EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

REHAB ACT: Reasonable Accommodation – Requests; Supporting Medical Documentation

March 16, 2010

David Walton
Office of Human Resources Management (06)
Department of Veterans Affairs
810 Vermont Avenue, N.W. Washington, D.C. 20420

Re: OMB Control No. 2900-NEW (VA Form 0857c and 0857e) Proposed Information Collection (Reasonable Accommodation)

Dear Mr. Walton:

The Equal Employment Opportunity Commission (Commission or EEOC) submits this letter in response to the Department of Veterans Affairs’ (VA) request for comments on the proposed collection of information to determine an applicant’s entitlement to receive reasonable accommodation during the application or interview process. See 75 Fed. Reg. 6792 (February 10, 2010). In order to avoid inconsistencies with the requirements of the Rehabilitation Act, we request that the VA make certain revisions to the proposed information collection.

Background

As you know, the EEOC enforces the federal law that prohibits discrimination on the basis of an individual’s disability in federal employment. See Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. Moreover, the EEOC is responsible for implementing Executive Order 13164 (Executive Order) which requires each federal agency to establish effective written procedures for processing requests for reasonable accommodation under the Rehabilitation Act. See 65 Fed. Reg. 46565 (July 26, 2000). On October 20, 2000, the EEOC issued a policy guidance to implement this Executive Order. The EEOC’s policy guidance provides background information on the obligation to provide reasonable accommodation under the standards of the Rehabilitation Act and then addresses each of the requirements of the Executive Order. See EEOC’s Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate the Provision of Reasonable Accommodation (Policy Guidance), October 20, 2000.¹

Form 0857c: Request for Reasonable Accommodation

Form 0857c is intended to be used by applicants and employees requesting reasonable accommodation.² The form states that its completion is voluntary, but then notes that “VA will be unable to process your accommodation request without a completed form.” The requirement that a written form be submitted before the agency will process a reasonable accommodation request conflicts with the Policy Guidance, which allows for the use of a written form for record-keeping purposes, but indicates that an individual’s oral request will start the reasonable accommodation process. See Policy Guidance, Question 2. Therefore, we request that the form be revised to note that an individual’s oral request for reasonable accommodation will start the reasonable accommodation process and that the subject form is needed solely for record-keeping purposes. The following language would suffice as a correction [strikeouts indicate language that should be deleted; italics indicate language that should be added]:

Although, completion of this form is voluntary, VA will be unable to process your accommodation request without a completed form. An applicant’s or employee’s oral request for reasonable accommodation is sufficient to begin the reasonable accommodation process. Individuals who have requested accommodation are asked to fill out this form for record-keeping purposes.

We also suggest that you undertake a review of the VA’s reasonable accommodation procedures to ensure that those procedures make clear that a request for reasonable accommodation may be made orally or in writing and that processing of such requests may not be postponed until receipt of a written request.³ You should confirm that all employees with responsibilities under your reasonable accommodation procedures are aware of this rule. Finally, we note that Form 0857c must be attached to the VA’s reasonable accommodation procedures and that if an individual with a disability requires assistance to complete it, the VA must provide that assistance. ⁴

Form 0857e: Authorization for Limited Release of Medical Information

Form 0857e is intended to be used by applicants and employees requesting reasonable accommodation to allow named agency officials to receive medical records and discuss the applicant’s/employee’s medical condition with listed health care providers. Like Form 8057c, Form 8057e states that its completion is voluntary, but then notes that “VA will be unable to process your accommodation request without a completed form.” This language conflicts with the requirements of the Rehabilitation Act because it implies that all individuals requesting reasonable accommodation must provide medical information in support of the request, regardless of circumstances.

The Rehabilitation Act permits employers to request medical information in support of a request for reasonable accommodation, but it does not allow for such requests in all circumstances, and it places strict limits on the type of information that may be requested. Specifically, an employer is entitled to know that an employee or applicant has a covered disability that requires a reasonable accommodation. Thus, when a disability and/or need for accommodation are not obvious, the VA may, if it chooses, require that the individual provide reasonable documentation about the disability and his/her functional limitations. Additionally, the VA may request supplemental documentation when the information already submitted is insufficient to document the disability and/or the functional limitations it causes. However, under the Rehabilitation Act, an agency may not request medical information where (a) both the disability and the need for reasonable accommodation are obvious; or (b) the individual has already provided the agency with sufficient information to document the existence of the disability and his/her functional limitations. See Policy Guidance, Question 16 and surrounding text.

In order to remedy this problem, we suggest that Form 0857e be revised as follows [strikeouts indicate language that should be deleted; italics indicate language that should be added]:

The Paperwork Reduction Act (PRA) of 1995 requires us to notify you that this information collection is in accordance with the clearance requirements of section 3507 of the PRA. We cannot sponsor or require you to respond to a collection of information unless it displays a valid OMB number. We anticipate that the time expended by all individuals who must complete this form will average 10 minutes this includes including the time it would take to read the instructions, gather necessary facts, and fill out the form.

Under the Rehabilitation Act, VA is permitted to request medical information in support of a request for reasonable accommodation where the disability and/or the need for reasonable accommodation are not obvious or otherwise already known (i.e., through information previously provided by the individual requesting accommodation). In these instances, VA may require reasonable documentation necessary to establish that the individual has a disability and needs accommodation. Based on these standards, we have determined that VA is permitted to request the following information in support of your request for reasonable accommodation. Although (delete comma) completion of this form is voluntary, VA will be unable to process your accommodation request without a completed form.

We also suggest that you undertake a review of VA’s reasonable accommodation procedures to ensure that those procedures clearly explain the Rehabilitation Act’s rules in regard to requesting medical documentation. You should confirm that all employees with responsibilities under your reasonable accommodation procedures are aware that they may not require completion of Form 8057e when an accommodation is requested by an applicant or employee whose disability and need for reasonable accommodation is obvious or otherwise already known.

For further information about the Rehabilitation Act’s rules on requesting medical documentation in support of a reasonable accommodation requests, please see EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (July 27, 2000) at questions 7 and 10 available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

We hope these comments will be helpful. Please feel free to contact Assistant Legal Counsel Carol Miaskoff at 202-663-4645, Kerry Leibig, Senior Attorney Advisor, at 202-663-4516, or Veta Hurst, Acting Branch Chief, Office of Federal Operations, Federal Sector Programs at 202-663-4498, if you have any questions about the changes we have requested.

Sincerely,

/s/

Peggy R. Mastroianni
Associate Legal Counsel

cc: Veta Hurst

Footnotes

¹ Available at http://www.eeoc.gov/policy/docs/accommodation_procedures.html#N_1_.

² Although the proposed information collection indicates that only applicants will be asked to fill out Form 0857c, the form itself states that it is to be completed by employees and applicants requesting reasonable accommodation. Although this inconsistency does not affect our comment, we note it for your information.

³ We note that the EEOC’s Office of Federal Operations (OFO) reviewed reasonable accommodation procedures submitted by the VA in July 2002 and made a number of suggestions for improving those procedures in an August 22, 2003 letter, which we have attached. From the information available on the VA’s website, it appears that OFO’s recommended changes to bring your procedures in compliance with Executive Order 13164 were not made. We suggest that you contact Veta Hurst, Acting Branch Chief, Office of Federal Operations, Federal Sector Programs at 202-663-4498 as soon as possible to discuss the necessary updates to your procedures.

⁴ We further suggest that the third sentence of the instruction paragraph be revised as follows: “We anticipate that the time expended by all individuals who complete this form will average 10 minutes, including the time it will take to read the instructions, gather the necessary facts, and fill out the form.”