The Internal Revenue Service shall take positive and persistent actions to recruit, hire, develop, and advance persons with disabilities. The Service shall make reasonable accommodations for all qualified applicants or employees with physical or mental disabilities in accordance with law. The Service shall comply with all appropriate rules, regulations, and directives. Executives, managers, and supervisors shall create a positive work environment that will encourage employees with disabilities to maximize and reach their full potential.

The Internal Revenue Service shall take necessary action to ensure that members of the public with disabilities have an equal opportunity to effectively participate in its programs, activities, and services, in accordance with law. The Service shall comply with all appropriate rules, regulations, and directives.

The following policies and procedures apply to all IRS operating divisions, functional units, offices, and to all employees and applicants for employment with the IRS. These policies and procedures supplement the Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999), and EEOC Policy Guidance on Executive Order 13164, Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (October 20, 2000). Both documents are available on EEOC’s internet site at http://www.eeoc.gov.

The Rehabilitation Act of 1973, 29 U.S.C 701, et seq ., as amended, requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause undue hardship.

Executive Order 13164, Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation (July 26, 2000), requires that Federal agencies establish effective written procedures for processing requests for reasonable accommodation.

Equal Employment Opportunity Commission Policy Guidance on Executive Order 13164, Establishing Procedures to Facilitate the Provision of Reasonable Accommodation, Directives Transmittal Number 915.003 (October 20, 2000), explains EO 13164 in detail.

Equal Employment Opportunity Commission Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999), clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship.

Equal Employment Opportunity Commission regulations at 29 CFR §1630.

Equal Employment Opportunity Commission final rule, issued May 21, 2002, implementing amendments to Section 501 of the Rehabilitation Act of 1973 and EEOC’s regulations found at 29 CFR §1614.203.

BOD/FU - Business Operating Division/Functional Unit.

Deciding Official - The IRS official designated to identify possible accommodations and determine whether a requested accommodation shall be provided. There are three possible deciding officials: a human resources manager (for applicants only), an employee’s immediate supervisor/manager, and a manager in the employee’s chain of command. Deciding officials may consult with the appropriate parties (e.g., physician, reasonable accommodation coordinator, etc.) to determine if an individual has a medical condition that substantially limits a major life activity and is eligible for reasonable accommodation.

Disability - A physical or mental impairment that substantially limits one or more of the major life activities.

Disability Compliance Program Manager - Designated official on the staff of the Chief, EEO and Diversity, who has direct administrative responsibility for the program, Servicewide.

Dispute Resolution Process - Any voluntary mechanism through which an individual can request reconsideration of denial of reasonable accommodation, regardless of whether the person has started the EEO complaint process.

EEOD - Equal Employment Opportunity & Diversity.

Essential Function - Those job duties that are so fundamental to the position that the individual holds or desires that he/she cannot do the job without performing them. A function can be " essential" if, among other things: the position exists specifically to perform that function; there are a limited number of other employees who could perform the function; or the function is specialized and the individual is hired based on his/her ability to perform them. Determination of the essential functions of a position must be done on a case-by-case basis so that it reflects the job as actually performed, and not simply the components of a generic position description.

Extenuating Circumstances - Factors that could not reasonably have been anticipated or avoided in advance of the request for accommodation. Limited situations in which unforeseen or unavoidable events prevent prompt processing and delivery of an accommodation. See IRM 1.20.2.5.6.2.

Head of Office - As stated in the IRS Correspondence Manual:

Individual with a Disability - A person who has a physical or mental impairment that substantially limits one or more of that person's major life activities, has a record of impairment, or is regarded as having such an impairment.

Interactive Process - Meaningful, cooperative communication between the Deciding Official and the individual requesting an accommodation so that a determination may be made whether an accommodation should be provided and the appropriate accommodation, under the circumstances, to provide.

IRS - The Internal Revenue Service, including its subordinate operating divisions, functional units and offices.

IRS Medical Consultant - Designated physician or health services provider under contract with the IRS to provide medical consultation in cases of an individual request(s) for reasonable accommodation under the Rehabilitation Act of 1973, as amended.

Major Life Activity - Basic activities that the average person in the general population can perform with little or no difficulty, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

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

Reasonable Accommodation (RA) - A change or adjustment that enables a qualified person with a disability to apply for a job, perform job duties, or enjoy benefits and privileges of employment. There are three categories of reasonable accommodations:

Reassignment - A form of reasonable accommodation that, absent undue hardship, is provided to an employee who, because of a disability, can no longer perform the essential functions of their job, with or without reasonable accommodation, and the agency has determined that (i) there are no other effective accommodations that will enable the employee to perform the essential functions of his/her current position; or (ii) all other accommodations would impose an undue hardship. If the employee is qualified for the position, s/he will be reassigned to the job and will not have to compete for it.

Receiving Official - The IRS person designated to: Officially receive a request for reasonable accommodation from an employee or applicant (or an individual acting on his/her behalf), determine who will handle the request (the Deciding Official), forward the request to the Deciding Official, and monitor the request until it is closed. Typically this is the servicing Equal Employment Opportunity and Diversity (EEOD) manager, a member of the EEOD Office staff, or, in the case of an applicant for employment, a human resources specialist/manager.

Request for Reasonable Accommodation - A statement that an individual needs an adjustment or change at work, in the application for employment process, or in a benefit or privilege of employment for a reason related to a disability.

Requester - A qualified employee or applicant for employment with a disability, or an individual acting on his/her behalf, who requests reasonable accommodation.

Responsible Individual - An EEOD manager or other person designated to assist in the reasonable accommodation process.

Undue Hardship - An action requiring significant difficulty or expense when considered in light of factors such as the agency's size, financial resources, and the nature and structure of the position. Determination of undue hardship is always made on a case-by-case basis, considering factors that include the nature and cost of the reasonable accommodation needed and the impact of the reasonable accommodation on the operations of the agency.

Vacant Position - The position is available when the employee asks for reassignment as a reasonable accommodation, or the employer knows that the position will become available within a reasonable amount of time.

The reasonable accommodation process begins as soon as an employee or an applicant for employment makes the request for accommodation either orally or in writing. Access the Reasonable Accommodation Request, Form 13661 at http://publish.no.irs.gov/FORMS/INTERNAL/PDF/39619G05.PDF. This form can be completed online. The request does not have to include any special words, such as "reasonable accommodation," "disability, " or "Rehabilitation Act." An individual with a disability may request a reasonable accommodation whenever he/she chooses, even if he/she has not previously disclosed the existence of a disability. The request does not necessarily mean that the IRS is required to provide the change or adjustment.

Generally, an employee should notify his/her supervisor or manager that s/he needs a reasonable accommodation. However, the employee's request must be considered if it is made to another supervisor or manager in his/her immediate chain of command; the servicing EEOD office; reasonable accommodation coordinator; or, responsible individual.

An applicant for employment may request a reasonable accommodation orally or in writing from any IRS employee with whom the applicant has contact in connection with the application process. Talent Hiring and Recruitment Division in conjunction with EEOD is responsible for training staff that is involved in the application process to recognize requests for reasonable accommodation and to handle them appropriately.

A family member, friend, health professional, or other representative (such as a union steward or coworker) may request a reasonable accommodation on behalf of an employee or applicant with a disability. The request shall be made to one of the same persons to whom the employee or applicant would make the request. To the extent possible, an individual with a disability should be contacted to confirm that he/she in fact wants a reasonable accommodation. The individual may refuse to accept an accommodation that is not needed.

As soon as the Deciding Official determines that a reasonable accommodation will be provided, that decision should be immediately communicated to the individual. This decision will be documented on the RA Form, Part II, and a copy will be provided to the requesting individual. If the accommodation cannot be provided immediately, the Deciding Official must inform the individual of the projected time frame for providing the accommodation. See Part IV of the Reasonable Accommodation Request, Form 13661, available at http://publish.no.irs.gov/FORMS/INTERNAL/PDF/39619G05.PDF .

As soon as the Deciding Official determines that a request for reasonable accommodation will be denied, s/he must fill out the attached IRS RA Form, Part IV, and provide a copy to the individual who requested the accommodation, with a copy to the servicing EEOD manager. The explanation for the denial should be written in plain language, clearly stating the specific reasons for the denial. See Part IV of the Reasonable Accommodation Request, Form 13661 available at http://publish.no.irs.gov/FORMS/INTERNAL/PDF/39619G05.PDF

Where the Deciding Official has denied a specific requested accommodation, but offered to make a different one in its place which was not agreed to during the interactive process, the denial notice should explain both the reasons for the denial of the requested accommodation and the reasons that the Deciding Official believes the chosen accommodation will be effective.

Reasons for the denial of a request for reasonable accommodation must include specific reasons for the denial; for example, why the accommodation would not be effective or why it would result in undue hardship, and may include the following:

The written notice of denial must also inform the individual that s/he has the right to file an EEO complaint and may have rights to pursue Merit Systems Protection Board, union grievance procedures, and other statutory processes, as appropriate. The notice will also indicate the applicable time frames for filing such claims. The notice must also explain the IRS procedures available for dispute resolution.

If an individual wishes reconsideration, s/he (or the designated representative) should first ask the Deciding Official to reconsider the decision. The individual may present additional information in support of his/her request. The Deciding Official will issue a response within five business days of receipt of the reconsideration request.

If the Deciding Official does not reverse the decision, the individual may initiate the next level appeal to the Senior Official of the business operating division or functional unit. The authority to decide the appeal is the responsibility of the Division Commissioner or equivalent. However, this authority may be re-delegated as deemed appropriate by each business unit to another Executive or Senior Manager who reports directly to the Division Commissioner within the individual’s chain of command. In the case involving reassignment to a specific position in another Business Unit, the gaining Division Commissioner or re-delegated approving official will act as the Deciding Official. A response will be issued to the individual within five business days of receipt of the reconsideration request.

If the Senior official or designee of the business operating division or functional unit does not reverse the decision, the individual may initiate a second and final appeal of the decision to the Chief, EEO and Diversity or his/her designee (The Deputy Chief of EEO and Diversity). A response to the final appeal will be issued to the individual within five business days of receipt of the reconsideration request.

Individuals should follow up oral reconsideration requests in writing. If the individual chooses not to submit a written reconsideration request, the request must be documented in writing and dated by the receiving official, the EEOD manager, or other responsible individual.

Pursuing dispute resolution under the IRS Reasonable Accommodation procedures, including seeking reconsideration from the Deciding Official and filing an appeal does not affect the time limits for initiating statutory and collective bargaining claims. An individual's participation in any dispute resolution process does not satisfy the requirements for bringing a claim under EEO, MSPB, or union grievance procedures or any other applicable statutory processes. The time limit for filing such a claim generally begins to run once the requested accommodation is denied.

All medical information, including information about functional limitations and reasonable accommodation needs, obtained in connection with a request for reasonable accommodation must be kept confidential. The information shall be kept in files separate from the individual's personnel file. In addition, employees who obtain or receive such information are strictly bound by these confidentiality requirements. The servicing EEOD manager will maintain custody of all records obtained or created during the processing of a request for reasonable accommodation, including medical records, and will respond to all requests for disclosure of the records. The information may be disclosed only to the following individuals:

Whenever medical information is disclosed, the individual disclosing the information must inform the recipients of the information about the confidentiality requirements that attach to it.

Deciding officials will ensure that the IRS RA Form, all parts, are submitted to the servicing EEOD office within 10 business days of the decision concerning the reasonable accommodation request. The Deciding officials should attach to the form copies of all information s/he receives as part of processing the request.

The servicing EEOD office will maintain these records for the longer of the employee’s tenure with IRS or five years. The servicing EEOD office will divide any records on reasonable accommodation into two categories:

The Division EEOD Directors will prepare and submit to the Office of the Chief, EEO and Diversity annually, by October 5th, a report containing the following information:

In addition, the report shall provide a qualitative assessment of the reasonable accommodation program, including any recommendations for improvement of the IRS reasonable accommodation policies and procedures.

The report format, provided by the Office of Equal Opportunity and Diversity, has been modified and is provided in Exhibit 1.20.2-3.

Executive Order 13164 does not create new rights for employees or applicants for employment; nor does it limit an individual's rights under the Rehabilitation Act of 1973. The policies and requirements described in these procedures are in addition to statutory and collective bargaining protections for persons with disabilities and the remedies they provide for the denial of requests for reasonable accommodation. Requirements governing the initiation of statutory and collective bargaining claims, including time frames for filing such claims, remain unchanged.

An individual who chooses to pursue statutory or collective bargaining remedies for denial of reasonable accommodation must comply with the following:

If a member of the IRS’ EEO and Diversity staff has had any involvement in the processing of the request for reasonable accommodation, that staff member shall recuse him or herself from any involvement in the processing of an EEO counseling contact or complaint in connection with the request.

As called for in Item 45 of the EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA) (which has also been applied to the Rehabilitation Act of 1973), prior to granting any reasonable accommodation that would violate any collective bargaining agreement between the IRS and NTEU (e.g., the IRS-NTEU National Agreement, mid-term agreements or LOUs, local agreements, etc.) the Service will notify NTEU at the appropriate level and seek to negotiate, in good faith, a variance to the agreement to allow the accommodation. The parties are encouraged to work cooperatively to reach such agreements, but only if they do not unduly burden the expectations or rights of other workers.

The Service acknowledges that under ADA and Rehabilitation Act case law, accommodations that conflict with collectively bargained seniority systems are unreasonable, absent special circumstances.

The Service will notify and bargain, to the extent required by law, with NTEU prior to implementing any reasonable accommodation that would require more than de minimus change in other bargaining unit employees’ conditions of employment.

If granting a reasonable accommodation would conflict with a collectively bargained agreement, or would necessitate a change in other employees’ conditions of employment, and thus require negotiations, consistent with paragraph 3 above, the Service will consider such situations as presenting extenuating circumstances (as defined in the RA procedures) requiring a delay in implementation of the accommodation, and perhaps requiring the Service to take temporary measures.

The Service will consider reasonable accommodations that do not conflict with collective bargaining agreements or require changes to other employees’ conditions of employment before proposing or approving reasonable accommodations that would cause such conflicts or changes.