Questions And Answers: Policy Guidance On Executive Order 13164: Establishing Procedures To Facilitate The Provision Of Reasonable Accommodation

Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

The Americans with Disabilities Act (ADA) Amendments Act of 2008 was signed into law on September 25, 2008 and becomes effective January 1, 2009. Because this law makes several significant changes, including changes to the definition of the term "disability," the EEOC will be evaluating the impact of these changes on this document and other publications. See the list of specific changes to the ADA made by the ADA Amendments Act.

This Policy Guidance explains the provisions of Executive Order 13164, which requires federal agencies to establish effective written procedures for processing requests for reasonable accommodation by employees and applicants with disabilities. The Guidance also provides background information on the requirements of the Rehabilitation Act of 1973, and sets forth instructions for implementing each of the procedural requirements of the Executive Order.

The Order applies to executive branch agencies and their employees and applicants for employment. It does not apply to employers or employees in the private sector.

Reasonable accommodation is a change in the work environment or in the application process that would enable a person with a disability to enjoy equal employment opportunities. There are three general categories of reasonable accommodations: (1) changes to a job application process to permit people with disabilities to be considered for jobs; (2) changes to enable people with disabilities to perform the essential functions of a job; and (3) changes to give people with disabilities equal access to the benefits and privileges of employment.

What are the legal requirements that govern an agency's obligation to provide reasonable accommodation?

Agencies must provide reasonable accommodation to qualified employees or applicants with disabilities unless the accommodation would create an undue hardship on the operation of the agency. A person with a disability is qualified for a job if s/he can perform the essential functions of that job with or without the reasonable accommodation.

While many people with disabilities can apply for and perform jobs without the need for reasonable accommodation, workplace barriers may keep others from entering the work force and still others from performing jobs which 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 job tasks are to be done). Reasonable accommodation removes workplace barriers for people with disabilities. It also allows agencies to expand their pool of qualified workers.

If a person with a disability needs a reasonable accommodation in order to do, or to apply for, his or her job, it is essential that federal agencies handle the request in a prompt, fair, and efficient manner. Establishing procedures in advance will assure that individuals with disabilities understand how to approach the system and know what to expect. Procedures will also help agency managers understand what is expected of them.

Does the Policy Guidance explain general standards for reasonable accommodation procedures?

Yes. While each agency will design its own procedures, all procedures must meet the following general standards:

A person with a disability may start the process by making an oral or written request for a reasonable accommodation. Agencies must consider an individual's request if it is made to any of the following: his/her supervisor; a supervisor or manager in his/her immediate chain of command; the EEO office; any other office designated by the agency; or, in connection with the application process, any agency employee with whom the applicant has contact. An agency may not require people with disabilities to use particular words in their requests; nor may it wait to begin processing a request until a written form is submitted.

Which agency employees should be involved in considering an individual's request for reasonable accommodation?

Agency procedures should authorize first-line supervisors to consider and approve requests for reasonable accommodation wherever possible. Agencies may also designate particular offices to oversee the reasonable accommodation process and/or to provide assistance and information to all agency employees involved in the process.

No. Each agency should design procedures that work best for its work force. All agency procedures should, however, require that agency decision makers talk to the individual requesting the accommodation where the person's specific disability or limitation is unclear; where an effective accommodation is not obvious; or where the parties are choosing between different possible reasonable accommodations.

Because the amount of time it takes to respond to a request for reasonable accommodation will often depend on the nature of the accommodation, the Guidance does not set specific time lines. Time limits should, however, be as short as reasonably possible. Where an accommodation is needed immediately -- where, for example, an applicant needs a modification to the application process in order to apply for a job -- the agency's procedures should also provide for expedited processing of the request

Sometimes there may be factors that an agency could not have anticipated or avoided that will delay the consideration or provision of a reasonable accommodation. In such circumstances, the agency must notify the individual of the reason for the delay and consider whether there are temporary measures that could be taken to assist the person with a disability until a decision on the requested accommodation can be made.

When may an agency ask for medical information in connection with a request for reasonable accommodation?

An agency is entitled to know that an individual has a covered disability that requires a reasonable accommodation. Therefore, the agency may ask for information about the disability, the activities it limits, and the need for accommodation -- but only if the disability and/or need for accommodation is not obvious, or if information already submitted by the individual is insufficient for the agency to make these determinations. An agency may not otherwise ask for medical information based on a person's request for a reasonable accommodation.

Yes. The information may be disclosed to those involved in determining whether to grant the reasonable accommodation. Beyond those agency decision makers, however, there are strict limitations on those to whom the information may be provided.

If an agency denies a request for reasonable accommodation, it must inform the individual in writing of the denial and the specific reasons for it. The agency should also notify the individual that s/he has a right to file an EEO complaint and to engage in any informal dispute resolution procedures the agency makes available for this purpose.

The Executive Order encourages agencies to use voluntary, informal dispute resolution processes to resolve disagreements resulting from the reasonable accommodation process. These informal processes must be in addition to -- and may not modify or replace -- the EEO complaint process.

The Executive Order does not create new rights for Executive branch employees or applicants. However, nothing in the Executive Order limits an individual's rights under the Rehabilitation Act. Where an individual believes that a denial of a reasonable accommodation, or an aspect of the reasonable accommodation process, has resulted in a violation of the Rehabilitation Act, therefore, s/he may file an EEO complaint through the process set forth in EEOC regulations at 29 C.F.R. Part 1614. The individual must initiate the EEO complaint process within 45 days of the date of the challenged action, whether or not s/he is engaged in an informal dispute resolution process at the same time.

The Executive Order requires each agency to submit its procedures, and any modifications it later makes to those procedures, to the EEOC. The Order also requires each agency to track information that will enable the agency to evaluate its own performance in considering and granting requests for reasonable accommodation. The Order does not, however, impose any specific recordkeeping requirements.