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GEN 1.2.(2). Disability Accommodation Policy and Procedures.

Provost’s Administrative Staff: Approved November 11, 2014

Faculty Senate: Approved December 9, 2014

Senate of Academic Staff: Approved December 11, 2014

University Staff Council: Approved January 14, 2015

Chancellor: Approved August 12, 2015

GEN 1.2.(2).  Disability Accommodation Policy and Procedures.

Statement of Purpose.

It is the policy of the University of Wisconsin Oshkosh to provide reasonable accommodations for qualified individuals with a disability who are employees or applicants for employment. The University of Wisconsin Oshkosh will adhere to all applicable federal and state laws, regulations, and guidelines with respect to providing reasonable accommodations which are required to afford equal employment opportunity to qualified individuals with a disability. Reasonable accommodations will be provided in a timely and cost-effective manner. Employment opportunities shall not be denied because of the need to make reasonable accommodations to an individual's disability. If you have questions regarding this policy, contact the University of Wisconsin Oshkosh Director of Equity and Affirmative Action.

(1)   Definitions.

(a)   "Individual with a disability." Note: Both state and federal laws provide definitions of "handicapped" individuals. Since these laws were written, "disabled individuals" or "individuals with a disability" has become the preferred term. For purposes of this policy the term "disability" is used with the understanding that it has the same meaning as "handicap" in state and federal law.

The Americans with Disabilities Act of 1990 in part states that all state agencies must comply with Title I of the ADA and as such prohibits employment discrimination against "qualified individuals with disabilities." A qualified individual with a disability is:

An individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.

The ADA definition of individual with a disability is very specific. A person with a "disability" is an individual who:

  1. has a physical or mental impairment that substantially limits one or more of his/her major life activities;
  2. has a record of such an impairment; or
  3. is regarded as having such an impairment.

The Wisconsin Fair Employment Act defines an individual with a disability as one who: a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; b) has a record of such an impairment; or c) is perceived as having such an impairment.

The determination of whether an impairment is a disability shall be determined on a case-by-case basis. The definition of “disability” shall be construed in favor of a broad coverage of conditions and should not require extensive analysis.

Regarded As Disabled is an individual who is regarded as being disabled whether, or not, a disability actually exists. The individual is protected from discrimination on the basis of the perceived disability, but does not have the right to receive a reasonable accommodation on the basis of such perceived disability.

Substantially limiting is defined as an impairment that significantly restricts the duration, manner, or condition under which an individual can perform a major life activity compared to an average person in the general population. The term should be construed broadly in favor of expansive coverage, and may be evaluated on an individualized basis considering the difficulty, time and effort required to perform activities. An impairment that is episodic or in remission but would substantially limit a major life activity when active is a disability. The determination of whether an impairment substantially limits a major life activity shall be made without the consideration of the positive effects of any mitigating measures, except for ordinary eyeglasses or contact lenses.

Major life activities include but are limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include major bodily functions including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(b)   "Qualified individual with a disability." An individual with a disability  whose experience, education and/or training enable the person, with reasonable accommodation, to perform the essential functions of the job. An individual who poses a direct threat to self or others is not qualified under the ADA or applicable state law. A direct threat is defined as any significant risk to the health or safety of the individual or others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.

(c)   "Reasonable accommodation" is defined as any modification or adjustment to a job, an employment practice, or the work environment that are necessary to provide equal employment opportunities to qualified job applicants and/or enable an employee to perform the essential functions and duties of his or her work. Institutions are not required to supply individuals with attendants, individually prescribed equipment or devices such as hearing aids or wheelchairs, readers for personal use or study, or other items or services of a personal nature.

Accommodations are not reasonable if they require the waiver or removal of an essential function or duty of an employee’s position or create an undue hardship.

An institution is obligated to provide a reasonable accommodation only for the known disabilities of an otherwise qualified individual.

d)    Undue Hardship is defined as "an action that requires 'significant difficulty or expense' in relation to the size of the employer, the resources available, and the nature of the operation." In general undue hardship includes any action that is: (1) unduly costly; (2) extensive; (3) substantial; (4) disruptive; or (5) that would fundamentally alter the nature or operation of the business.

(2)   Informing Individuals About Requesting Accommodations.

(a)   Applicants for Employment.

1. All applicants who are invited for interviews will be informed of the University policy to provide reasonable accommodation for applicants and employees with disabilities. They will be informed that they can request accommodation for interviews and be informed how to make the requests.

The following paragraph will be added if a letter is used as part of the interview scheduling process:

"It is the policy of the University of Wisconsin Oshkosh to provide reasonable accommodations for qualified persons with disabilities who are employees or applicants for employment. If you need assistance or accommodations to interview because of a disability, please call the Human Resources Office. Employment opportunities will not be denied to anyone because of the need to make reasonable accommodation to a person's disability."

If all interview arrangements are made by phone, this information will be given as part of the phone conversation.

2.  If applicants are asked questions regarding their ability to perform required job duties, all applicants should be asked the same questions. This question may be prefaced with a statement regarding the University's willingness to provide reasonable accommodations. Note: Applicants may not be asked whether or not they have a disability.

3.  If an applicant indicates during the interview process that he or she has a disability, follow-up questions regarding possible accommodations may be pursued.

4.  Qualified applicants cannot be denied employment solely on the basis of a need to provide a reasonable accommodation. However, if an applicant who receives a tentative job offer cannot reasonably be accommodated, the offer must be rescinded.

5.  Applicants who have received job offers will make accommodation requests using the Disability Accommodation Request Form (DER-DAA-10)

(b)   Employees.

1.  Employees will be told about their right to request reasonable accommodations: (1) during the orientation for all new employees; (2) at the time of the biennial survey to allow employees to self-identify as persons with disabilities; (3) in the UW Oshkosh Faculty and Academic Staff Handbook.

2.  It is the responsibility of the employee to notify his or her supervisor, or the Office of Equity and Affirmative Action (disability office) or Office of Human Resources in a timely manner that he or she is in need of an accommodation. Accommodations shall not be required to apply retroactively.

3.  In addition, if a supervisor becomes aware of a potential need for an accommodation because of a performance issue, the supervisor may meet with the employee to discuss whether or not an accommodation request might be appropriate.

4.  All requests for reasonable accommodations must be in writing using the Disability Accommodation Request Form (DER-DAA-10).

(3)   The Decision-Making Process.

(a)  The Process.

1.  An employee who wants to request an accommodation fills out the Disability Accommodation Request Form (DER-DAA-10) and gives it to his or her supervisor.

2.  The supervisor reviews the request and discusses it with the ADA Coordinator or designee. If the request is straightforward and does not involve significant issues or expenses, the ADA Coordinator or designee will approve the request.

3.  If the request involves issues that require additional information in order to make an informed decision, the ADA Coordinator or designee may do any or all of the following: (1) meet with the employee and the supervisor to get more information concerning the request; (2) consult with the supervisor and human resources specialist to determine the essential functions of the job; (3) consult with University budget and purchasing specialists, if applicable; (4) consult with the reasonable accommodation specialist in the State Division of Affirmative Action; and/or (5) with the employee's permission, consult with any medical or rehabilitation specialists who may be working with the individual.

4.  The goal of this process is to verify the nature of the impairment, identify possible accommodations, and assess the reasonableness and effectiveness of each. This determination is fact-specific, based on sufficient and relevant documentation, tailored to address the nature of the impairment and the needs of the individual within the context of the requirements of the academic program or course of study, service, activity or employment. It may require additional health-related documentation from the employee’s treating physician or a second opinion from a health-care provider. Disclosure of the individual’s personal information as part of this process should be limited to those with a legitimate need to know such information in order to properly address the disability.

5.  The University retains final authority in each case to determine whether any proposed accommodation is reasonable, effective, and appropriate. The employee will be informed of the University's decision regarding the accommodation request within 20 working days. If the 20-day limit cannot be met, the ADA Coordinator will meet with the employee to agree on a reasonable time limit. The employee will be informed of the decision regarding the accommodation request in writing, using the Disability Accommodation Request Form.

6.  Distribution of the request form is: (1) original to the employee; (2) Copy 1 to the employee personnel file; (3) Copy 2 to the agency AAO confidential file; (4) Copy 3 to the State Division of Affirmative Action. Note: The employee's name, signature and job title will be deleted from the copy that is sent to the Division of Affirmative Action.

(b)   Policies and Guidelines.

1.  Employees may be asked to provide verification of their disability. Factors to be considered when deciding whether or not to request verification includes the following. (1) Is the employee known to have a disability? (2) Does the applicant or employee have an observable disability? (3) Does the request expand on an existing accommodation or previously provided accommodation for which a verification was required? Example: an employee with a seizure disorder who needs a driver due to recurring seizures which had been under control. (4) Does the request appear inappropriate?

The verification must be provided by an appropriate health care professional who has direct knowledge of the individual’s health condition.

The employee must bear the initial cost of verification. (Note: This will usually be covered by health insurance.) If the University requests additional verification of the disability, or the disability's impact on job requirements, the University will bear the cost.

2.   The University of Wisconsin Oshkosh will provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship.

This obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person's disability or job changes.

The University of Wisconsin Oshkosh will not deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation, unless it would cause an undue hardship.

University of Wisconsin Oshkosh does not have to make an accommodation for an individual who is not otherwise qualified for a position.

It is the obligation of an individual with a disability to request a reasonable accommodation.

A qualified individual with a disability has the right to refuse an accommodation. However, if the individual cannot perform the essential functions of the job without the accommodation, s/he may not be qualified for the job.

If the cost of an accommodation would impose an undue hardship on the University of Wisconsin Oshkosh, the individual with a disability will be given the option of providing the accommodation or paying that portion of the cost which would constitute an undue hardship.

3.   Factors which should be considered when determining reasonableness include the following. (1) Are the job functions for which the accommodation is required essential to the overall performance of the job? (2) Is the applicant or employee otherwise qualified to perform the essential job functions? (3) Does the accommodation accomplish the desired result, i.e., allowing the individual to effectively perform the essential functions of the job? (4) Will the accommodation adversely affect the productivity or work environment of other employees in the work unit? (5) Is the cost of the accommodation feasible within the University's budget? If not, can approval be obtained from the Department of Administration (DOA) to use funds which are statutorily reserved for reasonable accommodation? (6) Are there other more cost-effective options which will allow the individual to perform the essential functions of the job?

The University of Wisconsin Oshkosh is not required to make a reasonable accommodation if it would impose an undue hardship on the operation.  Accordingly, whether a particular accommodation will impose an undue hardship, will be determined on a case-by-case basis.

4.   As a general rule, the University will purchase equipment only if it is determined that the use of the equipment is necessary in transaction of its official business. The equipment may not be of a personal nature (for example: eyeglasses, hearing aids, etc.) which the employee can reasonably be expected to provide. In determining whether the purchase of a device should be authorized, consideration will be given to how well the employee could perform the job without the equipment and whether the principal benefit will be better job performance by the employee.

5.   The employee or applicant will always be the primary person consulted with when determining the most appropriate accommodation.

Employees will be given an opportunity to provide, or arrange for, their own accommodations; for example, using volunteer drivers or readers, or providing their own adaptive equipment. However, the procedures in these policies and guidelines must be followed (written request, approval, etc.) even if employees provide or arrange for their own accommodations. This gives documentation of accommodations and ensures that the accommodations are not disruptive to the workplace.

6.   If an employee acquires a disability and the University is not able to make reasonable accommodations which will allow the individual to continue in his or her current position, the University will explore possibilities for placement in other positions within the University. The movement to another position may be a transfer, a demotion, or change to part-time employment, and must be made in accordance with applicable collective bargaining agreements, Chapter 230 of the state statutes, and Administrative Rules for Chapter 230.

While no legal responsibility exists for alternative placement outside the University, employees will be counseled regarding their rights to other positions in state employment through the University's Human Resources Office or the Office of Equity and Affirmative Action.

Note: Under the Federal Rehabilitation Act, accommodation is only required to permit an individual to perform his or her particular job.  The responsibility to look for alternative positions is clear in s. 230.37 (2), Stats.: "When an employee becomes physically or mentally incapable of or unfit for the efficient and effective performance of the duties of his [or her] position by reason in infirmities due to age, disabilities, or otherwise, the appointing authority shall either transfer the employee to a position which requires less arduous duties, if necessary demote the employee, place the employee on a part-time service basis and at a part-time rate of pay or, as a last resort, dismiss the employee from the service. The appointing authority may require the employee to submit a medical or physical examination to determine fitness to continue in service...."

7.   After accommodations are provided, the employee and his/her supervisor need to evaluate the effectiveness of the accommodation. The Office of Equity & Affirmative Action will also be involved in this process. If modifications to the accommodation are needed, they should be requested using the procedures outlined in this policy.

(c)   The Appeal Process.

1.   If a current employee disagrees with a decision regarding an accommodation request for employment, he/she has a right to appeal the decision using the following procedure. Applicants do not have access to this procedure. They have the option to follow the usual discrimination complaint procedure (Personnel Commission, EEOC, etc.)

2.   When an accommodation request is denied, an employee may, within 30 calendar days, appeal the decision to the Office of Equity & Affirmative Action. The appeal must be in writing, stating the reason for the disagreement. The Office of Equity & Affirmative Action will reevaluate the decision, considering any additional information from medical or vocational rehabilitation experts. The Office of Equity & Affirmative Action may consult with staff from outside agencies such as OSER/DAA, DHSS/DVR or DOA 504 coordinator in the appeal process--taking care to provide confidentiality for the employee. The Office of Equity & Affirmative Action then discusses all information regarding the appeal with the Chancellor. The Chancellor makes the final decision regarding the appeal. The employee receives the final decision regarding the appeal in writing within 30 calendar days after the appeal was filed.

(4)   Applicable laws and policies.

This policy shall be interpreted in accordance with the rights and protections of individuals under the Americans with Disabilities Act of 1990 (ADA), including changes made by the ADA Amendments of 2008, Section 504 of the Rehabilitation Act of 1973, The Wisconsin Fair Employment Act and other applicable state and federal laws that prohibit discrimination on the basis of a disability.

 

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