1.20.2  Providing Reasonable Accommodation for Individuals with Disabilities

Manual Transmittal

June 24, 2013

Purpose

(1) This transmits revised IRM 1.20.2, IRS Disability Office, Providing Reasonable Accommodation for Individuals with Disabilities.

Material Changes

(1) Procedures are being revised to align with Treasury's Interim Voluntary Modification and Reasonable Accommodation Policy and Procedures and in compliance with the Americans with Disabilities 2008 Amendments Act (ADAAA) which went into effect in January 2009.

Effect on Other Documents

This supersedes IRM 1.20.2 dated August 26, 2008

Audience

All Divisions and Functions

Effective Date

(06-24-2013)

Related Resources

The "1 Step 4 RA" link below provides a wealth of resources and is helpful in providing additional information and forms for assistance. Visit at http://1step4ra.web.irs.gov/

Phyllis Brown
Director, HCO Workforce Relations Division

1.20.2.1  (10-09-2007)
IRS Reasonable Accommodation Policy P-1-47

  1. The Internal Revenue Service shall take positive and persistent actions to recruit, hire, develop, and advance persons with disabilities. The Service shall make reasonable accommodations for all qualified applicants or employees with physical or mental disabilities in accordance with law. The Service shall comply with all appropriate rules, regulations, and directives. Executives, managers, and supervisors shall create a positive work environment that will encourage employees with disabilities to maximize and reach their full potential.

  2. The Internal Revenue Service shall take necessary action to ensure that members of the public with disabilities have an equal opportunity to effectively participate in its programs, activities, and services, in accordance with law. The Service shall comply with all appropriate rules, regulations, and directives.

1.20.2.2  (06-24-2013)
Introduction to IRM 1.20.2

  1. 1) The following policies and procedures apply to all divisions, functions, offices, and applicants for employment with the IRS. These policies and procedures supplement the Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999) and EEOC Policy Guidance on Executive Order 13164, Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (October 20, 2000). Both documents are available on EEOC’s internet site at http://www.eeoc.gov.

    Note:

    A Reasonable Accommodation (RA) is an adjustment or alteration that enables an otherwise qualified individual with a substantially limiting impairment or a record of such an impairment to apply for a job, perform job duties, or enjoy benefits and privileges of employment. There are three categories of reasonable accommodations:

    • Modification or adjustments to a job application 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);

    • Modifications or adjustments to enable a qualified individual with a disability to perform the essential functions of the job (such as, providing sign language interpreters); and

    • Modifications or adjustments that enable employees with disabilities to enjoy equal benefits and privileges of employment (such as, removing physical barriers in an organization's cafeteria).

1.20.2.3  (06-24-2013)
Authority

  1. The Rehabilitation Act of 1973, 29 U.S.C 701, et seq ., as amended, requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause undue hardship.

  2. Executive Order 13164, Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation (July 26, 2000), requires that Federal agencies establish effective written procedures for processing requests for reasonable accommodation.

  3. Equal Employment Opportunity Commission Policy Guidance on Executive Order 13164, Establishing Procedures to Facilitate the Provision of Reasonable Accommodation, Directives Transmittal Number 915.003 (October 20, 2000), explains EO 13164 in detail.

  4. Equal Employment Opportunity Commission Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (March 1, 1999), clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship.

  5. Americans with Disabilities Act Amendments Act (ADAAA) of 2008, Public Law 110-325 ADAAA, effective 2009 focuses on the discrimination at issue instead of the individual's disability. Equal Employment Opportunity Commission issued its final regulations on the ADAAA on March 25, 2011, which became effective on May 24, 2011.

1.20.2.3.1  (06-24-2013)
Background

  1. The laws, regulations and requirements referred to above establish compliance requirements for the Internal Revenue Service.

  2. The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications. It also applies to the United States Congress.

  3. The Americans with Disabilities Act Amendments Act (ADAAA) defines a person with a "disability" as a person who 1.) has a physical or mental impairment that substantially limits a major life activity, 2.) a record of such an impairment, or 3.) is regarded as having such an impairment. However, the ADAAA and the EEOC's regulations (29 CFR 1630.2(o) and 1630.9(e)) state that employers are not required to provide reasonable accommodations to employees and applicants who are regarded as having an impairment. The actual regulatory language says, "A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the "actual disability" (§ 1630.2(g)(1)(i)), or "record of" (§ 1630.2(g)(1)(ii), but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the "regarded as" (§ 1630.2(g)(1)(iii))."

1.20.2.4  (06-24-2013)
Definitions

  1. Accessible- Enter, operate, participate in, or use safely, independently and with dignity by a person with a disability (i.e., site, facility, work environment, service or program).

  2. Appeal Process- Any voluntary mechanism through which an individual can request reconsideration of denial of reasonable accommodation, regardless of whether the person has started the EEO complaint process.

  3. BOD- Business Operating Division

  4. Commuting Area- The geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring ones) and the surrounding localities in which people live and can reasonably be expected to travel back and forth daily to their usual employment.

  5. Deciding Official - The IRS official designated to identify possible accommodations and determine whether a requested accommodation shall be provided. There are three possible deciding officials: a human resources manager (for applicants only), an employee’s immediate supervisor/manager, and a manager in the employee’s chain of command. Deciding officials may consult with the appropriate parties (e.g., physician, reasonable accommodation coordinator, etc.) to determine if an individual has a medical condition that substantially limits a major life activity and is eligible for reasonable accommodation.

  6. Denial- Deciding Official/Manager makes an informed decision to deny the employee’s specific reasonable accommodation and does not offer an alternative in its place, or an alternative accommodation is offered and declined by the employee.

  7. Disability -For the purposes of providing a reasonable accommodation,"disability" is defined as a physical or mental impairment that substantially limits one or more of the major life activities or a record (or past history) of such an impairment.

  8. Essential Function - Those job duties that are so fundamental to the position that the individual holds or desires that he/she 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; or the function is specialized and the individual is hired based on his/her ability to perform them. Determination of the essential functions of a position must be done on a case-by-case basis so that it reflects the job as actually performed, and not simply the components of a generic position description.

  9. Episodic or Remission- An impairment that is "episodic" or in "remission" is a disability if it would substantially limit a major life activity when active. Examples of impairments that are episodic or in remission include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

  10. Extenuating Circumstances -Factors that could not reasonably have been anticipated or avoided in advance of the request for accommodation or situations in which unforeseen or unavoidable events prevent prompt processing and delivery of an accommodation (e.g., identified software is not compatible with existing equipment).

  11. Federal Occupational Health- Designated physician or health service provider under contract with the IRS to provide medical consultation in cases of an individual request(s) for reasonable accommodation under the Rehabilitation Act of 1973, as amended.

  12. Genetic Information- As defined by the Genetic Information Nondiscrimination Act (GINA) of 2008, includes information concerning the manifestation of disease/disorder in family members “family medical history”, information about 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.

  13. Granted- Deciding Official/Manager makes an informed decision to approve the employee’s specific reasonable accommodation request or an alternative accommodation which both the employee and manager believe will be effective.

  14. Head of Office - As stated in the Internal Revenue Manual:

    • Commissioner of Internal Revenue;

    • Deputy Commissioner, Services and Enforcement;

    • Deputy Commissioner, Operations Support;

    • Commissioner, Large Business and International Division;

    • Commissioner, Small Business/Self-Employed Division;

    • Commissioner, Tax Exempt and Government Entities Division;

    • Commissioner, Wage and Investment Division;

    • Chief, Agency-Wide Shared Services;

    • Chief, Appeals;

    • Chief, Communications and Liaison;

    • Chief, Criminal Investigation;

    • Executive Director, Equity, Diversity and Inclusion;

    • Chief Financial Officer;

    • IRS Human Capital Officer;

    • Chief Technology Officer;

    • National Taxpayer Advocate;

    • Director, Research, Analysis and Statistics;

    • Director, Office of Professional Responsibility; and

    • Chief Counsel.

  15. Individual with a Disability - For the purpose of providing a reasonable accommodation, an individual with a "disability" is defined as a person who has a physical or mental impairment that substantially limits one or more of that person's major life activities or who has a record of such an impairment.

  16. Interactive Process - The process by which the individual requesting an accommodation and the Deciding Official discuss the request for accommodation, determine whether an accommodation will be provided, and examine potential alternative accommodations.

  17. Major Life Activity - Basic activities that most people in the general population can perform with little or no difficulty, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, concentrating, thinking, communicating, learning, interacting with others and working. Major life activities also includes the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions.

  18. Physical or Mental Impairment- Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

  19. Post of Duty- Official duty station that is defined as a building in which the IRS occupies space.

  20. Qualified Individual- An individual who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or seeks, and who, with or without reasonable accommodation, can perform the essential functions of such position.

  21. Reasonable Accommodation (RA) - A change or adjustment that enables a qualified person with a disability to apply for a job, perform job duties, or enjoy benefits and privileges of employment. There are three categories of reasonable accommodations:

    1. 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);

    2. modifications or adjustments to enable a qualified individual with a disability to perform the essential functions of the job (such as, providing sign language interpreters); and

    3. modifications or adjustments that enable employees with disabilities to enjoy equal benefits and privileges of employment (such as, removing physical barriers in an organization's cafeteria).

  22. Reassignment - Reasonable accommodation of last resort, that, absent undue hardship, is provided to employees (not applicants) who, because of a disability, can no longer perform the essential functions of their job, with or without reasonable accommodation. Reassignments are made only to funded vacant positions and for employees who are qualified to fill the vacant position. If the employee is qualified for the position, he/she will be reassigned to the job and will not have to compete.

  23. Receiving Official - IRS personnel designated to officially receive a request for reasonable accommodation from an employee or applicant (or an individual acting on his/her behalf), who will forward the request to the servicing Reasonable Accommodation Services office to process and monitor the request until it is closed.

  24. Regarded as- An individual is "regarded as" having a disability if the agency takes a prohibited action based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor.

  25. Request for Reasonable Accommodation - A statement that an individual needs an adjustment or change at work, in the application process, or in a benefit or privilege of employment for a reason related to a medical condition. A reasonable accommodation request may be submitted orally or in writing, by the employee or applicant or by someone associated with the employee or applicant.

  26. Requester - A qualified employee or applicant for employment with a disability, or an individual acting on his/her behalf, who requests reasonable accommodation.

  27. Temporary Measures- Accommodations that may be taken in extenuating circumstances. (See also 1.20.2.4. paragraph 10)

  28. Transitory- An impairment with an actual or expected duration of 6 months or less.

  29. Undue Hardship - An action requiring significant difficulty or expense. A determination of undue hardship should be based on several factors, including,

    • the nature and cost of the accommodation needed.

    • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;

    • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);

    • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;

    • the impact of the accommodation on the operation of the facility.

  30. Vacant Position - The position is available when the employee asks for reassignment as a reasonable accommodation, or the employer knows that the position will become available within a reasonable amount of time.

1.20.2.5  (06-24-2013)
Requesting A Reasonable Accommodation

  1. The reasonable accommodation (RA) process begins as soon as the request for accommodation is made either orally or in writing. To enable the IRS to keep accurate records regarding requests for accommodation, employees should follow up an oral request for accommodation by completing the Reasonable Accommodation Request, Form 13661. If an employee chooses not to complete the written form, the Receiving Official, the Reasonable Accommodation Coordinator (RAC) or other responsible individual must complete Part I of the Form 13661 to document the request. Although the written RA Request Form should be completed as soon as possible following the request, it is not a requirement for the request itself. Processing of the request will begin as soon as it is made, whether or not the RA Request Form has been provided. This form can be completed online. The request does not have to include any special words, such as "reasonable accommodation," "disability," "Rehabilitation Act." An individual with a disability may request a reasonable accommodation whenever s/he chooses, even if s/he has not previously disclosed the existence of a disability. The request does not necessarily mean that the IRS is required to provide the change or adjustment.

    Note:

    A RA Request Form is not required when an employee needs a reasonable accommodation on a recurring basis (e.g., the assistance of sign language interpreters or readers). The written form is required only for the first request although appropriate notice must be given each time the accommodation is needed.

  2. The individual's request must be considered when an employee makes a request to (a) his/her immediate supervisor; (b) a supervisor or manager in his/her immediate chain of command; and/or (c) the IRS Disability Office Reasonable Accommodation Services (RAS). When an applicant makes a request, it will be considered if made to any agency employee with whom the applicant has contact in connection with the application process or any other individual designated by the Agency. The human resources specialist/management official handling the personnel action must give the RA Request Form to the applicant to fill out. If the applicant requires assistance with this requirement, the human resource official receiving the request will provide that assistance. If an applicant for employment chooses not to complete the form, the human resource official who has received the request must complete the form to document the request. A copy of the form will be provided to the servicing RAS office.

  3. Employment Talent, and Security Division in conjunction with IRS Disability Office -Disability Policy, Oversight and Education Office is responsible for training staff that is involved in the application process to recognize requests for reasonable accommodation and to handle them appropriately.

  4. A family member, friend, health professional, or other representative (such as a union steward or coworker) may request a reasonable accommodation on behalf of an employee or applicant with a disability. The request shall be made to one of the same persons to whom the employee or applicant would make the request. To the extent possible, an individual with a disability should be contacted to confirm that s/he in fact wants a reasonable accommodation. The individual may refuse to accept an accommodation.

1.20.2.5.1  (06-24-2013)
The Interactive Process

  1. Communication is a priority throughout the entire process. IRS officials involved in the reasonable accommodation process should take a proactive approach in searching out and considering possible accommodations, including consulting appropriate resources for assistance. The employee requesting the accommodation (and any chosen representative) should also participate, to the extent possible, in helping to identify an effective accommodation.

  2. On-going communication is particularly important where the specific limitation, problem, or barrier is unclear; where an effective accommodation is not obvious; or where the parties are considering different possible reasonable accommodations. In those cases where the disability, the need for accommodation, and the type of accommodation that should be provided are clear, extensive discussions are not necessary. Even so, the Deciding Official and requesting individual should discuss the matter to make sure that there is a full exchange of relevant information.

  3. If after engaging in the interactive process the parties cannot agree on the accommodation to be granted, the deciding official should offer the individual the accommodation that the deciding official has determined to be reasonable and effective.

  4. If through the interactive process the parties agree on an (alternative) accommodation that is different than what was originally requested, that should be noted on the RA form.

  5. Resources are available to help both the Deciding Official and the individual requesting the accommodation in identifying possible accommodations for sign language interpreters, requests for materials in accessible formats, adaptive technology, and ergonomic or special equipment. See Exhibit 1.20.2-1 and Exhibit 1.20.2-2

1.20.2.5.2  (06-24-2013)
Determining Who Will Handle the Request

  1. The Reasonable Accommodation Coordinator (RAC) is responsible for processing all requests for reasonable accommodation. Once a request is received by the RAC, s/he will work closely with the employee or his/her representative, supervisor/manager or in the case of an applicant, HR Specialist to facilitate the reasonable accommodation requests.

  2. Deciding Official is responsible for (1) acknowledging the request; (2) explaining to the employee that s/he will be making the decision on the request for reasonable accommodation; (3) describing what will happen in processing of the request. (i.e. delays and/or extenuating circumstances). (see 1.20.2.5.4.2– Request Involving Extenuating Circumstances.)

1.20.2.5.3  (06-24-2013)
Reassignment as an Accommodation

  1. Reassignment is the reasonable accommodation of last resort. Reassignment will only be considered if:

    1. there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position;

    2. the accommodation does not conflict with a controlling collective bargaining agreement (e.g., the IRS-NTEU National Agreement, mid-term agreements, LOUs or local agreements), absent special circumstances; or

    3. all other reasonable accommodations would impose an undue hardship.

  2. In considering whether there are positions available for reassignment, the Deciding Official shall work closely with the servicing RAC, Human Resources staff, as well as the individual requesting the accommodation to identify:

    1. all vacant funded positions at the same or lower grade which the employee can perform with or without an accommodation; and

    2. all positions which the RAC and the delegated Business Unit Official has reason to believe will become vacant within 60 workdays from the date the search is initiated and for which the employee may be qualified.

  3. If there are no suitable vacant positions found within the IRS, the Associate Director, IDO may consult with Main Treasury on conducting a 30 workdays search for suitable positions throughout the Department. Examples of when the IRS would not consult Treasury for suitable positions at other Bureaus are:

    • employee has stated that s/he is not interested in a position outside of the IRS

    • employee is only interested in positions within his/her POD and the other Treasury Bureaus do not have offices in that location.

    Note:

    Since it may take a minimum of 30 business days to determine whether an appropriate vacant position exists, the deciding official and employee should discuss the employee’s options during that period, i.e., use of accrued leave, use of unpaid leave, or a temporary assignment.

  4. The embedded HR staff/RAC will focus on positions that are equivalent to the employee’s current job in terms of pay and other relevant factors, as well as vacant lower level positions for which the individual is qualified.

  5. Reassignment may be made to a vacant position outside of the employee's commuting area if the employee is willing to relocate. As with other reassignments not required by management, the IRS shall not pay for the employee's relocation costs unless IRS policy provides for such payments for non-disabled employees.

  6. For reassignment to a position across business operating divisions, the manager in the losing office must coordinate these types of requests with the manager who has authority to effect the employment decision in the gaining office.

  7. Reassignment is available only to employees, not to applicants for employment.

    Note:

    Before making a decision to terminate an employee who has an open reasonable accommodation request, consider all possible options, including reassignment, which is the accommodation of ”last resort.”

    Case Illustration: Rowlette v. Social Security Administration, EEOC Appeal No. 01A10816 (Aug. 1, 2003). Complainant, a claims examiner with stress-induced eating disorder, could no longer perform an essential function of her job (interviewing members of the public). Agency violated Rehabilitation Act by terminating complainant instead of reassigning her. Testimony by complainant, her former supervisor, and an agency staffing specialist established that various positions for which complainant was qualified were available for reassignment during the relevant time period.

1.20.2.5.4  (06-24-2013)
Granting a Reasonable Accommodation and Time Frames for Processing Requests and Providing Reasonable Accommodations

  1. Granting a Reasonable Accommodation Request. As soon as the Deciding Official determines a reasonable accommodation will be provided, the decision should be communicated immediately to the individual by the Deciding Official. If the accommodation cannot be provided immediately, the Deciding Official must inform the individual of the projected time frame for providing the accommodation. A Deciding Official or supervisor may take temporary measures, such as providing assistive technology or altering the physical layout of an office, to facilitate the work of an employee.

  2. Time Frames for Processing Requests. The time necessary to process a request will depend on the nature of the accommodation requested and whether it is necessary to obtain supporting documentation. At a minimum, however, requests shall be processed as outlined in 1.20.2.5.4.1 "Requests Not Involving Extenuating Circumstances" and 1.20.2.5.4.2 "Requests Involving Extenuating Circumstances."

1.20.2.5.4.1  (06-24-2013)
Requests Not Involving Extenuating Circumstances

  1. If the manager receiving the request is the Deciding Official, s/he should immediately engage in the interactive discussion with the employee and/or local RAS office.

  2. If the manager or management official receiving the request is not the Deciding Official, s/he shall forward the request to the Deciding Official as soon as possible but in no more than five workdays.

  3. If the request does not require that supporting medical information be obtained, the request shall be processed and the accommodation, if approved, granted and provided as soon as possible but no more than emphasis 15 workdays from the date the Deciding Official receives the request. Since the Deciding Official may need the full 15 days to engage in the interactive process and collect all relevant information about possible accommodations, s/he should not delay beginning this process. Failure to meet this time frame solely because a Deciding Official delayed processing the request is not an extenuating circumstance.

  4. Examples of accommodations that can easily be provided within the 15 day time frame include:

    1. An employee who takes anti-depressants that make it hard for him/her to get up in time to get to the office at 9:00 a.m., requests he/she be allowed to start work at 10:00 a.m. and still put in an 8 hour day.

    2. A supervisor distributes detailed agendas at the beginning of each staff meeting. An employee with a learning disability asks the agenda be distributed ahead of time because the disability makes reading difficult and s/he needs more time to prepare.

  5. If the request requires that supporting medical information be obtained to determine whether the individual has a disability and/or to identify the functional limitations, the following will apply:

    1. The servicing RAC will request the documentation as soon as possible after his or her receipt of the request for accommodation, but before the expiration of the 15 day period referred to above. The 15 day period is frozen until sufficient medical documentation is received. The IRS recognizes that the need for documentation may not become apparent until after the interactive process has begun.

    2. If the servicing RAC, after an initial meeting with the deciding official, determines that medical information is not needed, the 15 day time period resumes as soon as the initial meeting concludes.

    3. Once the relevant medical documentation has been received by the servicing RAC and the functional limitations have been discussed with the Deciding Official, the accommodation, if granted, shall be provided within 15 business days.

1.20.2.5.4.2  (06-24-2013)
Requests Involving Extenuating Circumstances

  1. When extenuating circumstances are present, the time for processing a request for reasonable accommodation and providing the accommodation will be extended as deemed necessary. However, such extensions should be rare. All IRS officials are expected to act as quickly as reasonably possible in processing requests and providing accommodations. The following are examples of extenuating circumstances:

    1. The purchase of equipment may take longer than 15 workdays because of requirements under the Federal Acquisition Regulations.

    2. Equipment is back-ordered; the vendor typically used by the agency's for goods or services has unexpectedly gone out of business; or the vendor cannot promptly supply the needed goods or services, and another vendor is not immediately available.

    3. The employee with a disability needs to try working with equipment on a trial basis to ensure it is effective before the agency buys the equipment.

    4. New staff needs to be hired or contracted for, or an accommodation involves the removal of architectural barriers.

  2. If a delay is attributable to the need to obtain medical documentation and the IRS has not yet determined that the individual is entitled to an accommodation, the IRS may also provide an interim accommodation on a temporary basis. In such a case, the Deciding Official will notify the individual in writing that the interim accommodation is being provided on a temporary basis pending a determination that the individual is a person with a disability and entitled to an accommodation.

  3. Deciding Officials who approve such temporary measures are responsible for assuring that they do not take the place of a permanent accommodation and that all necessary steps to secure the permanent accommodation are being taken.

1.20.2.5.5  (06-24-2013)
Expedited Process

  1. In certain circumstances, a request for reasonable accommodation requires an expedited review and decision in a time frame that is shorter than the 15 workdays discussed above. This includes where a reasonable accommodation is needed:

    1. To enable an applicant to apply for a job. Depending on the timetable for receiving applications, conducting interviews, taking tests, and making hiring decisions, there may be a need to expedite a request for reasonable accommodation in order to ensure that an applicant for employment with a disability has an equal opportunity to apply for a job. Therefore, the IRS needs to move as quickly as possible to make a decision and, if appropriate, provide a reasonable accommodation.

    2. To enable an employee to attend a meeting scheduled to occur shortly. For example, an employee may need a sign language interpreter for a meeting scheduled to take place in 5 days.

1.20.2.6  (06-24-2013)
Requests for Medical Information

  1. In some cases, the disability and need for accommodation will be obvious or otherwise already known to the Deciding Official. In these cases, further medical information will not be sought. However, when a disability and/or need for reasonable accommodation is not obvious or otherwise already known to the Deciding Official, the IRS may require that the individual provide reasonable medical documentation about the disability and his/her functional limitations. Please Note: Any request for medical information must comply with the Genetic Information Nondiscrimination Act (GINA) of 2008, as well as the laws, regulations, and guidance referenced in the "Authority" section above, and other applicable confidentiality statutes.

  2. the Deciding Official believes medical information is necessary to evaluate a request for a reasonable accommodation, s/he should contact the servicing RAC to obtain the necessary medical documentation to make an accommodation decision.

  3. If a determination is made to seek medical information, the requested information should be sufficient to establish that the individual has a disability. Documentation unrelated to the claimed disability should not be requested. Agency requests for medical information will follow the requirements set forth in EEOC's Enforcement Guidance: "Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act" , available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

  4. If the Human Resources Specialist believes that medical information is necessary in order to evaluate a request for reasonable accommodation from an applicant, s/he will consult with the servicing RAC for guidance.

  5. If a determination is made to seek medical information, an employee will be asked to provide Part III-A/B of the Reasonable Accommodation Request, Form 13661 to his/her health care practitioner, social worker, or rehabilitation counselor to substantiate their functional limitations and that the individual has a disability.

  6. Once the medical documentation is received, the RAC will evaluate the documentation, and if the RAC deems necessary will consult with Federal Occupational Health (FOH). If the information provided by the health care professional (or the information volunteered by the individual requesting the accommodation) is insufficient to enable the deciding official to determine whether an accommodation is appropriate, the RAC will request reasonable supplemental documentation.

    1. First, however, the RAC should explain to the individual seeking the accommodation, in specific terms, why the medical information provided is insufficient, what additional information is needed, and why the information is necessary for a determination of the reasonable accommodation request.

    2. The individual may then ask the health care practitioner or other appropriate medical professional to provide the missing information.

  7. The individual requesting the accommodation may agree to sign a limited release, giving the IDO RAS Office permission to submit a list of specific questions to the individual's health care professional or contact the individual's doctor. Agency officials outside of IDO should not contact a health care professional directly.

  8. In some cases, the individual requesting the accommodation will supply medical information directly to the Deciding Official without being asked. In these cases, the Deciding Official will forward the documentation to the RAC immediately to determine if documentation is sufficient. (See the section on Confidentiality and Disclosure for instructions on storage of medical information.) See IRM 1.20.2.7.

    Note:

    All medical should be submitted to the Servicing RAC.

  9. If the individual requesting accommodation does not provide appropriate documentation or does not cooperate in the Agency’s efforts to obtain such documentation the Agency may deny the requested accommodation.

  10. IRS officials who gain access to an employee or an applicant for employment’s personal medical information will be reminded that the Rehabilitation Act of 1973 and ADAAA requires that they keep this information strictly confidential and share it only with others who have a need to know. This information may be disclosed only to those individuals listed in the "Confidentiality and Disclosure" section. See IRM 1.20.2.7.

1.20.2.7  (06-24-2013)
Confidentiality and Disclosure

  1. All medical information, including information about functional limitations and reasonable accommodation needs, obtained in connection with a request for reasonable accommodation must be kept confidential. The information shall be kept in files separate from the individual's personnel file. In addition, employees who obtain or receive such information are strictly bound by these confidentiality requirements. The servicing RAC will maintain custody of all records obtained or created during the processing of a request for reasonable accommodation, including medical records, and will respond to all requests for disclosure of the records. The information may be disclosed to the following individuals:

    1. Deciding Officials, supervisors and managers who need to know may be told about necessary restrictions on the work or duties of the employee and the necessary accommodation(s), but medical information should only be disclosed if absolutely necessary.

    2. First aid and safety personnel, when appropriate, if the disability might require emergency treatment or special arrangements in emergency situations such as building evacuations.

    3. Government officials when the information is necessary to investigate compliance with the Rehabilitation Act.

    4. In certain circumstances, to workers' compensation offices or insurance carriers

    5. Treasury and IRS legal counsel in connection with providing legal advice to agency officials.

    6. Those Agency Officials with the need to know the information to carry out official duties of their position.

  2. Whenever medical information is disclosed, the individual disclosing the information must inform the recipients of the information about the confidentiality requirements that apply.


    Note:

    The Rehabilitation Act confidentiality obligation is not limited to the medical diagnosis. The fact that someone has requested an accommodation, or that something is being provided as an accommodation, also constitutes confidential medical information.



    Case Illustration: Tyson v. United States Postal Service, EEOC Appeal No. 01992086 (Aug. 23, 2002). Agency violated Rehabilitation Act by disclosing complainant's medical condition and symptoms in a letter mailed to other installations seeking a vacancy to which he could be reassigned. Although the other managers needed to be alerted to complainant's work restrictions and his need for accommodation, they had no need to know his condition or symptoms.

  3. Nondisclosure of GINA Protected Information: The Genetic Information and Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting, requiring, or purchasing genetic information of employees or their family members, except as specifically allowed by this law. To comply with GINA, the request for medical information must state that the agency is asking that genetic information not be provided when responding to the request for medical information, unless the information is allowable as explained below:

    • Genetic information: as defined by GINA, includes information concerning the manifestation of disease/disorder in family members “family medical history”, information about 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.

    • Rehabilitation Act: The general prohibition against requesting or requiring genetic information does not apply where an employer requests documentation to support a request for reasonable accommodation as long as the request for documentation is lawful. Such a request is lawful only where the disability and/or the need for accommodation is not obvious; the documentation required contains no more information than what is sufficient to establish that an individual has a disability and needs reasonable accommodation; and the documentation relates only to the impairment that the individual claims to be a disability that requires reasonable accommodation. See 29 CFR 1635.8(b)(1)(i)(D)(1); see also 29 CFR 1635.8(b)(1)(i)(B).

1.20.2.8  (06-24-2013)
Denial of Reasonable Accommodation Request

  1. As soon as the Deciding Official determines that a request for reasonable accommodation will be denied, s/he must complete Part IV of IRS RA Form 13661 and provide a copy to the individual who requested the accommodation, with a copy to the servicing RAC. The explanation for the denial should be written in plain language, clearly stating the specific reasons for the denial.

  2. Where the Deciding Official has denied a specific requested accommodation, but offered an alternative accommodation in its place which was not agreed to during the interactive process, Part IV of the Reasonable Accommodation Request, Form 13661 should explain both the reasons for the denial of the specific requested accommodation and the reasons that the Deciding Official believes the chosen accommodation will be effective.

  3. The written decision must include specific reasons for the denial of a reasonable accommodation. Explanation(s) may include the following:

    1. Requestor does not meet the definition of an individual with a disability, as defined in §501 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA), as amended by the Americans with Disability Act Amendments Act (ADAAA) or the medical documentation is inadequate to establish the individual has a disability and/or needs a reasonable accommodation.

    2. The requested accommodation would not be effective.

    3. Providing the requested accommodation would result in undue hardship. Before reaching this determination, the Deciding Official must have explored whether other effective accommodations exist which would not impose undue hardship and therefore can be provided.

      Note:

      A determination of undue hardship means that the IRS finds that a specific accommodation would result in significant difficulty or expense, or would fundamentally alter the nature of the IRS operations. When evaluating budgetary or administrative concerns to determine if undue hardship exists, the IRS will follow the standards outlined in the "Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act." Undue hardship because of budgetary concerns must be assessed in relationship to the entire IRS budget and workforce, rather than in relationship to the parameters of the budget or workforce of an operating division or functional unit.

    4. The requested accommodation would require the removal of an essential function.

    5. The requested accommodation would require the lowering of a performance or production standard.

  4. The written decision denying a request for reasonable accommodation must also inform the individual that s/he has the right to file an EEO complaint and may have rights to pursue Merit Systems Protection Board (MSPB) and/or union grievance procedures. The notice must also explain the Agency’s procedures available for dispute resolution.

1.20.2.9  (06-24-2013)
Appeal Process

  1. An individual seeking reconsideration should appeal to the Deciding Official within fifteen (15) workdays of receiving the written denial to provide reasonable accommodation. The individual may present additional information in support of his/her request. Any request for reconsideration received after fifteen (15) workdays of the denial will be treated as a new request for a reasonable accommodation. This new request will not require the applicant to resubmit any documentation previously submitted in a prior request. Rather, this “new request” only affects the timeframes for processing in compliance with the negotiated procedures. The Deciding Official will respond to the appeal within five (5) workdays of the receipt of the appeal.

    1. The fifteen (15) workdays deadline will commence when the applicant for reasonable accommodation has received the denial of his or her request for reasonable accommodation.

    2. For purposes of this paragraph, the term "received" means when the employee is handed the denial decision in-person or when the employee signs for mail with return receipt requested.

  2. If the Deciding Official does not reverse the initial denial, the individual may initiate a second and final appeal within 15 workdays of receiving the Deciding Official’s denial of the request for reconsideration. The appeal shall be decided by the Business Operating Division (BOD) Commissioner or his/her executive-level designee. The BOD Commissioner or his/her executive-level designee must consult with the Executive Director, Equity, Diversity and Inclusion or his/her designee prior to rendering a final decision. A response to the final appeal will be issued to the individual within 15 workdays of receipt of the final appeal request.

  3. Individuals should follow up any oral reconsideration requests in writing. If the individual chooses not to submit a written reconsideration request, the request must be documented in writing and dated by the receiving official, the RAC, or other responsible individual.

  4. Pursuing this appeal process, including seeking reconsideration from the Deciding Official or filing a second and final appeal under this process, will toll the time limits for initiating claims under the Parties’ collective bargaining agreement. However, seeking reconsideration will not toll statutory time frames for filing an EEO complaint or Merit Systems Protection Board appeal.

  5. For an employee to invoke his or her right to appeal within the fifteen (15) workday timeframe, he or she must simply notify, orally or in writing, the point of contact of his or her decision to appeal. Within the fifteen (15) workday timeframe, the employee must only invoke his or her right to reconsideration; the employee does not have to prepare the content of the appeal within that time. The point of contact will be identified at the time of the denial decision.

1.20.2.10  (06-24-2013)
Information Tracking and Reporting

  1. The Executive Director, Equity, Diversity and Inclusion will annually evaluate the Agency’s reasonable accommodation program. An effective reasonable accommodation program is part of a model EEO program and results must be included in the IRS’ MD-715 report. The executive summary of the IRS’ MD-715 report should include a discussion of the following:

    1. accessibility of the reasonable accommodation policy to employees and applicants with or without a disability, e.g., posted on the Internet, Intranet, disseminated in employee handbooks, or available in alternative formats, such as Braille;

    2. the number of reasonable accommodation requests approved; of that, the number approved within the timeframes set out in the Agency’s procedures; and

    3. the number of reasonable accommodation requests denied.

1.20.2.11  (06-24-2013)
Relationship of Procedures to Statutory and Collective Bargaining Claims

  1. Executive Order 13164 does not create new rights for employees or applicants for employment; nor does it limit an individual's rights under the Rehabilitation Act of 1973. The policies and requirements described in these procedures are in addition to statutory and collective bargaining protections for persons with disabilities and the remedies they provide for the denial of requests for reasonable accommodation. Requirements governing the initiation of statutory and collective bargaining claims, including time frames for filing such claims, remain unchanged.

  2. An individual who chooses to pursue statutory or collective bargaining remedies for denial of reasonable accommodation must comply with the following:

    1. EEO Complaint - Contact an EEO counselor within 45 days from the date of receipt of the written notice of denial.

    2. Collective Bargaining Claim - File a grievance in accordance with the provisions of the controlling Collective Bargaining Agreement (under the IRS-NTEU National Agreement, Article 41, a grievance must be filed within 15 workdays of the denial); or

    3. Merit System Protection Board Appeal - Initiate an appeal within 30 days of an appealable adverse action as defined in 5 CFR §1201.154.

1.20.2.12  (06-24-2013)
Collective Bargaining Obligations

  1. As called for in the EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA) (which has also been applied to the Rehabilitation Act of 1973), prior to granting any reasonable accommodation that would violate any collective bargaining agreement between the IRS and NTEU (e.g., the IRS-NTEU National Agreement, mid-term agreements or LOUs, local agreements, etc.) the Service will notify NTEU at the appropriate level and seek to negotiate, in good faith, a variance to the agreement to allow the accommodation. The parties are encouraged to work cooperatively to reach such agreements, but only if they do not unduly burden the expectations or rights of other workers.

  2. The Service acknowledges that under the ADA 2008 Amendments Act (ADAAA) and Rehabilitation Act case law, accommodations that conflict with collectively bargained seniority systems are unreasonable, absent special circumstances.

  3. The Service will notify and bargain, to the extent required by law, with NTEU prior to implementing any reasonable accommodation that would require more than de minimus change in other bargaining unit employees’ conditions of employment.

  4. If granting a reasonable accommodation would conflict with a collectively bargained agreement, or would necessitate a change in other employees’ conditions of employment, and thus require negotiations, consistent with paragraph 3 above, the Service will consider such situations as presenting extenuating circumstances (as defined in the RA procedures) requiring a delay in implementation of the accommodation, and perhaps requiring the Service to take temporary measures.

  5. The Service will consider reasonable accommodations that do not conflict with collective bargaining agreements or require changes to other employees’ conditions of employment before proposing or approving reasonable accommodations that would cause such conflicts or changes.

Exhibit 1.20.2-1 
IRS Reasonable Accommodation Resources

Sign Language Interpreters
For guidance and references for requesting interpreter services by location please visit the iCAN website at http://irweb.irs.gov/AboutIRS/ican/reasonable/request/sign/21688.aspx.
Materials in Accessible Formats
The Alternative Media Center (AMC) publishes material in accessible formats for IRS employees and taxpayers with disabilities. This includes Braille, large print, CD-ROM, electronic Braille, tactile graphics, captioning services, etc. Electronically accessible media forums such as Intranet and Internet sites are available for access by customers with disabilities who utilize the AMC products. Currently, the AMC manages the productions, distribution and storage of materials through in-house ad contract facilities.

The following information is required when placing an order:
A. Document name and revision date (Example: F.1040 1/2001)
B. Format preferred (Example: Braille, large print, CD-ROM)
C. Date the order is required to be delivered to the customer
D. Contact name, number and e-mail address, if available

Requests for AMC services and products can be sent to http://amc.enterprise.irs.gov/
Adaptive Technology
The goal of the Information Resources Accessibility Program (IRAP) Office is to work closely with the employee with a disability and his/her manager to choose the adaptive technology that will best enable the performance of essential job duties. In addition to the purchase of adaptive computer equipment, IRAP offers services such as installation and integration; training on the use of the equipment; hardware maintenance; and software support.

IRAP associates work with managers and employees to:
A. Conduct needs assessments
B. Identify appropriate adaptive equipment solutions
C. Coordinate systems requirements with local IS support personnel
D. Provide ongoing technical support, etc.

In order to requests IRAP services, contact the servicing RAS office at http://irweb.irs.gov/AboutIRS/ican/reasonable/request/default.aspx
Ergonomic Equipment
For reasonable accommodation only, funding has been allocated to cover ergonomic chairs and workstation modifications. Managers should refer questions or concerns regarding ergonomic furniture as a reasonable accommodation to the Facilities Management point of contact identified in the AWSS Directory of Services, Document 11346 (9-2000).
Volunteer Assistors
OPM's Guide to Processing Personnel Actions (commonly referred as the GPPA), provides instructions for documenting service, performed without compensation, by an individual who does not receive a Federal appointment. GPPA states: "Volunteers do not receive Federal appointments, so their service is not reported to the Central Personnel Data File (CPDF). Agencies are responsible for determining how to document volunteer service (e.g., self-developed forms, letters, etc.). An SF-50 can not be used to document volunteer appointments; however, agencies must clearly inform volunteers of the nature of their appointment with respect to service credit for leave or other employee benefits." For guidance on recommended language to use for documenting volunteer service, go to Chapter 33 of OPM's GPPA: http://www.opm.gov/feddata/gppa/Gppa33.pdf
RA Decision Tool
The RA Decision Tool is a visual representation of Reasonable Accommodation (RA) which provides managers and employees with a high-level view of the RA process. The document format has conventional "webpage" functionality and there are tips for navigating through the document for users of JAWS. Process steps requiring managerial action contain links to information that will help in the decision making process and/or understanding legal requirements of reasonable accommodation.

Exhibit 1.20.2-2 
External Reasonable Accommodation Resources

ADA Disability and Business Technical Assistance Centers (DBTACs) -
1-800-949-4232 (Voice/TTY)

The DBTACs consist of 10 federally funded regional centers that provide information, training, and technical assistance on the ADA. Each center works with local business, disability, governmental, rehabilitation, and other professional networks to provide current ADA information and assistance, and places special emphasis on meeting the needs of small businesses. The DBTACs can make referrals to local sources of expertise in reasonable accommodations.
Equal Employment Opportunity Commission
EEOC Washington Field Office
1-800-669-4000 (Voice)
1-800-669–6820(TTY)

EEOC Publication Center
1-800-669-3362 (Voice)
1-800-800-3302 (TTY)
http://www.eeoc.gov

With its headquarters in Washington, D.C., and through the operations of 50 field offices nationwide, the EEOC coordinates all federal equal employment opportunity regulations, practices, and policies. The Commission interprets employment discrimination laws, monitors the federal sector employment discrimination program, provides funding and support to state and local Fair Employment Practices Agencies (FEPAs), and sponsors outreach and technical assistance programs.
Job Accommodation Network (JAN)
1-800-232-9675 (Voice/TTY)
http://janweb.icdi.wvu.edu/
A service of the President's Committee on Employment of People with Disabilities. JAN can provide information, free-of-charge, about many types of reasonable accommodations.
Office of Disability Employment Policy (ODEP) (Formerly the President’s Committee on Employment of People with Disabilities)
(202) 376-6200 (Voice)
(202) 376-6205 (TTY)
http://www.dol.gov/dol/odep/

The mission of ODEP is to bring a heightened and permanent long-term focus to the goal of increasing employment of persons with disabilities.
Registry of Interpreters for the Deaf
(301) 608-0050 (Voice/TT)
http://www.rid.org

The Registry offers information on locating and using interpreters and transliteration services.
RESNA Technical Assistance Project
(703) 524-6686 (Voice)
(703) 524-6639 (TT)
http://www.resna.org/

RESNA, the Rehabilitation Engineering and Assistive Technology Society of North America, can refer individuals to projects in all 50 states and the six territories offering technical assistance on technology-related services for individuals with disabilities.
State Vocational Rehabilitation (VR) Agencies
http://www.workworld.org/wwwebhelp/state_vocational_rehabilitation_vr_agencies.ht m

State Vocational Rehabilitation (VR) agencies furnish a wide variety of services to help people with disabilities return to work. These services are designed to provide the client with the training and other services that are needed to return to work, to enter a new line of work, or to enter the workforce for the first time. Participation in a VR program through your state VR agency can affect you in a number of ways.

More Internal Revenue Manual