Reasonable Accommodation Process

Source: D.C. Government’s Office of Disability Rights

Request Process – Employee Requests an Accommodation

Employees or applicants with disabilities may request reasonable accommodations of the employer, regardless of title, salary, grade, bargaining unit, employment status (permanent, temporary, provisional, emergency) or civil service status (regular, exempt). This request does not have to be in writing, be formal or use any special language. An individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”

Here are some examples from the Job Accommodation Network:

Example A: An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.” This is a request for a reasonable accommodation

Example B: An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This is a request for a reasonable accommodation.

Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for a reasonable accommodation.

Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

A request for accommodation also may be made by a family member, health professional, or other representative who is acting on the individual’s behalf with the individual’s consent.

The employee usually initiates the reasonable accommodation process by inquiring about the process from a supervisor, Human Resources representative, EEO Counselor, or the ADA Coordinator at the agency. If the supervisor is contacted first, the ADA Coordinator should be brought in early in the process.

If an employee with a known or obvious disability is having performance problems, a supervisor may suggest an accommodation, but only after making a preliminary determination that the performance problem is related to the employee’s disability. This is an exception to the general rule against inquiring about disabilities, and extends only to those with known or obvious disabilities.

The reasonable accommodation does not have to be requested at the beginning of employment. However, a reasonable accommodation request will not cancel out any prior disciplinary actions.

Interactive Process

The ADA requires that the employer engage in an interactive dialogue with the individual with a disability concerning reasonable accommodations. It is best to take a methodical approach in addressing requests for reasonable accommodation from employees.

Immediately upon receiving the reasonable accommodation request, the agency ADA Coordinator/EEO Counselor should schedule a meeting with the employee as soon as possible. The employee’s collective bargaining agent or other person(s) of his/her choosing may assist the employee during this meeting.

The agency’s ADA Coordinator should conduct an informal, interactive discussion with the employee. The discussion should include the following steps:

  1. A review of the agency’s detailed, written job description/vacancy announcement delineating the “essential functions” of the position from the “marginal functions.”
  2. A determination of how the employee’s impairment/disability limits his/her ability to perform the essential functions of his/her job in order to identify the employee as a qualified individual with a disability.
  3. An identification of potential accommodations and assessment of the effectiveness of such accommodations on the employee’s job performance.
  4. Identification of the type of accommodation needed. The Job Accommodation Network can be contacted for assistance in making this assessment at 1 (800) 232-9675 (Voice/TTY) or http://janweb.icdi.wvu.edu.
  5. Consideration of the preference of the employee; however, the agency has the right to select among the alternatives available, as long as they are effective.
  6. Selection and implementation of the effective reasonable accommodation by the agency as expeditiously as possible. Keep the dialogue open with the employee and discuss time lines for obtaining the accommodation and follow up with the employee on unexpected delays.

The agency may find it difficult to accommodate the disability because it is not well understood or because neither the employee nor the ADA Coordinator know what equipment, modification or accommodation will enable the employee to perform the essential functions of the job. The agency ADA Coordinator should consult the Office of Disability Rights (ODR) for additional reference material and service organizations that may help in identifying appropriate accommodations.

Medical Documentation and Confidentiality

If the disability is not obvious, and there is no other medical information already on record for the employee, the agency can require the employee to submit documentation from a physician or other medical professional concerning the existence and extent of the disability. Before consulting with the physician, it is necessary to obtain the individual’s written consent for the release of medical information to the agency.

The employee’s medical information must be maintained in a confidential file separate from the employee’s personnel file or other records and must not be revealed to anyone who does not need to know in order to provide the accommodation. In some instances, the employee’s supervisor does not need to know about the person’s disability or accommodations. In those situations, the information should not be shared with the supervisor.

Information about the employee’s disability or accommodations should not be revealed to co-workers, customers, or members of the public.

ADA Determination

After the initial meeting and review of medical documentation (if submitted by the employee’s healthcare professional), the agency will make a determination whether the employee is a qualified individual with a disability and develop a Reasonable Accommodation Plan for the employee.

Reasonable Accommodation Plan

The Reasonable Accommodation Plan will:

  1. State whether the employee is a “qualified individual with a disability” as defined by the ADA;
  2. Outline the employee’s essential job functions needing accommodation;
  3. Recommend types of accommodation; consideration will be given to the preference of the employee, however, the agency has the right to select among the alternatives available; and
  4. Determine whether any accommodation causes an undue hardship or poses a direct threat.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



Filing a Discrimination Claim – District of Columbia

Source: Workplace Fairness

 


1. What kinds of discrimination are against the law in Washington, D.C.?

The D.C. Human Rights Law prohibits discrimination on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation.

The D.C. Human Rights Law is also broader than federal law because you may prove your case by showing that your employer acted wholly or partially for discriminatory reasons, and because you can bring an individual claim against your supervisor for “aiding and abetting” discrimination.

2. How do I file a discrimination claim in Washington, D.C.?

You can file a discrimination claim with the district’s administrative agency, the D.C. Office of Human Rights (OHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

If your workplace has between 1 and 14 employees, you should file with the OHR since only the local anti-discrimination law covers DC employers of this size. Otherwise, some attorneys recommend that you file with the EEOC. Filing with the OHR is not required to pursue a discrimination claim directly in court under the D.C. Human Rights Law. If you do not have an attorney, you may wish to see whether the OHR can assist you in resolving your claim without filing in court. OHR complaints must be filed within one year of the date you believe you were discriminated against.

To file a claim with the OHR, consult its office below. More information about filing a claim with the OHR can be found at the OHR website.

Office of Human Rights
441 4th Street, NW
Suite 570 North
Washington, DC 20001
Phone: (202) 727-4559
Fax: (202) 727-9589

To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC How to File page.

EEOC’s Washington Field Office
131 M Street, NE
Forth Floor, Suite 4NWO2F
Washington, D.C. 20507
Phone: (800) 669-4000
TTY: (800) 669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the OHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. In order for these agencies to act on your behalf, you must file with the OHR (or cross-file with the EEOC) within one year or with the EEOC (or cross-file with OHR) within 300 days of the date you believe you were discriminated against. However, since you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. If you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the district and federal administrative agencies.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, they may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If the EEOC decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in Washington, D.C.?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit. You probably will be required as to sign a release of your legal claims to resolve your case. If your case is not resolved by the OHR or EEOC and you want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Exhaustion is not required to file a discrimination claim in court based on D.C. law.

Because D.C. law does not limit the damages recoverable for a discrimination claim, many D.C. attorneys choose to file employment discrimination cases in D.C. Superior Court. However, most cases may be brought in either D.C. or federal court.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” before you can file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or D.C. court within 90 days after the date you receive the notice. Be sure to mark down that date when you receive the notice. A lawsuit based on your D.C. discrimination claim must be filed within one year of the date you believe you were discriminated against.

These deadlines are called the “statute of limitations.” If you have received one of these EEOC notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, you may lose your ability to pursue a discrimination case in court.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



What Employees Need to Know About D.C.’s Medical Marijuana Laws.

As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users.  Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.

The Act states, “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”

The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

Act Number A23-0114 specifically protects District of Columbia government employees who are medical marijuana users, but it does not protect private sector employees or federal employees who are medical marijuana users.  Nationally, laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.

In the past, an employer could terminate an employee who tested positive for marijuana.  The Americans with Disability Act (ADA) does not protect medical marijuana users and declares marijuana an illegal substance.

However, the current trend, in some state and local courts, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition.  This is particularly the case in states and localities where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users.

Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users.  A private sector employer could terminate an employee who failed a drug test for marijuana, even if the employee is a medical marijuana user.  Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”)

However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether a District of Columbia court, applying local laws, could determine that private sector District of Columbia employees who are medical marijuana users have similar protection.

Bryan A. Chapman, Esquire

bchapman@baclaw.com

www.baclaw.com

202 508-1499