Reasonable Accommodation Disability Procedures

Procedures for Implementing

Reasonable Accommodation

for Applicants and

Employees with Disabilities

and

Pregnancy-related

Conditions in

New York State Agencies

2 
 
TABLE OF CONTENTS 
INTRODUCTION ..................................................................................................................................................... 3 
SECTION I: UNIFORM STATE POLICY ........................................................................................................... 4 
A.  Policy Statement...................................................................................................................................... 4 
B.  Employee Access to Information on Reasonable Accommodation...................................... 5 
C.  Confidentiality Requirements ............................................................................................................ 5 
SECTION II: DEFINITIONS AND PROCEDURES FOR HANDLING REQUESTS FOR 
REASONABLE ACCOMMODATION IN NEW YORK STATE AGENCIES ............................................... 6 
A.  Definitions ................................................................................................................................................. 6 
1.  Covered Individuals ........................................................................................................................ 6 
a. Person with a Disability ............................................................................................................. 6 
b. Person with a Pregnancy-related Condition ...................................................................... 6 
2.  Physical, Mental or Medical Impairment ................................................................................ 6 
3.  Reasonable Performance .............................................................................................................. 7 
4.  Essential Job Functions ................................................................................................................. 7 
5.  Qualified Person with a Disability ............................................................................................. 7 
6.  Reasonable Accommodation ....................................................................................................... 8 
7.  Undue Hardship ............................................................................................................................... 8 
B.  Uniform Procedures for Processing Reasonable Accommodation Requests .................. 9 
1.  Who May Request a Reasonable Accommodation? ............................................................ 9 
2.  Processing a Request for Reasonable Accommodation ................................................. 10 
a.  Request for Reasonable Accommodation .................................................................... 11 
b.  Acknowledgement of Request for Reasonable Accommodation......................... 11 
c.  Status Update/Notification of Need for Additional Information ......................... 11 
d.  Notification of Agency Determination ........................................................................... 13 
C.  Maintenance of Records and Data Collection ............................................................................ 18 
Appendix A:  Sample Forms, Sections A through F ............................................................................... 19 
Appendix B:  Regulations ................................................................................................................................ 26 

INTRODUCTION

New York State has long been committed to the proposition that every individual in the State

has an equal opportunity to enjoy a full and productive life. This commitment to equal

opportunity extends to the workplace. Under New York State law, employees are protected

from acts of bias, harassment, prejudice or discrimination. This protection extends to those

individuals with disabilities and pregnancy-related conditions. To enable qualified

employees and applicants with disabilities and pregnancy-related conditions to contribute

to the State’s workforce, the State has a uniform policy to ensure the provision of reasonable

accommodation to such individuals.

Assistive technology may also play an important role in accommodating individuals in the

workplace with disabilities. For questions regarding assistive technology, please contact:

New York State

Chief Information Officer/Office of Information Technology Services

Empire State Plaza

Albany, New York 12220

(866) 789-4638

SECTION I: UNIFORM STATE POLICY

A. Policy Statement

Each agency, department, office and facility shall follow the Statewide Reasonable

Accommodation Policy and Procedures, as set forth below, and communicate its

commitment to provide reasonable accommodation to employees and applicants with

disabilities or pregnancy-related conditions.

The State of New York is committed to assuring equal employment

opportunity for persons with disabilities. To this end, it is the State’s

policy to provide reasonable accommodation to a qualified person

with a disability to enable such person to perform the essential

functions of the State government position for which he or she is

applying, or in which he or she is employed. This policy is based on

the New York State Human Rights Law, Sections 503/504 of the

Federal Rehabilitation Act of 1973, as amended, the Americans with

Disabilities Act (ADA), and all applicable Executive Orders and

Memoranda. The policy applies to all employment practices and

actions. It includes, but is not limited to, recruitment, the job

application process, examination and testing, hiring, training,

disciplinary actions, rates of pay or other compensation,

advancement, classification, transfer and reassignment, and

promotions.

By providing reasonable accommodations in a consistent fashion, the State

and agency, as the employer, benefit by:

• overcoming otherwise exclusionary employment practices, policies

and consequences;

• providing equal opportunities for participation in education and

training programs; and

• enhancing the retention and upward mobility of qualified employees

with disabilities or pregnancy-related conditions.

Reasonable accommodation must be considered in all employment decisions. The employer

may not deny any employment opportunity to a qualified employee or applicant with a

disability or pregnancy-related conditions, thus attempting to avoid the need to make a

reasonable accommodation, unless the accommodation would impose an undue hardship.

This protects the disabled individual's right to equal job opportunity.

B. Employee Access to Information on Reasonable Accommodation

Every agency must periodically inform its employees of the Reasonable Accommodation

Policy and Procedures. Acceptable means of communicating this information include

distributing a copy of the policy and procedures to all employees annually via email;

referring to the policy on an annual basis in the agency’s newsletter and advising employees

of where the policy is available both in hardcopy and electronic format; and having division

or program directors remind staff of the policy and procedures on an annual basis.

Information on reasonable accommodation is included in New York State’s Employee

Handbook, titled, “Equal Employment Opportunity in New York State, Rights and

Responsibilities” (“Employee Handbook”). Information on the agency’s internal

discrimination complaint procedure, along with information on an employee's right to file a

complaint under the Human Rights Law, Sections 503/504 of the Rehabilitation Act of 1973,

and the Americans with Disabilities Act for alleged discriminatory acts is also included in the

Employee Handbook.

The Reasonable Accommodation Policy should be made available at interviews. The

names and office phone numbers of key personnel involved in providing accommodation,

including the agency's Designee for Reasonable Accommodation (DRA), shall be posted and

the listing maintained by the agency's DRA. This listing shall also be provided to and made

available from personnel offices, EAP coordinators, as well as an agency's Counsel's Office.

DRAs and any Alternate DRAs shall be employees of an agency's Human Resource or

Personnel Office. DRAs must always work closely with an identified individual or individuals

in their Agency's Counsel or Legal Office to ensure that potential legal issues are identified

and addressed in a timely manner. For difficult issues or those that require technical

assistance, agencies should contact their Diversity and Inclusion Specialist at the

Department of Civil Service Office of Diversity and Inclusion Management (ODIM).

C. Confidentiality Requirements

The agency must protect and maintain the privacy and confidentiality of information

provided by, or on behalf of, employees and applicants with disabilities. In particular, State

and federal laws mandate very strict limitations on the use of any medical information

obtained through the reasonable accommodation process. These limitations also apply to

such information obtained from medical examinations or inquiries of employees or

applicants.

All medical information must be treated as confidential medical records. Agency personnel

must take steps to guarantee the security of the employee's medical information, including

keeping the information in files in a secure location, separate from personnel files, and

designating a specific person or persons to have access to the medical file. Supervisors and

managers are not entitled to copies of medical records or specific medical information and

need only be informed about necessary restrictions on the work or duties of the employee

and necessary accommodations. First aid and safety personnel may be informed, when

appropriate, if the disability may require emergency treatment, or if any specific procedures

are needed in case of fire or other evacuations.

All written forms must include a statement informing agency personnel that all medical

information pertaining to reasonable accommodation must be kept confidential.

A. Definitions

SECTION II: DEFINITIONS AND PROCEDURES

FOR HANDLING REQUESTS FOR REASONABLE

ACCOMMODATION IN NEW YORK STATE

AGENCIES

The following definitions are based on the New York State Human Rights Law. Unlike both

the Americans with Disabilities Act and the Rehabilitation Act of 1973, the New York State

Human Rights Law protects all individuals with physical, mental or medical impairments

that either impede normal bodily function or are demonstrable by medically accepted

diagnostic technique. The protection of the federal statutes is limited to those impairments

which substantially limit one or more major life activities. Therefore, State law coverage is

broader, and the broader definition of disability must be applied when making a determination

as to whether an individual is a person with a disability. On January 19, 2016, under the New

York State Human Rights Law, individuals with pregnancy-related conditions became

specifically protected from discrimination. Additionally, the New York State Human Rights

Law now requires employers to provide a reasonable accommodation to individuals with

pregnancy-related conditions.

Covered Individuals

a. Person with a Disability

Any person who has "a physical, mental or medical impairment," who, upon provision of

reasonable accommodation if needed, is able to perform in a reasonable manner, the

activities involved in the job or occupation sought or held.

“Person with a disability” also includes a person who has a record or history of impairment,

even if s/he does not currently have an impairment. These individuals are protected from

discrimination, but only current impairments need to be reasonably accommodated.

Similarly, persons who have a condition regarded by others as an impairment, or who are

incorrectly perceived as having an impairment, are also protected from discrimination.

However, only actual impairments need to be reasonably accommodated.

While the law may also protect from discrimination those individuals who do not themselves

have a disability, but who are discriminated against on the basis of their association with an

individual with a disability, only the employee's or applicant's disability must be

accommodated.

Person with a Pregnancy-related condition

Any person who has a medical condition related to pregnancy or childbirth that inhibits the

exercise of a normal bodily function, or is demonstrable by medically accepted clinical or

laboratory diagnostic techniques, where such condition, after the provision of a reasonable

accommodation, does not prevent such person from performing, in a reasonable manner, the

activities involved in the job or occupation sought or held.

2. Physical, Mental or Medical Impairment

Any impairment "resulting from anatomical, physiological, genetic or neurological

conditions which prevents the exercise of a normal bodily function or is demonstrable by

medically accepted clinical or laboratory diagnostic techniques."

3. Reasonable Performance

The Human Rights Law protects from discrimination those individuals who can reasonably

perform the job, with reasonable accommodation, if needed, despite the person's

impairment. Reasonable performance is not perfect performance or performance unaffected

by the disability, but reasonable job performance reasonably meeting the employer's needs

to achieve its business goals. Ability to reasonably perform the "activities involved in the job

or occupation" means the ability, with or without accommodation, to satisfactorily perform

the essential functions of the job or occupation. Satisfactory performance means minimum

acceptable performance of the essential functions of the job as established by the employer.

The employer's judgment as to what is minimum acceptable performance will prevail, as

long as standards for performance are applied equally to all employees in the same position.

Such standards for satisfactory performance may include minimum productivity standards

or quotas.

4. Essential Job Functions

Essential functions are those fundamental to the position; a function is essential if not

performing that function would fundamentally change the job or occupation for which the

position exists. What is an essential function is a factual question to be resolved by

considering all relevant evidence.

Factors indicating essential functions include, but are not limited to:

• The employer's judgment as to which functions are essential, particularly where so

indicated in a pre-existing written job description, or where there are clearly

specified tasks and standards;

• How often the function is actually performed by other similar employees in the

position;

• How many other employees are available to whom the function could be reallocated

by job restructuring;

• The direct and specific consequences to the employer's business if the function is

not performed by the particular employee with a disability;

• The terms of a collective bargaining agreement; and

• Other relevant evidence.

5. Qualified Person with a Disability

A person with a disability who, as defined above, can reasonably perform the activities

involved in (i.e., the essential functions of) the job, and who satisfies the requisite skill,

experience, education and other job-related requirements of the position which the

individual holds or desires.

6. Reasonable Accommodation

The New York State Human Rights Law, the Rehabilitation Act of 1973, and the Americans

With Disabilities Act require that certain employers provide reasonable accommodation to

the known physical or mental limitations of otherwise qualified applicants or employees

with disabilities, unless the employer can demonstrate that the accommodation would

impose an undue hardship on the operation of its business. Reasonable accommodation

refers to the modifications or adjustments to a job application process which enables a

qualified individual with a disability to be considered for the position sought and to

modifications or adjustments to the work environment or the manner or circumstances

under which a job is performed which permit an employee to perform their job in a

reasonable manner. An accommodation is reasonable if it removes or mitigates the barriers

to performance caused by the individual's impairment and does not cause undue hardship

to the employer.

Reasonable accommodations may include, but are not limited to: making facilities more

readily accessible to individuals with disabilities; acquisition or modification of equipment;

job restructuring; modified work schedules; adjustments to work schedule for treatment or

recovery; reassignment to an available, vacant position for which the employee is qualified;

adjustment of examinations, training materials or policies; providing readers or interpreters

or providing high or low assistive technology, such as voice recognition software. Generally,

the provisions of personal items or provisions for personal care needs, such as hearing aids

or wheelchairs, are not the responsibility of the employer. Personal attendants, when

provided by the employee or applicant, should be permitted to accompany and assist the

employee or applicant.

While pregnancy-related conditions are treated as temporary disabilities for purposes of

applying existing regulations under the Human Rights Law, pregnancy-related conditions

need not meet any definition of disability to trigger an employer’s obligation to

accommodate under the law. Any medically-advised restrictions or needs related to

pregnancy will trigger the need to accommodate, including such things as the need for extra

bathroom breaks, or increased water intake.

Undue Hardship

Accommodations that pose an "undue hardship" on the employer will not be required.

"Undue hardship" means significant difficulty or expense to the employer. In determining

whether an accommodation would result in undue hardship, any relevant factor may be

considered. Relevant factors can include, but are not necessarily limited to, those set forth in

the Human Rights Law, at §296.3(b):

•

The overall size of the business, program or enterprise with respect to the number

of employees, number and type of facilities, and size of budget;

•

The type of operation which the business, program or enterprise is engaged in,

including the composition and structure of the work force; and

•

The nature and cost of the accommodation needed.

Before granting a reasonable accommodation, the Designee for Reasonable Accommodation

(“DRA”) must consider whether the accommodation may have a direct impact on the terms

of a collective bargaining agreement. The agency designee should seek guidance from the

agency general counsel and/or the agency’s Human Resources Director. These individuals

may consult with GOER as needed.

B. Uniform Procedures for Processing Reasonable Accommodation Requests

This section describes the procedures for handling reasonable accommodation requests

from applicants and State employees with disabilities. It also articulates the role of the

agency's DRA - the individual identified by the agency head to coordinate agency compliance

obligations arising from the New York State Human Rights Law, Sections 503/504 of the

Rehabilitation Act of 1973 and/or the Americans with Disabilities Act. This section identifies

the options that are available to employees when an accommodation has been denied.

Many specific issues that arise in connection with the provision of reasonable

accommodation of disability are addressed in the regulations of the Division of Human

Rights, 9 NYCRR § 466.11, which are attached as Appendix B. These regulations have been

endorsed by the courts in many respects, and can be relied upon for substantial guidance as

to what is and is not a reasonable accommodation.

Requests for reasonable accommodation may be made orally or in writing; however, an oral

request must be reduced to writing on the "Request for Reasonable Accommodation" form

(Appendix A). These forms are provided by the agency and will be available from the DRA,

as well as available online. Applicants, employees and other personnel are encouraged to

make copies of the completed form for their records. At the end of the process, the original

form is filed by the agency's DRA.

To request an accommodation, an individual need not mention the Human Rights Law,

the ADA or use the phrase "reasonable accommodation”. Rather, the individual need

only let the employer know that s/he needs an adjustment or change in applying for a

position or at work for a reason related to a medical condition.

The accommodation process should not be adversarial in nature. To the contrary, the

spirit of the Human Rights Law as well as the Rehabilitation Act of 1973, and the Americans

with Disabilities Act, encourages a meaningful dialogue between the employee and the

employer and/or the unions. Additionally, the employer must obtain the consent of the

employee prior to sharing any confidential information with unions regarding the

employee's disability or pregnancy-related condition.

It should also be noted that agencies generally are required to complete the reasonable

accommodation process prior to initiating or proceeding with any action pursuant to Section

72 of the Civil Service Law.

The agency's DRA is responsible for maintaining records regarding the number of

accommodations requested and the outcome of reasonable accommodation requests.

1. Who May Request a Reasonable Accommodation?

Employees or applicants with disabilities may request a reasonable accommodation,

regardless of title, salary grade, bargaining unit, employment status (permanent, contingent,

temporary or provisional) or jurisdictional classification (exempt, non-

competitive, competitive or labor class). An employee with a disability may request an

accommodation at any time.

The need for an accommodation may be brought to the attention of the agency in any of the

following situations:

•

a job applicant may request an accommodation for a civil service examination

and/or an interview;

•

a new employee identifying himself/herself as having a disability may request an

accommodation to perform the job;

•

an employee returning to work after experiencing an illness or injury may request

an accommodation; or

•

a current employee with a disability whose medical condition has changed may

request an accommodation for the first time or a change in accommodation.

a. Applicants

The agency must provide a reasonable accommodation during the application process to

applicants with disabilities who request such accommodation. Reasonable accommodation

requests may be received by agency personnel and/or the agency’s DRA. The Applicant

Flow Procedure, as outlined on pages 11-17 of the Internal Agency Auditing and Reporting

Systems (Model Affirmative Action Procedures) may be used to track and monitor

accommodations.

If an applicant with a disability is subsequently hired by the agency and a reasonable

accommodation is requested to perform the essential functions of the position, every

attempt should be made by the agency's DRA to have the approved accommodation in place

prior to the first day of work. If this is not possible, the agency DRA should consult with the

new employee when he or she first reports to work.

b. Current Employees

Current employees may request an accommodation through either their first-line supervisor

or the agency's DRA. If an employee makes his or her request through the supervisor, the

supervisor may handle and even approve the request, but only after consultation with and

approval by the DRA. However, since certain determinations may require a more complex

analysis, or may involve agency expenditures, the supervisor shall forward the request to

the DRA for handling where so directed.

2. Processing a Request for Reasonable Accommodation

Fortunately, many requests for accommodation can be approved at the initial stages of the

process, particularly those of a minor or routine nature. Others may require a more extensive

review and/or submission of supporting medical documentation. The various steps to be

followed in handling a Request for Reasonable Accommodation are set forth in detail, below.

We recommend that you refer to Appendix A, which contains the Sample Forms referred to

below, as you review the following information.

a. Request for Reasonable Accommodation

This section serves as an initial application form, and asks for basic information needed to

consider and act upon the request, such as the name of the applicant/employee; title

information; office or unit; work location (for current State employees); and contact

information, along with a description of the reasonable accommodation being requested and

the reason for the accommodation.

If the individual is unable to complete, sign and date the application, the DRA, an employee's

supervisor, or whoever is assisting the individual to complete the form can provide

assistance.

b. Acknowledgement of Request for Reasonable Accommodation

This section, once completed, either provides confirmation to the individual that the

requested accommodation has been approved or advises the individual that the request is

undergoing further review. It must be signed and dated by the agency’s DRA and a copy

provided to the employee, with the original retained for record keeping purposes. Any

reasonable accommodation may have potential legal implications. DRAs must always work

closely with an identified individual or individuals in their agency Counsel or Legal office to

ensure that potential legal issues are identified and addressed in a timely manner. For

difficult issues or those that require technical assistance, agencies should contact their

Diversity and Inclusion Specialist at the Department of Civil Service Office of Diversity and

Inclusion Management (ODIM).

The following steps should be followed:

•

If the application has been submitted directly to the agency’s DRA, he or she must

consult with the employee’s supervisor before granting an accommodation, to

ensure that it is operationally feasible.

•

If the reasonable accommodation proposed to be provided may have a direct impact

on the terms of a collective bargaining agreement, prior to granting the

accommodation, the agency's DRA must confer with the agency’s labor relations

representative to resolve any conflict with collectively bargained rights of other

employees.

•

If the reasonable accommodation proposed to be provided may require more than

a de minimis expenditure, the DRA must confer with the agency’s administration

and/or fiscal office(s).

c. Status Update/Notification of Need for Additional Information

This section is used to provide an update to the applicant/employee or to request additional

information/supporting documentation, which is necessary before a decision regarding a

reasonable accommodation can be made. No later than two weeks after providing a

completed Section B to the employee, the DRA must provide this form to the individual who

has requested the reasonable accommodation, specifying the additional information or

documentation that is required to continue with the review and assessment process. Such

additional information must truly be necessary to complete the process, and includes, but is

not limited to information regarding the specific functional limitations of the individual,

medical documentation, and/or information regarding specific type or types of

accommodations that might be effective.

i. Considerations Before Requesting Additional Information or Documentation

Which is Medical in Nature

The DRA must consider whether or not it is appropriate to request medical information.

The following provides some guidance in this regard:

•

If an applicant or employee requests an accommodation and the need for an

accommodation is not obvious, or if an agency does not believe that an

accommodation is needed, the agency may request documentation or require a

medical examination to identify the individual's functional limitations to support

the request.

•

Since a reasonable accommodation must take into consideration the specific

abilities and functional limitations of a particular applicant or employee with a

disability, and the specific functional requirements of a particular job, the focus

should be on identifying the abilities and limitations of an individual, not on the

diagnosis and prognosis of a physical or mental condition.

•

If the DRA is unsure as to whether or not it is appropriate to request such medical

documentation, he or she should confer with agency counsel for guidance.

ii. Requesting Medical Information / Documentation

Once the DRA has determined that it is appropriate to request medical information to

verify an employee's need for a requested accommodation:

•

An agency may require that the applicant/employee with the disability provide

reasonable documentation substantiating the need for an accommodation. The

agency may require only that documentation necessary to establish that the

individual has a qualified disability, and that the disability or pregnancy-related

condition, and that the disability or pregnancy-related condition necessitates a

reasonable accommodation. Accordingly, the documentation should identify the

specific functional limitations imposed by the physical or mental disability, and the

precise job limitations imposed by the disability or pregnancy-related condition.

•

An employer has the right to require – and applicants/employees have the right to

supply – the documentation about the disability and functional limitations from a

physician or other medical professional, psychologist, social worker, rehabilitation

counselor, occupational or physical therapist, independent living specialist or other

professional with knowledge of the employee's disability or pregnancy- related

condition.

•

If the agency determines that the medical documentation provided is inadequate to

support the request or has reason to doubt its veracity, the agency should explain

to the individual why the documentation is inadequate and provide the employee

with an opportunity to submit additional documentation supporting the request.

•

However, in a situation where the disability and/or the need for accommodation is

not obvious, and an agency finds that, based on its criteria, the need for an

accommodation or the exact functional limitations are still not clearly established,

the agency may require the employee to submit to a medical examination by the

Employee Health Service of the Department of Civil Service or an appropriate

medical professional designated by the agency. The agency, as employer, must pay

any costs associated with the visit.

•

If the employee’s disability or need for reasonable accommodation is not obvious,

and he or she fails to submit documentation meeting agency criteria or refuses to

submit to a medical examination required by the agency, and such information or

documentation is necessary to complete the reasonable accommodation process,

then the agency may deny the requested accommodation.

•

Any medical documentation submitted may be used only to evaluate the employee's

request for accommodation. An agency may not use documentation obtained during

this process or the refusal to submit to the medical examination as a basis for taking

any adverse personnel action.

•

While an agency may seek technical assistance from a medical professional, state or

local rehabilitation agencies or disability constituent organizations in determining

how to accommodate a particular individual in a specific situation, decisions

defining what is and what is not a reasonable accommodation are to be made by the

agency.

If additional medical documentation is being requested, the employee is asked to inform

his/her doctor of the pending application for an accommodation, and have the doctor send

medical documentation, indicating the limitations that the employee's disability would place

on job performance, to the agency's designated responsible office for reasonable

accommodation. A copy of the “duties description” or other document describing the duties

associated with the relevant title is often helpful and should be attached to Section C of

Appendix A for consideration by the medical professional. A date by which the information

should be sent is to be noted on the form. The agency's DRA shall also indicate a date by

which the decision will be made, where no further information is being requested. Section C

may be used whenever necessary during the interactive process, as needed, in order to

obtain all necessary information and to inform the employee of progress in the review

process.

The agency's DRA signs and dates the form, and the employee is provided with a copy of

Section C, with the original filed for recordkeeping purposes.

d. Notification of Agency Determination

i. Overview of Process

This section advises the applicant/employee of the agency’s determination and provides

information regarding potential remedies should the individual be dissatisfied with the

agency’s determination. It is to be completed once the DRA completes the review process, as

described below, but must be provided to the employee within three weeks of either receipt

of Section A, or the receipt of final additional information required to properly

review and assess the request. Once the form is provided to the individual who has requested

the accommodation, s/he signs the form, indicating whether s/he is accepting or rejecting

the reasonable accommodation, retains a copy, and returns the original to the agency’s DRA

for filing. If the employee accepts the accommodation, a letter from the agency head (or

designee) confirming this decision is sent to the employee within the next week. If the

employee does not accept the offered accommodation (which may differ from the

accommodation requested) the form shall be returned to the agency’s DRA and filed. The

employee is then free to pursue the various options outlined in the notification of rights

provided as part of Section E.

ii. Final Review

The final review process takes place once adequate information/documentation has been

provided. During the final review, the agency's DRA must determine whether or not there is

an accommodation that would enable the individual to perform the essential functions of

his/her job in a reasonable manner, or to enjoy equal benefits and privileges of employment.

This requires the DRA’s assessment of all relevant documentation, and consultation with the

employee. It may also include meeting with the employee and/or supervisor, arranging for

a job analysis, and consulting with relevant State agencies or community-based

organizations providing services to persons with disabilities. Sometimes it may even be

necessary to discuss with the treating professional the limitations imposed on the individual

by virtue of his or her impairment, but only when necessary and appropriate. As always,

written authorization must be obtained from the employee prior to any discussions with

third parties.

The DRA should consult with the agency’s fiscal officer to determine whether a reasonable

accommodation will have a fiscal impact on the agency. In addition, when appropriate to the

review, the DRA should also consult with the agency's human resource manager, labor

relations officer and/or counsel. The agency's DRA may find it useful to establish a standing

committee comprised of these individuals to facilitate obtaining their input whenever

necessary. All available resources should be used to resolve the issue, including consultation

with the Department of Civil Service Office of Diversity and Inclusion Management.

Following review of the documentation, the DRA must determine whether or not granting

the accommodation(s) requested – or an alternate reasonable accommodation - would cause

undue hardship. The DRA should also confer with the relevant supervisor prior to granting

any accommodation. In making the undue hardship determination, some factors to be

considered include:

•

the nature and cost of the accommodation;

•

the size of the agency and number of employees;

•

the type and location of facilities of the covered entity;

•

the effect of the accommodation on other employees;

•

operational impact on the facility or agency that is making the accommodation;

and

•

the terms of any relevant collective bargaining agreement(s).

Remember that reasonable accommodation seeks to facilitate the individual's reasonable

performance of essential job functions, but does not require the permanent reassignment of

essential job functions.

iii. Alternative Accommodation

If more than one alternative is identified as an effective accommodation, the agency may

choose the accommodation that best meets its needs. However, whenever possible, the

agency should certainly take into consideration the employee’s preferences.

Example: If an employee with a disability requests that the thermostat in the workplace

be raised to a certain level to accommodate his/her disability, and this level would make

it uncomfortably hot for other employees or customers, the employer would not have to

provide this accommodation. However, if there were an alternative accommodation that

would not be an undue hardship, such as placing the employee in a room with a separate

thermostat, the employer may have to provide that accommodation.

iv. Consultation with Employee

An employee consultation may be conducted before approval of a reasonable

accommodation, but must always be conducted before there is a denial of a request for

reasonable accommodation or an offer of an alternative accommodation.

The consultation is an opportunity to discuss:

•

How job-related limitations could be overcome;

•

Possible reasonable accommodations; and

•

The expected efficacy of each possible accommodation.

•

The consultation should include discussion of the employee’s preferences.

Where more than one possible reasonable accommodation exists, the agency should

consider the employee’s preference. However, the agency has the discretion to choose

among various effective reasonable accommodations.

v. Agency Will Provide the Reasonable Accommodation as Requested

If, based on the information provided by the employee, and any information that may have

been provided by the employee’s medical professionals, the agency is able to provide the

employee with the reasonable accommodation that the employee requested, the DRA will so

note in Section D. Before the employee is notified of the approval of the accommodation, the

DRA should first notify the employee’s supervisor.

A reasonable accommodation may be provided for a limited duration, such as where an

unusual or even novel reasonable accommodation is being provided, and the agency needs

the opportunity to assess whether or not the accommodation is working well, and whether

or not it is operationally disruptive or otherwise causes an undue hardship. If this is the

case, the DRA must specify a date upon which the reasonable accommodation will be

reevaluated.

The employee’s supervisor is instructed to discuss implementation of this accommodation

with the employee. If the employee has any questions, s/he may contact the agency's DRA.

vi. Agency Will Offer an Alternative Accommodation

If the agency determines that it will offer an accommodation different from the one

requested, then the supervisor should be consulted about the proposed accommodation

before the employee is advised of the offer. Section D of the Application shall be completed

and sent to the employee, to inform the employee of the agency’s determination.

If the employee does not accept the offered accommodation, Section D of the Application

should be returned to the DRA, with the employee’s signature, denoting that s/he rejects the

accommodation that has been offered.

vii. Agency Is Unable to Provide a Reasonable Accommodation

If, based on the information provided, the agency is unable to provide a reasonable

accommodation, the DRA will so note in Section E. A reason for the denial must be given to

the employee. The employee is also given information on additional alternatives which

include filing an appeal with the DCS Office of Diversity and Inclusion Management (ODIM)

Reasonable Accommodation Appeals Review Committee (ARC) or the filing of a

discrimination complaint if the employee believes that the agency's denial of the

accommodation was unlawful. At this point, the employee may elect to accept the agency's

decision and end the process; to file an internal discrimination complaint under the State’s

Equal Employment Opportunity Policy, as set forth in the Handbook of Rights and

Responsibilities for New York State agency employees; or to pursue various other remedies,

as set forth in Section E. If pursuing an outside complaint, the employee should consult with

the appropriate antidiscrimination agency regarding the time limitations for initiating an

action. Although these time limitations vary, the time for filing a complaint pursuant to all

the alternatives begins to run at the time of the agency's first denial of the accommodation

request.

viii. Appeal of Agency Denial or Modification of Reasonable Accommodation

An individual requesting Reasonable Accommodation has the right to file an appeal upon

receiving an agency’s final determination – which must be either a denial, or a modification

that the employee does not accept.

An individual wishing to initiate an appeal of an agency’s final determination must do so

within 15 calendar days from the date of denial or modification of a reasonable

accommodation. The requestor must complete and submit the “Request to Appeal a

Reasonable Accommodation Determination” (Section F) along with all available relevant

documentation to the Reasonable Accommodation Appeals Review Committee at

[email protected] or by mail to: Department of Civil Service Empire State Plaza, Swan

Street Building – Core 1 Albany, NY 12239 Attn: ODIM – ARC.

If the ARC determines that there is need for additional information/documentation from the

requestor in order to complete its preliminary review, the ARC will advise the requestor of

the need.

No request for an appeal will be considered if the accommodation has not gone through the

complete reasonable accommodation process, including issuance of the final determination

by the agency. However, Reasonable Accommodation requests that have not received a final

determination from the accommodating agency within the timeframes specified in Section

II.B.2.d.i of this document may be subject to review and/or appeal.

Upon receipt of an appeal, the ARC will acknowledge receipt of the request to both the

requestor and the accommodating agency’s DRA/ADA Coordinator.

Upon receipt of the acknowledgement, the accommodating agency will have seven days to

provide the ARC with a copy of the Reasonable Accommodation file – including any medical

documentation received by the agency in support of the request – as well as any additional

supporting documentation in support of the agency denial or modification. Documentation

should be sent to the ARC electronically via email to ([email protected]). Additional supporting

documentation includes but is not limited to:

a. Log entries

b. Date-stamped emails and traditional (mail) correspondence with the requestor

c. Timelines demonstrating the interactive process

d. File notes (including notes from telephone conversations)

e. Interagency communications discussing factors contributing to the agency’s

decision to deny and/or modify the accommodation in question (including

communication with the requestor’s assigned program area)

f. Tasks and standards for the requesting employees’ position

Upon receipt of the required documentation from the agency, the ARC will have 21 days to

complete its review and issue a written determination. Agencies are required to respond in a

timely fashion to any inquiries and/or requests for additional information that the ARC

determines is necessary in order to complete their review and issue a determination. ARC

determinations will either uphold the agency’s original decision, or it will render an

independent determination consistent with applicable policies and statutes, which the

accommodating agency will be required to implement. All determinations will be provided,

in writing, to both the requestor and the DRA at the accommodating agency.

Composition of Reasonable Accommodation Appeals Committee and Meeting Frequency

The ARC will be comprised of a five-member panel which will include: three (3)

representatives from the Department of Civil Services Office of Diversity and Inclusion

Management; One (1) representative from the Department of Civil Service Counsel’s Office;

and one (1) representative from the Department of Civil Service Staffing Services Division.

The ARC will meet once per week to review appeal requests. Once all requested supporting

documentation is received from the appointing agency, the ARC will have 21 days to render a

determination.

C. Maintenance of Records and Data Collection

To the extent that any applicable laws, Executive Orders or Memoranda, rules, regulations,

or policies require the maintenance of records regarding requests for accommodation, it

shall be the DRA’s responsibility to maintain such records.

Appendix A: Sections A – F

Application to Request Reasonable Accommodation of a Disability

Application for reasonable accommodation may be made to the supervisor or the agency's Designee for

Reasonable Accommodation (DRA)]. If the request is made to the supervisor, the supervisor will forward

the request to the DRA. All confidential information received by Department personnel pertaining

to your request shall be handled as such. All medical information is confidential and maintained

separately from personnel records.

Section A

(To be completed by employee and

returned to supervisor or DRA)

Name

Civil Service Title

Job Title (if different)

Office/Unit

Work Location

Telephone Number(s)

E-mail address:

Preferred method of communication:

I am requesting the following reasonable accommodation(s):

It is necessary for me to have this accommodation for the following reason(s):

Employee Signature

Date

The employee should retain a copy of this form. The original is filed by the DRA.

Application to Request Reasonable Accommodation of Disability

Section B

Initial Response to Request for an Accommodation

(To be completed by DRA)

We have reviewed your application for an accommodation.

Your request has been approved

No decision has been made at this time. We will continue to assess your request.

The agency's DRA will contact you within the next two weeks.

The employee should retain a copy of this form. The original is filed by the DRA.

Name of Employee:

Comments:

DRA’s name:

Date

Agency’s DRA’s Signature

Comments:

Application to Request Reasonable Accommodation of Disability

Section C

Notification of Need for Additional Information

(To be completed by the DRA and returned to the employee)

We are continuing to assess your request. To make a determination, we need the following information:

Medical Documentation

Please inform your doctor of your application for an accommodation and have your doctor send us medical

documentation, indicating the limitations that your disability would place on your job performance. We

have enclosed a copy of the duties description for your title and/or a list of the essential functions of your

position for the doctor’s reference.

Information should be sent by the following date: _____(date)_____

The requested information should be provided to the agency's Designee for Reasonable Accommodation

(DRA).

All medical information pertaining to Reasonable Accommodation must be kept confidential by

the Agency.

Other

We require no additional information from you at this time.

The [agency]'s review process will include an evaluation of all relevant information. This may include an

interview with you and/or your supervisor. After completion of the review, you will be informed in writing by

the Commissioner of the Department, or the DRA, regarding the Department's decision.

We anticipate that the decision will be made by (date): (date) .

If you have any questions, please contact [the DRA].

The employee should retain a copy of this form. The original is filed by [the DRA].

Name of Employee:

Explain:

Date

Signature of DRA

Application to Request Reasonable Accommodation of Disability

Section D

Notification of Agency Determination:

(To be completed by the DRA and returned to the employee)

Based on the information you provided, the [agency] is able to provide you with a reasonable

accommodation of your disability, as follows:

The accommodation granted is as you requested in your application.

The accommodation granted differs from the accommodation you requested, as follows:

Please discuss any questions regarding implementation of the accommodation with your supervisor. A letter

from the Commissioner of the Department or the Designee for Reasonable Accommodation (DRA) confirming

this decision will be sent to you within the next week once you accept the accommodation. If you have any

questions, please call [the DRA]. The employee should retain a copy of this form and return the original with

his or her signature to be filed by [the DRA].

I accept _____/ reject _____ the above reasonable accommodation.

Employee Signature

Date

-or-

Name of Employee:

Application to Request Reasonable Accommodation of Disability

Section E

Notification of Agency Denial of Reasonable Accommodation

(To be completed by the DRA and returned to the employee)

Based on the information you provided, the [Department] is unable to provide you with a

Reasonable accommodation of your disability, as you requested on

(date)

We are denying your request for the following reason(s):

Signature of [DRA]

Date

If you have any questions, please call [the DRA]. The employee should retain a copy of this form. The original

will be filed by [the DRA].

Remedies relating to Dissatisfaction with Agency’s Reasonable Accommodation Determination

A letter from [the Commissioner of the Department or the DRA] confirming the decision will be sent to you within

the next week after you receive the Notification of Agency Determination. If you are dissatisfied with the

determination, the following options are available to you:

1. You may choose to accept this decision and end the process; or

2. You may choose to file an appeal with the Reasonable Accommodation Appeal Review

Committee in accordance with procedures established in the “Procedures for Implementing

Reasonable Accommodation for Applicants and Employees with Disabilities and Pregnancy-

related Conditions in New York State Agencies.” To file your appeal, submit the enclosed form,

(Section F) “Request to Appeal a Reasonable Accommodation Determination” to the Reasonable

Accommodation Appeals Review Committee at [email protected] or by mail at Department of

Civil Service Empire State Plaza Swan Street Building – Core 1 Empire State Plaza, Albany,

NY 12239 Attn: ODIM – ARC.

3. You may choose to file an internal discrimination complaint with the Governor’s Office of Employee Relations

(GOER) Anti-Discrimination Investigation Division (ADID) if you believe that the [Agency]'s determination is

unlawful.

Name of Employee:

4. In addition to the options stated above, other alternatives may also be available. These include, but are not

limited to:

▪ filing a complaint with any compliance agency designated under Sections 503/504 of the

Rehabilitation Act of 1973;

▪ filing a complaint with the New York State Division of Human Rights;

▪ filing a complaint with the Equal Employment Opportunity Commission or any appropriate federal

oversight agency under the American with Disabilities Act; and

▪ filing a private right of action to challenge the alleged discriminatory act, under the New York State

Human Rights Law, or any applicable statute.

You may initiate these alternatives after the first denial by the [Department] of your request for an

accommodation. Although these time limitations vary, the time for filing a complaint pursuant to all the

alternatives begins to run when the [Department] first denies your request for an accommodation. However,

you should consult with the appropriate anti-discrimination agency as to the time limitations for initiating such

an action.

Section F

Request to Appeal a Reasonable Accommodation Determination

(this form shall not be modified by accommodating agencies)

This form and all available relevant documentation must be completed by the employee and submitted to the

ODIM Reasonable Accommodation Appeals Review Committee at (ARC@cs.ny.gov) or by mail at

Department of Civil Service Empire State Plaza Swan Street Building – Core 1 Empire State Plaza,

Albany, NY 12239 Attn: ODIM – ARC. Inquiries should be directed to (ARC@cs.ny.gov).

Name:

Telephone Number:

Mailing Address:

Email Address:

Preferred Method of Communication:

Agency/Location/Office/Division

Job Title:

Date of Initial Request for Accommodation:

Specific Accommodation Requested:

Date of Agency Determination (Modification or Denial

of Reasonable Accommodation Request):

Medical Limitation:

Check here if you have not received a determination

from your agency and are not currently engaged in the

interactive process regarding your accommodation

request:

Have you filed a complaint of discrimination related to

this Reasonable Accommodation Request?

YES NO

Please provide as much of the following information as is available to you to go along with this Request to

Appeal:

Reasonable Accommodation Request:

 Initial Request for Accommodation

 Agency Confirmation of the Received Request for Accommodation

 Agency Request for Additional Supporting/Medical Documentation

 Agency Determination of the Request for Accommodation

Correspondence/written communication with your agency

 Any email or hard copy correspondence with your agency related to the requested accommodation. Do

not delete or eliminate any information from emails/email chain.

Medical Documentation

 In addition to medical documentation, please also include any agency requests for additional

documentation and/or requests to speak directly with a medical professional.

Job Duties

 Detailed description of job duties and responsibilities

Signature __________________________ Date __________________________

Regulations

REASONABLE ACCOMMODATION

9 New York Code of Rules and Regulations (NYCRR) §466.11

466.11 Provision of "reasonable accommodation" by employers, pursuant to Human Rights

Law §292.21, §292.21-e, §295.5, §296.3 and §296.3-a.

(a) Reasonable accommodation.

(1) Reasonable accommodation is defined in the Human Rights Law at §292.21-e, as

follows:

The term "reasonable accommodation" means actions taken which

permit an employee, prospective employee or member with a

disability to perform in a reasonable manner the activities involved in

the job or occupation sought or held and include, but are not limited to,

provision of an accessible worksite, acquisition or modification of

equipment, support services for persons with impaired hearing or

vision, job restructuring and modified work schedules; provided,

however, that such actions do not impose an undue hardship on the

business, program or enterprise of the entity from which action is

requested.

(2) Reasonable accommodations may include, but are not limited to: making existing

facilities more readily accessible to individuals with disabilities; acquisition or modification

of equipment; job restructuring; modified work schedules; adjustments to work schedule for

treatment or recovery; reassignment to an available position; adjustment of examinations,

training materials or policies; providing readers or interpreters.

(3) Reasonable accommodation does not include among other things: providing for

personal care needs, such as a personal care assistant, although such a personal care

assistant should be accommodated where provided by the employee at no cost to the

employer; providing non-work-related aids, such as a personal hearing aid or wheelchair,

which are the employee's own responsibility.

(b) Determination of reasonableness.

(1) Whether an accommodation that has been requested or is under consideration is a

"reasonable accommodation" required by the Human Rights Law will turn on a balancing of

the following factors:

(i) efficacy or benefit provided by the accommodation toward removing the

impediments to performance caused by the disability,

(ii) convenience or reasonableness of the accommodation for the employer, including its

comparative convenience as opposed to other possible accommodations, and

(iii) the "hardships", costs, or problems it will cause for the employer, including those that

may be caused for other employees.

(2) Accommodations that pose an "undue hardship" on the employer will not be

required. "Undue hardship" means significant difficulty or expense to the employer. In

determining whether an accommodation would result in undue hardship, consideration will

be given to any relevant factor. Relevant factors can include, but are not necessarily limited

to, those set forth in the Human Rights Law, at §296.3(b):

(i) The overall size of the business, program or enterprise with respect to the number of

employees, number and type of facilities, and size of budget;

(ii) The type of operation which the business, program or enterprise is engaged in,

including the composition and structure of the workforce; and

(iii) The nature and cost of the accommodation needed, including consideration of any

money available from other sources to assist the employer in paying the cost.

(1) The Human Rights Law protects from discrimination those individuals with

disabilities which, with or without reasonable accommodation, do not prevent the individual

from performing the duties of the job in a reasonable manner. The definition of "disability"

in the Human Rights Law is more comprehensive than that under federal law in that it

covers many conditions that have been found to be not a disability under the federal

Americans with Disabilities Act.

(2) The term "disability" is defined in the Human Rights Law at §292.21 to mean:

(i) a physical, mental or medical impairment resulting from anatomical, physiological,

genetic or neurological conditions which prevents the exercise of a normal bodily

function or is demonstrable by medically accepted clinical or laboratory diagnostic

techniques or

(ii) a record of such an impairment or

(iii) a condition regarded by others as such an impairment.

With regard to employment, the term is limited to disabilities which, upon the provision of

reasonable accommodations, do not prevent the complainant from performing in a

reasonable manner the activities involved in the job or occupation sought or held.

(3) Not every disability covered by the Human Rights Law will require the consideration

of reasonable accommodations. Only those disabilities which actually impede, as a matter of

fact, the individual in performing the job will give rise to a consideration of accommodation.

This is understood to include those situations in which the job impedes the individual's

recovery or ability to obtain treatment, and accommodation can make recovery or treatment

possible while the individual continues to be employed.

(d) Who is entitled to a reasonable accommodation?

(1) To be entitled to the protection of the Human Rights Law, the disabled individual

must have the requisite job qualifications as well as be able to satisfactorily perform in the

job.

(i) The disabled individual must be otherwise qualified for the job by education, skill,

experience, ability, etc., to the same extent that such education, skill, experience,

ability, etc., are required as bona fide job qualifications for nondisabled applicants or

employees. See further, paragraph (f) (4) of this section.

(ii) The disabled individual must be able, with or without accommodation, to attain

"reasonable performance". Reasonable performance is not perfect performance or

performance unaffected by the disability, but reasonable job performance,

reasonably meeting the employer's needs to achieve its business goals. See further,

paragraphs (f) (1)-(3) of this section.

(2) To be entitled to a reasonable accommodation, the individual must meet the

qualification and performance standards set forth in paragraph (1) of this subdivision, and

must have a disability and a need for an accommodation which are known, or are made

known, to the employer.

(e) Circumstances giving rise to the requirement that the employer consider reasonable

accommodation, in accordance with the factors set forth in subdivision (b) of this section.

(1) Reasonable accommodation must be considered where the disability and need for

accommodation are known to the employer.

(2) Reasonable accommodation must be considered when a qualified applicant or

employee with a disability informs the employer of the disability (if the employer does not

already know of its existence) and requests an accommodation.

(3) Reasonable accommodation must be considered when a current employee with a

disability informs the employer of the disability (if the employer does not already know of its

existence) and requests an accommodation, even if there has been no change in the

employee's medical condition.

(f) Ability to reasonably perform the "activities involved in the job or occupation"; job

restructuring.

(1) Ability to reasonably perform the "activities involved in the job or occupation" means

the ability, with or without accommodation, to satisfactorily perform the essential functions

of the job or occupation. See further, subparagraph (d) (1) (ii) of this section.

(2) Satisfactory performance means minimum acceptable performance of the essential

functions of the job as established by the employer. The employer's judgment as to what is

minimum acceptable performance will not be second-guessed, so long as standards for

performance are applied equivalently to all employees in the same position. Such standards

for satisfactory performance may include minimum productivity standards or quotas.

(3) Essential functions are those fundamental to the position; a function is essential if not

performing that function would fundamentally change the job or occupation for which the

position exists. What is an essential function is a factual question to be resolved by all

relevant evidence. Evidence for determining the essential functions of a particular position

would include, but would not be limited to, the following:

(i) the employer's judgment as to which functions are essential, particularly where so

indicated in a pre-existing written job description;

(ii) how often the function is actually performed by other employees in the position;

(iii) how many other employees are available to whom the function could be reallocated

by job restructuring;

(iv) the direct and specific consequences to the employer's business if the function is not

performed by the particular disabled individual;

(v) the terms of a collective bargaining agreement. (Labor organizations are also

required to reasonably accommodate the disabilities of a member, pursuant to

§296.3.)

(4) When an employer fills a position with a specific purpose of acquiring special ability

or expertise (for example: technical expertise, foreign language skill, physical strength in a

firefighter), even if the amount of time actually spent on the job using the special ability or

expertise is small, this ability or expertise is a bona fide qualification for the job. See further,

subparagraph (d) (1) (i) of this section.

(5) As is true in any area covered by the Human Rights Law, the employer may hire the

applicant who is most qualified with regard to the bona fide job qualifications, and is not

required to hire a disabled applicant simply because the applicant meets the minimum job

qualifications if there are other more qualified applicants.

(6) The Human Rights Law does not require, as a reasonable accommodation in the form

of job restructuring, the creation of a completely unique position with either qualifications

or functions tailored to the disabled individual's abilities.

(7) Reasonable accommodation, in the form of job restructuring, is required if a disabled

individual meets the bona fide job qualifications, and can satisfactorily perform the essential

functions of the position; the duties that the disabled individual cannot perform due to the

disability, and that are not essential to the position, must not be required of the disabled

individual.

(g) Safety concerns; objectionable behaviors.

(1) The Human Rights Law does not require accommodation of behaviors that do not

meet the employer's workplace behavior standards that are consistently applied to all

similarly situated employees, even if these behaviors are caused by a disability. This would

include, but not be limited to:

(i) dress codes, grooming standards and time and attendance policy, though reasonable

and necessary deviations must be allowed as accommodations;

(ii) conduct standards, including those which prohibit aggressive or threatening

behavior;

(iii) discipline for theft of company property by a kleptomaniac;

(iv) discipline for intoxication or impairment on the job by an alcoholic.

(2) Reasonable accommodation is not required where the disability or the

accommodation itself poses a direct threat.

(i) "Direct threat" means a significant risk of substantial harm to the health or safety of

the employee or others that cannot be eliminated or reduced by reasonable

accommodation.

(ii) In determining whether a direct threat exists, the employer must make an

individualized assessment, based on reasonable judgment that relies on current

medical knowledge or on the best available objective information, to ascertain: the

nature, duration, and severity of the risk; the probability that the potential injury will

actually occur; and whether reasonable accommodations, such as modification of

policies, practices, or procedures, will mitigate the risk.

(iii) Some jobs may have a bona fide classification as "safety sensitive", such as, for

example, vehicle operators or persons who work with children. Heightened

consideration of direct threat is to be encouraged in bona fide safety sensitive jobs.

(h) Drug addiction and alcoholism.

(1) Alcoholism and drug addiction are diseases. However, an individual who is currently

using drugs illegally (see paragraph (4) of this subdivision), is not protected in this regard by

the Human Rights Law. The Law does protect an individual who is a recovered/recovering

alcoholic or drug addict.

(2) Adjustments to the work schedule, where needed to allow for ongoing treatment,

must be allowed as an accommodation where reasonable, if the individual is still able to

perform the essential functions of the job including predictable and regular attendance.

(3) The recovered/recovering alcoholic or drug addict should be expected to perform job

tasks just as anyone else with similar skills, experience and background.

(4) Where the employer has knowledge of the current illegal use of drugs, the employee

is not entitled by law to accommodation, and may be terminated.

(i) "Current illegal use of drugs" means illegal use of drugs that occurred recently

enough to justify a reasonable belief that a person's drug use is current or that

continuing use is a real and ongoing problem.

(ii) In determining whether recent use is enough to justify a reasonable belief in current

use, the individual's successful participation in a program for rehabilitation or

recovery since the recent use is relevant.

(5) Employers are encouraged, where the employer knows of current illegal use of drugs,

or where job performance of an alcoholic or drug addict deteriorates to below acceptable

standards, to utilize the practice of leave of absence and required attendance at a

rehabilitation program, along with a "last chance" agreement requiring acceptable

performance and attendance upon return. If an employee denies the problem and refuses

the leave, treatment and last chance agreement, the employee may be terminated or

disciplined for the documented performance problems.

(6) Drug testing.

(i) A test to determine the illegal use of drugs is not to be considered a medical test.

(ii) Nothing in these regulations is to be construed to encourage, prohibit, or authorize

the conducting of drug tests for the illegal use of drugs by job applicants or

employees, or the making of employment decisions based on the test results.

(iii) Nothing in these regulations is to be construed to encourage, prohibit, restrict or

authorize the otherwise lawful exercise by entities subject to the jurisdiction of the

United State Department of Transportation, of authority to test applicants for or

employees in safety sensitive positions for the illegal use of drugs or for on-duty

impairment by alcohol, or to remove persons who test positive from safety sensitive

duties.

(iv) Any information regarding the medical condition or history of any applicant or

employee obtained from a drug test, except information regarding illegal use of

drugs, must be kept confidential, and may not be used in any way to the disadvantage

of the applicant or employee.

(i) Temporary disabilities.

(1) A current employee experiencing a temporary disability is protected by the Human

Rights Law where the individual will be able to satisfactorily perform the duties of the job

after a reasonable accommodation in the form of a reasonable time for recovery.

(2) The Human Rights Law requires no more than de minimis accommodations for

temporary disabilities in the areas of worksite accessibility, acquisition or modification of

equipment, job restructuring, or support services for persons with temporarily impaired

hearing or vision.

(3) The Human Rights Law may require reasonable accommodation of temporary

disabilities in the areas of modified work schedules, reassignment to an available position or

available light duty, or adjustments to work schedules for recovery. The employer's past

practice, pre-existing policies regarding leave time and/or light duty, specific workplace

needs, the size and flexibility of the relevant workforce, and the employee's overall

attendance record will be important factors in determining reasonable accommodation in

this context.

(j) Rights and duties of the employer.

(1) The employer must not make pre-employment inquiries with regard to the existence

of a disability or need for accommodation. The employer should provide information to

applicants and new employees as to their rights with regard to reasonable accommodation

of disability, and as to procedures to be followed in requesting reasonable accommodation.

(2) The employer should advise all current employees on a regular basis as to their

rights with regard to reasonable accommodation of disability, and as to procedures to be

followed in requesting reasonable accommodation.

(3) The employer has the duty to reasonably accommodate known disabilities, where the

need for the accommodation is known.

(4) The employer has a duty to move forward to consider accommodation once the need

for accommodation is known or requested. The employer has the duty to clearly request

from the applicant or employee any documentation that is needed.

(5) Once an accommodation is under consideration, the employer has the right to

medical or other information that is necessary to verify the existence of the disability or that

is necessary for consideration of the accommodation. The employer must maintain the

confidentiality of individuals' medical information.

(6) The employer has the right to select which reasonable accommodation will be

provided, so long as it is effective in meeting the need.

(7) It is recommended that the employer have a written policy and procedure for

reasonable accommodation of disability. A sample procedure is available from the Division.

(k) Rights and duties of the employee.

(1) The employee must make the disability and need for accommodation known to the

employer.

(2) An employee with a disability has a right to request an accommodation at any time,

even if his/her medical condition has not changed.

(3) The employee must cooperate with the employer in the consideration and

implementation of the requested reasonable accommodation.

(4) The employee must cooperate in providing medical or other information that is

necessary to verify the existence of the disability or that is necessary for consideration of the

accommodation. The employee has a right to have his/her medical information kept

confidential.

(5) The employee has the right to refuse an accommodation despite the existence of a

disability, if the employee can perform the job in a reasonable manner without the

accommodation.