Oct 28, 2015

OFCCP’s New Pocket Card (Over) Simplifies Reasonable Accommodations

The Office of Federal Contract Compliance Programs (“OFCCP”) recently created a pocket card called “Requesting a Reasonable Accommodation” to advise applicants and employees of federal contractors how to request a disability accommodation.  The eight-sided, foldable, driver’s license-sized pocket card is intended to help applicants, employees, and other interested parties understand the process for requesting a reasonable accommodation.  However, the pocket card’s simplistic information may cause more questions than answers.

The OFCCP, an office of the U.S. Department of Labor, enforces disability discrimination pursuant to Section 503 of the Rehabilitation Act of 1973.  Section 503 prohibits discrimination in employment by federal contractors and subcontractors against individual applicants and employees with disabilities.  In order to help individuals understand their rights under Section 503 and how to request a reasonable accommodation, the OFCCP’s new pocket card includes four basic questions about accommodations:  (1) What is a reasonable accommodation?  (2) How do I request a reasonable accommodation?  (3) What do I need to tell my employer?  and (4) What happens after the request is made?  Each question is followed by a short, basic answer.  For example, the response to question number two begins, “Typically, just ask.”

The pocket card’s simplistic language is intended to increase awareness regarding reasonable accommodations, and in many ways, provides helpful information.  For one, the pocket card explains that individuals may need to provide medical information to show they have a disability—a point of confusion for some due to privacy laws.  Additionally, the pocket card clarifies that accommodations may differ from employee to employee depending upon the nature of the disability, the type of job, and the accommodation’s impact on the employer.  The last page of the pocket card provides the OFCCP’s telephone number and web address to assist individuals with questions and concerns.

However, in aiming for high comprehension levels, the pocket card’s basic information quickly becomes overly simplistic in that it fails to address a number of important issues.  First, the pocket card refers to “disability” generally without providing a definition or examples, and includes examples of accommodations only relevant for individuals with physical disabilities, such as modifying equipment and providing interpreters.  However, most individuals are likely familiar with accommodations for physical disabilities and might be better served to know that individuals with psychological disabilities are also eligible for accommodation.  Second, the pocket card does not mention Section 503’s “interactive process” requirement.  Section 503 requires an employer to engage in an “interactive process” with an individual to craft an appropriate reasonable accommodation.  Without addressing this process, the pocket card may lead individuals to believe that the onus is on the employer to choose a suitable accommodation.  Lastly, the pocket cards are not widely distributed.  Pocket cards are only accessible on the OFCCP’s website or by contacting the OFCCP’s Help Desk.  As such, the pocket card’s useful information may never reach those who need it most.

In sum, the OFCCP’s new pocket card may increase understanding for some, but it will likely leave unanswered questions for others.  On the bright side, should individuals take the pocket card’s advice and “just ask” any unanswered questions, then the lines of communication between applicant, employee, and employer will be open, and that is the first step in requesting a reasonable accommodation.

If you have any questions regarding these issues, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.


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