Appendix A to Part 60-300 - Guidelines on a Contractor's Duty To Provide Reasonable Accommodation
41:1.2.3.1.9.5.11.6.2 : Appendix A
Appendix A to Part 60-300 - Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on Title I of the Americans with Disabilities Act (ADA)
set out as an appendix to the regulations issued by the Equal
Employment Opportunity Commission (EEOC) implementing the ADA (29
CFR part 1630). Although the following discussion is intended to
provide an independent “free-standing” source of guidance with
respect to the duty to provide reasonable accommodation under this
part, to the extent that the EEOC appendix provides additional
guidance which is consistent with the following discussion, it may
be relied upon for purposes of this part as well. See §
60-300.1(c). Contractors are obligated to provide reasonable
accommodation and to take affirmative action. Reasonable
accommodation under VEVRAA, like reasonable accommodation required
under section 503 and the ADA, is a part of the nondiscrimination
obligation. See EEOC appendix cited in this paragraph.
Affirmative action is unique to VEVRAA and section 503, and
includes actions above and beyond those required as a matter of
nondiscrimination. An example of this is the requirement discussed
in paragraph 2 of this appendix that a contractor shall make
an inquiry of a disabled veteran who is having significant
difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of an “otherwise
qualified” disabled veteran, unless the contractor can demonstrate
that the accommodation would impose an undue hardship on the
operation of its business. As stated in § 60-300.2(s), a disabled
veteran is qualified if he or she has the ability to perform the
essential functions of the position with or without reasonable
accommodation. A contractor is required to make a reasonable
accommodation with respect to its application process if the
disabled veteran is qualified with respect to that process. One is
“otherwise qualified” if he or she is qualified for a job, except
that, because of a disability, he or she needs a reasonable
accommodation to be able to perform the job's essential
functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide a reasonable accommodation for
applicants and employees who are known to be disabled veterans. As
stated in § 60-300.42(b) (see also Appendix B of this part), the
contractor is required to invite applicants who have been provided
an offer of employment, before they are placed on the contractor's
payroll, to indicate whether they are a disabled veteran who may be
protected by the Act. Section 60-300.42(d) further provides that
the contractor must seek the advice of disabled veterans who
“self-identify” in this way as to reasonable accommodation.
Moreover, § 60-300.44(d) provides that if an employee who is a
known disabled veteran is having significant difficulty performing
his or her job and it is reasonable to conclude that the
performance problem may be related to the disability, the
contractor is required to confidentially inquire whether the
problem is disability related and if the employee is in need of a
reasonable accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables a disabled veteran
to enjoy equal employment opportunities. Equal employment
opportunity means an opportunity to attain the same level of
performance, or to enjoy the same level of benefits and privileges
of employment, as are available to the average similarly situated
employee without a disability. Thus, for example, an accommodation
made to assist an employee who is a disabled veteran in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to be the “best”
accommodation possible, so long as it is sufficient to meet the
job-related needs of the individual being accommodated. There are
three areas in which reasonable accommodations may be necessary:
(1) accommodations in the application process; (2) accommodations
that enable employees who are disabled veterans to perform the
essential functions of the position held or desired; and (3)
accommodations that enable employees who are disabled veterans to
enjoy equal benefits and privileges of employment as are enjoyed by
employees without disabilities.
4. The term “undue hardship” refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered -
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what
resources will be available to the facility in providing the
accommodation. If the contractor can show that the cost of the
accommodation would impose an undue hardship, it would still be
required to provide the accommodation if the funding is available
from another source, e.g., the Department of Veterans Affairs or a
state vocational rehabilitation agency, or if Federal, state or
local tax deductions or tax credits are available to offset the
cost of the accommodation. In the absence of such funding, the
disabled veteran must be given the option of providing the
accommodation or of paying that portion of the cost which
constitutes the undue hardship on the operation of the
business.
5. The definition for “reasonable accommodation” in §
60-300.2(t) lists a number of examples of the most common types of
accommodations that the contractor may be required to provide.
There are any number of specific accommodations that may be
appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation
is appropriate must be made on a case-by-case basis. The contractor
must consult with the disabled veteran in deciding on the
reasonable accommodation; frequently, the individual will know
exactly what accommodation he or she will need to perform
successfully in a particular job, and may suggest an accommodation
which is simpler and less expensive than the accommodation the
contractor might have devised. Other resources to consult include
the appropriate state vocational rehabilitation services agency,
the Equal Employment Opportunity Commission (1-800-669-4000
(voice), 1-800-669-6820 (TTY)), the Job Accommodation Network (JAN)
operated by the Office of Disability Employment Policy in the U.S.
Department of Labor (1-800-526-7234 or 1-800-232-9675), private
disability organizations (including those that serve veterans), and
other employers.
6. With respect to accommodations that can permit an employee
who is a disabled veteran to perform essential functions
successfully, a reasonable accommodation may require the contractor
to, for instance, modify or acquire equipment. For the
visually-impaired, such accommodations may include providing
adaptive hardware and software for computers, electronic visual
aids, Braille devices, talking calculators, magnifiers, audio
recordings and Braille or large-print materials. For persons with
hearing impairments, reasonable accommodations may include
providing telephone handset amplifiers, telephones compatible with
hearing aids and text telephones (TTYs). For persons with limited
physical dexterity, the obligation may require the provision of
telephone headsets, speech activated software and raised or lowered
furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, sign language
interpreter or travel attendant, permitting the use of accrued paid
leave or providing additional unpaid leave for necessary treatment.
The contractor may also be required to make existing facilities
readily accessible to and usable by disabled veterans - including
areas used by employees for purposes other than the performance of
essential job functions such as restrooms, break rooms, cafeterias,
lounges, auditoriums, libraries, parking lots and credit unions.
This type of accommodation will enable employees to enjoy equal
benefits and privileges of employment as are enjoyed by employees
who do not have disabilities.
8. Another of the potential accommodations listed in §
60-300.2(t) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified disabled veteran cannot perform to another position.
Accordingly, if a clerical employee who is a disabled veteran is
occasionally required to lift heavy boxes containing files, but
cannot do so because of a disability, this task may be reassigned
to another employee. The contractor, however, is not required to
reallocate essential functions, i.e., those functions that
the individual who holds the job would have to perform, with or
without reasonable accommodation, in order to be considered
qualified for the position. For instance, the contractor which has
a security guard position which requires the incumbent to inspect
identity cards would not have to provide a blind disabled veteran
with an assistant to perform that duty; in such a case, the
assistant would be performing an essential function of the job for
the disabled veteran. Job restructuring may also involve allowing
part-time or modified work schedules. For instance, flexible or
adjusted work schedules could benefit disabled veterans who cannot
work a standard schedule because of the need to obtain medical
treatment, or disabled veterans with mobility impairments who
depend on a public transportation system that is not accessible
during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the disabled veteran's current position
would pose an undue hardship. Reassignment is not required for
applicants. However, in making hiring decisions, contractors are
encouraged to consider applicants who are known disabled veterans
for all available positions for which they may be qualified when
the position(s) applied for is unavailable. Reassignment may not be
used to limit, segregate, or otherwise discriminate against
employees who are disabled veterans by forcing reassignments to
undesirable positions or to designated offices or facilities.
Employers should reassign the individual to an equivalent position
in terms of pay, status, etc., if the individual is qualified, and
if the position is vacant within a reasonable amount of time. A
“reasonable amount of time” must be determined in light of the
totality of the circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned disabled veteran at the salary of the higher graded
position, and must do so if it maintains the salary of reassigned
employees who are not disabled veterans. It should also be noted
that the contractor is not required to promote a disabled veteran
as an accommodation.
11. With respect to the application process, reasonable
accommodations may include the following: (1) providing information
regarding job vacancies in a form accessible to disabled veterans
who are vision or hearing impaired, e.g., by making an announcement
available in braille, in large print, or on computer disc, or by
responding to job inquiries via TTYs; (2) providing readers, sign
language interpreters and other similar assistance during the
application, testing and interview process; (3) appropriately
adjusting or modifying employment-related examinations, e.g.,
extending regular time deadlines, allowing a disabled veteran who
is blind or has a learning disorder such as dyslexia to provide
oral answers for a written test, and permitting an applicant,
regardless of the nature of his or her ability, to demonstrate
skills through alternative techniques and utilization of adapted
tools, aids and devices; and (4) ensuring a disabled veteran with a
mobility impairment full access to testing locations such that the
applicant's test scores accurately reflect the applicant's skills
or aptitude rather than the applicant's mobility impairment.
Appendix A to Part 60-741 - Guidelines on a Contractor's Duty To Provide Reasonable Accommodation
41:1.2.3.1.10.5.11.5.5 : Appendix A
Appendix A to Part 60-741 - Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on title I of the Americans with Disabilities Act, as
amended (ADA), set out as an appendix to the regulations issued by
the Equal Employment Opportunity Commission (EEOC) implementing the
ADA (29 CFR part 1630). Although the following discussion is
intended to provide an independent “free-standing” source of
guidance with respect to the duty to provide reasonable
accommodation under this part, to the extent that the EEOC appendix
provides additional guidance which is consistent with the following
discussion, it may be relied upon for purposes of this part as
well. See § 60-741.1(c). Contractors are obligated to
provide reasonable accommodation and to take affirmative action.
Reasonable accommodation under section 503, like reasonable
accommodation required under the ADA, is a part of the
nondiscrimination obligation. See EEOC appendix cited in
this paragraph. Affirmative action is unique to section 503, and
includes actions above and beyond those required as a matter of
nondiscrimination. An example of this is the requirement discussed
in paragraph 2 of this appendix that a contractor shall make an
inquiry of an employee with a known disability who is having
significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of a qualified individual
with a disability, unless the contractor can demonstrate that the
accommodation would impose an undue hardship on the operation of
its business. As stated in § 60-741.2(r), an individual with a
disability is qualified if he or she satisfies all the skill,
experience, education, and other job-related selection criteria,
and can perform the essential functions of the position with or
without reasonable accommodation. A contractor is required to make
a reasonable accommodation with respect to its application process
if the individual with a disability is qualified with respect to
that process. One is qualified within the meaning of section 503 if
he or she is qualified for a job, except that, because of a
disability, he or she needs a reasonable accommodation to be able
to perform the job's essential functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide reasonable accommodation for
applicants and employees of whose disabilities the contractor has
actual knowledge. As stated in § 60-741.42, as part of the
contractor's affirmative action obligation, the contractor is
required to invite applicants to inform the contractor whether the
applicant believes that he or she is an individual with a
disability both prior to an offer of employment, and after an offer
of employment but before he or she begins his/her employment
duties. That invitation also informs applicants of the contractor's
reasonable accommodation obligation and invites individuals with
disabilities to request any accommodation they might need.
Moreover, § 60-741.44(d) provides that if an employee with a known
disability is having significant difficulty performing his or her
job and it is reasonable to conclude that the performance problem
may be related to the disability, the contractor is required to
confidentially inquire whether the problem is disability related
and if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables an individual with
a disability to enjoy equal employment opportunities. Equal
employment opportunity means an opportunity to attain the same
level of performance, or to enjoy the same level of benefits and
privileges of employment as are available to the average similarly
situated employee without a disability. Thus, for example, an
accommodation made to assist an employee with a disability in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to be the “best”
accommodation possible, so long as it is sufficient to meet the
job-related needs of the individual being accommodated. There are
three areas in which reasonable accommodations may be necessary:
(1) Accommodations in the application process; (2) accommodations
that enable employees with disabilities to perform the essential
functions of the position held or desired; and (3) accommodations
that enable employees with disabilities to enjoy equal benefits and
privileges of employment as are enjoyed by employees without
disabilities.
4. The term “undue hardship” refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered -
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what
resources will be available to the facility in providing the
accommodation. If the contractor can show that the cost of the
accommodation would impose an undue hardship, it would still be
required to provide the accommodation if the funding is available
from another source (e.g., a State vocational rehabilitation
agency) or if Federal, State, or local tax deductions or tax
credits are available to offset the cost of the accommodation. In
the absence of such funding, the individual with a disability must
be given the option of providing the accommodation or of paying
that portion of the cost which constitutes the undue hardship on
the operation of the business.
5. The definition for “reasonable accommodation” in §
60-741.2(s) lists a number of examples of the most common types of
accommodations that the contractor may be required to provide.
There are a number of specific accommodations that may be
appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation
is appropriate must be made on a case-by-case basis. The contractor
generally should consult with the individual with a disability in
deciding on the appropriate accommodation; frequently, the
individual will know exactly what accommodation he or she will need
to perform successfully in a particular job, and may suggest an
accommodation which is simpler and less expensive than the
accommodation the contractor might have devised. Other resources to
consult include the appropriate State vocational rehabilitation
services agency, the Equal Employment Opportunity Commission
(1-800-669-4000 (voice) or 1-800-669-6820 (TTY)), the Job
Accommodation Network (JAN) - a service of the U.S. Department of
Labor's Office of Disability Employment Policy (1-800-526-7234
(voice) or 1-877-781-9403 (TTY)), private disability organizations,
and other employers.
6. With respect to accommodations that can permit an employee
with a disability to perform essential functions successfully, a
reasonable accommodation may require the contractor to, for
instance, modify or acquire equipment. For those visually-impaired,
such accommodations may include providing adaptive hardware and
software for computers, electronic visual aids, Braille writers,
talking calculators, magnifiers, audio recordings, and Braille or
large print materials. For persons with hearing impairments,
reasonable accommodations may include providing telephone handset
amplifiers, telephones compatible with hearing aids, and TTY
machines. For persons with limited physical dexterity, the
obligation may require the provision of telephone headsets,
mechanical page turners, and raised or lowered furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, interpreter, or
travel attendant, permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment. The
contractor may also be required to make existing facilities readily
accessible to and usable by individuals with disabilities -
including areas used by employees for purposes other than the
performance of essential job functions - such as restrooms, break
rooms, cafeterias, lounges, auditoriums, libraries, parking lots,
and credit unions. This type of accommodation will enable employees
to enjoy equal benefits and privileges of employment as are enjoyed
by employees who do not have disabilities.
8. Another of the potential accommodations listed in §
60-741.2(s) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified individual with a disability cannot perform to another
position. Accordingly, if a clerical employee is occasionally
required to lift heavy boxes containing files, but cannot do so
because of a disability, this task may be reassigned to another
employee. The contractor, however, is not required to reallocate
essential functions, i.e., those functions that the
individual who holds the job would have to perform, with or without
reasonable accommodation, in order to be considered qualified for
the position. For instance, the contractor that has a security
guard position which requires the incumbent to inspect identity
cards would not have to provide a blind individual with an
assistant to perform that duty; in such a case, the assistant would
be performing an essential function of the job for the individual
with a disability. Job restructuring may also involve allowing
part-time or modified work schedules. For instance, flexible or
adjusted work schedules could benefit individuals with disabilities
who cannot work a standard schedule because of the need to obtain
medical treatment, or individuals with mobility impairments who
depend on a public transportation system that is not accessible
during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the individual's current position would
pose an undue hardship. Reassignment is not required for
applicants. However, in making hiring decisions, contractors are
encouraged to consider known applicants with disabilities for all
available positions for which they may be qualified when the
position(s) applied for is unavailable. Reassignment may not be
used to limit, segregate, or otherwise discriminate against
employees with disabilities by forcing reassignments to undesirable
positions or to designated offices or facilities. Employers should
reassign the individual to an equivalent position in terms of pay,
status, etc., if the individual is qualified, and if the position
is vacant within a reasonable amount of time. A reasonable amount
of time should be determined in light of the totality of the
circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned individual with a disability at the salary of the higher
graded position, and must do so if it maintains the salary of
reassigned employees who are not disabled. It should also be noted
that the contractor is not required to promote an individual with a
disability as an accommodation.
11. With respect to the application process, appropriate
accommodations may include the following: (1) Providing information
regarding job vacancies in a form accessible to those with vision
or hearing impairments (e.g., by making an announcement available
in Braille, in large print, or on audio tape, or by responding to
job inquiries via TTY); (2) providing readers, interpreters and
other similar assistance during the application, testing and
interview process; (3) appropriately adjusting or modifying
employment-related examinations (e.g., extending regular time
deadlines, allowing a blind person or one with a learning disorder
such as dyslexia to provide oral answers for a written test, and
permitting an applicant, regardless of the nature of his or her
disability to demonstrate skills through alternative techniques and
utilization of adapted tools, aids and devices); and (4) ensuring
an applicant with a mobility impairment full access to testing
locations such that the applicant's test scores accurately reflect
the applicant's skills or aptitude rather than the applicant's
mobility impairment.