POLICY AND PROCEDURE FOR PROCESSING REQUESTS FROM EMPLOYEES AND APPLICANTS FOR REASONABLE ACCOMMODATION INCLUDING REASSIGNMENT
It is the policy of the State of Maine to provide reasonable accommodations in a timely manner for any qualified individual with a disability who is an employee or applicant for employment in accordance with provisions of the Maine Human Rights Act, the Americans with Disabilities Act and the Rehabilitation Act of 1973. All state agencies will adhere to all applicable state and federal laws, regulations and guidelines with respect to providing reasonable accommodations to afford equal employment opportunity to any qualified individual with a disability.
1. Requests for accommodation may be directed to the supervisor/manager of that employee, the agency EEO Officer, or, in the case of a job-related injury, the Workers’ Compensation representative. This does not preclude a supervisor/manager from initiating the reasonable accommodation procedure in appropriate circumstances. All requests for accommodation must be documented and processed as expeditiously as possible and in all cases forwarded to the agency EEO Officer. No request shall be approved or denied prior to review by the agency EEO Officer or the State EEO Coordinator and a determination that the decision is consistent with both state and federal law and state policy.
2. The agency EEO Officer will work with the supervisor/manager to determine whether the request is reasonable within the framework of existing laws and regulations. The EEO officer may determine that it is necessary to request a statement from the applicant/employee’s treatment provider verifying the limitations/restrictions and necessity for the requested accommodations. If additional information is required, the applicant/employee will be contacted for a release of medical information. Any request for additional medical opinions will be made in accordance with applicable contractual agreements currently in force. No requests for medical information will be made without approval from the agency EEO Officer.
3. If the request is approved by the agency, the accommodation will be provided as promptly as possible. If denied, the employee may request that the decision be reviewed by the State EEO Coordinator in the Bureau of Human Resources.
4. If at any time during the process it is determined that an employee is unable to perform the essential functions of his/her position even with reasonable accommodation, s/he may be eligible for reassignment.
REASSIGNMENT OF EMPLOYEE AS A REASONABLE ACCOMMODATION
If reasonable accommodations cannot be made within the employee’s current position, state and federal laws require the employer to explore reassignment to a vacant position. Agencies must first explore equivalent positions and then demotion options for disabled employees who can no longer successfully perform their current jobs with or without reasonable accommodation.
The transfer or demotion of a disabled employee that is necessary to provide a reasonable accommodation for continued employment must be given priority over other means to fill available vacant positions, unless the reassignment would cause an undue hardship on the agency.
A position is available if it is currently vacant, approved to be filled, and there are no individuals with a contractual right to the position.
Demotion to a position in a lower pay grade is appropriate only if there are no accommodations that would enable the employee to remain in a position that is equivalent in terms of pay, status or other relevant factors, or if both the agency and the employee agree that demotion is the most appropriate accommodation.
There is no obligation to promote an employee as a reasonable accommodation under the ADA. The transfer/demotion provisions of this policy do not apply to applicants for employment but are applicable only to employees currently holding or having rights to positions in State government.
Employees Who are Injured on the Job
Whether an employee who is injured on the job is covered by this policy will depend on whether the employee meets the definition of qualified individual with a disability under state or federal law.
Disability – A condition that meets the definition of a physical or mental disability under the Maine Human Rights Act or that meets the definition of disability under the Americans with Disabilities Act or the Rehabilitation Act of 1973.
Qualified Individual with a Disability – Any disabled individual who can perform the essential functions of a position with or without reasonable accommodation.
Reasonable Accommodation – Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. It is unlawful not to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless it can be demonstrated that the accommodation would impose an undue hardship on the operation of the organization. Reasonable accommodations may take such forms as:
- Making a facility accessible to employees;
- Job restructuring, within job’s classification and compensation and without unreasonable impact on other workers;
- Some changes or flex in work hours or days;
- Providing interpretive services or assistive devices;
- Reassignment to a vacant position
Essential Job Functions – The fundamental job duties of the position. A job function may be considered an essential function if employees in the position must perform the function and: 1) the position exists to perform that function, or 2) the function is essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or 3) the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the function.
Undue Hardship – Significant difficulty or expense in, or resulting from, the provision of an accommodation. The determination of “undue hardship” takes into consideration anything that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature of the operation of the business.
Qualification Standards – The personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements that an individual must meet in order to be eligible for the position held.
Each agency must first attempt to make reasonable accommodations that will enable the employee to successfully perform the essential job functions of the current position. If such reasonable accommodation is not possible, or if both the employee and the agency agree that reassignment to another position within the agency is a more appropriate accommodation that accommodation in the current job, then the following provisions apply.
1. The agency must attempt to place the employee in an equivalent vacant position that the employee can perform, with or without reasonable accommodations, provided one is available within the agency. An equivalent position is a position with similar pay, status, promotional opportunities, and other conditions of employment but not necessarily in the same job classification or pay grade to which the employee is currently assigned. The agency may nominate such employee without testing, provided that the employee meets the established minimum qualifications for the classification.
2. An agency may demote an employee to a lower graded available position if: 1) there are not accommodations that would enable the employee to remain in the current position and there are no equivalent positions available for which the individual is qualified with or without reasonable accommodation, or 2) both the agency and the employee agree that demotion is the most appropriate accommodation. In the event that an employee demotes to another position, standard salary policies regarding demotions will apply. The agency may nominate such employee without testing, provided that the employee meets the established minimum qualifications for the classification.
3. If demotion is being considered as a reasonable accommodation for a disability, or if no accommodation is available within the agency, the agency must inform the employee of his/her right to access existing vacancies in other agencies. If the employee selects this option, the agency must refer the employee to the Bureau of Human Resources where the employee will be assisted in identifying equivalent position vacancies in state government for which they qualify as defined in paragraph 1 above. If no equivalent positions exist, demotion opportunities will be considered in accordance with paragraph 2 above.
Agencies will be required to consider all such employees immediately after any individuals with contractual rights to the position. No candidates other than these may be hired by an agency until disabled employees seeking transfer or demotion from other agencies as a reasonable accommodation have been considered. A disabled employee is qualified and must be hired if the employee is qualified to perform the essential functions of the position with or without reasonable accommodation.
The ADA requires the search of positions that are available at the time that it becomes evident that transfer must be explored as a reasonable accommodation. Recognizing that this search may take some time to complete, employees will be allowed to use accrued sick, vacation, and/or compensatory time to cover any time period that may elapse between the determination that the employee cannot continue to perform the duties of his/her present position and the time that the employee is reassigned or terminated in the event that reassignment cannot be made.
The potential for reassignment as a reasonable accommodation begins when a request for accommodation is made in accordance with established procedures, but may be considered only when no reasonable accommodation can be made in the employee’s current position.
1. Requests for consideration for reassignment can be initiated by the employee needing accommodation, the supervisor/manager, the EEO Officer or agency/State Workers Compensation staff. Requests can be made at any time. Agency EEO Officers must be notified of all requests for accommodation. The State EEO Coordinator is also available for technical assistance in the reasonable accommodation search/documentation process. All requests for accommodation and efforts to provide accommodation must be documented. It is recommended that medical documentation of the employee’s limitations and need for accommodation be required. Accommodations must be explored in the following order:
- Accommodation within the existing job
- Reassignment to an equivalent position
Full documentation must be provided concerning efforts to make reasonable accommodation in accordance with this policy, including reasons for bypassing reassignment to an equivalent position
2. If the employee is transferred or demoted, the agency must submit a statement that the action is taken in accordance with this policy to the Bureau of Human Resources when the transaction is entered on MFASIS. This statement will serve as authorization for the reassignment and will serve as notice to the Bureau that such an accommodation has been made.
3. Whenever a reasonable accommodation cannot be made within the employing agency, or whenever the only accommodation available within the agency is demotion, the employee must be informed of his/her right to access existing vacancies in other agencies and referred to the Bureau of Human Resources.
4. The Bureau will review all such referrals and the agency’s accommodation documentation to ensure that more favorable accommodations cannot be made for the employee within the agency before considering placement to another agency.
Interpretive Guidance and Technical Assistance
A complete understanding of essential job function, reasonable accommodation and undue hardship is necessary to properly administer the provisions of this policy.
Additionally, agencies may need technical assistance when it is necessary to explore the need for reasonable accommodation that may or may not include reassignment. Technical assistance is available from the following:
State EEO Coordinator, Office of Employee Relations – 287-4651
Legal Counsel, Office of Employee Relations - 287-4447
Revised 5/09 Revised 7/12