Chapter 14 - Reasonable Accommodation
| Manual Exhibits | Description |
|---|---|
| Manual Exhibit 1-14-A [PDF - 409 KB] | HHS-812, Denial of Request for Reasonable Accommodation |
| Manual Exhibit 1-14-B [PDF - 107 KB] | HHS-813, Confirmation of Request for Reasonable Accommodation |
| Manual Exhibit 1-14-C [PDF - 276 KB] | HHS-814, Reasonable Accommodation Information Tracking |
| Manual Exhibit 1-14-D [PDF - 69 KB] | SF-256, Self-Identification of Disability |
| Manual Exhibit 1-14-E [PDF - 339 KB] | IHS Reasonable Accommodation Medical Request Form |
| Manual Exhibit 1-14-F [PDF - 99 KB] | Assistant Secretary for Administration, Delegation of Authority to Waive Indian Preference |
| Manual Exhibit 1-14-G [PDF - 157 KB] | Sources of Information on Reasonable Accommodation |
1-14.1 INTRODUCTION
- Purpose. The Indian Health Service (IHS) is fully committed to providing equal opportunity in Federal employment to its employees and applicants. While many individuals with disabilities can apply for and perform jobs without any reasonable accommodation (RA), there are workplace barriers that keep others from performing jobs they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how certain work functions are performed). A RA modifies or removes workplace barriers for individuals with disabilities. In compliance with applicable laws and regulations, this chapter establishes the policy and procedures for providing RAs to employees and applicants with disabilities. The purpose of this chapter is to establish the IHS Reasonable Accommodation policy. This policy prescribes procedures for submitting and responding to a request for a RA.
- Background. Section 501 of the Rehabilitation Act of 1973, as amended, (29 U.S.C. § 794) requires Federal agencies to provide RA to qualified employees or applicants with disabilities, unless to do so would cause undue hardship to the Federal agency. On July 26, 2000, the President signed Executive Order 13164, “Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation,” which requires Federal agencies to establish written procedures for processing requests for RAs that have been submitted by employees of the Federal agency and applicants for Federal employment.
For more information on RAs, employees and applicants may visit the United States Equal Employment Opportunity Commission (EEOC) website and read the following articles: “Enforcement Guidance on Reasonable Accommodation” and “Undue Hardship under the Americans with Disabilities Act.” For additional information on the rights and responsibilities of employees and applicants requesting RAs, or this policy, you may visit the IHS Diversity Management and Equal Employment Opportunity Staff (DMEEO) website.
United States Public Health Service (USPHS) Commissioned Corps officers are not covered under the Rehabilitation Act and are not entitled to a RA under this policy. For further information, USPHS Commissioned Corps officers should contact their Commissioned Corps Liaison Officer. - Policy. The IHS will provide an RA for qualified individuals with disabilities who are IHS employees (except for Commissioned Corps Officers) and applicants for employment with the IHS to allow them to fully participate in the application process, perform essential job functions, and enjoy equal benefits and privileges of employment, unless to do so would cause undue hardship on the operations of IHS.
- Authorities.
- Americans with Disabilities Act (ADA) of 1990, and as amended in 2008 (ADAAA)
- 29 C.F.R. § 1614.203
- 29 C.F.R. Part 1630
- Rehabilitation Act of 1973, Section 501
- Executive Order 13164, “Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation”
- Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (July 27, 2000)
- EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (revised October 17, 2002)
- Department of Health and Human Services (HHS) Reasonable Accommodation Program Policy
- 25 U.S.C. § 5117: Indian preference laws applicable to Bureau of Indian Affairs and Indian Health Service positions
- HHS Assistant Secretary for Administration (ASA) Delegation of Authority - Waiver of Indian Preference - 11-15-18 (see Manual Exhibit 1-14-F)
- Definitions.
- Applicant. A person who has asked to be considered for a job with the IHS. An applicant may be a current employee of the IHS, an employee of another agency, or a person who is not currently employed by the federal government.
- Authorized Representative. A person designated by the requestor to act on the requestor’s behalf.
- Business Days. Business days are considered the days between and including Monday to Friday but does not include Federal holidays, weekends, or other days when IHS is officially closed.
- Calendar Days. All days in a month, including weekends and holidays.
- Decision-Maker. The decision-maker is the person who responds to the request for accommodation. This is typically the immediate supervisor or another management official, even if the request was made to another IHS official. Decision-makers for reconsideration requests are noted in this policy under “Reconsideration Request” (see IHM 1-14.7C). For applicants, the decision-maker is the servicing Area Human Resources (HR)/Office of Human Resources (OHR) Supervisor.
- Direct Threat. A direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by RA.
- Employee. An individual who is a federal employee of IHS (except for Commissioned Corps Officers, contractors, and volunteers) on a full-time, part-time, seasonal, or temporary basis, regardless of the type of appointment mechanism.
- Essential Functions. The basic job duties that an individual must perform, with or without RA. A function can be “essential” if, among other things:
- The position exists specifically to perform that function;
- There is a limited number of employees available among whom the performance of that job function can be distributed.
- The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
The essential functions are derived from no less than these sources:- The supervisor’s judgment as to which functions are essential;
- Position Description (PD) prepared before advertising or interviewing applicants for the job;
- Performance Standards identified with the Performance Management Appraisal Program;
- Time spent performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of any collective bargaining agreement;
- The work experience of past incumbents in the job; and
- The current work experience of incumbents in similar jobs.
- Health Care Provider. Professionals who may provide documentation about the disability and functional limitations of an individual with a disability include, but not limited to, medical doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and mental health professionals. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes.
- Individual with a Disability. An individual with a disability is a person who: has a physical and/or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. If an employee has an impairment that is episodic or in remission, it will be considered a disability if it would substantially limit a major life activity when active.
- Physical and/or mental impairment includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological; musculoskeletal; special sense organs; respiratory (including speech organs); cardiovascular; reproductive; digestive; genitourinary; immune; circulatory; hemic; lymphatic; skin; and endocrine. Physical and/or mental impairment also includes any mental or psychological disorder, such as intellectual disability (formerly mental retardation); organic brain syndrome; emotional or mental illness; and specific learning disabilities.
- “Major life activities” include, but are not limited to, walking; speaking; breathing; performing manual tasks; seeing; hearing; learning; caring for oneself; sitting; standing; lifting; reaching; bending; reading; eating; sleeping; working; as well as mental or emotional processes such as thinking; interacting with other people; communicating; concentrating; or the operation of major bodily functions, such as functions of the immune system; special sense organs and skin; normal cell growth; digestive; bowel; bladder; neurological; genitourinary; brain; respiratory; circulatory; endocrine; and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system. Furthermore, the term “major” is not to be interpreted strictly so as to create a demanding standard for disability. Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.” Mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability.
- “Record of impairment” means that an individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
- “Regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, and exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.
- Personal Assistance Services. Personal Assistance Services (PAS) provide employees with targeted disabilities assistance with performing activities of daily living that an individual would typically perform if they did not have a disability, and that is not otherwise required as an RA.
- Qualified. The term “qualified” with respect to an individual with a disability, means that the individual satisfies the requisite skills, experience, education, and other job-related requirements of the employment position such individual holds or desires and, with or without an RA, can perform the essential functions of such position. Requiring the ability to perform “essential functions” assures that an individual will not be considered unqualified simply because of inability to perform marginal job functions.
- Reasonable Accommodation. A reasonable accommodation is any change in the work environment or in a standard workplace process or practice that would enable a qualified individual with a disability to enjoy equal employment opportunities.
- The term “reasonable accommodation” means:
- Modifications or adjustments to a job application process that enable an applicant with a disability to be considered for a position; or
- Modifications or adjustments to the work environment, or to the manner or circumstances under which the position is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
- Modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees with disabilities.
- Reasonable accommodations may include, but are not limited to:
- Making existing facilities used by employees accessible to and usable by individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position;
- Acquisition or modification of equipment or devices;
- Appropriate adjustment or modification of examinations, training materials or policies;
- The provision of qualified readers, interpreters; or personal services contractors; and
- Other similar accommodations for individuals with disabilities.
An RA is not the creation of a new position or intentional altering of a position (job/condition of employment) of record beyond its grade controlling factors.
- The term “reasonable accommodation” means:
- Request for Reasonable Accommodation. A request is any communication in which an individual states a need for a change or assistance because of a disability. A request does not have to include any special words, such as “reasonable accommodation,” “disability,” or “Rehabilitation Act.” The individual does not have to specify a particular accommodation, although it is helpful if a suggestion is made.
- Reassignment. Reassignment is a form of RA of “last resort.” Reassignment to a different position is a form of RA that, absent undue hardship, can be provided to an employee (not an applicant) who, because of a disability, can no longer perform the essential functions of their job, with or without an RA. A reassignment within IHS is made only to a vacant position that the Agency is authorized and intends to fill. The requirements for reassignment covered under IHS Human Resources policies must be met. If there is no available position the employee can be reassigned to within IHS, a reassignment may be made to an appropriate, available position within HHS for which the employee is qualified.
- Substantially Limits. Not necessarily a severe condition, but a condition that creates a substantial impairment when compared to most people in the general population. When determining whether a condition is substantially limiting, this must be done on a case-by-case basis.
- Targeted Disability. A "targeted disability" is a category of disabilities or serious health conditions as listed on the U.S. Office of Personnel Management's Standard Form 256 (see Manual Exhibit 1-14-D, Self Identification of Disability).
- Undue Hardship. Undue hardship, with respect to an RA, means that the IHS would incur significant difficulty or expense in providing a certain RA. Determination of an undue hardship is always made on a case-by-case basis, considering factors that include:
- The nature and net cost of the accommodation;
- The overall financial resources of the Agency involved in the provision of the RA, the number of persons employed in the Agency, and the effect on expenses and resources;
- The overall financial resources and size of the Agency with respect to the number of its employees, and the number, type, and location of its operational components;
- The Agency’s operations, including the composition, structure, and functions of the workforce; the geographic separateness; and the administrative or fiscal relationship of the operational component to the organization;
- The impact of the accommodation upon the component, including the impact on the ability of other employees to perform their duties and the impact on the operational component’s ability to conduct its business;
- The impact of the accommodation upon the operation of the IHS Service Unit, Clinic or Area Office, including the impact on the ability of other employees to perform their duties and the impact on the IHS’s and HHS’s ability to conduct business; and
- The determination of whether an RA will be an undue hardship based on cost must be determined based on IHS funds.
1-14.2 RESPONSIBILITIES
- Diversity Management and Equal Employment Opportunity Staff (DMEEO).
- The Director, DMEEO is responsible for:
- Establishing the IHS RA Program to ensure fair and equitable application to all affected employees and applicants;
- Developing and publishing the IHS RA Policy and Procedure Manual which complies with EEOC guidance and this document. Providing RA guidance to managers, supervisors or other deciding officials, employees and applicants;
- Conducting appropriate reviews of EEO complaints relating to RAs;
- Coordinating with appropriate Contract Officer Representatives and providing technical guidance to ensure all contracts reflect the IHS Headquarters obligation that all facilities (including outside facilities), equipment, and services must be fully accessible to individuals with disabilities;
- Requesting and receiving compliance reports from Area Offices, as needed, to report on the responsiveness of the RA process at all levels of IHS; and
- Maintaining and ensuring public access to a current roster of IHS RA Coordinators.
- The Headquarters Reasonable Accommodation Coordinator (HQ RAC) is responsible for:
- Overseeing the IHS RA Program, ensuring fair and equitable application to employees with disabilities and applicants who require accommodation; also serve as a subject matter expert on RA policies, processes, and procedures;
- Providing technical assistance and guidance, when requested by the Area EEO Manager or Area Reasonable Accommodation Coordinator (Area RAC) or Regional Human Resources Director, regarding application of the RA policy;
- Assisting IHS Headquarters immediate supervisors or other management officials responsible for responding to the RA request from IHS Headquarters employees on:
- Whether and what type of temporary or interim accommodation(s) should be provided; and
- Whether any alternative accommodation(s) would be effective and should be offered;
- Assisting in identifying and obtaining adaptive equipment, including information technology and communications equipment, or specially-designed furniture;
- Compiling data and required reports regarding the RA Program;
- Identifying barriers to the implementation of the RA Program;
- Disseminating RA Program material and information IHS-wide. Ensuring copies of this policy and procedures, including any required forms are available in accessible formats. The Area EEO Program Managers or Area RACs are designated to do so locally;
- Assisting the Safety Officer, Chief Medical Officer, or their designee, and Human Resource Director, if a direct threat analysis is required; and
- Coordinating with Human Resources to ensure Labor-Management obligations are satisfied, when appropriate.
- The Director, DMEEO is responsible for:
- Area Directors. Area Directors are responsible for:
- Ensuring that the Area Office has an RA program;
- Ensuring that the Area Office has an RAC;
- Ensuring that employees, supervisors, and other deciding officials know how and when to contact the RAC for RA concerns;
- Providing sufficient resources (both staffing and financial resources) to ensure effective implementation and management of the RA process;
- Ensuring all employees receive RA training. Such training should cover all matters in this manual including the roles in RA process, the timeframes for processing an RA request, disability resources, and respectful ways to communicate with and about people with disabilities;
- Periodically evaluating the effectiveness of the RA process to ensure that responses are appropriate and timely;
- Refraining from being the decision-maker in a request for RA, except for employees who report directly to the respective Director/Program Coordinator, so that the Director/Program Coordinators can be part of the reconsideration process when an employee requests reconsideration;
- Coordinating with appropriate Contract Officer Representatives and providing technical guidance to ensure all contracts reflect the respective Area Office’s obligation that all facilities (including outside facilities), equipment, and services must be fully accessible to individuals with disabilities; and
- Coordinating with Human Resources to ensure Labor-Management obligations are satisfied, when appropriate.
- Supervisors (Immediate, Second-Line, and Third-Line).
- Immediate Supervisors. Immediate supervisors are responsible for:
- Reviewing and becoming familiar with the provisions of this policy and become aware of RA resource materials available on the EEOC public website, which includes EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (July 27, 2000), and EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (revised October 17, 2002);
- Reviewing employee requests for an RA and engaging with the employee in an interactive process to identify an effective RA;
- Explaining the IHS’s process for handling RA requests and who will issue the decision to the requester;
- Understanding the need to be flexible when considering accommodation requests;
- Seeking technical assistance from the servicing Area RAC when the immediate supervisor is located in an IHS Area. The IHS Headquarters supervisors will seek assistance from the HQ RAC;
- Providing effective reasonable accommodations for qualified individuals with disabilities;
- Notifying the appropriate servicing Area RAC/HQ RAC of the RA request and obtaining an RA tracking number;
- Reviewing the initial RA request and providing a decision within 15 business days unless additional documentation is needed;
- Requesting from the employee, in consultation with the servicing Area RAC/HQ RAC, supporting documentation that describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities, and substantiates why the requested RA is needed if the condition is not obvious or already known;
- Approving or denying an RA request (see IHM 1-14.6);
- Implementing approved RA requests as promptly and expeditiously as possible, but no later than 20 business days (see IHM 1-14.6G); and accepting and reviewing an employee’s written request for reconsideration of the decision denying the employee’s initial RA request. The immediate supervisor must provide a decision (in consultation with the appropriate servicing Area RAC/HQ RAC) within 15 business days of receiving the employee’s written request for reconsideration (see IHM 1-14.7C);
- Follow-up with employee to measure the effectiveness of the accommodation provided after the accommodation is approved/granted by either the immediate supervisor, second or third level supervisor; and
- Coordinating with Human Resources to ensure Labor-Management obligations are satisfied, when appropriate.
- Second-Line Supervisors. Second-line supervisors are responsible for:
- Responding within 15 business days to an employee’s written second-level request for reconsideration after the immediate supervisor’s denial of both the initial RA request and the employee’s first-level reconsideration request;
- Consulting with the appropriate servicing Area RAC/HQ RAC prior to making a decision on an employee’s second-level request for reconsideration;
- Considering all appropriate information about the employee’s essential functions and functional limitations when making a decision on an employee’s second-level request for reconsideration;
- Providing the employee a written decision explaining the basis for approving or denying the employee’s second-level request for reconsideration; and
- Coordinating with Human Resources to ensure Labor-Management obligations are satisfied, when appropriate.
- Third-line Supervisors. Third-line supervisors are responsible for:
- Responding within 15 business days to an employee’s written third-level reconsideration request after the second-level supervisor’s denial of the employee’s second-level reconsideration request;
- Consulting with the appropriate servicing Area RAC/HQ RAC prior to making a decision on an employee’s third-level reconsideration request;
- Considering all appropriate information about the employee’s essential job functions and functional limitations when making a decision on an employee’s third-level reconsideration request;
- Providing the employee a written decision explaining the basis for approving or denying the employee’s third-level request for reconsideration; and
- Coordinating with Human Resources to ensure Labor-Management obligations are satisfied, when appropriate.
- Immediate Supervisors. Immediate supervisors are responsible for:
- Area RAC. The Area RAC is responsible for:
- Obtaining an RA tracking number for Area employee RA requests;
- Overseeing the RA Program in their respective Areas and ensuring fair and equitable application of the program to all affected employees and applicants;
- Providing technical assistance and guidance to Area supervisors, other management officials, employees, and applicants;
- Assisting Area immediate supervisors or other management officials responsible for responding to the RA request from their employees on:
- Whether and what type of temporary or interim accommodation(s) should be provided;
- Whether any alternative accommodation(s) would be effective and should be offered; and
- Assisting in identifying and obtaining adaptive equipment, including information technology and communications equipment, or specially-designed furniture;
- Seeking RA guidance from HQ RAC, when needed;
- Request relevant medical information that describes the disability and the need for accommodation if it is not obvious or already known;
- Disseminating RA Program information and materials on RA Program policies and procedures;
- Providing RA training to management officials and employees on policies and procedures for the application of RAs;
- Ensuring records of RA requests are maintained in accordance with the procedures outlined in this Policy and Procedures Manual;
- Ensuring RA requests are approved or denied at the lowest possible level, usually at the level of the employee’s immediate supervisor; and
- Coordinating with Human Resources to ensure Labor-Management obligations are satisfied, when appropriate.
- Human Resources Offices. Human Resources Offices are responsible for:
- Processing personnel actions necessary to effect an approved RA request;
- Providing the policy to new employees in their orientation package, and when necessary ensuring the policy is available in an accessible format to new employees and applicants for employment which may include, but is not limited to larger print, Braille, etc.;
- Providing consultative services to supervisors and other management officials on human resource-related options to consider as an RA when an employee cannot perform the current position’s essential functions;
- Assisting managers in identifying vacant positions that can be utilized for reassignment when determined to be the appropriate RA;
- Ensuring all Labor-Management obligations are satisfied before implementation of RA as appropriate;
- Ensuring HR staff are trained in RA sufficient to recognize an applicant’s request for RA. The HR Supervisors will work with the RAC to handle such RA requests appropriately;
- Including a statement in vacancy announcements regarding the process for job applicants to request an RA during the application process;
- Ensuring that all applicant RA requests are immediately forwarded to the HR Director (or designee) who can reassign to a subordinate HR Supervisor as the decision-maker on an applicant’s RA request for an approval or denial;
- Assisting the Safety Officer, Area or Chief Medical Officer (or designee) if a direct threat analysis is required; and
- Approving RAs for applicant requests. The decision-maker is the servicing Area HR/OHR Supervisor.
- Employees. Employees are responsible for:
- Promptly submitting an RA request;
- Engaging in the interactive process with their supervisor to identify an effective RA for the individual’s disability;
- Providing appropriate documentation to servicing Area RAC/HQ RAC, when requested, to address the individual’s disability and functional limitations;
- Providing additional documentation when the information already submitted is insufficient to document the disability and any functional limitations; and
- Completing and submitting an IHS RA Medical Request Form (Manual Exhibit 1-14-E), when required, to the servicing Area RAC/HQ RAC.
- Applicants. Applicants are responsible for:
- Notifying the HR Office if an RA is needed during the application process;
- Participating in the interactive discussion; and
- Providing appropriate documentation, when requested, to address the individual’s disability and functional limitations, if the disability is not obvious.
1-14.3 REQUESTS FOR REASONABLE ACCOMMODATION
- Initial Request. An initial request for an RA is either an oral or written statement that an IHS employee or applicant with a disability needs the following:
- Modifications or adjustments to a job application process that enables an applicant with a disability to be considered for a position; or
- Modifications or adjustments to the work environment that enable an individual with a disability who is qualified to perform the essential functions of the position, or
- Modifications or adjustments that enable an individual with a disability to enjoy equal benefits and privileges of employment.
- How to Request a Reasonable Accommodation.
An RA request made orally or in writing does not have to use any special words, such as “reasonable accommodation,” “disability,” or “Rehabilitation Act.” The individual does not need to have a particular accommodation in mind when making a request. An individual with a disability may request an RA at any time, even though the individual has not previously disclosed the existence of a disability. When the RA request is made to the immediate supervisor, the immediate supervisor is to notify the appropriate RAC (Area or Headquarters) to obtain an RA tracking number. If the RA request is made orally, the person requesting the accommodation should follow up with a written request within five business days. The requestor will be asked to complete HHS-813 form, “Confirmation of Request for Reasonable Accommodation” (Manual Exhibit 1-14-B). A copy of this policy and procedures, including any required forms, will be provided in written and accessible formats to employees and applicants. All timeframes for responding to oral RA requests shall begin as soon as the oral request is made. - Who Can Make a Reasonable Accommodation Request?
- Employees. An employee must submit the request for an RA directly to the employee’s immediate supervisor.
- Applicants. An applicant shall make an RA request to the Human Resources Specialist listed on the job announcement.
- Third Party. A family member, health professional, or an authorized representative may request an RA on behalf of an IHS employee to the employee’s immediate supervisor. A family member, health professional, or other representatives may request an RA on behalf of an applicant to the HR Specialist listed on the job announcement.
1-14.4 PROCESSING A REQUEST FOR REASONABLE ACCOMMODATION
- Submission by Employee. Employees may submit a request for RA to the decision-maker (immediate supervisor, or to another management official) and servicing Area RAC/HQ RAC.
- Submission by Applicant. Applicants with disabilities may request an RA during the application process. Requests by applicants for an RA may be written or oral. If an applicant discussed the need for an RA, the HR staff member who receives the RA request will follow IHM 1-14.2E(8) to identify the decision-maker and follow the RA process as established within this policy. Applicants must provide medical documentation to the servicing Area RAC/HQ RAC, if the disability is not obvious.
- Acknowledgment of Receipt. Upon receipt of an RA request, either written or oral, the decision-maker (immediate supervisor or other management official) will acknowledge receipt of the request within five business days to the employee and servicing Area RAC (if applicable)/HQ RAC. The decision-maker (immediate supervisor or other management official) will begin the interactive discussion with the employee, explaining the RA process and providing a copy of the HHS-813 form, “Confirmation of Request for Reasonable Accommodation” (see Manual Exhibit 1-14-B) and “IHS Reasonable Accommodation Medical Request Form” (see Manual Exhibit 1-14-E) via Secure Data Transfer for the employee to complete.
If another management official receives the request for RA, the management official will notify the immediate supervisor and servicing Area RAC/HQ RAC within two business days of receiving the request. If a copy of the HHS-813 form, “Confirmation of Request for Reasonable Accommodation” (see Manual Exhibit 1-14-B) and “IHS Reasonable Accommodation Medical Request Form” (see Manual Exhibit 1-14-E) is not provided within five business days, the employee should contact the immediate supervisor and/or the servicing Area RAC/HQ RAC directly. The IHS will begin processing the request as soon as it is made, whether or not the HHS-813 form has been provided. The HHS-813 form and any RA related documents, as stated, should be transmitted via Secure Data Transfer. - Interactive Process. The decision-maker (immediate or other management official) processing the RA request initiates the interactive discussion once the RA request is received. This means the individual requesting the accommodation and the decision-maker will engage in the interactive process to identify an effective and reasonable way to accommodate the employee’s disability. The appropriate servicing Area RAC/HQ RAC is available to provide technical assistance to the employee and supervisor or other management official throughout the process, particularly when the specific limitations, problem, or barrier is unclear, or when an effective accommodation is not obvious. Interactive process continues until the effective accommodation is in place. Decision-makers will note the interactive discussion each time they meet with the applicant or the employee for RA tracking purposes.
- Employee Process. Upon receiving the HHS-813 form (see Manual Exhibit 1-14-B) and “IHS Reasonable Accommodation Medical Request Form” (see Manual Exhibit 1-14-E), the employee will complete and forward the HHS-813 form to the servicing Area RAC (as applicable)/HQ RAC immediately. The employee must schedule an appointment with a Health Care Provider to complete the IHS Reasonable Accommodation Medical Request Form or other medical documentation in accordance with the guidance established in IHM 1-14.5. The employee must provide IHS Reasonable Accommodation Medical Request Form or medical documentation to accompany their request and return to the servicing Area RAC/HQ RAC within 15 business days.
1-14.5 MEDICAL DOCUMENTATION OR INFORMATION NEEDED
- Relevant Medical Information. The IHS may require only the medical documentation that is needed to establish that a person has a disability. If the nature or extent of the employee’s functional limitation(s) is not obvious, the servicing Area RAC/HQ RAC has the right to request relevant medical information that describes the disability and the need for accommodation if it is not obvious or already known. In accordance with EEOC’s guidance, the medical information must:
- Describe the nature, severity, and duration of the employee’s impairment;
- Describe the activity or activities that the impairment limits (functional limitations) and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and
- Substantiate why the requested RA is needed.
Employee has 15 business days from the date of request to provide the IHS Reasonable Accommodation Medical Request Form (see Manual Exhibit 1-14-E) or medical documentation. If the employee does not provide medical documentation within the designated timeframe, the employee must request an extension through the servicing Area RAC/HQ RAC. The request for extension must be made within the 15 business days. If an extension is not requested, the RA request will be administratively closed. The RA request can be re-opened at any time.
After medical documentation is received by the servicing Area RAC/HQ RAC, the functional limitations and recommended accommodation(s) will be provided to the decision-maker to either grant or deny the accommodation within 15 business days from receipt of the documentation.
If the employee refuses to provide the requested information, the Agency can no longer provide assistance. The failure to provide appropriate documentation or to cooperate with the Agency’s efforts to obtain such documentation can result in a denial of the request for RA (EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act). - Additional Documentation. The individual may be asked to obtain additional documentation if the initial submission of medical documentation is insufficient, does not substantiate the individual has a disability, or does not clearly explain how the requested accommodation will assist the individual in performing the essential functions of their job. If additional medical information is required, the servicing Area RAC/HQ RAC shall request information from the employee sufficient to substantiate that the individual has a disability and needs the RA requested, or an alternative RA, but shall not ask for unrelated documentation. The decision-maker will provide the servicing Area RAC/HQ RAC with the employee’s essential functions to provide to the Health Care Provider to assist in completing the required medical documentation to support the RA request. The servicing Area RAC/HQ RAC requesting the additional documentation must explain to the individual requesting the RA what specific information is needed. The individual requesting the RA will be responsible for obtaining the requested information (see Manual Exhibit 1-14-E, “Reasonable Accommodation Medical Request Form”). The purpose of obtaining additional medical documentation is to clarify how the disability affects the individual’s ability to carry out the duties of their position and how the requested accommodation will improve the individual’s ability to perform these duties. When the medical documentation submitted is not clear in this respect, the individual will be informed in writing why the submitted documentation is insufficient and allowed to provide additional documentation. Such additional medical documentation will be provided to the servicing Area RAC/HQ RAC. Once the medical documentation has been determined sufficient, the servicing Area RAC/HQ RAC will provide the updated information to the decision-maker. If there is a need for the medical documentation to be further reviewed, the servicing Area RAC/HQ RAC will ask for consultation by the Federal Occupational Health Service (FOH), when such an evaluation is requested, it will be performed at IHS expense.
- Interim RA. Where possible, an interim RA should be provided to an employee until medical documentation is provided and a final determination is made. The interim accommodation should enable the employee to perform the essential functions of the job or enjoy the benefits and privileges of employment. The decision-maker should advise the employee that an interim RA is provided on a temporary basis until the final determination is issued on the employee’s RA request.
1-14.6 GRANTING A REASONABLE ACCOMMODATION REQUEST
- Decision of RA Request. The decision-maker will review the functional limitations, recommended accommodations provided by the Health Care Provider, and the employee’s essential functions to make a decision on the RA requests within 15 business days from the date sufficient medical documentation is received. The decision-maker will process the RA requests and provide accommodations, when appropriate, in 20 business days (see IHM 1-14.6G). The IHS recognizes, however, the time necessary to process a request will depend on the nature of the accommodation requested and whether it is necessary to obtain supporting information. However, officials processing the RA request should move quickly to comply with requests. Communication through an interactive process where the involved persons work together to identify an effective and reasonable way to accommodate the requestor’s disability is a priority. The Servicing Area RAC (as applicable)/HQ RAC who receives the RA request must ensure the HHS-813 form, “Confirmation of Request for Reasonable Accommodation,” is completed (see Manual Exhibit 1-14-B). The supervisor or management official who decides whether to approve or deny the request must complete the HHS-814 form, “Reasonable Accommodation Information Tracking” (see Manual Exhibit 1-14-C). If the RA request is denied, the supervisor or management official who decides to deny the request must complete the HHS-812 form, “Denial of Request for Reasonable Accommodation” (see Manual Exhibit 1-14-A).
Individuals are entitled to track RA requests by requesting via email, updates on the processing of an RA, and decision makers are required to respond as soon as possible, but not later than two business days after the request is made. - Expedited Processing. In certain circumstances, a request for an RA requires an expedited review and decision in a shorter timeframe than 15 business days. This includes, but is not limited to, when an RA is needed to enable an individual to apply for a job; or the RA is needed for a specific agency activity that is scheduled to occur shortly.
- To Enable an Applicant to Apply for a Job. Depending on the timetable for receiving applications, conducting interviews, taking tests, and making hiring decisions, there may be a need to expedite a request for an RA to ensure that an applicant with a disability has an equal opportunity to apply for a job.
The servicing HR Office specialist (or hiring manager) will immediately contact the servicing Area RAC/HQ RAC and the OHR/Area HR Director, if any issues could delay or prevent the IHS from providing the RA. The OHR/Area HR Director must move as quickly as possible to make a decision and provide an RA, if appropriate. - To Enable an Employee to Attend a Meeting Scheduled to Occur with Short Notice. If a Sign Language Interpreter is needed for an unscheduled meeting, then the employee would request this accommodation through their servicing Area RAC/HQ RAC.
- Written Confirmation. A written confirmation is not required each time the immediate, or other management official receives a repeated request for an RA (e.g., the assistance of sign language interpreters or readers).
- Providing Accommodation. If the request is approved, the accommodation will be provided within 20 business days of the date the request was approved. If the approved accommodation cannot be provided within 20 business days, the approving official will notify the employee of the reason for the delay and the estimated timeframe for when the accommodation will be provided.
- Providing Temporary Accommodation Solution. Per the ADAAA of 2008, the definition of disability is now interpreted differently than under the original ADA. Whereas a temporary impairment was generally not considered a disability in the past, now it is made clear that the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADAAA. Thus, employees with temporary impairments can be eligible to receive accommodation in some cases. The key is whether the impairment is sufficiently severe. For example, there are many situations where temporary light duty may need to be considered due to significant limitations, such as lifting.
When a decision-maker provides a temporary accommodation, documenting the accommodation efforts is an essential part of the interactive process. When the temporary accommodation is provided or implemented, it should be documented just as any other accommodation. It should be granted using the HHS-814 form, “Reasonable Accommodation Information Tracking” (see Manual Exhibit 1-14 C), stating the accommodation is on a temporary basis, the end date, and the action that will be taken at the end of the temporary period. This will allow the temporary RA to be re-evaluated for the need of a permanent RA.
1-14.7 DENIAL OF REASONABLE ACCOMMODATION REQUEST
Management Officials must consult with the appropriate servicing Area RAC/HQ RAC or General Counsel before moving forward with a decision to deny a request.- Explanation of the Denial Decision. After consulting with the appropriate servicing Area RAC/HQ RAC, the immediate, first-line supervisor or other management official who decides to deny the RA request must complete form HHS-814 form, “Reasonable Accommodation Information Tracking” (Manual Exhibit 1-14-C) and form HHS-812 form, “Denial of Request for Reasonable Accommodation” 1 (Manual Exhibit 1-14-A – see footnote), and provide the form to the individual who requested the accommodation. The explanation for the denial will be written in plain language and clearly state the specific reasons for, and all facts that support the denial. The decision must be provided in an accessible format when needed.
When the management official has denied a specific requested RA, but offered to make an alternative one in its place which was not agreed to during the interactive process, the denial notice will explain both the reasons for the denial of the requested RA and the reasons the management official believes the alternative RA will be effective. - Reasons for Denial of a Request. Reasons for the denial of an RA request may include, but are not limited to, any of the following examples (keep in mind that decisions regarding an RA are made on a case-by-case basis, and HHS-814 form, “Reasonable Accommodation Information Tracking” and HHS-812 form, “Denial of Reasonable Accommodation Request” provided to the employee or applicant must include specific reasons for the denial):
- The requested accommodation would not be effective;
- Providing the requested accommodation would result in undue hardship on the IHS. Before reaching the “denial” determination, the supervisor or other management official must have explored whether other effective accommodations exist that can be provided and would not impose an undue hardship. A determination of undue hardship means the IHS finds a specific accommodation would result in a significant difficulty or expense to IHS, or would fundamentally alter the nature of the IHS operations. When evaluating budgetary or administrative concerns to determine if undue hardship exists, the IHS will follow the applicable standards enunciated by the EEOC;
- Medical documentation is inadequate to establish that the employee or applicant has a disability and/or needs an RA;
- The requested RA would require the removal of an essential function of the employee’s position;
- The requested RA would require the lowering of a performance or production standard;
- The failure by the employee to provide appropriate documentation or cooperate with the management official’s efforts to obtain necessary information to address the RA request; and
- The individual requesting an RA poses a direct threat to the health and safety of the individual or others.
- Reconsideration Request. Employees or applicants with disabilities can request prompt reconsideration of the denial of an RA. Applicant request for reconsideration will follow the below process; however, the request for reconsideration will be processed through the servicing HR Office and follow the HR decision maker’s chain of command.
- Initial Request for Reconsideration. An individual requesting reconsideration of the original RA denial must submit the request to the immediate first-line supervisor within five business days of receipt of the denial. The reconsideration request should include additional information in support of the individual’s reconsideration request. The immediate, first-line supervisor must respond within five business days of receipt of the reconsideration request.
- Second-Level Request for Reconsideration. If the immediate, first-line supervisor denies the reconsideration request the individual has five business days to request the second-line supervisor to reconsider the first line supervisor’s reconsideration denial. The second-level reconsideration request should include the original denial by the first-line supervisor and any additional information supporting the individual’s second-level request. The second-line supervisor must respond to the individual’s second-level request for reconsideration within 15 business days of receipt of the second-level reconsideration request. If the accommodation is approved at this level, the accommodation becomes effective and will remain in place until there is a change in the accommodation or the accommodation is no longer needed. If the accommodation is denied by the second-level supervisor, the individual has the right to request third-level consideration or select other avenues of redress. Prior to denying an accommodation, the second-level supervisor must seek guidance or assistance from the servicing Area RAC/HQ RAC or general counsel.
- Third-Level Request for Reconsideration. If the second-line supervisor denies the second-level request for reconsideration, the individual making the third-level reconsideration request has five business days to request the third-level supervisor to reconsider the second-line supervisor’s reconsideration denial. The reconsideration request should include both the original denial and the second-level reconsideration denial, and any additional information supporting the individual’s third-level reconsideration request. The third-line supervisor must respond to the individual’s third-level request for reconsideration within 15 business days of receipt of the third-level reconsideration request. If the accommodation is approved at this level, the accommodation becomes effective and will remain in place until there is a change in the accommodation or the accommodation is no longer needed. If the accommodation is denied by the third-level supervisor, the individual has the right to select other avenues of redress. Prior to denying an accommodation, the third-level supervisor must seek guidance or assistance from the servicing Area RAC/HQ RAC or legal counsel. The decision whether to grant or deny at this level is final.
- Each decision to approve or deny a reconsideration request will be provided to the individual in writing on the HHS-814 form, “Reasonable Accommodation Information Tracking” or HHS-812 form, “Denial of Reasonable Accommodation Request.” If the reconsideration request is denied, the reconsideration decision will identify the reasons for the denial.
- Rights Available Upon Denial of Reasonable Accommodation. The written notice of denial on HHS-814 form, “Reasonable Accommodation Information Tracking” and HHS-812 form, “Denial of Reasonable Accommodation Request,” including notices of denial issued at any stage of the reconsideration process, will also inform the employee or applicant of certain appeal rights, which may include the right to file an EEO complaint, the right to pursue a Merit Systems Protection Board (MSPB) appeal (but only if the denial of the accommodation results in removal or another adverse action appealable to the MSPB) and/or the right to exercise Union grievance procedures. The written notice of denial should be issued by a letter which should be delivered in person by the management official denying the reconsideration. If the requesting party is an employee on leave or an applicant, or if it is otherwise not feasible to deliver the letter in person the letter should be sent by first-class mail or may be sent via e-mail. Any person who files a complaint, appeal or grievance is protected from retaliation or reprisal. This policy is in addition to statutory and collective bargaining protections for persons with disabilities and the remedies they provide for the denial of requests for RA and does not supplant these provisions. This policy does not alter requirements governing the initiation of statutory and collective bargaining claims, including time frames for filing such claims.
1-14.8 EXTENSIONS/DELAYS UNDER SPECIAL CIRCUMSTANCES
- Extenuating Circumstances. Extenuating circumstances cover limited situations or factors in which unforeseen or unavoidable events preclude the Agency from making a decision within the established timeframes. The IHS may not delay processing or providing an accommodation because a particular staff member is unavailable. When extenuating circumstances are present, the time for processing a request for RA and providing the RA will be extended as reasonably necessary. Requests for an RA are expected to be processed and provided within the established timeframes. When extenuating circumstances are present, the immediate supervisor or other management official must notify the individual and the servicing Area RAC/HQ RAC of the reason for the delay and the approximate date on which a decision, or provision of the RA, is expected. Any further developments or changes should also be communicated promptly to the individual by the immediate supervisor or another management official.
Examples of extenuating circumstances:- There has been an outstanding initial or follow-up request for medical information, and/or the IHS is evaluating the medical information that has been provided.
- New staff needs to be hired or contracted, such as an interpreter for a deaf employee.
- The purchase of equipment or services may take longer than 20 business days because of requirements under the Federal Acquisition Regulations and EEOC Order 360.001, “Acquisition Policies and Procedures.”
- If equipment must be back-ordered, the vendor typically used by the IHS for goods or services has unexpectedly gone out of business, or the vendor cannot supply the needed goods or services promptly, and another vendor is not immediately available.
- The employee with a disability needs to use the equipment on a trial basis to ensure that it is effective before the IHS purchases it.
- An RA involves the removal of architectural barriers.
- A personnel action, e.g., reassignment, is to be taken and cannot be processed within ten days.
- Temporary Measures. If there is a delay in providing an RA which has been approved, the immediate supervisor or other management official must investigate whether temporary measures can be taken to assist the employee. This could include providing the approved accommodation on a temporary basis, or providing an alternate accommodation on a temporary basis. In addition, the immediate supervisor or other management official may provide measures that are not RAs within the meaning of the law (e.g., temporary removal of an essential function) if they do not interfere with the operations of the IHS, and the employee is informed in writing that the RA is being provided only on a temporary, interim basis. All IHS supervisors or other management officials who approve such temporary measures are responsible for ensuring the measures do not take the place of a permanent accommodation, and the necessary steps are taken to secure the permanent accommodation. For example:
- There may be a delay in receiving adaptive equipment for an employee with a vision disability. During the delay, the immediate supervisor or other management official might arrange for other employees to act as readers. This temporary measure may not be as effective as the adaptive equipment, but it will allow the employee to perform as many duties as possible until the equipment arrives.
- If a delay is attributable to the need to obtain or evaluate medical documentation and the IHS has not yet determined that the individual is entitled to an RA, the IHS may also provide an RA on a temporary basis. In such a case, the immediate supervisor or other management official will notify the individual in writing that the accommodation is being provided on a temporary basis pending a decision on the RA request.
1-14.9 SELECTION OF AN ACCOMMODATION
The IHS management officials and employees are encouraged to utilize RA resource sites outside of IHS such as the Job Accommodation Network (JAN), FOH, the Department of Defense Computer/Electronic Accommodations Program (CAP), and the United States Department of Agriculture TARGET Center (see Manual Exhibit 1-14-G). Through these resources, employees, supervisors and management officials can be informed about accommodations for various impairments, explore the latest assistive technology, and perhaps obtain equipment at no cost to the IHS. The inclusion of these organizations does not imply endorsement by the IHS.
1-14.10 INCLEMENT WEATHER
Individuals with disabilities are often more adversely impacted by inclement weather and may be unable to commute safely. When weather conditions make it difficult or dangerous for an individual with a disability to travel to work and the individual’s duties can be performed from another location, the IHS will allow the individual to work from home, as an episodic RA. The employee can request this to be allowed as an RA any time there is inclement weather rather than having to request it each time. If the employee’s request for telework in inclement weather is denied, the employee may immediately contact the second-line supervisor or other management officials for reconsideration.
1-14.11 REASSIGNMENT
It is the policy of the IHS to utilize the criteria established by the EEOC to determine eligibility for an RA reassignment. Reassignment is a last resort RA and must be provided to an employee, who, because of disability, can no longer perform the essential functions of their position, with or without RA, unless the Agency can show that it would be an undue hardship. This accommodation will be considered only if there are no effective RAs that would enable the employee to perform the essential functions of the employee’s job or if all other possible RAs would impose undue hardship. In rare cases, if no other effective RA is available to allow the employee to perform the essential functions of the employee’s position, the IHS will consider reassignment to a different position. Reassignment to “light duty” can also constitute an RA. The employee must be qualified for the new position.
- Delegation of Authority to Waive Indian Preference.
- The HHS ASA must approve a waiver of Indian Preference based on reasons of health and safety for employees who are not Indian Preference eligible.
- This delegation is made in accordance with Public Law 96-135 Section 2, as amended (Dec. 5, 1979, 93 Stat. 1057). Title 25 U.S.C. § 5117 establishes Indian preference laws applicable to Bureau of Indian Affairs and Indian Health Service positions. Specifically, section 5117(b)(l) states the following, "The Indian preference laws shall not apply in the case of any reassignment within the Bureau of Indian Affairs or within the Indian Health Service (other than to a position in a higher grade) of an employee not entitled to Indian preference if it is determined that under the circumstances such reassignment is necessary – (A) to assure the health and safety of the employee or of any member of the employee's household; (B) in the course of a reduction in force; or (C) because the employee's working relationship with a Tribe has so deteriorated that the employee cannot provide effective service for such Tribe or the Federal Government."
- Section 5117(b)(2) specifies that the authority to make any determination under subparagraph (A), (B), or (C) above is vested in the Secretary of HHS with respect to the IHS, and, notwithstanding any other provision of law, the Secretary involved may not delegate such authority to any individual other than a Deputy Secretary or Assistant Secretary of the respective department.
- Request for Waiver. If a waiver is required, the following steps will be followed:
- The servicing Area RAC/HQ RAC will notify their respective OHR/servicing Area HR Office;
- The OHR/servicing Area HR Office will contact the respective Area Director and provide support in the preparation of a memorandum "Request to Waive Indian Preference for Non-Competitive Reassignment of an Employee" addressed from the respective Area Director to the Director, IHS;
- The servicing HR Office will forward the request to OHR for review and approval by the Director, IHS;
- OHR will prepare a memorandum "Request Approval for Waiver of Indian Preference – Decision" from the Director, IHS to the ASA;
- The OHR will forward the ASA's decision to the respective servicing Area HR Office and will notify the servicing Area RAC/HQ RAC, if applicable, to continue processing the RA request; and
- During the waiver approval process, an employee can be granted an interim accommodation, if applicable, until the waiver is approved and the reassignment process begins.
- Rationale for Reassignment.
- The IHS will consider reassigning the employee if it cannot find an accommodation that will permit the employee to perform the essential functions of the employee’s current position. When, for example, the only accommodation would provide an undue hardship for the IHS and HHS, the employee may be reassigned to a different position for which the employee is qualified or if the employee can no longer perform the essential functions of their job with or without accommodation.
- The servicing Area RAC/HQ RAC advises the employee before beginning the job search of possible outcomes if a position is not identified. The employee may be eligible to apply for disability retirement and the Agency may move forward with a proposal to remove from Federal service due to medical inability to perform.
- At any point during the reassignment process, if an employee indicates the wish to withdraw their RA request, the servicing Area RAC/HQ RAC should consult with General Counsel for further guidance.
- The reassignment job search will be initiated by the servicing Area RAC/HQ RAC, in collaboration with the servicing Area HR Office/OHR and the requesting employee. It is good practice to consult with General Counsel regarding offering a reassignment search.
- The reassignment process is a continuation of the interactive process and a collaborative effort with the servicing Area HR Office/OHR. All parties will cooperate in searching for suitable positions for an employee who must be reassigned as an RA.
- The employee meets the necessary skills, experience, education, and other job-related requirements for the new position and can perform the essential functions of the new position with or without RA.
- An employee cannot be promoted under an RA reassignment search as it is prohibited by Merit Principle regulations.
- Reassignment is available only to employees, not to applicants. The IHS is not required to create new positions or move other employees from their job to create a vacancy. There is no obligation to assist the employee to become qualified. Thus, the IHS does not have to provide training so that the employee acquires necessary skills to take a position. The Agency, however, would have to provide an employee with a disability who is being reassigned with any training that is normally provided to anyone hired for or transferred to the position.
- Reassignment must be considered as an accommodation prior to terminating an employee with a disability who cannot be accommodated in his or her current position. In this situation, reassignment should be considered even if not requested.
- Vacancy Search. A search will be conducted for 60 business days. The servicing Area HR Office/OHR will assist the immediate first-line supervisor, the appropriate servicing Area RAC/HQ RAC, and the employee in identifying a vacant position which should include:
- All funded vacant positions within the IHS for which the employee may be qualified, with or without an RA. Reassignment to a position to the same duty location, equivalent to the employee’s current job title, series, grade, status, and other relevant factors should be considered first;
- If there is no equivalent vacant position, in terms of pay, status, or other relevant factors, then the IHS must reassign the employee to a vacant lower-grade position for which the employee is qualified if the employee is willing to accept a lower-grade position. Appropriate pay setting rules will apply. Reassignment does not include giving an employee a promotion. This process will continue until a position is identified and offered, or the 60 business days expire. If a position is found prior to 60 business days and the employee refuses the offer, per the requirements listed within the employee’s RA Reassignment Letter, the search is discontinued. Once an offer of reassignment is extended, the IHS has met its legal obligation to accommodate.
- When possible, the employee will be temporarily placed in a position that the employee can perform with or without an accommodation. If no temporary position is available, the employee will be allowed to use any leave the employee has available until a position is found and offered, or until the 60 business days expire. The IHS will not create new positions or move employees from their positions to create a vacancy.
- During the search process, the employee may submit any independently identified vacancies to their servicing Area RAC/HQ RAC for consideration in the vacancy search. The employee may apply to positions of their choosing – outside of the RA reassignment process – without forfeiting their rights to the RA reassignment process.
- If a funded vacant position for which the employee is qualified is identified, it shall be offered to the employee. If the employee accepts the position, the agency must expedite the employee’s transfer to the new position. If the employee does not accept the position, the IHS will have met its obligation and the vacancy search will be terminated.
- Employees must also engage in an interactive discussion, as needed, facilitated by the servicing Area RAC/HQ RAC with a supervisor of the vacant position, to determine whether the employee can perform the essential job functions of an identified position, with or without accommodation. Per EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, the employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment.
- Reassignment Outside of the Employee’s Commuting Area. Reassignment may be made to vacant positions outside of the employee's commuting area if the employee is willing to relocate. For the purposes of reassignment, all components of HHS are considered to be one Agency. If the employee identifies a reassignment position outside HHS, the Agency can arrange a reassignment to the other Federal Agency. The HHS is not obligated to include other Federal agencies in the reassignment job search. The IHS will not pay relocation costs, unless relocation costs is indicated within the vacancy announcement or if relocation expenses are normally paid with respect to the position identified.
- Reassignment to a Part-Time Position. Reassignment may be made to a part time position if the employee is willing to accept it. The employee can also be reassigned to a part-time position while the IHS is trying to find a permanent position to place the employee. However, if a full-time position cannot be identified within 60 business days, the IHS must not keep the person in the part time position.
- Reassignment Process.
- Before the reassignment search begins, a determination should be made on whether a waiver of Indian Preference is needed (see IHM 1-14.11A).
- The RA reassignment process begins when the servicing Area RAC/HQ RAC forwards the employee a copy of a Reassignment Letter to complete. The RA Reassignment Letter and an updated copy of the employee’s resume (provided by the employee) will be submitted to the servicing HQ/Area RAC (if applicable) and servicing Area HR Office/OHR within 14 business days of receipt of the approved RA reassignment notification. In the event the employee does not return the necessary documents to begin the reassignment process within the allotted timeframe, servicing Area HR Office (if applicable)/HQ/Area RAC will administratively close the RA request.
- Once the documents are received from the employee, the servicing Area RAC/HQ RAC will share the RA Reassignment Letter and the employee’s resume with the servicing Area HR Office/OHR. The servicing Area RAC/HQ RAC may share the functional limitations with the hiring official, if necessary.
- The servicing Area HR Office/OHR, in collaboration with the employee, and the servicing Area/HQ RAC will conduct the job search for suitable job openings. The job search will include all funded, vacant positions, or funded positions that will be vacant within the next 60 business days at the IHS and any other designated locations as stated by the employee via their completed RA Reassignment Letter. The essential functions of the job will be compared to the individual’s resume. The physical requirements of the job, as described in the job announcement or PD, should not exceed the employee’s functional limitations. At any time during the reassignment search, if the employee agrees to a broader search, reassignment can be made to any suitable position for which the employee is qualified. Reassignment job searches shall not go beyond 60 business day.
- If the employee has identified a vacant, funded position, the essential functions of which the employee claims they can perform, the servicing Area HR Office/OHR for that position must make a minimum qualification determination on whether the reassignment proposed by the employee would effectively accommodate the functional limitations. If so, the employee must be offered and placed in the position non-competitively.
- Once a Position Is Identified.
- The servicing HR Office/OHR will review all of the requirements for the position. The employee’s basic skills, experience and knowledge as described on their resume will be compared to the essential functions of the position. If the employee meets the basic minimal qualifications for the position and can perform the essential functions of the position, with or without accommodation, the servicing HR Office/OHR will inform the potential hiring official that the position must be held for the employee.
- The servicing HR Office/OHR will collaborate with the potential hiring official to request a review of the employee’s functional limitations to determine if any would negatively impact performance of the essential functions of the position. The servicing HR Office/OHR must determine whether there are any qualifications or requirements that were not mentioned in the announcement.
- In the instance the potential hiring official states the employee's functional limitations prohibit them from being able to perform the essential functions, the potential hiring official will provide the servicing HR Office/OHR and the servicing Area RAC/HQ RAC a specific reason. The servicing HR Office/OHR and the servicing Area RAC/HQ RAC must determine if the inability to perform the essential functions is tied to a policy or whether the employee can be accommodated; such as whether some non-essential functions can be shifted to other employees. If the employee’s functional limitations prohibit them from performing the essential functions of the position, the employee will be notified by the servicing HR Office/OHR of the disqualification and the reason in writing.
- If the employee is minimally qualified and can perform the essential functions with or without an RA for the position identified, the placement is non-competitive. Thus, there is no interview or ranking required for this process.
- The servicing HR Office/OHR should explain to the potential hiring official for the identified vacancy: “Your vacancy was identified as a suitable position for an employee who needs a reassignment as an accommodation. The IHS is required to follow EEOC guidance in this matter. The EEOC interprets Agency obligations under the Rehabilitation Act of 1973, as amended: This reassignment is non-competitive. The HR Office Staff reviewed the job description, compared it to the employee’s resume and qualified for the position. If you wish to meet the employee before coming on board, you may do so, but we need to stress that this is not an interview. It has already been decided that this employee will be reassigned to this position. Please note that an individual’s disability status is private information and may not be shared with anyone not having a bona fide, business-related need to know. Thank you for your support of the IHS’s efforts to comply with legal requirements.”
- Once the servicing Area HR Office/OHR identifies an appropriate position for reassignment, the employee will be offered the position in writing. In addition, the employee will be provided a Memorandum of Acceptance by the servicing Area RAC/HQ RAC. The employee will have 14 calendar days from date of receipt of the offer to sign the Memorandum of Acceptance or decline the offer. The identified vacancy must be held open during this time. If the employee declines the offered position, the agency is not required to continue with the reassignment search unless the employee has a legitimate medical reason that they cannot perform the essential functions of the job being offered. Once an offer of reassignment is extended, the IHS has met its legal obligation to accommodate.
- If the employee accepts the offer of reassignment, the servicing Area RAC/HQ RAC will forward the Memorandum of Acceptance to both the gaining and losing servicing HR Office/OHR so that they can work collaboratively on the reassignment of the employee. If the employee accepts the offer and is required to move to a new location, any IHS issued equipment will be moved to the employee’s new location at the IHS's expense. If cheaper to purchase items, that is the recommended course of action.
- If another IHS employee applied for the position that will be filled by the reassigned employee under RA, the manager, supervisor, or hiring official at the new location may only tell the unsuccessful candidates that the individual, “Was selected in compliance with applicable laws.” Under no circumstances should they tell anyone that the individual was placed as a RA, and no mention should be made of the disability. If a firm offer is made, then the position is to be given to the candidate, another vacancy will need to be searched for the employee requesting the reassignment.
- If the servicing HR Office/OHR is unable to identify a vacant position, the employee will be provided a Memorandum notifying them that the reassignment job search is complete and the agency was unable to locate a suitable position for the employee. The servicing Area RAC/HQ RAC should advise the employee to contact their servicing Area HR Office/OHR to discuss possible options which may include applying for disability retirement and advise the employee that the agency may move forward with a proposal to remove them from Federal service due to medical inability to perform. The agency should discuss a proposed removal due to medical inability to perform with their servicing HR Office/OHR and General Counsel. If the employee wishes to apply for disability retirement, refer the employee to the servicing HR Office/OHR.
- If a qualifying vacant position is not found, or an offered position is not accepted by the employee, the serving HR Office/OHR will provide a detailed search effort and provide a list of vacant positions for which the employee was vetted and did or did not qualify. The servicing Area RAC drafts a memorandum of vacancy search outcome to the employee, informs of the RA disposition, ending the process, and files the memorandum for record with the employee’s RA folder. The Agency is under no obligation to continue offering reassignment.
- A Vacant Position within HHS. If no vacancies are identified by the IHS after thirty (30) business days, IHS may contact the Office of Employment Opportunity, Diversity and Inclusion (EEODI) to request support to implement a department-wide vacancy search. However, the agency vacancy search must continue and, if a position is identified within the agency, it must be offered to the employee. EEODI must be notified as soon as this occurs as the search will be immediately terminated.
In requesting support from EEODI, the IHS must supply the following information to EEODI:- The employee’s resume;
- Qualification of all job series and grades as determined by the IHS OHR;
- Vacancy search criteria as determined by employee. In specific:
- Location;
- Willingness to accept a lower grade; and
- Willingness to take a job outside of the current job series;
- Functional limitations of the employee which impact the search;
- Link to USAJobs postings for positions identified by the employee; and
- Vacancy search termination date as determined by the IHS RA process. The date shall not extend the vacancy search beyond the 60 business day limit.
1-14.12 REPORTING AND FILING PROCEDURES
- Confidentiality. Medical information obtained in connection with the RA process must be kept confidential, except as provided herein. All medical information, including information about functional limitations and accommodation needs, the IHS obtains in connection with an RA request must be kept in secure files separate from the individual's personnel file. These confidentiality requirements strictly bind any IHS employee who obtains or receives such information. This means that it is not appropriate to draw attention to an individual’s accommodation, unless the individual specifically requests it in advance. For example, it is permissible to introduce an interpreter at an IHS event, but not to identify the individual who requires such assistance.
- Records. DMEEO will maintain custody of all records obtained or created during the processing of a request, including medical records; and will respond to all requests for disclosing the records. However, the Director, DMEEO, will allow necessary copies of these records to be maintained by the Area EEO Program Manager or Area EEO Reasonable Accommodation Coordinator. All reasonable accommodation records will be maintained in accordance with the Privacy Act, 5 U.S.C. § 552(a), 29 C.F.R. Part 1611; and EEOC Order 150.003.
Pursuant to EEOC guidance, the following information is collected and maintained in IHS to track the agency’s compliance with regard to RAs:- The specific RA requested, if any;
- The job sought by the requesting applicant or held by the requesting employee (occupational series, grade level, HHS Operating Division);
- Whether the accommodation was needed to apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of employment;
- Whether the request was granted (which may include an accommodation different from the one requested) or denied;
- The identity of the deciding official;
- If denied, the basis for such denial; and
- The number of days taken to process the request.
- Disclosure. Information regarding an RA may be disclosed only as follows:
- Supervisors and management officials with a need to know may be told about necessary restrictions on the work or duties of the employee and the necessary accommodation(s), but medical information should only be disclosed if strictly necessary;
- First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment;
- Government officials may be given information necessary to investigate the Agency’s compliance with the Rehabilitation Act and/or to provide technical/legal assistance;
- When release is required by law or court order. The information may, in certain circumstances, be disclosed to Worker’s Compensation offices or insurance carriers; and
- Whenever medical information is disclosed, the individual disclosing the information must inform the recipients about the confidentiality requirements and the obligation of the recipients to safeguard the information accordingly.
- Reporting. The immediate, first-line supervisor must complete HHS-814 form, “Reasonable Accommodation Information Tracking” (Manual Exhibit 1-14-C) within 15 business days of the decision and provide it to servicing Area RAC/HQ RAC. All RA requests and the provision of all the RAs will be reported by the Area EEO Office or HR Office monthly and submitted to the IHS HQ DMEEO to consolidate information for the monthly RA Activity Report. The Office of the Secretary, HHS, requests aggregate information annually, usually at the end of the Fiscal Year. No names are included in the annual report. These records will be maintained in the IHS HQ DMEEO, for at least three years.
1-14.13 RELATION OF PROCEDURES TO STATUTORY AND COLLECTIVE BARGAINING PROTECTIONS
- Additional Protection. This policy is in addition to statutory and collective bargaining protections for individuals with disabilities and the remedies the statutory and collective bargaining protections provide for the denial of an RA request. The requirements governing the initiation of statutory and collective bargaining claims, including timeframes for filing such claims, remain unchanged by this policy.
- Statutory or Collective Bargaining Remedies. Individuals who choose to pursue statutory or collective bargaining remedies for violation of their rights under the Rehabilitation Act, including but not limited to, the denial or untimely processing of an RA request, must do the following:
- For an EEO Complaint. Contact an EEO Counselor in the appropriate EEO office within 45 calendar days from the date of receipt of the written notice of denial or any related personnel action.
- For a Collective Bargaining Claim. For an individual who is a member of the bargaining unit, file a written grievance in accordance with the provisions of the Collective Bargaining Agreement.
- For an MSPB Appeal. Initiate an appeal to the MSPB within 30 calendar days of an appealable adverse action as defined in 5 C.F.R. § 1201.3.
- Alternative Dispute Resolution. The Alternative Dispute Resolution (ADR) process may also be invoked by the employee or applicant by contacting the HHS Departmental Appeals Board to initiate the Informal Facilitation Process, however, invoking ADR does not stop the timeframes under this policy. The immediate supervisor or another management official must continue to process the RA request even though ADR may be invoked by the employee or applicant. An employee may choose to bypass ADR and initiate an informal EEO complaint, as noted in this Section.
1-14.14 PERSONAL ASSISTANCE SERVICES
- The Regulations Implementing Section 501 of the Rehabilitation Act of 1973. The regulations implementing Section 501 of the Rehabilitation Act of 1973, require the provision of PAS to certain employees with targeted disabilities who request and require non-medical and non-work task personal assistance, unless doing so would impose an undue hardship on the agency. No employee should be discriminated against based on the need for PAS.
- What Are Personal Assistance Services? The final rule requires Federal agencies to provide PAS as a form of affirmative action. Personal Assistance Services provide employees with targeted disabilities "assistance with performing activities of daily living that an individual would typically perform if they did not have a disability, and that is not otherwise required as an RA. These services include, but are not limited to assistance with removing and putting on clothing, eating, and using the restroom, pushing a wheelchair or assistance with getting into or out of a vehicle at the worksite.” These examples are non-exhaustive, and serve to identify self-care type activities for which a PAS may be employed. Personal Assistance Services must be provided to employees while at the worksite and also under an agency's telework policy or telework as an RA.
- Personal Assistance Services Do Not Include.
- Performing medical procedures (e.g., administering shots) or medical monitoring (e.g., monitoring blood pressure).
- Helping individuals with disabilities perform their specific job functions, such as reviewing documents or answering calls; and differ from services that assist an individual to perform job-related tasks, such as sign language interpreters. Employees or applicants needing medically based RA to assist them in the workplace, or to apply for employment, may request RA through the Agency’s RA procedures.
- Travel. Personal Assistance Services must be provided for job-related travel. The IHS will not necessarily know that PAS is required for travel simply because an employee regularly receives PAS while at the worksite or while teleworking. It is also possible that an employee may require different PAS for travel than usually required. Since PAS for job-related travel are also considered a form of RA, requests for these services will be handled as requests for RA.
- Determining a Need for PAS. Employees do not need to determine if what the employee needs is an RA or PAS; they should simply contact the servicing Area RAC/HQ RAC (see below) and explain what the employee needs. The RAC will determine whether the request is for RA or PAS and proceed accordingly.
The IHS must provide PAS if:- The individual is an employee of the IHS;
- An employee requires PAS services because of a "targeted disability." A list of targeted disabilities is located on OPM Form 256 (see Manual Exhibit 1-14-D, “Self-Identification of Disability)”;
- Provision of these services would, together with any RA required, enable an employee to perform the essential functions of a position the individual holds or desires; and
- Providing PAS would not impose an undue hardship on the IHS. The IHS is prohibited from taking any adverse action against job applicants or employees based on their need or perceived need for PAS.
- Undue Hardship - PAS. Undue hardship considers the nature, extent, and cost of an accommodation or of providing PAS in relation to an agency's overall resources and the impact of the accommodation or of the requirement to provide PAS on the operation of the agency's business. Determination of undue hardship is always made on a case by case basis.
- Personal Assistance Services Procedures. As with RA, an employee may request PAS by informing a supervisor, the RA Program office, or other appropriate management officials that the employee needs assistance with daily life activities because of a medical condition. As stated, the individual does not need to mention Section 501 or use specific terms such as "PAS," "affirmative action," or “Reasonable Accommodation” to trigger the agency's obligation to consider the request. Typically, the targeted disability and need for PAS will be obvious, such as with missing limbs or paralysis, and medical support may not be required. Where there is a requirement to clarify qualification of need and nature of PAS assistance, the RA interactive process should be engaged and a request for medically supporting information may be requested.
- The IHS PAS Delivery Options.
- Personal Assistance Services must be performed by a PAS provider;
- The IHS may use an existing employee who already performs similar service as part of their regular job or hire Federal employees, independent contractors, or a combination of employees and contractors to perform PAS;
- If hiring PAS, and it is deemed reasonable, the IHS may give an employee’s PAS preference primary consideration to the extent permitted by law, provided PAS qualifications are met; and
- An employee who already uses a PAS provider in their personal non-work environment may request permission to bring his or her own PAS provider to work as an RA, if the employee does not request that the agency assume the cost of providing the services.
1 Timelines in this policy shall supersede any conflicting RA reconsideration timelines in the HHS-812 form.
