U.S. Department of Justice
Justice Management Division
Manual and Procedures
Equal Employment Opportunity Staff
MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS
FROM: THE ATTORNEY GENERAL SUBJECT: Provision of Reasonable Accommodations
The Department of Justice has an ongoing obligation under the Rehabilitation Act of 1973, 29 U.S.C. § 794, to ensure that employees with physical and mental disabilities are given reasonable accommodations that will enable them to perform their jobs. Beyond our legal obligations, we have a strong institutional interest in providing accommodations that will allow our employees with disabilities to continue to contribute at the highest levels to the mission of this agency. In order to reaffirm our commitment to these principles and responsibilities, we are joining in a government-wide effort to improve agency responses to requests for reasonable accommodations. The following guidelines have been prepared which describe the Department's policies and general procedures for processing reasonable accommodation requests. Each component should adopt these guidelines or, using the guidelines as minimum standards, establish its own procedures for accommodation requests. Each component should designate an adequate number of Accommodation Coordinators to facilitate the procurement of equipment, furniture and services requested by employees with disabilities. The plans and procedures, along with the names of Accommodation Coordinators, should be provided to the Equal Employment Opportunity Staff of the Justice Management Division.
I wish to emphasize, the process for providing reasonable accommodations requires the cooperation of employees, their supervisors, and Accommodation Coordinators to achieve a common goal: to ensure to the maximum extent possible that employees are given the accommodations necessary to enable them to perform their jobs effectively.
THE DEPARTMENT OF JUSTICE
REASONABLE ACCOMMODATION GUIDELINES
Executive Order 13164 directs all federal agencies to establish procedures to facilitate the provision of reasonable accommodations to employees and job applicants with disabilities. Pursuant to this Executive Order, and our continuing obligations under the Rehabilitation Act of 1973, the Attorney General has issued these guidelines for use by all components in the Department. Each component shall establish procedures for implementing these Guidelines.
Introduction and Overview
The Department of Justice (DOJ) has a legal obligation to provide reasonable job accommodations for employees and job applicants with disabilities. This policy statement provides examples of the types of accommodations that are appropriate and generally will be provided to Department employees and applicants with disabilities. It also describes basic procedures for processing requests for accommodations. The examples of accommodations identified in these Guidelines are not exhaustive; instead, they illustrate the broad spectrum of appropriate accommodations that generally will be provided at no cost to the employee or applicant. All of the identified accommodations are appropriate for virtually all employees (attorneys and other staff), regardless of grade level or experience.
The purpose of reasonable accommodations is to provide employment opportunities for persons with disabilities who otherwise would not be able to perform the essential functions of their job, and to allow employees with disabilities to perform or be more productive. Reasonable accommodations may include, but are not limited to (a) making existing facilities readily accessible to individuals with disabilities; (b) job restructuring, modification of work schedules or place of work, extended leave, telecommuting, reassignment to a vacant position; and (c) acquisition or modification of equipment or devices, including computer software and hardware, appropriate adjustments or modifications of examinations, training materials or policies, the provision of qualified readers and/or interpreters and other similar accommodations.
Accommodation decisions should be based primarily on whether they will help the applicant or employee become a successful and productive member of the Department's workforce. Even though most job accommodations cost little or nothing, the Department will also satisfy more costly accommodation needs, such as providing readers, sign language interpreters, or personal assistants for travel to employees needing those services in order to perform their jobs. The cost should be evaluated in terms of the overall available financial resources of the Department.
A. REQUESTS FOR ACCOMMODATION
Reasonable Accommodation Requests and The Interactive Process
In most circumstances, it is the obligation of the employee to request the reasonable accommodation. However, there may be situations where the known disability of the employee impairs that employee's ability to effectively communicate a need for an accommodation that is obvious to the supervisor. In either circumstance, the need for an accommodation should begin an interactive and flexible process between the employee and supervisor in order to identify an effective accommodation. An effective accommodation is one that will allow the employee to perform the essential functions of the job. The interactive process may include (1) an analysis of the particular job to determine its purpose and essential functions, (2) 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, (3) 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, (4) consideration of the preference of the employee and selection and implementation of the accommodation that is appropriate for the employee and the employer and (5) the overall needs of the office. The accommodation need not be the most expensive, nor must it be exactly what the employee requests, but it must be effective.
The Request Process
Job applicants may make requests for reasonable accommodation to the individual identified in the appropriate vacancy announcement as the point of contact for reasonable accommodations, any designated accommodation official, or the selecting official. All vacancy announcements should identify an individual as a contact for reasonable accommodation requests. Vacancy announcements are found at www.usdoj.gov.
Employees, under most circumstances, should submit a written request to the first-line supervisor, using DOJ Form 100A included in Appendix B. If an employee initially makes the request orally, it should be followed with a written request, although the supervisor should begin processing the request upon receipt of a oral request. A request for accommodation also may be made by a family member, health professional, or other representative who is acting on the individual's behalf with the individual's consent. A supervisor may request medical documentation only when the employee's need for accommodation is not apparent and there is no other medical information already on record for the employee which demonstrates that need. If a supervisor does not have authority to approve the request, the request must be forwarded promptly to the person designated by the component as the ultimate decision maker for review. If a supervisor fails to respond to a request for accommodation within a reasonable time, an employee should contact a second line supervisor or the Human Resources Department.
If an employee has concerns about disclosing his or her disability to a supervisor, the employee may send the request in the first instance directly to a decision maker other than the direct supervisor, such as a second line supervisor or the Human Resources Department. Employees should understand, however, that it may become necessary to disclose that information to the supervisors in order to facilitate the provision of the reasonable accommodation.
If a request for reasonable accommodation is denied, it must be in writing and outline the reasons for the denial by using DOJ Form 100C included in Appendix B. The official denying the request also must inform the employee of the right to file an EEO complaint, a grievance under a collective bargaining agreement, or, if there is an adverse action, an appeal with the Merit Systems Protection Board. Finally, the decision maker should identify any available informal dispute resolution avenues.
Each component of the Department shall designate an adequate number of Accommodation Coordinators in the administrative offices. Accommodation Coordinators will serve as contact persons for making workspace accessible to individuals with disabilities and are responsible for procuring furniture, equipment, and services, such as sign language interpreters. In addition, they will maintain all accommodation related materials and compile cumulative data for tracking purposes. These individuals will serve as the contact persons for making the work space accessible to individuals with disabilities and for obtaining equipment, furniture, software or other services such as sign language interpreters.
Medical Documentation and Confidentiality
The components are entitled to know that an employee or applicant has a disability that requires a reasonable accommodation. In some cases the disability and need for accommodation will be obvious or otherwise already known to the decision maker. In these cases, the component will not seek any further medical information. However, when a disability and/or need for reasonable accommodation is not obvious or otherwise already known to the decision maker, the component may require that the individual provide reasonable documentation about the disability and functional limitations. The agency has a right to request supplemental medical information if the information submitted does not clearly explain the nature of the disability or the need for the reasonable accommodation, or does not otherwise clarify how the requested accommodation will assist the employee to perform the essential functions of the job. Such a request for supplemental documentation must be specific so that the employee will know what to provide. It is not appropriate to request medical information that is unrelated to the individual's request for accommodation. For example, an individual may request an ergonomic keyboard because of carpal tunnel syndrome. Although a supervisor may obtain medical information about the carpal tunnel syndrome, and the need for the keyboard, the supervisor may not request other, unrelated, medical information. The agency also has the right to have medical information reviewed by a medical expert of the agency's choosing at the agency's request and at the agency's expense.
All requests for accommodations, along with any medical or other documentation provided, will be kept in files separate from the employee's personnel file. The Accommodation Coordinator will maintain the files after the decision maker makes a final determination on the request. Access to this information is strictly limited to those employees with an identifiable need to review the information.
The failure to provide appropriate documentation or to cooperate with the Department's efforts to obtain such documentation may result in denial of the accommodation request.
Agency officials who receive requests for accommodation should respond to them promptly. Officials should not delay in requesting medical documentation or in discussing the requested accommodation, including possible alternative accommodations, with the employee. A final disposition ordinarily should be made within seven business days of the request or receipt of medical documentation, in cases where medical documentation is required. Once an accommodation has been approved or denied, supervisors should act expeditiously to forward the request and all related documents to the appropriate Accommodation Coordinator. When a request is approved, the Coordinator must procure the equipment, furniture and services on an expedited basis. Whenever possible, the request should be fulfilled within 15 business days after receipt by the Accommodation Coordinator.
B. AVAILABLE ACCOMMODATIONS
The following provides guidance on the types of accommodations the Department should provide for certain disabilities where such accommodations would enable the individual to perform the essential functions of the job or participate in the benefits of the job. If an individual can no longer perform the essential functions of his/her current job, the component must consider reassigning the individual to another position. See Section C5.
Accommodations for people who are deaf, hard of hearing, or who have other communication-related disabilities:
The Department will accommodate employees and job applicants who are deaf, hard of hearing, or who have speech or motor impairments affecting communication, by providing appropriate auxiliary aids and services and other accommodations to facilitate effective communication in all programs and services. Appropriate auxiliary aids may include, but are not limited to, telecommunication devices for deaf individuals ("TTYs"), sign language and oral interpreters, computer-assisted real-time transcription services, note takers (for training courses and meetings), captioned training tapes, and assistive listening devices and systems.
Accommodations for people who are blind or have visual impairments:
The Department will accommodate employees and job applicants with visual impairments by providing readers and accessible computer equipment that is compatible with networks and other computer software. All Department publications and training materials will be made available in accessible formats such as large print, computer disk, or Braille.
Accommodations for people with mobility and manual impairments:
For people with mobility impairments, the Department will provide office equipment (i.e., raised desks) when requested to facilitate the employee's ability to work efficiently and without injury. Offices may be made accessible by adding ramps, automatic door openers, accessible toilet stalls and clearing hallways of obstructions. For manual impairments, examples of accommodations might include, but are not limited to, the use of personal assistants for travel, voice recognition systems, and alternative keypad and keyboard access.
Accommodations for people with mental or psychiatric illnesses or disabilities affecting stamina:
Alternatives to the traditional structured work environment allow many people with disabilities such as HIV, cancer, and mental or psychiatric illness such as major depression or panic attack disorders, to work full-time without compromising the quality and quantity of their work for the Department, their health, or their ability to schedule frequent medical treatment, if necessary. Where an employee provides adequate medical documentation of need, Department supervisors should consider flexible work schedules, the ability to telecommute and extended leave as possible reasonable accommodations. The Department will also accommodate employees with learning disabilities. Supervisors may consider the impact of the accommodation upon the operation of their office, including the impact on the ability of other employees to perform their duties and the impact on the component's ability to conduct business.
A service animal means any guide dog, signal dog, or other animal trained to provide assistance to persons with disabilities including, but not limited to, guiding persons who have visual or hearing impairments. A service animal also may be an animal trained to pull a wheelchair. The Department permits the use of service animals, which may accompany employees throughout the Department and to all Department activities.
C. ACQUIRING THE ACCOMMODATIONS
The following guidance will assist supervisors in handling requests for accommodations:
1. Procuring equipment, furniture, and services. Approved requests for equipment, furniture or other services such as interpreters for deaf employees, should be put in writing and forwarded to the Accommodation Coordinator. Often the employee requesting the accommodation is knowledgeable about a specific product that is effective. Therefore, if known, a detailed description of the supplies, equipment, or services should be provided, including any specifications, preferences, or manufacturer literature.
Once approved, all procurement-related reasonable accommodation requests should be processed in accordance with federal procurement guidelines. Requests for reasonable accommodations should be tracked and made a top priority by the Accommodation Coordinator to ensure that accommodations will be provided expeditiously.
The Department has contracted with the Department of Defense to participate in its Computer/Electronic Accommodations Program (CAP). Thus, where an employee needs adaptive equipment for computer hardware and software, the Accommodation Coordinator should contact the Department of Defense for assistance. Department Personnel Offices can provide additional information about the CAP Program.
2. On-going accommodations. Some employees may need an accommodation on an intermittent basis. For example, a deaf employee may need an interpreter for attendance at meetings or training sessions. Each request is not a new request for accommodation, and does not require a formal, written request or a formal written response. Supervisors should work with the Accommodation Coordinator to ensure that such accommodations will be made available on an as-needed basis.
3. Accommodations outside the usual place of work. Official off-site events, such as retreats, training sessions, official office parties, and similar functions, should be located in places that are accessible to employees. The Department has an obligation to ensure that programs, such as training programs sponsored through non-DOJ entities, whether at other agencies or through a private sector entity, are fully accessible and provide the accommodations necessary to facilitate the participation of employees with disabilities. Where a non-DOJ program does not provide a necessary accommodation, it remains the responsibility of the Department to provide that accommodation.
4. Job restructuring and work schedules. Requests for modified work schedules, telecommuting and job restructuring--that is, modifying the scope of a job--involve individualized assessments that take into account the needs of the employee and the needs of the office. The Department should consider providing flexible work schedules as a reasonable accommodation to employees with disabilities where the employee establishes the need for such a schedule. Supervisors should discuss various options with the employee to devise a reasonable work schedule.
It also may be necessary to redefine the job duties as a reasonable accommodation. An employee must be able to perform the essential functions of the job, but where it is possible to remove certain non-essential tasks from an employee's work requirements, this should be done.
5. Reassignment to a vacant position. Under the Rehabilitation Act, reassignment to a vacant position can be an appropriate and reasonable accommodation. The Department is not required to create jobs for individuals. Reassignment will only be considered if no other reasonable accommodation is available. When it appears that reassignment is appropriate, the supervisors and Accommodation Coordinator should attempt to identify jobs to which an individual can be reassigned or detailed. The Department will first focus on positions which are equivalent to the employee's current job in terms of pay, status, and other relevant factors. If there is no vacant equivalent position, the Department may consider vacant lower level positions for which the individual is qualified. Reassignment may be made to a vacant position outside of the employee's commuting area if the employee is willing to relocate. As with other transfers not required by management, the Department will not pay for the employee's relocation costs.
6. Job Applicants. Reasonable accommodations for job applicants may include providing an accessible location for job interviews; sign language interpreters; providing other assistive devices; and other accommodations that may be needed in the application process.
7. Retaliation. A supervisor may not retaliate against an employee who has requested an accommodation.
D. DISPOSITION OF ACCOMMODATION REQUEST AND RECORD KEEPING
The Executive Order requires the Department to maintain records of requests for accommodations and their dispositions. The employee requesting an accommodation should complete DOJ Form 100A included in Appendix B. Once a supervisor determines, after appropriate consultation, whether a request for accommodation will be granted or denied, the supervisor must complete DOJ Form 100B, also in Appendix B. If denied, DOJ Form 100C, in Appendix B, must be completed by the supervisor and a copy given to the individual who requested the accommodation.
Records related to a particular individual's accommodation request should be kept for the duration of the individual's employment by the appropriate employing component's Accommodation Coordinator. These records are confidential. They must be kept separate in a reasonable accommodation file and not in the individual's personnel file. The appropriate Accommodation Coordinator will develop cumulative records, without individual identifiers, based on these forms, so that the Department may track performance relating to the provision of reasonable accommodation. These cumulative records will be kept for a minimum of 3 years.
E. INFORMAL DISPUTE RESOLUTION
Each component should implement or utilize existing procedures for informal dispute resolution that may include any of the following processes: reconsideration of denial, review by a second-line supervisor or review by another neutral party.
Reconsideration, review, and use of alternative resources do not affect the time limits for initiating statutory and collective bargaining claims. An individual's participation in informal dispute resolution processes will neither satisfy nor delay the time restrictions.
F. RELATION OF PROCEDURES TO STATUTORY AND COLLECTIVE BARGAINING CLAIMS
The Department's reasonable accommodation policy is in addition to statutory and collective bargaining protections for persons with disabilities and the remedies those protections provide for the denial of requests for reasonable accommodation. Requirements governing the initiation of statutory and collective bargaining claims, including time frames for filing such claims, remain unchanged.
For an EEO complaint: Employees must contact an EEO counselor in the appropriate EEO office within 45 days from the date of denial of accommodation.
For a collective bargaining claim: File a written grievance in accordance with the provisions of the applicable Collective Bargaining Agreement; or
Merit Systems Protection Board: Where the denial of a request results in an adverse action, initiate an appeal to the Merit Systems Protection Board within 30 days of an appealable adverse action as defined in 5 C.F.R. § 1201.3.
These guidelines do not create any right or benefit, substantive or procedural, enforceable at law by a party against the United States.
SELECTED INTERNAL REASONABLE ACCOMMODATION RESOURCES
The appropriate EEO and Executive office will be available, as needed, to provide assistance to employees and decision makers in processing requests. Personnel offices are also available to help with personnel actions, adjusting schedules/flexible leave policies/alternative work schedules, and alternate work site. They can also provide assistance in obtaining medical review of medical documentation submitted by employees seeking reasonable accommodations. The Attorney General, through the Justice Management Division's Personnel Staff entered into an interagency agreement with the Department of Defense's Computer/Electronic Accommodations Program (CAP) to handle most requests for adaptive equipment for computers. Facilities staff and others are available also. The component's EEO office is a referral resource.
SELECTED EXTERNAL REASONABLE ACCOMMODATION RESOURCES
U.S. Equal Employment Opportunity Commission (EEOC)
1-800-669-3362 (Voice) 1-800-800-3302 (TTY) www.eeoc.gov
The EEOC's Publication Center has many free documents on the Title I employment provisions of the ADA, including both the statute, 42 U.S.C. § 12101 et seq. (1994), and the regulations, 29 C.F.R. § 1630 (1997). In addition, the EEOC has published a great deal of basic information about reasonable accommodation and undue hardship. The two main sources of interpretive information are: (1) the Interpretive Guidance accompanying the Title I regulations (also known as the "Appendix" to the regulations), 29 C.F.R. pt. 1630 app. §§ 1630.2(o), (p), 1630.9 (1997) , and (2) A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018 (1992). The Manual includes a 200-page Resource Directory, including federal and state agencies, and disability organizations that can provide assistance in identifying and locating reasonable accommodations.
The EEOC also has discussed issues involving reasonable accommodation in the following guidance and documents: (1) Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations at 5, 6-8, 20, 21-22, 8 FEP Manual (BNA) 405:7191, 192-94, 7201 (1995); (2) Enforcement Guidance: Workers' Compensation and the ADA at 15-20, 8 FEP Manual (BNA) 405:7391, 7398-7401 (1996); (3) Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities at 19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997); (4) Fact Sheet on the Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 at 6-9, 8 FEP Manual (BNA) 405:7371, 7374-76 (1996); (5) Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999); and (6) Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act at 20, 22, 23, 24-5, 8 FEP Manual (BNA) 405:7701, 7711, 7712-14, 7715-16 (2000).
All of the above-listed documents, with the exception of the ADA Technical Assistance Manual and Resource Directory, are also available through the Internet at http://www.eeoc.gov.
Job Accommodation Network (JAN)
JAN can provide information, free-of-charge, about many types of reasonable accommodations.
ADA Disability and Business Technical Assistance Centers (DBTACs)
The DBTACs consist of 10 federally funded regional centers that provide information, training, and technical assistance on the ADA. Each center works with local business, disability, governmental, rehabilitation, and other professional networks to provide current ADA information and assistance, and places special emphasis on meeting the needs of small businesses. The DBTACs can make referrals to local sources of expertise in reasonable accommodations.
Registry of Interpreters for the Deaf
(301) 608-0050 (Voice/TTY)
The Registry offers information on locating and using interpreters and transliteration services.
RESNA Technical Assistance Project
(703) 524-6686 (Voice) (703) 524-6639 (TTY)
RESNA, the Rehabilitation Engineering and Assistive Technology Society of North America, can refer individuals to projects in all 50 states and the six territories offering technical assistance on technology-related services for individuals with disabilities. Services may include:
- information and referral centers to help determine what devices may assist a person with a disability (including access to large data bases containing information on thousands of commercially available assistive technology products);
- centers where individuals can try out devices and equipment;
- assistance in obtaining funding for and repairing devices; and
- equipment exchange and recycling programs.