structuring a written request for reasonable accommodation john patrick evans, crc statewide program...

Structuring a Written Structuring a Written Request for Request for Reasonable Reasonable Accommodation Accommodation

John Patrick Evans, CRCJohn Patrick Evans, CRCStatewide Program Administrator – Corporate Statewide Program Administrator – Corporate

Relations Relations Washington State Department Social Health Washington State Department Social Health

ServicesServicesDivision of Vocational RehabilitationDivision of Vocational Rehabilitation

[email protected]@dshs.wa.gov

October 2003October 2003

Reasonable Reasonable AccommodationAccommodation

A logical change in the work A logical change in the work environment or in the way things environment or in the way things are customarily done that enables are customarily done that enables an otherwise qualified individual an otherwise qualified individual with a disability to enjoy equal with a disability to enjoy equal employment opportunities. employment opportunities.


The reasonable accommodation The reasonable accommodation process is best understood as a process is best understood as a means by which barriers to the means by which barriers to the equal opportunity of an equal opportunity of an individual with a disability are individual with a disability are removed, reduced or alleviated.removed, reduced or alleviated.

Responsibility – Covered Responsibility – Covered

EntityEntity The ADA requires covered entities, The ADA requires covered entities,

including private employers, to including private employers, to provide reasonable accommodation provide reasonable accommodation to the known physical or mental to the known physical or mental limitations of an otherwise qualified limitations of an otherwise qualified individual with disability who is an individual with disability who is an applicant or employee, unless such applicant or employee, unless such covered entity can demonstrate covered entity can demonstrate that the accommodation would that the accommodation would impose an undue hardship. impose an undue hardship. 42 42 U.S.C. 12112(b)(5)(A)U.S.C. 12112(b)(5)(A)

Responsibility – Covered Responsibility – Covered EntityEntity

If an individual with a disability who If an individual with a disability who is otherwise qualified, cannot is otherwise qualified, cannot perform one or more essential job perform one or more essential job functions because of his or her functions because of his or her disability, the employer, in disability, the employer, in assessing whether the person is assessing whether the person is qualified to do the job, must qualified to do the job, must consider whether there are consider whether there are modifications or adjustments that modifications or adjustments that would enable the person to perform would enable the person to perform these functions. these functions.


EntityEntity

The responsibility to provide reasonable The responsibility to provide reasonable accommodation in employment settings often accommodation in employment settings often fall into three categories: fall into three categories:

Those that ensure equal opportunity in the Those that ensure equal opportunity in the application processapplication process

Those that enable workers with disabilities to Those that enable workers with disabilities to perform a position’s essential functionsperform a position’s essential functions

Those that enable workers with disabilities to enjoy Those that enable workers with disabilities to enjoy the same benefits and privileges of employment as the same benefits and privileges of employment as enjoyed by workers without disabilitiesenjoyed by workers without disabilities


EntityEntity Reasonable accommodation for Reasonable accommodation for

students with disabilities shall be students with disabilities shall be provided as appropriate for all provided as appropriate for all aspects of college and university aspects of college and university life, including but not limited to: life, including but not limited to: Recruitment, the application Recruitment, the application process, enrollment, registration, process, enrollment, registration, financial aid, coursework, research, financial aid, coursework, research, academic counseling, housing academic counseling, housing programs owned or operated by the programs owned or operated by the institution of higher education, and institution of higher education, and nonacademic programs and nonacademic programs and services. services. RCW 28B.10.914 RCW 28B.10.914

Responsibility – Covered Responsibility – Covered EntityEntityHigher Education Higher Education

It is the institution of higher It is the institution of higher education’s responsibility to provide education’s responsibility to provide auxiliary aids and services in a timely auxiliary aids and services in a timely manner to ensure effective manner to ensure effective participation by students with participation by students with disabilities. If students are being disabilities. If students are being evaluated to determine their eligibility, evaluated to determine their eligibility, the institution must provide auxiliary the institution must provide auxiliary aids in the interim. aids in the interim.

RCW 28B.10.910RCW 28B.10.910

Responsibility – Responsibility – P.W.D.P.W.D.

A postsecondary student with a A postsecondary student with a disability who is in need of auxiliary disability who is in need of auxiliary aids is obligated to provide aids is obligated to provide notification of the nature of the notification of the nature of the disabling condition to the recipient disabling condition to the recipient and to assist the recipient in and to assist the recipient in identifying appropriate and effective identifying appropriate and effective auxiliary aids. The student must give auxiliary aids. The student must give adequate notice of the need. adequate notice of the need. RCW 28B.10.910RCW 28B.10.910

Definition of Disability Definition of Disability

State State A disability is defined as: A disability is defined as:

Includes, but is not limited to, circumstances Includes, but is not limited to, circumstances where a sensory, mental or physical condition: where a sensory, mental or physical condition:

(a) Is medically cognizable or diagnosable;(a) Is medically cognizable or diagnosable;

(b) Exists as a record or history; or(b) Exists as a record or history; or

(c) Is perceived to exist, whether or not it (c) Is perceived to exist, whether or not it exists in fact.exists in fact.

RCW 49.60RCW 49.60WAC 162-22WAC 162-22

Definition of Definition of DisabilityDisability

Affirmative ActionAffirmative Action

Under WAC 162-22-030, for purposes of Under WAC 162-22-030, for purposes of affirmative action, the impairments affirmative action, the impairments must be material rather than slight, must be material rather than slight, static and permanent in that they are static and permanent in that they are seldom fully corrected by medical seldom fully corrected by medical replacement, therapy, or surgical replacement, therapy, or surgical means. means.

Definition of Definition of Disability Disability

Federal Federal A disability is defined as:A disability is defined as:

(A) physical or mental impairment that (A) physical or mental impairment that substantially substantially limits one or more major life limits one or more major life activitiesactivities

(b) A record of such an impairment(b) A record of such an impairment

(c) Being regarded as having such an (c) Being regarded as having such an impairmentimpairment

42 U.S.C. 12102(2)42 U.S.C. 12102(2)


Physical impairment means:Physical impairment means:Any physiological disorder, or condition, cosmetic Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one disfigurement, or anatomical loss affecting one or more of the following body systems:or more of the following body systems:

- neurological- neurological - special sense organs - special sense organs- musculoskeletal- musculoskeletal - respiratory - respiratory - cardiovascular- cardiovascular - reproductive - reproductive- digestive- digestive - genito-urinary - genito-urinary- hemic & lymphatic - skin & endocrine- hemic & lymphatic - skin & endocrine

29 CFR 1630.2(h)29 CFR 1630.2(h) 45 CFR 84.3(j)(2)(i)45 CFR 84.3(j)(2)(i)


Mental impairment means: Mental impairment means:

Any mental or psychological disorder Any mental or psychological disorder such as:such as:

- mental retardation - emotional or - mental retardation - emotional or mental - specific learning mental - specific learning illness illness

disabilitiesdisabilities - organic brain - organic brain

syndromesyndrome29 CFR 1630.2(h) 29 CFR 1630.2(h)

45 CFR 84.3(j)(2)(i) 45 CFR 84.3(j)(2)(i)


It is insufficient for individuals It is insufficient for individuals attempting to prove disability status attempting to prove disability status under the Act to merely submit under the Act to merely submit evidence of a medical diagnosis of an evidence of a medical diagnosis of an impairment. Instead the ADA requires impairment. Instead the ADA requires those claiming protection to prove a those claiming protection to prove a disability by offering evidence that disability by offering evidence that the extent of the limitation [caused the extent of the limitation [caused by their impairment], in terms of by their impairment], in terms of their own experience, is substantial.their own experience, is substantial.

Albertsons, Inc. vs KirkingburgAlbertsons, Inc. vs Kirkingburg

Definition of Definition of DisabilityDisability- To qualify as disabled under subsection (a) To qualify as disabled under subsection (a)

of the ADA’s definition of disability, a of the ADA’s definition of disability, a claimant must initially prove that he or she claimant must initially prove that he or she has a physical or mental impairment.has a physical or mental impairment.

- Merely having an impairment does not Merely having an impairment does not make one disabled for purposes of the make one disabled for purposes of the ADA. Claimants also need to demonstrate ADA. Claimants also need to demonstrate that the impairment limits a major life that the impairment limits a major life activity.activity.

- A claimant must further show that the A claimant must further show that the limitation on the major life activity is limitation on the major life activity is substantial.substantial.

- 42 U.S.C. 12102(2)(A)42 U.S.C. 12102(2)(A)


Substantially limited means unable to Substantially limited means unable to perform a major life activity that the perform a major life activity that the average person in the general population average person in the general population can perform; or significantly restricted as can perform; or significantly restricted as to the condition, manner or duration to the condition, manner or duration under which an individual can perform a under which an individual can perform a particular major life activity as compared particular major life activity as compared to the condition, manner or duration to the condition, manner or duration under which the average person in the under which the average person in the general population can perform that general population can perform that same major life activity.same major life activity.

29 CFR 1630.2(j)(i) 29 CFR 1630.2(j)(i)


In determining whether an individual is In determining whether an individual is substantially limited in a major life activity, substantially limited in a major life activity, the regulations instruct that the following the regulations instruct that the following factors should be considered:factors should be considered:

- the nature and severity of the impairment- the nature and severity of the impairment - the duration or expected duration of the - the duration or expected duration of the

impairment impairment - the permanent or long-term impact, or the - the permanent or long-term impact, or the

expected permanent or long-term expected permanent or long-term impact impact of or resulting from the impairmentof or resulting from the impairment

29 CFR 1630.2(j)(2)(i)(iii)29 CFR 1630.2(j)(2)(i)(iii)

Definition of Definition of DisabilityDisability- Major Life Activities refers to those Major Life Activities refers to those

activities that are of central importance activities that are of central importance to daily life. Major in the phase major life to daily life. Major in the phase major life activities means important.activities means important.

- The determination of whether an The determination of whether an individual has a disability is not individual has a disability is not necessarily based on the name or necessarily based on the name or diagnosis of the impairment the person diagnosis of the impairment the person has, but rather on the effect of that has, but rather on the effect of that impairment on the life of the individual.impairment on the life of the individual.

- The determination of whether an The determination of whether an individual is substantially limited in a individual is substantially limited in a major life activity must be made on a major life activity must be made on a case-by-case basis.case-by-case basis.

- Toyota Vs WilliamsToyota Vs Williams


Major life activities means:Major life activities means:

- Caring for oneself - Performing - Caring for oneself - Performing manual manual tasks tasks

- WalkingWalking - Seeing - Seeing- HearingHearing - Speaking - Speaking- BreathingBreathing - Learning - Learning- Working Working -

- 29 CFR 1630.2(i)29 CFR 1630.2(i)- 45 CFR 84.3(j)(2)(ii)45 CFR 84.3(j)(2)(ii)

Definition of Definition of DisabilityDisabilityMitigating Measures Mitigating Measures

- U.S. Supreme Court has held that corrective or - U.S. Supreme Court has held that corrective or “mitigating” measures must be considered in “mitigating” measures must be considered in determining whether a person has a disability under the determining whether a person has a disability under the ADA.ADA.

- The focus on what a mitigating measure is must remain - The focus on what a mitigating measure is must remain in the “present indicative tense”, not on what might, in the “present indicative tense”, not on what might, could, or should be. could, or should be.

- While mitigating measures may limit the extent to which - While mitigating measures may limit the extent to which an impairment is disabling, “the disability definition does an impairment is disabling, “the disability definition does not turn on personal choice”. not turn on personal choice”.

- The “negative effects of mitigating measures” must be - The “negative effects of mitigating measures” must be considered, such as the side effects of medications. considered, such as the side effects of medications.

Sutton Vs United Air Lines, Inc.Sutton Vs United Air Lines, Inc.Bragdon Vs AbbottBragdon Vs Abbott

Definition of Definition of DisabilityDisability That the ADA’s disability definition That the ADA’s disability definition

applies not only to the portion of the applies not only to the portion of the ADA dealing with employment, but ADA dealing with employment, but also to the other provisions dealing also to the other provisions dealing with public transportation and public with public transportation and public accommodations, demonstrates that accommodations, demonstrates that the definition is intended to cover the definition is intended to cover individuals with disabling impairments individuals with disabling impairments regardless of whether they have any regardless of whether they have any connection to a workplace.connection to a workplace.

Toyota Vs WilliamsToyota Vs Williams


Institutions of higher education may, in response to a request for auxiliary aids, make reasonable requests that the student provide supporting diagnostic test results and professional prescriptions for auxiliary aids.

RCW 28B.10.912

Qualified Individual with Qualified Individual with DisabilityDisability

To be protected by the ADA, a To be protected by the ADA, a person must not only be an person must not only be an individual with a disability, but individual with a disability, but must be qualified. An employer is must be qualified. An employer is not required to hire or retain an not required to hire or retain an individual who is not qualified to individual who is not qualified to perform a job. perform a job.

Qualified Individual with Qualified Individual with DisabilityDisability

AAn individual with a disability who n individual with a disability who satisfies the requisite skill, experience, satisfies the requisite skill, experience, education and other education and other job related job related requirements of the requirements of the position the position the person holds or desires and who, with person holds or desires and who, with or without reasonable or without reasonable accommodation, can perform the accommodation, can perform the essential functions of such a position. essential functions of such a position.

Qualified Individual with

Disability

An individual who, with or without An individual who, with or without reasonable modifications to rules, policies, reasonable modifications to rules, policies, and practices, the removal of and practices, the removal of architectural, communication or architectural, communication or transportation barriers, or the provision of transportation barriers, or the provision of auxiliary aids and services, meets the auxiliary aids and services, meets the essential eligibility requirements for the essential eligibility requirements for the receipt of services or the participation in receipt of services or the participation in programs or activities provided. programs or activities provided.

42 USC sec. 12131(2)42 USC sec. 12131(2)

28 CFR sec. 35.10428 CFR sec. 35.104


Job restructuringJob restructuring

Part-time or modified work schedulesPart-time or modified work schedules

Reassignment to a vacant positionReassignment to a vacant position

Making existing facilities used by employees Making existing facilities used by employees accessible to individuals with disabilitiesaccessible to individuals with disabilities

Acquisition of auxiliary aides, equipment and/or Acquisition of auxiliary aides, equipment and/or servicesservices

Appropriate adjustment of examinations, training Appropriate adjustment of examinations, training materials or policiesmaterials or policies


Provide personal assistants to help with specific Provide personal assistants to help with specific duties related to the jobduties related to the job

Allow an individual with a disability to provide and Allow an individual with a disability to provide and use equipment, aids, or services that an employer is use equipment, aids, or services that an employer is not required to providenot required to provide

Permitting use of accrued paid leave or providing Permitting use of accrued paid leave or providing additional unpaid leave for necessary treatmentadditional unpaid leave for necessary treatment

Changing when or how an essential function is Changing when or how an essential function is performedperformed

Reasonable Reasonable Accommodation Accommodation Examples - Examples - Sensory DisabilitySensory Disability

Clear Expectations (long & short Clear Expectations (long & short term)term)

Qualified InterpreterQualified Interpreter Assistive Listening DevicesAssistive Listening Devices Notetaker / Tape RecordingsNotetaker / Tape Recordings Printed MaterialsPrinted Materials Telecommunication Device / DeafTelecommunication Device / Deaf Captioned MaterialsCaptioned Materials

Reasonable Reasonable AccommodationAccommodation Examples - Examples - Mental DisabilityMental Disability Flexible Schedule / BreaksFlexible Schedule / Breaks Clear Expectations Clear Expectations (short & long term)(short & long term)

Virtual Classroom / Work StationVirtual Classroom / Work Station Tape Recordings / NotetakerTape Recordings / Notetaker Reduce Distractions Reduce Distractions

(visual/auditory)(visual/auditory) Tutor / MentorTutor / Mentor Positive Praise / ReinforcementPositive Praise / Reinforcement


Examples - Examples - Physical Physical DisabilityDisability Accessible Facilities Accessible Facilities Proper LightingProper Lighting Alternate FormatsAlternate Formats Ergonomic WorkstationErgonomic Workstation Transportation Transportation

AssistanceAssistance

Reasonable Reasonable AccommodationAccommodation Examples - Examples - Visual Visual DisabilityDisability

Qualified ReadersQualified Readers Audio RecordingsAudio Recordings Large PrintLarge Print Braille MaterialsBraille Materials ASCII DiskettesASCII Diskettes Transportation AssistanceTransportation Assistance

Reasonable Accommodation Reasonable Accommodation

Student Settings Student Settings

Auxiliary aids and services may include:uxiliary aids and services may include:– taped texts taped texts – qualified interpretersqualified interpreters– note takersnote takers– readersreaders– student tutorsstudent tutors– television enlargerstelevision enlargers– talking calculatorstalking calculators– reaching device for library usereaching device for library use

Reasonable Reasonable Accommodation Accommodation Student Settings Student Settings

Auxiliary aids and services may include:Auxiliary aids and services may include:– electronic readerselectronic readers– Braille calculators, printers, or typewritersBraille calculators, printers, or typewriters– voice synthesizersvoice synthesizers– assistance in filling out formsassistance in filling out forms– specialized gym equipmentspecialized gym equipment– calculators or keyboards with large buttonscalculators or keyboards with large buttons– raised-line drawing kitsraised-line drawing kits


The institution of higher The institution of higher education may, on its own, education may, on its own, obtain a professional obtain a professional determination of whether determination of whether requested auxiliary aids are requested auxiliary aids are necessary and, if so, what necessary and, if so, what kind. kind.

RCW 28B.10.912RCW 28B.10.912

Personal Devices and Personal Devices and ServicesServices

Recipients need not provide Recipients need not provide attendants, individually prescribed attendants, individually prescribed devices such wheelchairs, hearing devices such wheelchairs, hearing aids or prescription eyeglasses, aids or prescription eyeglasses, readers for personal use or study, or readers for personal use or study, or other devices or services of a other devices or services of a personal nature.personal nature.

28 CFR sec. 35.135628 CFR sec. 35.1356

Undue HardshipUndue Hardship

An individuals need for accommodation An individuals need for accommodation cannot enter into the employers or cannot enter into the employers or covered entity’s decision regarding hiring, covered entity’s decision regarding hiring, discharge, promotion, or other similar discharge, promotion, or other similar employment decisions, unless the employment decisions, unless the accommodation would impose an undue accommodation would impose an undue hardship on the employer.hardship on the employer.

Undue HardshipUndue Hardship

Undue hardship refers to any Undue hardship refers to any accommodation that would be accommodation that would be unduly costly, extensive, unduly costly, extensive, substantial, or disruptive, or substantial, or disruptive, or that would fundamentally alter that would fundamentally alter the nature or operation of the the nature or operation of the business.business.

Fundamental Alteration or Fundamental Alteration or Undue Burden Undue Burden

If an aid or service is necessary for If an aid or service is necessary for classroom or other appropriate classroom or other appropriate (nonpersonal) use, the institution (nonpersonal) use, the institution must make it available unless the must make it available unless the requested accommodation would requested accommodation would result in a fundamental alteration or result in a fundamental alteration or undue burden. undue burden.

RCW 28B.10.910 RCW 28B.10.910 28 CFR sec. 35.104, 35.160(b), 35.16428 CFR sec. 35.104, 35.160(b), 35.164

Fundamental Alteration Fundamental Alteration or Undue or Undue BurdenBurden

The decision that fundamental The decision that fundamental alteration or undue burden would alteration or undue burden would result must be made by the head of result must be made by the head of the covered entity or his/her designee, the covered entity or his/her designee, but in any case, by a high-level but in any case, by a high-level official, no lower than a department official, no lower than a department head, having budgetary authority and head, having budgetary authority and responsibility for making spending responsibility for making spending decisions. decisions.

28 CFR sec. 35.16428 CFR sec. 35.164

Fundamental Alteration Fundamental Alteration or Undue or Undue BurdenBurden

A decision of fundamental A decision of fundamental alteration or undue burden alteration or undue burden must be documented in a must be documented in a written statement, including the written statement, including the reasons for reaching the reasons for reaching the conclusion that fundamental conclusion that fundamental alteration or undue burden alteration or undue burden would result. would result.

28 CFR sec. 35.16428 CFR sec. 35.164

structuring a written request for reasonable accommodation john patrick evans, crc statewide program...

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