Guidance

Accessibility Information and Help

Essential Job Functions

Executive Order Prohibits Discrimination in Training

Flexible Scheduling

Formatting for Proposed Decisions Under DoD Directive 1020.1

Hiring, Placement, and Advancement of Individuals With Disabilities (IWD)

Making Reasonable Accommodations

Material Available from the President's Committee on Employment of People with Disabilities (PCEPD)

Reassignment

Shuttle Bus Service

Accessibility Information and Help

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Essential Job Functions

Davis v Florida Power & Light, 11th U.S. Circuit Court of Appeals, 2000 Wheeler v Illinois Inst. Of Technology, N.D. Ill. 1999 In order to qualify under the law, as an employee with a disability, an individual must meet the definition of a "qualified person with a disability" as established by the US Supreme Court. There are three terms that are included in the statutory definition, qualified individual with a disability, reasonable accommodation and essential job functions. It is this last that I want to focus on here

The term 'essential job functions' has not been discussed much in case law until recently. Yet it is just this area that becomes the backbone of a successful employment action. It is the proper identification of essential job functions that allows:

- the management to properly fill/manage a position that meets their organizational requirements;

- a employee/applicant for employment to determine if they qualify for a specific position; and,

- an employee/manager to identify the need for/type of job accommodation required allowing the employee to accomplish the functions of the job 'with or without accommodation.'

In the specific case sited below, Florida Power & Light employed Davis. Due to a back injury he was moved to a position involving connecting and disconnecting electric service to customers and was unable to work more than eight hours daily. In its review of the case, the Court of Appeals found that lineman had the third highest average number of overtime hours. Therefore, the Court considered whether the ability to perform mandatory overtime was an essential job function. Applying factors set forth by the Americans with Disabilities Act, the Court concluded that mandatory overtime was an essential function of Davis' connect and disconnect position. The employer deemed mandatory overtime essential and its application described working overtime as a condition of employment. Further, the company's connect and disconnect policy created fluctuating requirements, and its evidence showed that each connect and disconnect position required overtime work. Also, an applicable collective bargaining agreement gave the employer the right to require involuntary overtime. Overtime in this position, the Court reasoned, "is akin to job presence, which has been held to be an essential function of a job."

EEOC's Title I ADA regulations offer some help for determining whether a particular job function is essential to a particular position. The following factors are relevant:

- The employer's (read supervisor's) judgement.

- Written job description prepared before advertising/interviewing applicants for the job.

- The amount of time spent performing the function. Do not confuse this with frequency. It is not necessary to do a function frequently in order to be essential. Think about training and skills used by fireman, policeman, etc. Not all job functions are used "frequently" but they are "essential." Of more import are - the consequences of not requiring the incumbent to perform the function.

- The terms of a collective bargaining agreement.

- The work experience of past incumbents in the job.

- The work experience of incumbents in similar jobs.



Ref: a. Disability Compliance Bulletin, Vol. 17, Issue 4, 4/6/00, LRP Publications. b. Successful Job Accommodations Strategies, Volume 5, Issue 11, March 2000, LRP Publications.

Executive Order Prohibits Discrimination in Training

President Clinton issued Executive Order 13160, which prohibits discrimination on the bases of race, sex, color, national origin, disability, religion, age, sexual orientation, and status as a parent in all federally-conducted education and training programs. Under the new Executive Order, no person can be excluded from, denied the benefits of, or subjected to discrimination in training programs or educational activities conducted by an Executive department or agency. Some exceptions apply, however. For instance, the Executive Order does not apply to members of the armed forces, military education or training programs, or authorized intelligence activities. Individuals who believe they have been discriminated against in violation of this Executive Order may file a written complaint with the offending agency. The agency will then conduct an investigation of the complaint in accordance with procedures to be established by the Attorney General. The investigating office may recommend corrective and/or remedial action, but not monetary relief. The new Executive Order can be found in Volume 65, Number 124 of the June 27, 2000 Federal Register, pages 39775-39778.

Reproduced with permission of FEDmanager.

Flexible Scheduling

Ward v. Massachusetts Health Research Institute Inc., 1st Circuit court of Appeals, 4/12/00 Organizations may be required to provide workers with a flexible schedule, even if the employer already offers a Flexitime schedule. In the above case the employee was unable to make the 0900 required start time, he argued that the ADA required the employer to provide a schedule beyond the hours established by the employer's Flexitime policy. The court did not necessarily agree with the employee but it did find a factual issue that impacted on the accommodation that the employee was seeking. Ward work was time sensitive only so far as it was required to be complete before laboratory opened the following day. Court required the employer to show that maintaining regular, timely attendance was an essential to the job of a data entry worker. The employer argued that a regular and predictable schedule was required. The court found that there was nothing in the record to support the position that a set schedule was an essential job requirement so long as the employee worked the requisite 7.5 hours per day. The Court reversed the decision and remanded the case for further proceedings.

In a notice of proposed rulemaking, the EEOC has made it clear that the government will be held to the same standard as the private sector when it comes to disability discrimination. Although the Act, which prohibits disability discrimination in the federal sector, was amended in 1992 making agencies subject to the employment provisions of the ADA, EEOC has been slow to issue new regulations. For further information, see http://www.opm.gov.

Formatting for Proposed Decisions Under DoD Directive 1020.1

There have been numerous questions relating to the format used for proposed decisions under DOD Directive 1020.1, which implements Section 504 of the Rehabilitation Act of 1973, as amended and 29 U.S.C. Section 794, within the Department of Defense (DOD). When a complaint alleging discrimination based on disabilities in programs and activities receiving federal financial assistance disbursed by the Department of the Army and in programs and activities conducted by DA is received by an installation/activity, a proposed decision should be prepared in the following format. The proposed decision is forwarded to this office for coordination with DA General Counsel and DOD. Ensure the proposed decision includes a Microsoft 95 or 97 electronic file. Decisions in these cases are to be signed by the Assistant Secretary of Defense (Force Management Policy).

STATEMENT OF FACTS

PROCEDURAL HISTORY

ISSUES: If there is more than one issue, each should be specified and numbered separately.

DECISION ON EACH ISSUE

ANALYSIS OF EACH ISSUE

REMEDIES PROPOSED BY THE COMPLAINANT (IF ANY)

DECISION ON EACH REMEDY PROPOSED BY THE COMPLAINANT

ANALYSIS OF EACH REMEDY PROPOSED BY THE COMPLAINANT

CORRECTIVE ACTIONS ORDERED (IF ANY) This section should include specification of one or more remedies for each situation or issue that requires corrective action.

RIGHT TO SUE: This sections should include the following statements: 'This is the final administrative decision of the Department of Defense on this complaint. If [complainant’s name] disagrees with this decision, [he or she] has the right to file suit in a Federal district court of competent jurisdiction.'

Note: Transmittals of proposed decisions prepared by the DoD Component must show coordination by the Component’s legal office. Include the electronic file, on a diskette or via e-mail, for the decision, in Microsoft 97, Microsoft 95 or Microsoft Word format.

Hiring, Placement, and Advancement of Individuals With Disabilities (IWD)

Commands with 101 or more employees are required to develop and maintain continuing comprehensive affirmative action programs that enable and supplement actions taken to comply with Equal Employment Opportunity Commission (EEOC) directives concerning time-limited program plans, plan updates, and reports of accomplishment. Specific instructions concerning planning and reporting are contained in Management Directives (MD) MD prescribes instructions, procedures, and guidance for comprehensive programs that are to be maintained by Army and which provide a framework for implementation of law and executive branch policy concerning the hiring, placement and advancement of individuals with disabilities. At a minimum, the following objectives must be addressed in an AAP for IWD.

a. Ensuring equitable opportunity to be hired, placed, trained, and advanced.
b. Ensuring inclusion in special outreach/hiring programs, i.e., upward mobility, apprenticeships, student employment, cooperative education, internships, etc.
c. Ensuring inclusion of recruitment sources in outreach efforts that serve the disabled community.
d. Making facility accessible to and useable by employees and applicants with disabilities.
e. Providing reasonable accommodation for employee and applicants for employment with disabilities.
f. Maintaining an internal data collection system for purposes of program assessment and planning.
g. Evaluating Program status and achievement in a systematic manner and at regular intervals.
h. Delegating appropriate authority to direct and accomplish program efforts.
i. Committing adequate resources to support program efforts.
j. Ensuring full commitment to Program goals.

Ref: EEOC MD 712
EEOC MD 713

Making Reasonable Accommodations

OPM recently issued a directive requiring all federal job announcements in the competitive service to contain a message stating that 'reasonable accommodation will be made for applicants with disabilities.' OPM stated that reasonable accommodation could include such action as modifying job duties, obtaining accessible technology or other workplace equipment, providing interpreters, or restructuring work sites. The goal is to ensure that qualified individuals with disabilities know they are welcome in government. Requiring job announcements to contain this information and making reasonable accommodations are "minor adjustments" for the federal government to make to "ensure that...individuals can apply for jobs with the federal government and enjoy equal benefits and privileges of employment," Janice Lachance, Director of OPM explained.

Material Available from the President's Committee on Employment of People with Disabilities (PCEPD)

An educational booklet developed by the PCEPD is available for interested individuals. The booklet is fashioned to provide educational materials to be used year round to advance the employment of individuals with disabilities. If you desire copies, please request them at http://www.pcepd.gov or by phone at 202-376-6200 (voice), 202-376-6205 (TTY) or 202-375-6859 (Fax) or via email: info@pcepd.gov.

Reassignment

The ADA provides that reassignment is a reasonable accommodation, subject only to the limits of undue hardship. Under current federal regulations, agencies are obligated only to reassign employees with disabilities to a "funded vacant position," located in the same commuting area and serviced by the same appointing authority. Although regulations have not officially been changed, EEO has articulated its policy in an enforcement guide, Reasonable Accommodations and Undue Hardship under the Americans with Disabilities Act. In such cases as Kitaura v. US Postal Service, "federal agencies must follow the ADA standards." According to the ADA guide, reassignment is a "last resort" accommodation. Before looking at reassignment, employers should review other possible accommodations, e.g., job restructuring. If nothing else works, reassignment might be necessary. EEOC has committed to careful review and serious consideration of all comments as a final rule is drafted.

Shuttle Bus Service

The ADA requires that businesses that operate fixed-route systems must ensure that larger vehicles used with such systems are readily accessible to and usable by IWD. The requirement applies to newer vehicles that carry more than 16 passengers.