to provide personal assistance services to individuals needing them because of a disability as part of their affirmative-action obligations. That said, the agency can require a person hired as a personal assistant to perform such services for more than one individual with a disability. Also, the agency does not have to do this if it would constitute an undue hardship (not easy to show).

6. Affirmative action plan must adopt the goal of achieving a 12% representation rate for people with disabilities for those in jobs at the GS-11 level and above, including those in the senior executive service, and those in the GS-10 level and below.

a. With respect to these numerical requirements, the percentages may seem like a lot. However, the rule notes that for years the federal government has been about that anyway. Same goes for targeted disabilities. Targeted disabilities are certain severe disabilities that have been specifically targeted by the federal government and are subject to a different hiring authorities system (Schedule A). That said, the number of persons with disabilities in jobs at the GS-11 level and above has been much lower than the 12% figure, and so the EEOC is specifically putting in a goal for those levels.

7. Annually, each agency must submit a copy of its affirmative-action plan to the EEOC, the results of the two most recent workforce analysis performed, and the number of employees appointed under the schedule a hiring authority for persons with certain disabilities.

8. Each agency as part of its affirmative-action plan must adopt reasonable accommodation procedures containing at a minimum the following:

a. Explains relevant terms such as “reasonable accommodation,” “disability,” “interactive process,” “qualified,” and “undue hardship,” in a way consistent with applicable statutory and regulatory definitions using examples where appropriate.

9. Provide that reassignment to a position for which an employee is qualified, and not just permission to compete for such a position, is a reasonable accommodation if the agency determines that no other reasonable accommodation will permit the employee with a disability to perform the essential functions of his or her current position. Also, the plan must provide for the notification of supervisors and other relevant agency employees about how and where to conduct a search for available vacancies when reassignment is being considered.

a. Obviously, the EEOC is taking the position here that reassignment is mandatory where a person with a disability can no longer do the essential functions of his or her job but is qualified in ADA parlance or otherwise qualified in Rehabilitation Act parlance for a different job. For discussion of reassignment, check out this blog entry of mine.

10. Explain that an individual may request a reasonable accommodation orally or in writing and at any time. Further, it must explain that an individual need not have a particular accommodation in mind before making a request, and that the request may be made to a supervisor or manager in the individual’s chain of command, the office designated by the agency to oversee the reasonable accommodation process, the agency employee connected with the application process, or any other individual designated by the agency to accept such request.

a. What this means is that all employees are going to need to know just how the reasonable accommodation process works since it is possible that any employee might receive a reasonable accommodation request.

11. Include any form the agency uses in connection with reasonable accommodation requests as attachments and indicate that those forms are available in alternative formats accessible to persons with disabilities.

12. Describe the agency’s process for determining whether to provide a reasonable accommodation, including a description of the interactive process, and the individual from whom the requesters will receive a final decision.

a. It will be interesting to see how you can describe the interactive process.

13. Provide guidance to supervisors and how to recognize request for reasonable accommodations.

a. Key here is going to be not relying on magic words.

14. Require that decision-makers communicate, early in the interactive process, with individuals requesting a reasonable accommodation.

a. The punctuation of this particular rule I find a bit odd. That is, “early in the interactive process,” is written as an appositive. Therefore, if taken literally, it is optional for decision-maker to communicate with individuals requesting a reasonable accommodation early in the interactive process. As a preventive law matter, that makes absolutely no sense, but nevertheless, that is the punctuation of the rule. Perhaps, it will be cleared up in the final rule.

15. Explain that the agency can require an individual requesting a reasonable accommodation to provide medical information sufficient to explain the nature of the individual’s disability, his or her need for reasonable accommodation, and how the requested accommodation, if any, will assist the individual to apply for a job, perform the essential function of a job, or enjoy the benefits and privileges of the workplace. The next two rules go even further in that they require the agency to explain the right to request relevant supplemental medical information if the information submitted by the requester is insufficient. They also allow the agency to have medical information reviewed by a medical expert of the agency’s choosing at the agency’s expense.

a. What I find interesting about all of this is that nothing suggests that the agency could not require excessive documentation before granting the reasonable accommodation. That doesn’t seem to make sense in light of prior positions in litigation taken by the EEOC and the Department of Justice.

16. The agency must specify a maximum amount of time, absent extenuating circumstances, to either provide a requested accommodation or deny the request. Further, the agency must explain that the time limit begins to run when the accommodation is first requested. Further, it needs to explain that where a particular reasonable accommodation can be provided in less than the maximum amount of time allowed, failure to respond to request in a prompt manner may result in a violation of the Rehabilitation Act.

17. Provide for expedited processing of request for reasonable accommodation needed sooner than the maximum allowable time frame set forth by the agency under normal circumstances.

18. Where a reasonable accommodation cannot be provided immediately, the agency must provide an interim accommodation whenever possible.

19. If for some reason there is a delay in either processing a request or for providing a reasonable accommodation, the agency must notify the individual the reason for the delay.

20. Explain that individuals denied a reasonable accommodation have the right to file complaints in the EEO process and other statutory processes.

21. Encourage the use of informal dispute resolution processes.

a. This makes sense because reasonable accommodations are perfectly set up to be resolved through informal dispute resolution processes.

22. The plan must specify that when evaluating the cost of the reasonable accommodation, all available resources must be considered.

23. If the agency denies a reasonable accommodation, it must give the requester written notice containing the following:

a. An explanation of the reason for the denial and notification to the job applicant or employee of any available internal appeals or dispute resolution process;
b. Informs the job applicant or employee of the right to challenge the denial by filing a complaint of discrimination;
c. Explains that such complaints must be filed within 45 days of the denial regardless of whether the individual participates in an informal dispute resolution process.
i. In legal terms, this means that if a federal employee is participating in an informal dispute resolution process, the 45 day period to file a claim is still running. In legal speak, the alternative dispute resolution process participation does not toll the 45 days period.
d. Provides instructions on how to file such a complaint.

24. Each agency needs to have an employee responsible for ensuring physical accessibility of the agency’s facilities and an employee responsible for ensuring that electronic and information technology purchase, maintain, or use by the agency is readily accessible to, and usable by, individual disabilities.

25. The rule imposes specific record-keeping requirements on the agency. It also mandate progression towards the goals and lists some of the ways they may go about accomplishing that.

Takeaways:
1. These rules are only applicable to federal agencies. They are not, as of yet, being imposed upon the private sector. As mentioned above, if they are to be imposed in the private sector at some point in the future, whether that happens probably depends upon who wins the presidential election, those rules may indeed run into the same problem as the OFCCP rules. Since the federal government is involved, if the rules become finalized before the next president takes office and that president is from a different party, one wonders what would be the process for repealing a final rule. Would it be a constitutional challenge? Would the federal government even have a right to bring such a constitutional challenge?

2. The EEOC is taking the position that reassignment is mandatory. As mentioned above, we don’t know if the Supreme Court ultimately will agree with that position.

3. The EEOC is taking the position that personal assistance services is a reasonable accommodation with the burden being on the agency to show otherwise. One can argue that the personal assistance services mandate goes beyond what would be required by the ADA under title I as such services are not directly tied to the essential functions of the job.

4. Since a reasonable accommodation request can be made to anybody, all agency employees need to understand how the ADA works. Training is critical.

5. Despite the punctuation of the rule, it is always best to get the interactive process going early.

6. The final rule should clear up just how much documentation the agency can request. As the rule is written now, it doesn’t seem to rule out excessive documentation being allowed.

7. It is unfortunate that the 45 day period for filing a complaint continues to run while any informal dispute resolution processes are being done. That forces a plaintiff into filing a claim regardless of whether the informal dispute resolution process would be satisfactory.

8. The rule sets forth specific time frames that must be complied with.

9. If reasonable accommodation is to be denied, that notification must be detailed and in writing. I would strongly recommend before such a denial that the Job Accommodation Network be contacted.

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