SECTION II: UNIFORM POLICY AND PROCEDURES FOR THE IMPLEMENTATION OF REASONABLE ACCOMMODATION IN NEW YORK STATE AGENCIES

 

1.

Policy Statement
 

Each agency must have a policy statement. The following is a draft policy statement which may be adopted and amended, as needed:

The (agency name) is committed to assuring equal employment opportunity and equal access to services, programs and activities for persons with disabilities. It is the policy of (agency name) to provide reasonable accommodation to a qualified person with a disability to enable such person to perform the essential functions of the State government position for which he or she is applying or in which he or she is employed. This policy is based on the New York State Human Rights Law, Sections 503/504 of the Federal Rehabilitation Act of 1973, as amended, the Americans with Disabilities Act (ADA), Executive Order 6, and Executive Chamber Memorandum, entitled Equal Access to State Agency Employment, Programs and Services for Individuals with Disabilities, issued in 1996, as well as Executive Chamber Memorandum Technology Policy 96-13--Accessibility to Technology, issued November 1996 and Technology Policy 99-3: Universal Accessibility for New York State Web Sites, issued September 1999.

The policy applies to all employment practices and actions. It includes, but is not limited to, recruitment, the job application process, examination and testing, hiring, training, disciplinary actions, rates of pay or other compensation, advancement, classification, transfer and reassignment, and promotions.

The provision of reasonable accommodation assists the agency, as an employer, to:

  • overcome otherwise exclusionary employment practices, policies and consequences;
  • provide equal opportunities for participation in education and training programs;
  • enhance the retention and upward mobility of qualified employees with disabilities; and
  • ensure the accessibility of procedures for swift and judicious resolution of complaints with this policy and other already existing policies and procedures.
     
2. Confidentiality
 

The agency must protect and maintain the privacy and confidentiality of medical information provided by, or on behalf of employees and applicants with disabilities. State and federal legislation mandates very strict limitations on the use of any medical information obtained through the reasonable accommodation process. These limitations also apply to information obtained from medical examinations or inquiries of employees or applicants.

All medical information must be treated as confidential medical records. Agencies must take steps to guarantee the security of the employee's medical information, including keeping the information in files in a secure location separate from personnel files and designating a specific person or persons to have access to the medical file. The only exception is that supervisors and managers may be informed about necessary restrictions on the work or duties of the employee and necessary accommodations. First aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment, or if any specific procedures are needed in case of fire or other evacuations.

On all written forms, a statement should be added informing agency personnel that all medical information pertaining to reasonable accommodation must be kept confidential.
 
3.

Medical Documentation
 

If an employee requests an accommodation and the need for an accommodation is not obvious, or if an agency does not believe that an accommodation is needed, the agency may request documentation or require a medical examination to identify the individual's functional limitations to support the request. A reasonable accommodation must take into consideration the specific abilities and functional limitations of a particular applicant or employee with a disability and the specific functional requirements of a particular job. Therefore, the focus should be on identifying the abilities and limitations of an individual, and not on the diagnosis and prognosis of a physical or mental condition.

The following procedures, which have been approved by the Office of Advocate for Persons with Disabilities and the Department of Civil Service, should be used to verify an employee's need for a requested accommodation.

  • When the need for an accommodation is not obvious, before providing a reasonable accommodation agencies, may require that the employee, with the disability, provide documentation of the need for an accommodation. The documentation should identify the specific functional limitations imposed by the physical or mental disability and the precise job limitations imposed by the disability. This helps the agency determine if the individual is entitled to an accommodation.
  • Employees have the right to supply the documentation from a physician or other medical professional, psychologist, social worker, rehabilitation counselor, occupational or physical therapist, independent living specialist or other professional with knowledge of the employee's disability.
  • Agencies may apply their own criteria to the documentation submitted to determine adequacy and veracity, provided the criteria are clearly established and applied consistently.
  • If the agency determines that the medical documentation is inadequate to support the request or has reason to doubt its veracity, the agency should tell the individual why the documentation is unacceptable and provide the employee with an opportunity to submit additional documentation supporting the request.
  • When an agency finds that based on its criteria, the need for an accommodation is not clearly established, the agency may require the employee to submit to a medical examination by the Employee Health Service of the Department of Civil Service or an appropriate medical professional designated by the agency.
  • If the employee fails to submit documentation meeting agency criteria or refuses to submit to a medical examination required by the agency, the agency may deny the requested accommodation.
  • Any medical documentation submitted may be used only to evaluate the employee's request for accommodation. An agency may not use documentation obtained during this process or the refusal to submit to the medical examination, as a basis for taking any adverse personnel action.

The key issue in all cases is the degree to which medical documentation supports the need for the requested accommodation.

An agency may seek technical assistance from a medical professional, state or local rehabilitation agencies or disability constituent organizations in determining how to accommodate a particular individual in a specific situation. Decisions defining what is and what is not reasonable accommodation, is made by the agency.
 

4.

Definitions
 

The following definitions are based on the New York State Human Rights Law. Unlike both the Americans with Disabilities Act and the Rehabilitation Act of 1973, the New York State Human Rights Law protects all individuals with physical, mental or medical impairments that either impede normal bodily function or are demonstrable by medically accepted diagnostic technique. The protection of the federal statutes is limited to those impairments which substantially limit one or more major life activities. Therefore, State law coverage is broader, and the broader definition of disability should be applied when making a determination as to whether an individual is a person with a disability.

Person with a Disability: A person who has "a physical, mental or medical impairment," who, upon provision of reasonable accommodation if needed, is able to perform in a reasonable manner, the activities involved in the job or occupation sought or held.

Individuals with a disability also includes persons who have a record or history of impairment, even if they do not currently have an impairment. These individuals are protected from bias, but only current impairments need to be reasonably accommodated.

Persons who have a condition regarded by others as an impairment, or who are incorrectly perceived as having an impairment, are also protected from discrimination. However, only actual impairments need to be reasonably accommodated.

While the law also protects from bias those individuals who do not themselves have a disability, but who are discriminated against on the basis of their association with an individual with a disability, only the employee's or applicant's disability must be accommodated. The provisions for reasonable accommodation do not extend to anyone other than the employee with a disability.

Physical, Mental or Medical Impairment: Any impairment "resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques."

Reasonable performance: The Human Rights Law protects from discrimination those who can reasonably perform the job, with reasonable accommodation, if needed, despite the person's impairment. Reasonable performance is not perfect performance or performance unaffected by the disability, but reasonable job performance reasonably meeting the employer's needs to achieve its business goals. Ability to reasonably perform the "activities involved in the job or occupation" means the ability, with or without accommodation, to satisfactorily perform the essential functions of the job or occupation. Satisfactory performance means minimum acceptable performance of the essential functions of the job as established by the employer. The employer's judgment as to what is minimum acceptable performance will prevail, so long as standards for performance are applied equally to all employees in the same position. Such standards for satisfactory performance may include minimum productivity standards or quotas.

Essential job functions: Essential functions are those fundamental to the position; a function is essential if not performing that function would fundamentally change the job or occupation for which the position exists. What is an essential function is a factual question to be resolved by all relevant evidence. Factors indicating essential functions would include, but would not be limited to:

  • the employer's judgment as to which functions are essential, particularly where so indicated in a pre-existing written job description;
  • how often the function is actually performed by other employees in the position;
  • how many other employees are available to whom the function could be reallocated by job restructuring;
  • the direct and specific consequences to the employer's business if the function is not performed by the particular disabled individual;
  • the terms of a collective bargaining agreement.

Qualified Person with a Disability: A person with a disability who, as defined above, can reasonably perform the activities involved in (i.e., the essential functions of) the job, and who satisfies the requisite skill, experience, education and other job-related requirements of the position which the individual holds or desires.

Reasonable Accommodation: The New York State Human Rights Law, the Rehabilitation Act of 1973, and the Americans With Disabilities Act require that certain employers provide reasonable accommodation to the known physical or mental limitations of otherwise qualified applicants or employees with disabilities, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. Reasonable accommodation refers to the modifications or adjustments to a job application process which enables a qualified individual with a disability to be considered for the position sought and to modifications or adjustments to the work environment or the manner or circumstances under which a job is performed which permit an employee to perform their job in a reasonable manner. An accommodation is reasonable if it removes or mitigates the barriers to performance caused by the individual's impairment, and does not cause undue hardship to the employer.

Reasonable accommodations may include, but are not limited to: making facilities more readily accessible to individuals with disabilities; acquisition or modification of equipment; job restructuring; modified work schedules; adjustments to work schedule for treatment or recovery; reassignment to an available, vacant position for which the employee is qualified; adjustment of examinations, training materials or policies; providing readers or interpreters or providing high or low assistive technology, such as voice recognition software. Generally, the provisions of personal items or provisions for personal care needs, such as hearing aides or wheelchairs, are not the responsibility of the employer. However, personal attendants, when provided by the employee, should be permitted.

Reasonable accommodation seeks to facilitate the individual's reasonable performance of essential job functions. Reasonable accommodation therefore does not require the permanent reassignment of essential job functions.

Reasonable accommodation must be considered in all employment decisions. The employer may not deny any employment opportunity to a qualified employee or applicant with a disability, thus attempting to avoid the need to make a reasonable accommodation, unless the accommodation would impose an undue hardship. This protects the disabled individual's right to equal job opportunity.

The accommodation process should not be adversarial in nature. To the contrary, the spirit of the Human Rights Law as well as the Rehabilitation Act of 1973, and the Americans with Disabilities Act, encourages a dialogue between the employee and the employer and/or the unions. It should also be noted that agencies generally are required to complete the reasonable accommodation process prior to initiating or proceeding with any action pursuant to Section 72 of the Civil Service Law.

Undue Hardship: Accommodations that pose an "undue hardship" on the employer will not be required. "Undue hardship" means significant difficulty or expense to the employer. In determining whether an accommodation would result in undue hardship, any relevant factor may be considered. Relevant factors can include, but are not necessarily limited to, those set forth in the Human Rights Law, at §296.3(b):

  • The overall size of the business, program or enterprise with respect to the number of employees, number and type of facilities, and size of budget;
  • The type of operation which the business, program or enterprise is engaged in, including the composition and structure of the work force; and
  • The nature and cost of the accommodation needed, including consideration of any money available from other sources to assist the employer in paying the cost.

In determining whether a reasonable accommodation would pose an undue hardship, the terms of a collective bargaining agreement should be given substantial consideration, particularly to the extent that they establish the rights of other workers which might be affected by the proposed accommodation. Nevertheless, labor organizations are also required to reasonably accommodate the disabilities of a member, pursuant to Human Rights Law §296.3. In the interest of achieving this balancing of interests, where collectively bargained interests of other employees are involved, the employer is advised to consult with the union and try to work out an acceptable accommodation. However, it should be noted that the employer must obtain the consent of employees, prior to sharing confidential information with unions regarding employees' disabilities.
 

5.

Who May Request an Accommodation?
 

Employees or applicants with disabilities may request reasonable accommodation, regardless of title, salary grade, bargaining unit, employment status (permanent, contingent, temporary or provisional) or jurisdictional classification (exempt, non-competitive, competitive or labor class).

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

  • a job applicant may request an accommodation for a civil service examination and/or an interview;
  • a new employee identifying himself/herself as having a disability may request an accommodation to perform the job;
  • an employee returning to work after experiencing an illness or injury may request an accommodation;
  • a current employee with a disability whose medical condition has changed may request an accommodation for the first time or a change in accommodation; or
  • any employee with a disability may request an accommodation at any time.
     
6. Employee Access to Information on Reasonable Accommodation
 

Every agency should post notices on bulletin boards in an accessible format for employees describing the applicable provisions of the Human Rights Law, Sections 503/504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act, and the three previously described Executive Chamber Memoranda, (see Appendix A and C). Also every agency should periodically provide a summary of the agency's reasonable accommodation procedures to each employee through the division or program directors and/or with employee paychecks.

Information on reasonable accommodation should be included in the agency's employee handbook, newsletters, affirmative action training programs and employee orientation sessions. Specific information on both the agency and external review processes (Compliance Review Board) and the internal discrimination complaint procedure should also be made available to agency employees.

Information should be disseminated on the employee's right to file a complaint under the Human Rights Law, Sections 503/504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act for alleged discriminatory acts.

The agency's policy on reasonable accommodation should be made available at interviews. Appointment letters should routinely include a statement about the agency's policy for providing reasonable accommodation and should also inform the employee or applicant of the procedures for requesting an accommodation.

The names and office phone numbers of key personnel involved in providing accommodation shall be posted and the listing maintained by the agency's designated responsible office for reasonable accommodation. This listing should also be made available to personnel offices and EAP coordinators. The list should include the name of the agency's designated responsible person for reasonable accommodation and contact persons in the New York State Office of Advocate for Persons with Disabilities and the New York State Department of Civil Service.
 
7.

Maintenance of Records and Data Collection
 

The agency's designated responsible office for reasonable accommodation is responsible for maintaining records regarding requests for accommodation. In addition to individual records, the following aggregate data is collected each fiscal year for both current employees and applicants with disabilities:

  • number of requests for accommodation
  • number of denials
  • types of accommodation provided
  • cost of each accommodation made
  • amount of time from date of request to granting or denial of accommodation
  • number of employees using external review process (Compliance Review Board)
  • total agency expenditures for accommodation
  • types of interventions used by agency to resolve accommodation
    questions
  • number of employees filing discrimination complaints
     
8.

Procedures for Requesting Reasonable Accommodation and Reviewing Requests
 

With one exception, the Compliance Review Board reviews requests of current State employees with disabilities. At the present time, the Board does not review reasonable accommodation requests for handicapped parking because the current system that is used to obtain handicapped parking may not be solely within the purview of the employing agency. Until such time as policy changes are implemented permitting the employing agency sole control over handicapped parking, the Board will decline to review requests of this nature.

a. Applicants

The agency must provide reasonable accommodation to applicants with disabilities who request such accommodation. Reasonable accommodation requests are received by personnel and/or the designated responsible office for reasonable accommodation. The Applicant Flow Procedure, as outlined on pages 11-17 of the Internal Agency Auditing and Reporting Systems (Model Affirmative Action Procedures) should be used to provide accommodations. This document was disseminated to affirmative action officers in State agencies and facilities by the Department of Civil Service in 1988.

If an applicant with a disability is hired by the agency, every attempt is made by the agency's designated responsible person for reasonable accommodation to have the requested accommodation in place prior to the first day of work.

If this is not possible, the new employee should consult with the agency's designated responsible person for reasonable accommodation.

The agency's designated resonsible person for reasonable accommodation maintains records regarding the number of accommodations requested and the outcome of reasonable accommodation requests.

b. Current Employees

Current employees request an accommodation through their first-line supervisor, or the agency's designated responsible person for reasonable accommodations. If an employee makes his or her request through the designated responsible office for reasonable accommodation, it will be sent directly to the supervisor for action. The supervisor either approves the request, or if the supervisor is unable to make a decision, he/she defers to the agency's designated responsible person for reasonable accommodation to resolve the issue.

It is important to note that most requests for accommodation can be approved at the supervisory level, particularly those of a minor nature. However, because determinations as to the type of accommodations need to be made on a case-by-case basis, or because an accommodation may be complex or may require agency expenditures, it may be appropriate for the supervisor to obtain the input of his or her supervisor, a higher-level manager or the agency's designated responsible person for reasonable accommodation.

Requests for reasonable accommodation may be made orally or in writing to the supervisor or the agency's designated responsible person for reasonable accommodation. However, the request should be reduced to writing on the application form "Request for Reasonable Accommodation." (Appendix D includes a sample application form.) These forms are printed by the agency and will be available in the designated responsible office for reasonable accommodation. Employees and other personnel are encouraged to make copies of the form for their records. At the end of the process, the original form is filed in the agency's designated responsible office for reasonable accommodation for record-keeping purposes.

In the following discussion, appropriate sections of this application form are used to illustrate the various steps in the process.

The supervisor receives the application form from the employee or the agency's designated responsible office for reasonable accommodation. The supervisor reviews the application, makes a determination, informs the employee of his/her decision via the form and then returns the form within one week to the designated responsible office for reasonable accommodation. (See Sections A and B of the sample application form below.)


REQUEST FOR REASONABLE ACCOMMODATION FORM

The application for reasonable accommodation may be made to the supervisor or the agency's designated responsible office for reasonable accommodation. All information received by agency personnel pertaining to your request is kept confidential. All medical information is maintained separately from personnel records.

Section A

(To be completed by applicant--orally, if necessary--and returned to supervisor or the designated responsible person for reasonable accommodation.)

The application asks for the reasonable accommodation applicant's name, title, salary grade, division or bureau, work location, and work telephone number.

The applicant is asked what reasonable accommodation he/she is requesting, and why it is necessary to have the accommodation.

The applicant is asked to sign and date his/her application. If the applicant is unable to sign his/her name, the ADA Coordinator or the applicant's supervisor (or whoever is assisting the applicant, to complete the form) can assist the applicant with his/her signature.

Section B
Supervisor's Response to Request for an Accommodation
(To be completed by supervisor and returned to the applicant.)

The applicant's supervisor indicates, in this section, either that the request has been approved, or that no decision has been made at this time and that the agency will continue to review the request. The agency's designated responsible person for reasonable accommodation contacts the applicant within one week of the supervisor's acknowledgement.

The supervisor signs and dates the application.

If the reasonable accommodation requested or proposed to be provided may have a direct impact on the terms of a collective bargaining agreement, the request for reasonable accommodation should be reviewed by the agency's designated responsible office for reasonable accommodation prior to a final determination.

(The applicant returns the original of this form to the supervisor as soon as possible. The supervisor forwards the application to the agency's designated responsible office for reasonable accommodation within one week.)


Explanatory notes:
If the supervisor approves the accommodation, the form is sent to the agency's designated responsible office for reasonable accommodation for filing. This insures accurate data for reporting purposes. If the supervisor is unable to make a decision, the agency's designated responsible person for reasonable accommodation should become involved in the process and conduct a comprehensive agency review.

If the accommodation is not approved at the supervisor level, the agency's designated responsible person for reasonable accommodation contacts the employee within one week. In most instances, additional information may be necessary in order to complete the assessment process, such as the specific functional limitations of the individual, medical documentation, and/or information regarding specific type or types of accommodations that might be effective. (Section C of the sample application below describes what additional information is needed, the agency review process and the anticipated date of the agency's decision.)

Section C
Notification of Need for Additional Information
(To be completed by the agency's designated responsible person for reasonable accommodation and returned to applicant.)

This section of the form is used to inform the applicant that additional information is needed before a decision on whether or not to approve the reasonable accommodation can be made. The applicant is informed that his/her supervisor has forwarded the reasonable accommodation application to the agency's designated responsible person for reasonable accommodation, who will continue to assess the request. Additional information may be needed by the agency's designated responsible person for reasonable accommodation to make an agency determination. If so, he/she indicates if medical documentation or other information is needed.

If additional medical documentation is needed, the applicant is asked to inform his/her doctor of the pending application for an accommodation, and have the doctor send medical documentation, indicating the limitations that the applicant's disability would place on job performance, to the agency's designated responsible office for reasonable accommodation. A date by which the information should be sent is noted on the form.

If no other additional information is needed, the agency review process includes an evaluation of all relevant information, which may include an interview with the applicant and/or the applicant's supervisor. After completion of the review, the applicant is informed in writing by the agency head regarding the agency's decision. The agency's designated responsible person for reasonable accommodation indicates a date by which the decision will be made.

The agency's designated responsible person for reasonable accommodation indicates a telephone number where he/she can be reached if the applicant has any questions. The agency's designated responsible person for reasonable accommodation signs and dates the form.

(The applicant returns the original of this form to the agency's designated responsible office for reasonable accommodation within one week.)


Explanatory notes:
The agency review process includes an assessment of all relevant documentation by the agency's designated responsible person for reasonable accommodation. This may include asking for medical and other documentation, meeting with the employee and/or supervisor, arranging for a job analysis, consultation with relevant State agencies or community-based organizations providing services to persons with disabilities. Sometimes it may be necessary to discuss with the treating professional, the limitations imposed on the individual by virtue of their impairment. It should be noted that medical information should be requested when necessary and appropriate. However, written authorization must be obtained from the employee prior to any third parties discussions. The reasonable accommodation process should not be adversarial. The requirements and spirit of the applicable laws require an ongoing dialogue between the employee and the employer and/or the unions, if applicable. Again, it should be noted that the employer must obtain the consent of the employee prior to sharing any confidential information with unions regarding the employee's disability.

When appropriate to the review, it should also include input from the agency's fiscal officer, human resource manager and/or counsel. The agency's designated responsible person for reasonable accommodation may find it useful to establish a standing committee comprised of the aforementioned people as a vehicle for obtaining this input. All available resources should be used to resolve the issue, including consultation with the Reasonable Accommodations Unit--New York State Department of Civil Service and the New York State Office of Advocate for Persons with Disabilities. The agency review process should be completed within three weeks.

The agency's designated responsible person for reasonable accommodation is to determine whether or not there is an accommodation that would enable the individual to perform the essential functions of his/her job in a reasonable manner, or to enjoy equal benefits and privileges of employment. In making this determination, it is essential that the agency's designated person responsible for reasonable accommodation initiates dialogue with the individual regarding what type of accommodation may be effective.

When this step has been completed, the agency has to determine whether or not granting the accommodation(s) requested would cause undue hardship. In making this determination, some factors to be considered include:

  • the nature and net cost of the accommodation;
  • the financial resources of the agency making the accommodation;
  • the size of the agency and number of employees;
  • the overall financial resources of the State;
  • the type and location of facilities of the covered entity;
  • the effect of the accommodation on other employees;
  • the impact of the accommodation on the operation of the facility or agency that is making the accommodation; and
  • the terms of a collective bargaining agreement.

If more than one alternative is identified as an effective accommodation, the agency may choose the accommodation that best meets its needs.

Agencies are also advised to keep in mind that determinations of reasonable accommodation requests made by a facility of an agency constitute a determination by the agency.

Example: A worker, who has a deteriorated disc condition and cannot perform the heavy labor functions of a machinist job, requests reassignment to a vacant clerk's job as a reasonable accommodation. If the collective bargaining agreement has specific seniority lists and requirements governing each craft, it might be an undue hardship to reassign this person if others had seniority for the clerk's job. However, since both the employer and the union are covered by the requirements of the Human Rights Law and the Americans with Disabilities Act, including the duty to provide a reasonable accommodation, the employer, with the employee's consent, should attempt to consult with the union and try to work out an acceptable accommodation.

Example: If an employee with a disability requested that the thermostat in the workplace be raised to a certain level to accommodate his/her disability, and this level would make it uncomfortably hot for other employees or customers, the employer would not have to provide this accommodation. However, if there were an alternative accommodation that would not be an undue hardship, such as providing a space heater or placing the employee in a room with a separate thermostat, the employer may have to provide that accommodation.

If, based on a review of the additional information, the agency's designated responsible person for reasonable accommodation recommends that the accommodation be made by the agency, he/she consults with the supervisor. If both agree that the accommodation is reasonable, the agency's designated responsible person for reasonable accommodation informs the employee within one week after the completion of the review. A letter from the agency head confirming the decision will also be sent to the employee within one week. (For an example of what may be asked on the application, see the description of Section D of the sample application below.)

Section D
Notification that Agency will provide Reasonable Accommodation
(To be completed by agency's designated responsible person for
reasonable accommodation and returned to applicant.)

This section of the form is used to inform the applicant that based on the additional information provided, and with the approval of the applicant's supervisor, the agency is able to provide the applicant with the accommodation he/she requested.

The applicant is instructed to discuss this accommodation with his/her supervisor. If the applicant has any questions, he/she calls the agency's designated responsible person for reasonable accommodation at the specified telephone number.

A letter from the agency head confirming this decision is sent to the applicant within the next week. The agency's designated responsible person for reasonable accommodation signs and dates this section of the form.

(The applicant returns the original of this form to the agency's designated responsible office for reasonable accommodation within one week.)

Explanatory notes:
The agency's designated responsible person for reasonable accommodation should provide this completed form (Section D) to the applicant within three weeks after receipt of any additional information requested in Section C.

If, based on a review of all relevant documentation, the agency's designated responsible person for reasonable accommodation makes a recommendation to deny the request, he/she consults with the supervisor and then informs the employee of the agency's decision. This is done within one week after completing the agency review. The agency head also sends a letter to the employee confirming the decision within one week.

If the request for an accommodation is denied, a reason for the denial must be given to the employee. The employee is also given information on additional alternatives which include the filing of a discrimination complaint if the employee feels that the agency's denial of the accommodation was unlawful. At this point, the employee has several options:

  • the employee may elect to accept the agency's decision and end the process;


-or-

  • the employee may elect to use the external review process and ask the Compliance Review Board for a review of the request. (This process will be discussed in Part 9, Section II.);

-or-

  • the employee may elect to file an internal discrimination complaint under the agency's model affirmative action plan.
  • If the employee elects to file an internal discrimination complaint at this time, he/she may not use the external review process, that is, ask the Compliance Review Board for a review of the denial. If the employee chooses to use the external review process, he/she may file an internal discrimination complaint after the external review process (Compliance Review Board) has been completed. The employee may choose to do this if the agency continues to deny the accommodation and the employee feels that the denial was unlawful.

The employee may also have additional alternatives. These include but may not be limited to:

  • filing a complaint under the Human Rights Law (New York Executive Law Section 296) with the New York State Division of Human Rights;
  • filing a complaint with any compliance agency designated under Sections 503/504 of the Rehabilitation Act of 1973;
  • filing a complaint under the Americans with Disabilities Act (ADA) with the EEOC; and/or
  • initiating a private right of action to challenge an alleged discriminatory practice.

These alternatives may be initiated after the first denial by the agency of the accommodation request. However, the employee should consult with the appropriate antidiscrimination agency regarding the time limitations for initiating an action. Although these time limitations vary, the time for filing a complaint pursuant to all the alternatives begins to run at the time of the agency's first denial of the accommodation request. The employee may simultaneously avail himself or herself of the external review process.

Section E
Notification of Denial of Request for Accommodation
(To be completed by the agency's designated responsible person for
reasonable accommodation and returned to the applicant.)

This section of the application is used to inform the applicant that based on the information provided, the agency is unable to approve his/her request for an accommodation and the reasons for the denial.

The applicant is told that a letter from the agency head confirming the decision will be sent to him/her within the next week.

The applicant now has several options:

  1. The applicant may choose to accept this decision and end the process. OR
  2. The applicant may choose to use the external review process and ask the Compliance Review Board for a review. (The Compliance Review Board is an advisory body consisting of the President of the Civil Service Commission, who serves as Chairperson of the Committee, the State Advocate for Persons with Disabilities, and the Director of the Governor's Office of Employee Relations.) After review of the applicant's request, the Board will notify this agency of its recommendation. They will either concur with the decision or ask the agency to reconsider the decision. The final determination, however, will be made by the agency head. The external review process takes approximately twelve weeks after the applicant's request is sent to the Department of Civil Service. Within two weeks after the Compliance Review Board renders its opinion, the agency head will inform the applicant in writing of his/her final determination and send the applicant a copy of the Board's recommendation. If the agency continues to deny the applicant's request after the external review process has been completed, the applicant may then file an internal discrimination complaint under our agency's model affirmative action plan, if he/she feels that the denial was unlawful. OR
  3. The applicant may choose to file an internal discrimination complaint at this time if he/she feels that the agency's denial is unlawful. If the applicant chooses this option at this time, he/she cannot use the external review process.
  4. In addition to the options stated above, other alternatives may also be available. These include, but are not limited to filing a complaint with any compliance agency designated under the Americans with Disabilities Act; Sections 503/504 of the Rehabilitation Act of 1973; filing a complaint under the New York State Human Rights Law; and/or initiating a private right of action to challenge an alleged discriminatory act. The applicant may initiate these alternatives after the first denial by the agency of the applicant's request for an accommodation. However, the applicant should consult with the appropriate antidiscrimination agency as to the time limitations for initiating such an action. Note that although these time limitations vary, the time for filing a complaint pursuant to all the alternatives begins to run when the agency first denies the applicant's request for an accommodation. For further information on these options, call the Office of Advocate for Persons with Disabilities at (800) 522-4369 (voice, TTY and Spanish) or (518) 473-4609 (voice).

Section F
Authorization for External Review by Compliance Review Board

If the applicant wishes to use the external review process, he/she completes this section of the application and returns it to the agency's designated responsible office within one week.

In this section of the application, the applicant authorizes the agency to release all information pertaining to his/her request for an accommodation to the Department of Civil Service. The applicant is asked to sign and date the statement. If the applicant is unable to sign his/her name, the ADA Coordinator or the applicant's supervisor (or whoever is assisting the applicant, to complete the form) can assist the applicant with his/her signature.

(The agency's designated responsible person for reasonable accommodation returns the original of this form within one week to the Reasonable Accommodation Unit--New York State Department of Civil Service.)

All information received by the Department of Civil Service and the Compliance Review Board pertaining to the applicant's request for a reasonable accommodation is kept confidential and is used by them to assess the applicant's request for an accommodation.
 

9.

External Review Process--For Requesting a Review by the Compliance Review Board
 

After the employee has been notified by the agency's designated responsible person for reasonable accommodation and the agency head of their denial of the request for accommodation, the employee has the option of asking the Compliance Review Board for a review. This is the external review process and employees should be fully informed of their right to request such a review.

The only valid reason for the denial of an accommodation that would allow a qualified individual with a disability to perform the essential duties of the job, is if the agency can affirmatively show that the request constitutes an undue burden.

Copies of the following information are sent to the Reasonable Accommodations Unit in the Department of Civil Service:

  • copy of the original form, Request for Reasonable Accommodation;
  • specific job description and classification standard;
  • copies of any additional information requested by the agency's designated responsible person for reasonable accommodation;
  • all background information pertaining to the request for accommodation;
  • copies of the agency review process and a brief description of all interventions used by the agency's designated responsible person for reasonable accommodation to resolve the request;
  • if appropriate, a summary of the input given by the agency's fiscal officer, human resources manager and counsel; and
  • a comprehensive reason why the accommodation was denied and agency's rationale for making the denial.

Based on the comprehensive information received from the agency, staff from the Civil Service Reasonable Accommodations Unit analyzes and summarizes the information and makes a recommendation for the Compliance Review Board's consideration.

The three-member Compliance Review Board currently includes the President of the Civil Service Commission, who serves as Chairperson, the State Advocate for Persons with Disabilities and the Director of the Governor's Office of Employee Relations. The Board is an advisory body and after reviewing the request, it will send a letter to the agency head either concurring with the agency's decision to deny the request, or asking the agency to reconsider the decision. However, the final agency determination rests with the agency head. The external review process is completed in approximately 12 weeks.

To bring the external review process to closure, the agency head informs the employee in writing of his/her final decision and also sends a copy of the Compliance Review Board's letter which contains its determination. This should be accomplished within two weeks after the agency head receives notification from the Compliance Review Board.

Appendix E includes the timeline for the reasonable accommodation request process in State agencies. Appendix F includes the timeline for the process which is used to review the denial of reasonable accommodation by the Compliance Review Board. Appendix G describes additional resources.
 



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