1078.0.0
AMERICANS WITH DISABILITIES
ACT
1078.1.0
Purpose
It is the policy of the Arkansas Department of Human Services
that a quaHfied person with a disability will not be excluded from
participating in any program or be denied benefits of any program or be
subjected to discrimination under any program, service, activity or employment
opportunity in violation of the Americans with Disabilities Act of 1990 (ADA),
as amended, or the Rehabilitation Act of 1973, as amended in 2008.
1078.2.0
Definitions
1078.2.1
ADA- The Americans with Disabilities Act of 1990,
including changes made by the ADA Amendments Act of 2008 (
P.L.
110-325 ), which became effective on January
1,2009.
1078.2.2
Appeal
from Employee - a formal request to the DHS Personnel Compliance
Official (FMLA, ADA, Workers' Compensation) to approve or modify a reasonable
accommodation.
1078.2.3
Complaint Alleging Discrimination - A DHS-2808 filled
out by the complainant or the complainant's representative. Documentation of
disability or documentation supporting the allegation that the person is
regarded as having a disability must be attached to the DHS-2808. Alternative
means of filing complaints, such as personal interviews or a tape recording of
the complaint will be made available for persons with disabilities upon
request. (See Attachment A)
1078.2.4
DHS - The
Arkansas Department of Human Services, its divisions, offices and
programs.
1078.2.5
DHS
Personnel Compliance Official- The person appointed by the DHS
Director or designee as the administrator of personnel compliance activities,
including ADA, FMLA, and Workers' Compensation.
1078.2.6
Division ADA
Coordinator - A person appointed by each Division Director or
designee to serve as a liaison between the DHS Policy and Administrative
Program Management Unit (PAPM), the DHS Personnel Compliance Official, the
public, and division employees regarding ADA issues. Designees may also be
assigned for institutional programs or county offices.
1078.2.7
Equal Employment
Opportunity Commission - The U.S. Equal Employment Opportunity--
Commission enforces Federal laws prohibiting employment
discrimination.
1078.2.8
Essential Functions of the Job - Essential functions
are the basic job duties that an employee must be able to perform, with or
without reasonable accommodation. They are the tasks that are considered to be
fundamental, critical, primary, and necessary. Supervisors are required to
determine what functions are actually performed in the job, and which, if
eliminated, would fundamentally alter the nature of the job.
1078.2.9
Interactive
Process - The process of cooperative dialogue or discussions
between the employee and DHS management representatives, including immediate
supervisor/manager, division ADA coordinator, and division personnel staff. The
DHS Policy and Administrative Program Management Unit (PAPM), and the DHS
Personnel Compliance Official or the Office of Chief Counsel should be
contacted for guidance. The process begins when an employee or applicant
informs his or her supervisor or hiring official of an impairment and requests
a barrier removal, work-related accommodation or change in the work environment
or procedures, or needs special tools (other than personal use items) to
participate in the application process or perform the essential functions of
the job. The purpose of the interactive process is as follows:
A. evaluating whether the medical condition
qualifies as a disability under ADA;
B. determining the disability's effect upon
the essential functions of the job;
C. crafting an effective accommodation to
enable the individual to participate in the application process or to perform
the essential functions of the job; and
D. taking prompt action to offer and
implement the reasonable accommodation.
1078.2.10
Qualified Person with a
Disability
A. A customer or
client with a disability who, with or without reasonable modifications to
rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for receipt of services or participation
in DHS programs or activities.
B.
An employee or applicant with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires. For the purposes of this policy,
consideration shall be given to the hiring official's judgment as to what
functions of a job are essential, and if the hiring official has prepared a
written functional job description before advertising or interviewing
applicants for the job, this description shall be considered evidence of the
essential functions of thejob (DHS-1158).
1078.2.11
Reasonable
Accommodation - A modification in the work environment that
enables a qualified person with a disability to perform the essential functions
of a job without undue hardship to the employer. An individual (employee or
qualified applicant) with a disability may request a reasonable accommodation
during the job application process or during the period of employment. (See
Attachment B)
1078.2.12
Reasonable Medical Documentation - A DHS-2812-B
completed by a health care or rehabilitation professional, as well as any
medical information or documentation necessary to:
A. establish that a person has an ADA
disability.
B. determine that the
disability necessitates a reasonable accommodation.
C. establish whether an accommodation will
enable a person to perform the essential functions of that person's
job.
1078.2.13
Request for Reasonable Accommodation - an employee
request for a barrier removal, work-related accommodation or change in the work
environment or procedures, or for special tools (other than personal use items)
to participate in the application process or perform the essential functions of
the job. (See Attachment B)
1078.2.14
Staffing
Review
Committee
- a committee (consisting of Dks management representatives, including
immediate supervisor/manager. Division ADA Coordinator, and division personnel
staff) to determine a response to an employee's request for reasonable
accommodation.
1078.2.15
Undue Hardship to Employer - An action requiring
significant difficulty or expense when considered in light of a number of
factors including the nature and cost of the accommodation in relation to the
size, resources, nature, and structure of the employer's operation. Undue
hardship is determined on a case-by-case basis. If a particular accommodation
would be an undue hardship, the employer must try to identify another
accommodation that would not pose such a hardship
1078.3.0
Employment
I DHS does not discriminate on the basis of
disability against qualified individuals with disabilities in regard to job
application procedures; the hiring, advancement, or discharge of employees;
employee coinpensation; job training; and other terms, conditions, and
privileges of employment.
1078.4.0
Request for Reasonable Accommodation (See Attachment B)
1078.4.1 If an employee requests reasonable
accommodation of a disability, the employee should work with his or her
supervisor to complete a Request for a Reasonable Accommodation (DHS-2812-A)
and ensure that the Functional Job Description (DHS-1158) is current, accurate
and up-to-date.
1078.4.2 Upon
receipt of a request for reasonable accommodation from an employee, applicant,
or supervisor, the division ADA coordinator will request reasonable medical
documentation and a completed Health Care Provider Information form
(DHS-2812-B) regarding the nature of the disability and functional limits of
the disability if the functional limitations are not obvious.
A. The division ADA coordinator may request
the employee to execute a limited release allowing DHS to submit a list of
specific questions pertinent to the employee's health care or the employee's
position. The employee may review the questions before executing the
release.
B. The employee is
responsible for submitting the DHS-2812-B,the DHS-1158, and any questionnaire
to his/her physician or health care provider for completion, and ensuring the
completed forms are returned to the division ADA coordinator in a timely
manner.
C. The division ADA
coordinator shall provide notice of a date by which the medical certificate
must be returned or the request for accommodation will be deemed
withdrawn.
1078.4.3 Once
the medical documentation is received, the Staffing Review Committee shall
review the request and documentation and determine whether the employee is a
qualified individual with a disability.
1078.4.4 DHS will make a reasonable
accommodation for qualified individuals with disabilities if the reasonable
accommodation does not create an undue hardship and is consistent in
fiilfilling the essential duties of the job. Examples of accommodation include,
but are not limited to:
A. Acquiring or
modifying work-related equipment or devices, including, but not limited to:
monitors with magnification capability, desk chairs with appropriate back
support, telephone amplification equipment, or voice recognition software. This
does not include personal use items, such as hearing aids, eyeglasses,
wheelchair, prosthetic limb, or similar devices if they are also needed off the
job.
B. Transferring or modifying
the work location to make the area useable and accessible.
C. Modifying the employee's work
schedule.
D. Restructuring the
employee's job duties, including reassigning or exchanging non-essential
functions with co-workers, or altering when or how an essential fiinction is
performed. DHS is not required to eliminate an essential job function or
fundamental duty of the position to make an accommodation.
E. Providing the employee reassignment to
another position in an equal or lower pay grade if such a position is available
within DHS and if there are no other types of accommodations to be offered.
(See Attachment C)
1078.4.5 The Staffing Review Committee and
the employee or applicant will fiilly participate in the interactive process.
This may involve one or more meetings or discussions to determine what
accommodation, if any, will be made. The employee or applicant's input is an
essential part of the interactive process. The final decision of what
accommodation will be offered rests with the Staffing Review Committee or
division management.
1078.4.6 If
the division's determination in response to the request for a reasonable
accommodation does not, in the opinion of the requesting employee,
satisfactorily resolve the issue, the requesting employee may initiate an
appeal with the DHS Persoimel Compliance Official by submitting the DHS-2812-D
and written appeal request within five business days of the
determination.
1078.5.0
Employee Conduct and Performance
1078.5.1 DHS is not required to eliminate
essential job functions or to alter conduct or job performance standards in
response to an ADA accommodation request. Qualified employees with
disabilities:
A. Must maintain satisfactory
conduct and performance.
B. Are
subject to the same evaluation, correction, and discipline processes as all
other employees; and
C. Are not
subject to any adverse action, such as discipline or a reduced performance
score, on the basis of a disability.
1078.5.2 A disability is no excuse for
absenteeism or chronic tardiness to work. Reporting to work on time as
scheduled is an essential function of any job. The qualified employee with a
disability may request a different work schedule and DHS management may grant
such request if it does not create an undue hardship or interfere with DHS
operations.
1078.5.3 If an employee
is unable to perform the essential fijnctions of his or her job and no
reasonable accommodation can be identified, or a reasonable accommodation is
offered but refused, the employee may be terminated without prejudice after the
reasonable accommodation inquiry is complete.
1078.6.0
Confidentiality
of Medical Information
1078.6.1 The Genetic Information
Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities
covered by GINA Title II from requesting or requiring genetic information of an
individual or family member of the individual, except as specifically allowed
by this law. As a result, supervisors may not request, and employees are asked
not to provide, genetic information. 'Genetic information' as defined by GINA,
includes an individual's family medical history, the results of an individual's
or family member's genetic tests, the fact that an individual or an
individual's family member sought or received genetic services, and genetic
information of a fetus carried by an individual or an individual's family
member or an embryo lawfully held by an individual or family member receiving
assistive reproductive services.
1078.6.2 All medical information received
from employees or applicants shall be kept strictly confidential. Medical
information, including an employee's disability status, shall not be disclosed
to co-workers. Supervisors may need to anticipate and deflect questions from
co-workers in some circumstances when reasonable accommodations are granted,
particularly when an accommodation involves job restructuring or other action
affecting other staff. Unauthorized disclosure of medical information is
grounds for disciplinary action pursuant to DHS Policy 1084. Disclosure is
required or appropriate under the following circumstances:
A. To the employee's supervisors and managers
when necessary to assess job assignments or reasonable accommodations
B. To government authorities to demonstrate
compliance with the ADA or in accordance with workers' compensation
laws
C. Each division, office, or
unit shall maintain copies of employee medical records in a separate file in a
locked file cabinet, with access restricted to the unit head and the Division
ADA Coordinator.
D. The DHS Policy
and Administrative Program Management Unit (PAPM) is the custodian of official
medical records received from, on behalf of, or regarding any division employee
or applicant including documentation related to requests for reasonable
accommodation, fitness-for-duty examinations and certifications, and
information regarding an employee's illness or medical condition in connection
to leave requests.
1078.6.3 Under
29 C.F.R. §
1630.14(c), information from
medical examinations and inquiries, and information regarding the employee's
ability to perform job-related functions, must be treated as confidential
medical information and must be collected and maintained on separate forms that
are not disclosed with the following exceptions:
A. Supervisors and managers may be informed
regarding necessary restrictions of the work or duties of the employee and
necessary accommodations.
B. First
aid and safety personnel may be informed, when appropriate, if the disability
might require emergency treatment.
C. Government officials investigating
compliance with this part shall be provided relevant information on
request.
1078.7.0
Program Accessibility
1078.7.1 DHS does not deny the benefits of
its programs, activities and services to individuals with disabilities because
its facilities are inaccessible whether owned, leased or utilized by DHS. The
facilities must comply with the Handicapped Accessibility Standards developed
by the Arkansas Building Authority.
1078.7.2 DHS may not make modifications to
programs, services, or facilities if it can demonstrate that to do so would
result in a fundamental alteration to the nature of its programs or activities
or cause an undue financial or administrative burden.
1078.8.0
Communications
1078.8.1 DHS
will make appropriate auxiliary aids and services available when necessary to
ensure effective communication.
1078.8.2 When an auxiliary aid or service is
required, DHS will provide an opportunity for individuals with disabilities to
request the auxiliary aid and service of their choice, unless it can
demonstrate that another equally effective means of communication is available,
or that use of the means chosen would result in a fundamental alteration in the
service, program or activity or cause an undue financial and administrative
burden.
1078.9.0
Contracting
and Licensing
1078.9.1 DHS
does not discriminate on the basis of disability in contracting for the
purchase of goods and services.
1078.9.2 DHS does not discriminate on the
basis of disability in its licensing certification and regulatory activities.
1078.10.0
Complaint
Procedure Alleging Discrimination
Anyone who wishes to formally allege discrimination on the
basis of disability in the provision of services, activities, programs,
benefits, employment opportunity, or employment by DHS shall complete DHS-2808.
(See Attachment A) The completed DHS-2808 should be sent to:
DHS OFFICE OF EMPLOYEE RELATIONS/OFFICE OF EQUAL
OPPORTUNITY
P.O. BOX 1437 - SLOT N250
LITTLE ROCK, AR 72203-1437
TELEPHONE: (501)682-6003
FAX: (501)682-8926
TDD: (501)682-7958
OR
DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE OF CIVIL RIGHTS, REGION VI
1301 YOUNG STREET - SUITE 1169
DALLAS, TX 75202
TELEPHONE: (214) 767-4056
FAX: (214)767-0432
TDD: (214)767-8940
1078.11.0
Originating Section/Division
Contact
Office of Chief Counsel P.O. Box 1437-Slot S260 Little Rock,
Arkansas 72203-1437 Telephone: (501) 682-8934
DHS POLICY 1078 - AMERICANS WITH DISABILITIES ACT
-ATTACHMENT A
A.
Purpose
This complaint procedure is established to meet the
requirements of the Americans with Disabilities Act (ADA). It may be used by
anyone who wishes to file a complaint alleging discrimination on the basis of
disability in the provision of services, activities, programs, benefits,
employment opportunity, or employment by DHS.
B.
DHS Complaint Procedure under
ADA
1. Any person complaining that he
or she has been discriminated against in a manner prohibited by the ADA should
file a completed DHS-2808 with the DHS Office of Employee Relations.
2. DHS OFFICE OF EMPLOYEE RELATIONS/OFFICE OF
EQUAL OPPORTUNITY
P.O. BOX 1437 - SLOT N250 LITTLE ROCK, AR 72203-1437 TELEPHONE:
(501)682-6003 FAX: (501)682-8926 TDD: (501)682-7958
DHS POLICY 1078 - AMERICANS WITH DISABILITIES ACT
-ATTACHMENT B
A.
Purpose
This ADA Request for Reasonable Accommodation procedure is
established to meet the requirements of the Americans with Disabilities Act
(ADA). It may be used by anyone who wishes to initiate a Request for Reasonable
Accommodation on the basis of disability in the provision of services,
activities, programs, benefits, employment opportunity, or employment by
DHS.
B.
The Request
for Reasonable Accommodation Process:
1. The DHS employee will notify his/her
supervisor of a Request for Reasonable Accommodation.
2. Within five business days of receipt of
the DHS-2812-A submitted jointly by the DHS employee and supervisor, the
appropriate Division ADA Coordinator will notify the DHS employee of receipt of
the information.
a. A Staffing Review
Committee (consisting of DHS management representatives, including immediate
supervisor/manager, division ADA coordinator, and division personnel staff) may
decide that medical information is needed and request the employee to submit a
DHS-2812-B to the employee's physician or health care provider for further
information.
b. If the Staffing
Review Committee is unable to agree upon a unanimous response, upper management
officials within the division will be consulted.
c. No later than twenty business days from
the receipt of the Request for Reasonable Accommodation (providing that all
necessary medical information has been received), the Division ADA Coordinator
along with the supervisor will issue a response letter to the employee.
Depending upon the extent of medical documentation, the employee will be
notified if there is a need for extension.
C.
The Reasonable Accommodation Appeal
Process:
1. Within five business days
of the response letter to the employee's DHS-2812-A, the employee may appeal
the Division ADA Coordinator's decision to the DHS Personnel Compliance
Official (FMLA, ADA, Workers' Compensation).
2. Within thirty days of the appeal, the DHS
Personnel Compliance Official (FMLA, ADA, Workers' Compensation) will consult
with the appropriate Division Director and issue a response that will:
a. Be in writing, and where appropriate, in a
format accessible to the complainant, such as large print. Braille, or audio
tape.
b. Explain the position of
DHS and the alternatives available to DHS, if any, for substantive resolution
of the complaint.
c. The DHS
Personnel Compliance Official will forward copies of all documentation of the
ADA record file to DHS Policy and Administrative Program Management Unit (PAPM)
as the official custodian of ADA records.
d. Each employee retains the right to file a
complaint with the Equal Employment Opportunity Commission or to pursue other
legal remedies. The complaint must be filed within 180 days of the date of the
alleged act(s) of discrimination, unless the time for filing is extended by the
federal agency for good cause.
DHS POLICY 1078 - AMERICANS WITH DISABILITIES ACT -
ATTACHMENT C
A.
Purpose
The purpose is to facilitate reassignment or transfer of a
qualified employee or applicant with a disability to another vacant position if
one is available presently or expected in the next sixty days. The employee or
applicant must meet the state minimum hire standards to be eligible for the
reassignment or transfer. The procedure is established to meet the requirements
of the Americans with Disabilities Act (ADA) and may be used by DHS as a guide
in providing reassignment of a DHS employee as a reasonable
accommodation.
B.
Purpose of Reassignment:
Reassignment is the reasonable accommodation of last resort and
may be found necessary after one of the following determinations:
1. There are no other effective reasonable
accommodations that will enable the employee to perform the essential fimctions
of his/her current position.
2. All
other reasonable accommodations would impose undue hardships or would pose a
direct threat to the employee or other employees.
C.
Reassignment Within a
Division
1. Before beginning the
reassignment process, the Staffing Review Committee must establish whether the
employee is a qualified individual with a disability who is entitled to
reassignment under the ADA. Specifically, the Committee must establish whether
the employee:
a. Has an ADA qualifying
condition. To make this determination the Committee, in consultation with the
DHS Policy and Administrative Program Management Unit (PAPM), the DHS Personnel
Compliance Official and the Office of Chief Counsel, shall review the medical
records supplied by the employee and the employee's health care
provider(s).
b. Ever adequately
performed the essential fimctions of the current job with or without a
reasonable accommodation. To make this determination, the Committee should
review the employee's personnel records, including any files maintained by the
employee's supervisor.
c. If the
answers to both questions are yes, proceed to the reassignment
process.
2. Before
making a reassignment, the Staffing Review Committee must identify one or more
vacant positions that the division intends to fill and establish whether the
employee is qualified to perform the essential functions of the vacant
position(s) with or without a reasonable accommodation. To make this
determination, the Committee must review at least the following.
a. Any preferences and benchmarks previously
established for the vacant position(s);
b. Medical records supplied by the employee
and the employee's health care provider(s) (at the employee's request); and
c. Other relevant, reliable
documentation submitted by or on behalf of the employee.
NOTE: For the purpose of reassignment within the
division, a vacancy is defined as a vacant position the division intends to
fill, or a position expected to become vacant within a reasonable period of
time (such as when an incumbent employee has given notice of retirement or
resignation).
3.
If the Staffing Review Committee determines that the employee is qualified for
reassignment, the division ADA coordinator shall notify the employee in writing
that reassignment is being considered. The Committee must consider the
following:
a. Prior performance evaluations,
if any. If the employee has not held his or her current position long enough to
receive an annual or mid-term evaluation, personnel file and relevant
documentation from the supervisor regarding the employee's satisfactory or
unsatisfactory performance may be considered.
b. Supervisor's notes from the reasonable
accommodation interview and other related information.
4. If the Staffing Review Committee
determines reassignment is appropriate, the division ADA coordinator shall
notify the employee in writing:
a. The
employee has five working days from the date of notification to submit a State
of Arkansas Employment Application and personal resume to the employee's
designated division personnel representative, at which time the division will
attempt to identify an appropriate vacancy for reassignment, based upon the
employee's qualifications, the functional limitations identified by the
employee's health care provider, and the essential functions and minimum
qualifications of any vacancies within the division.
b. The employee may indicate an interest in
other geographic locations for reassignment.
5. The employee is solely responsible for
relocation expenses. If an employee fails to submit a State of Arkansas
Employment Application and personal resume or any requested medical information
within the timeframes specified in this policy, the employee will be considered
to have withdrawn his or her interest in reassignment as a reasonable
accommodation and the process will end.
6. All original documentation will be sent to
DHS Policy and Administrative Program Management Unit (PAPM).
D.
Reassignment
Outside the Division
1. If a vacancy
within the originating division is not identified within seven working days of
receipt of the State of Arkansas Employment Application, the division ADA
coordinator will forward the request and all applicable documentation to the
DHS Personnel Compliance Official and DHS Recruiting and Placement.
2. Within two business days of receiving a
reassignment referral and every five business days thereafter for sixty
calendar days, DHS Recruiting and Placement shall review the employee's
application and resume and identify all vacancies for which the employee meets
the minimum qualification requirements.
NOTE: For the purpose of reassignment outside the division, a
vacancy is defined as a position for which a DHS-1138 Job Vacancy Request form
has been submitted to DHS Recruiting and Placement, which has not expired or
been withdrawn, and for which no job offer has been made to any
applicant.
3. Once one or
more vacancies are identified as potentially appropriate for reassignment, the
hiring process for those positions shall be placed on temporary hold.
Unadvertised positions will not be advertised, however, positions that have
been advertised will remain open for applications for the full advertising
period, and the register will be processed as normal. Interviews may be
scheduled and conducted. No offer will be made to any applicant while the hold
is in place. The hold will continue until the hiring official is notified by
DHS Recruiting and Placement that it has been lifted.
4. DHS Recruiting and Placement will contact
the hiring official(s) for any position identified above, advise him or her of
the hold, and request a copy of the functional job description, interview
questions, and benchmark criteria. The hiring official will have five working
days to provide this information.
NOTE: Information regarding the request for reassignment shall
not be provided to the hiring official at this time, and may not be disclosed
at any time unless necessary for job assignments or reasonable
accommodation.
5. DHS
Recruiting and Placement will meet with the DHS Personnel Compliance Official
to review the information from the hiring official, the employee's
qualifications, and the fiinctional limitations identified by the employee's
health care provider. A determination will be made as to whether the employee
is qualified for the vacant position. An employee must meet the minimum
qualifications of the position and be able to perform the essential functions
of the job with or without reasonable accommodation to be considered qualified.
If the position is one for which benchmarking has been or may be applied due to
the number of applications received, the employee must meet the minimum
qualifications of the benchmarking group that has been or would otherwise be
interviewed.
6. If it is determined
that both criteria are met, DHS Recruiting and Placement will notify the hiring
official of the impending placement. The division ADA coordinator shall then
offer the position to the employee.
a. If
more than one position meets the criteria, DHS Recruiting and Placement, in
consultation with the DHS Personnel Compliance Official, may select the
position most closely matching the employee's education and
experience.
b. If the employee's
education and experience match two or more available vacancies equally, the
employee's preference will be considered.
7. The employee will have five working days
from the date of the offer to accept the position. If the employee fails to
respond or to accept the offer within five business days, the request for
reassignment as a reasonable accommodation will be considered
withdrawn.
8. Reassignment
consideration will be extended for a period of sixty days from the date the
employee's application and resume are forwarded to DHS Recruiting and
Placement. If no vacancy at or below the employee's current salary range is
identified for which the employee qualifies, and which has essential functions
that the employee can perform with or without reasonable accommodation, DHS
Recruiting and Placement will notify the employee, the employee's supervisor,
DHS Policy and Administrative Program Management Unit (PAPM), the DHS Personnel
Compliance Official and the Division ADA Coordinator. The notification will
inform the employee that the attempt to accommodate him or her through
reassignment has failed, and that he or she is subject to termination.
Completion of termination paperwork if no reasonable accommodation can be made
is the responsibility of the employee's division.
9. All documentation will be sent to DHS
Policy and Administrative Program Management Unit (PAPM).
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