Structuring a Written Request for Reasonable Accommodation John Patrick Evans, CRC Statewide Program Administrator – Corporate Relations Washington State Department Social Health Services Division of Vocational Rehabilitation October 2003

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

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

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

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

Responsibility – Covered Entity The responsibility to provide reasonable accommodation in employment settings often fall into three categories: The responsibility to provide reasonable accommodation in employment settings often fall into three categories:  Those that ensure equal opportunity in the application process  Those that enable workers with disabilities to perform a position’s essential functions  Those that enable workers with disabilities to enjoy the same benefits and privileges of employment as enjoyed by workers without disabilities

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

Responsibility – Covered Entity Higher Education It is the institution of higher education’s responsibility to provide auxiliary aids and services in a timely manner to ensure effective participation by students with disabilities. If students are being evaluated to determine their eligibility, the institution must provide auxiliary aids in the interim. RCW 28B RCW 28B

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

Definition of Disability State A disability is defined as: Includes, but is not limited to, circumstances 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 (c) Is perceived to exist, whether or not it exists in fact. RCW WAC

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

Definition of Disability Definition of Disability Federal A disability is defined as: (A) physical or mental impairment that substantially limits one or more major life activities (b) A record of such an impairment (c) Being regarded as having such an impairment 42 U.S.C (2)

Definition of Disability Definition of Disability Physical impairment means: Physical impairment means: Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: - neurological - special sense organs - musculoskeletal - respiratory - cardiovascular - reproductive - digestive - genito-urinary - hemic & lymphatic - skin & endocrine 29 CFR (h) 45 CFR 84.3(j)(2)(i)

Definition of Disability Definition of Disability Mental impairment means: Mental impairment means: Any mental or psychological disorder such as: Any mental or psychological disorder such as: - mental retardation - emotional or mental - specific learning illness - mental retardation - emotional or mental - specific learning illness disabilities - organic brain disabilities - organic brain syndrome syndrome 29 CFR (h) 45 CFR 84.3(j)(2)(i)

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

Definition of Disability Definition of Disability - To qualify as disabled under subsection (a) of the ADA’s definition of disability, a claimant must initially prove that he or she has a physical or mental impairment. - Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity. - A claimant must further show that the limitation on the major life activity is substantial U.S.C (2)(A)

Definition of Disability Definition of Disability Substantially limited means unable to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. Substantially limited means unable to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 CFR (j)(i)

Definition of Disability Definition of Disability In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following factors should be considered: In determining whether an individual is substantially limited in a major life activity, the regulations instruct that the following 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 impairment - the duration or expected duration of the impairment - the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment - the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment 29 CFR (j)(2)(i)(iii)

Definition of Disability Definition of Disability - Major Life Activities refers to those activities that are of central importance to daily life. Major in the phase major life activities means important. - The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual. - The determination of whether an individual is substantially limited in a major life activity must be made on a case-by-case basis. - Toyota Vs Williams

Definition of Disability Definition of Disability Major life activities means: - Caring for oneself - Performing manual tasks - Walking - Seeing - Hearing - Speaking - Breathing - Learning - Working CFR (i) - 45 CFR 84.3(j)(2)(ii)

Definition of Disability Definition of Disability Mitigating Measures - U.S. Supreme Court has held that corrective or “mitigating” measures must be considered in determining whether a person has a disability under the ADA. - U.S. Supreme Court has held that corrective or “mitigating” measures must be considered in determining whether a person has a disability under the ADA. - The focus on what a mitigating measure is must remain in the “present indicative tense”, not on what might, could, or should be. - The focus on what a mitigating measure is must remain in the “present indicative tense”, not on what might, could, or should be. - While mitigating measures may limit the extent to which an impairment is disabling, “the disability definition does not turn on personal choice”. - While mitigating measures may limit the extent to which an impairment is disabling, “the disability definition does not turn on personal choice”. - The “negative effects of mitigating measures” must be considered, such as the side effects of medications. - The “negative effects of mitigating measures” must be considered, such as the side effects of medications. Sutton Vs United Air Lines, Inc. Bragdon Vs Abbott

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

Definition of Disability 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

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

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

Qualified Individual with Disability An individual who, with or without reasonable modifications to rules, policies, and practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided. An individual who, with or without reasonable modifications to rules, policies, and practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided. 42 USC sec (2) 28 CFR sec

Reasonable Accommodation Reasonable Accommodation  Job restructuring  Part-time or modified work schedules  Reassignment to a vacant position  Making existing facilities used by employees accessible to individuals with disabilities  Acquisition of auxiliary aides, equipment and/or services  Appropriate adjustment of examinations, training materials or policies

Reasonable Accommodation Reasonable Accommodation  Provide personal assistants to help with specific duties related to the job  Allow an individual with a disability to provide and use equipment, aids, or services that an employer is not required to provide  Permitting use of accrued paid leave or providing additional unpaid leave for necessary treatment  Changing when or how an essential function is performed

Reasonable Accommodation Examples - Sensory Disability Reasonable Accommodation Examples - Sensory Disability  Clear Expectations (long & short term)  Qualified Interpreter  Assistive Listening Devices  Notetaker / Tape Recordings  Printed Materials  Telecommunication Device / Deaf  Captioned Materials

Reasonable Accommodation Examples - Mental Disability  Flexible Schedule / Breaks  Clear Expectations (short & long term)  Virtual Classroom / Work Station  Tape Recordings / Notetaker  Reduce Distractions (visual/auditory)  Tutor / Mentor  Positive Praise / Reinforcement

Reasonable Accommodation Examples - Physical Disability Reasonable Accommodation Examples - Physical Disability  Accessible Facilities  Proper Lighting  Alternate Formats  Ergonomic Workstation  Transportation Assistance

Reasonable Accommodation Examples - Visual Disability Reasonable Accommodation Examples - Visual Disability  Qualified Readers  Audio Recordings  Large Print  Braille Materials  ASCII Diskettes  Transportation Assistance

Reasonable Accommodation Student Settings Reasonable Accommodation Student Settings uxiliary aids and services may include: Auxiliary aids and services may include: –taped texts –qualified interpreters –note takers –readers –student tutors –television enlargers –talking calculators –reaching device for library use

Reasonable Accommodation Student Settings Reasonable Accommodation Student Settings Auxiliary aids and services may include: –electronic readers –Braille calculators, printers, or typewriters –voice synthesizers –assistance in filling out forms –specialized gym equipment –calculators or keyboards with large buttons –raised-line drawing kits

Reasonable Accommodation The institution of higher education may, on its own, obtain a professional determination of whether requested auxiliary aids are necessary and, if so, what kind. RCW 28B RCW 28B

Personal Devices and Services Recipients need not provide attendants, individually prescribed devices such wheelchairs, hearing aids or prescription eyeglasses, readers for personal use or study, or other devices or services of a personal nature. 28 CFR sec CFR sec

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

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

Fundamental Alteration or Undue Burden If an aid or service is necessary for classroom or other appropriate (nonpersonal) use, the institution must make it available unless the requested accommodation would result in a fundamental alteration or undue burden. If an aid or service is necessary for classroom or other appropriate (nonpersonal) use, the institution must make it available unless the requested accommodation would result in a fundamental alteration or undue burden. RCW 28B CFR sec , (b),

Fundamental Alteration or Undue Burden The decision that fundamental alteration or undue burden would result must be made by the head of the covered entity or his/her designee, but in any case, by a high-level official, no lower than a department head, having budgetary authority and responsibility for making spending decisions. The decision that fundamental alteration or undue burden would result must be made by the head of the covered entity or his/her designee, but in any case, by a high-level official, no lower than a department head, having budgetary authority and responsibility for making spending decisions. 28 CFR sec

Fundamental Alteration or Undue Burden A decision of fundamental alteration or undue burden must be documented in a written statement, including the reasons for reaching the conclusion that fundamental alteration or undue burden would result. A decision of fundamental alteration or undue burden must be documented in a written statement, including the reasons for reaching the conclusion that fundamental alteration or undue burden would result. 28 CFR sec CFR sec