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NASA Procedures and Guidelines |
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| | TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | Chapter5 | Chapter6 | AppendixA | AppendixB | AppendixC | AppendixD | AppendixE | AppendixF | ALL | | |||||
Benefits and Privileges of Employment
These include, but are not limited to, employer-sponsored: (1) training; (2) services, e.g., employee assistance programs (EAPs), credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation); and (3) parties or other social functions, e.g., parties to celebrate retirements, birthdays, and company outings. 24
Direct Threat
Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a direct threat is based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment is based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. 25
Disability Program Manager (DPM)
Normally, the DPM is a member of the Agency's ODEO or Center EO Office staff whose responsibilities include administering the Special Emphasis Program (SEP) for individuals with disabilities. In some cases, the duties of a DPM may be performed on a collateral duty basis by a person permanently assigned to an operational component other than the HQ or Center EO Offices.
Essential Functions
Essential functions are those job duties that are so fundamental to the position that the individual holding or desiring the position cannot do the job without performing them. A function can be "essential" if, among other things: the position exists specifically to perform that function, there are a limited number of other employees who could perform the function if it were assigned to them, or if the function is specialized and the individual is hired based on the individual's ability to perform it. 26
24 U.S. EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002), "Reasonable Accommodation Related to the Benefits and Privileges of Employment," accessible at http://www.eeoc.gov/policy/docs/accommodation.html#N_17 (hereafter cited as EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship). 25 29 CFR § 1630.2(r). 26 EEOC Policy Guidance, § I(A).
The supervisor, in consultation with HR, determines the essential functions of a position. Determination of the essential functions of a position will be made on a case-by-case basis so that the current duties of the position reflect the job as actually performed, and not simply the components of a generic position description. The determination is to be made based on NASA's judgment as to which functions are essential, a written job description prepared before the job was advertised or interviews conducted, and other considerations as appropriate, to include: the actual work experience of present or past employees in the job, the time spent performing a function, the consequences of not requiring that an employee perform a function, and the terms of a collective bargaining agreement.
Expedited Processing
In certain circumstances, a request for reasonable accommodation requires an expedited review and decision in a timeframe that is shorter than 30 calendar days. For example, an employee may need a sign language interpreter for a meeting scheduled to take place in five calendar days due to the timetable for processing a vacancy (e.g., conducting interviews and making hiring decisions). An example, in the context of an applicant, might be that there may be a need to expedite a request for reasonable accommodation to ensure that the applicant has an equal opportunity to apply for a job. Therefore, the HRS responsible for the particular vacancy must make a decision as quickly as possible and, if appropriate, provide a reasonable accommodation.
Extenuating Circumstances
Extenuating circumstances are factors that could not reasonably have been anticipated or avoided in advance of the request for reasonable accommodation. The term covers those limited situations in which unforeseen or unavoidable events prevent prompt processing and delivery of a reasonable accommodation. (See also Section C.3.)
Individual with Disability
With respect to an individual, disability means:
a. A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
b. A record of such an impairment; or
c. Being regarded as having such an impairment. This means that the individual has been subjected to a prohibited action, because of an actual or perceived impairment that is not both "transitory and minor." 27 (See also, definition of "substantially limits.")
NASA is required to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the 'actual disability' prong, or 'record of' prongs, but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the 'regarded as' prong. 28
27 29 CFR § 1630.2(g)(iii).
Major Life Activities
Major life activities include, but are not limited to:
a. Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and
b. The operation of a major bodily function, including functions of the immune system, special sensory organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system. 29
Mitigating Measures
The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual's impairment substantially limits a major life activity. Mitigating measures include, but are not limited to:
a. Medication, medical supplies, equipment, or appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies;
b. Use of assistive technology;
c. Reasonable accommodations or 'auxiliary aids or services' (as defined by 42 U.S.C. § 12101 et seq.);
d. Learned behavioral or adaptive neurological modifications; or
e. Psychotherapy, behavioral therapy, or physical therapy.
Physical or Mental Impairment
A physical impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sensory organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. 30
28 29 CFR § 1630.9(e).
29 29 CFR § 1630.2(h)(2)(ii).
30 29 CFR § 1630.2(j)(4)-(5).
Qualified
The term 'qualified,' with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 32
Reasonable Accommodation
A reasonable accommodation is any change in the work environment to assist a person with a disability to apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of employment. 33 There are three categories of reasonable accommodations:
a. Modifications or adjustments to a job application process to permit an individual with a disability to be considered for a job (such as providing application forms in alternative formats like large print or Braille).
b. Modifications or adjustments necessary to enable an individual with a disability to perform the essential functions of the job (such as providing sign language interpreters).
c. Modifications or adjustments that enable employees with disabilities to enjoy equal benefits and privileges of employment (such as removing physical barriers in an office or common area such as a cafeteria). 34
Reasonable Accommodations Team
31 29 CFR § 1630.2(h)(2).
32 29 CFR § 1630.2(m).
33 EEOC Enforcement Guidance), "General Principles: Reasonable Accommodation," citing 29 CFR pt. 1630 app. § 1630.2(o).
34 EEOC Enforcement Guidance, "General Principles: Reasonable Accommodation;" see also U.S. Office of Personnel Management, Federal Employment of People with Disabilities, HR Professionals and Reasonable Accommodation, accessible at http://www.opm.gov/disability/hrpro_6-01-C.asp (hereafter cited as OPM Guidance).
Reassignment
Reassignment is the placement of an employee in a vacant position without competition at the same grade and potential currently held for which the employee is qualified. If a position of an equal grade is not available, an employee may voluntarily accept a change to a lower grade and to a vacant position for which the employee is qualified.
Before considering reassignment as a reasonable accommodation, the Agency will first consider those reasonable accommodations that would enable employees to remain in the current position. Reassignment is an accommodation of last resort and is required only after it has been determined that:
a. There are no effective reasonable accommodations that enable employees to perform the essential functions of their current position; or
b. All other reasonable accommodations would impose an undue hardship.
c. If both the Agency and the employee voluntarily agree that reassignment is preferable to remaining in the current position with some form of reasonable accommodation, then the employer may reassign the employee. 35
35 EEOC Enforcement Guidance: "Types of Reasonable Accommodation Related to Job Performance: Reassignment."
Substantially Limits
In order for a physical or mental impairment to be a "disability" under 42 U.S.C. § 12101 et seq., as amended, the impairment has to "substantially limit" a major life activity. The term "substantially limits" is construed broadly, utilizing nine rules of construction that are applied in determining whether an impairment substantially limits (or substantially limited) a major life activity. 36 These are:
a. The term 'substantially limits' is construed broadly in favor of expansive coverage, to the maximum extent permitted by law. 'Substantially limits' is not meant to be a demanding standard.
b. An impairment is a disability within the meaning of the law if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of the law.
c. The threshold issue of whether an impairment 'substantially limits' a major life activity should not demand extensive analysis.
d. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term 'substantially limits' is interpreted and applied to require a degree of functional limitation that is lower than the standard for 'substantially limits' applied by the Supreme Court prior to the 2008 amendments to 42 U.S.C. § 12101 et seq.
e. The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. [This] is not intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
f. The determination of whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses are considered in determining whether an impairment substantially limits a major life activity.
g. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
h. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
i. The six-month 'transitory' part of the 'transitory and minor' exception to 'regarded as' coverage does not apply to the definition of 'disability' under . . . the 'actual disability' prong . . . or the 'record of' prong of [the regulations]. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the regulations. 37
36 29 CFR § 1630.2(j)(1)(i)-(ix).
37 29 CFR § 1630.2(j)(1)(ix).
Supervisor
For purposes of this NPR, the person who determines whether a request for reasonable accommodation is granted is referred to as "the supervisor." In the case of an employee, the supervisor, in most cases, will be the employee's immediate supervisor. In the case of an applicant, it will be the Human Resources Specialist (HRS) who has been assigned to process the vacancy, in conjunction with the selecting official. There may be cases in which the appropriate deciding official is neither the immediate supervisor nor the HRS. In cases where the employee's immediate supervisor or the HRS processing the vacancy is not available to receive and process a request for reasonable accommodation, the next person in the supervisory chain will act as the supervisor.
Undue Hardship
A significant difficulty or expense focused on the resources and circumstances of the Agency in relationship to the cost or difficulty of providing a specific reasonable accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive or those that would fundamentally alter the nature or operation of the calendar.
The Agency will assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship. 38 In making the determination as to "significant difficulty or expense" the Agency will consider:
a. Overall size of the Agency's program with respect to the number of employees, number and type of facilities, and size of budget.
b. Type of operation, including the composition and structure of the Agency's workforce.
c. Nature and cost of the reasonable accommodation.
38 EEOC Enforcement Guidance, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, "General Principles: Undue Hardship," Oct. 17, 2002
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