Subscribe to the official newsletter of the Civil Rights Directorate

Frequently Asked Questions

 

Alternative Dispute Resolution (ADR)

ADR provides for a qualified and neutral party to attempt to resolve an employment matter. For matters pertaining to complaints of discrimination, ADR can begin at any point during the pre-complaint or formal complaint stages. ADR can be particularly useful where communication has broken down or emotions are intense. Discussions during ADR sessions are confidential; and all written documentation obtained for the benefit of ADR will not be retained, or used as part of the official complaint’s record.

Civil Rights Directorate

Alternative Dispute Resolution: Frequently Asked Questions

Q: What is Alternative Dispute Resolution?

A: Alternative Dispute Resolution (ADR) is a process in which a facilitator/third party neutral assists parties in reaching a resolution through the use of various techniques.

Q: What is the purpose of ADR?

A: ADR provides an opportunity for the individuals in a dispute to discuss their issues with the assistance of a facilitator/third party neutral, and to explore mutually satisfactory ways to resolve the issues.

Q: What types of ADR processes are available at Coast Guard?

A: The following ADR processes may be used either individually, or in combination:

Facilitated Conversation allows the parties to meet together and to have uninterrupted time to speak about the issues. Ideally, the parties will clarify misunderstandings and work out problems in the work relationship.

Shuttle Diplomacy allows each party to propose an idea for settling the dispute to

 

a third party and to hear the other party’s proposal without meeting together.

Mediation - In mediation, the parties meet in-person, by telephone or video conference with a third party who gives each party uninterrupted time to speak

during a joint session and then has private meetings with each party concerning their ideas for resolution. If the parties come to an agreement, a Resolution

Agreement is prepared for the parties to sign later.

 

 

Q: What is the most common ADR method used by Coast Guard?

A: Mediation is the most common ADR method used by Coast Guard. Mediation involves a neutral third party who has no decision making authority.

Q: What are the benefits of ADR?

A: Some benefits of ADR are:

 Enhances communication between parties

 Allows for resolution to be reached with terms both parties can agree upon

 Changes the attitudes of the parties involved

 Improves the trust of the parties involved

 Saves time versus traditional litigation of disputes, which can often take two or more years

 Saves taxpayers dollars versus traditional litigation of disputes, which may involve attorney fees

Q: What does the ADR process entail?

A: The ADR process includes the following:

1. A request for ADR by the aggrieved party.

2. An ADR suitability determination by the Civil Rights Directorate Staff.

3. A representative from the Command with decision-making authority.

4. An ADR facilitator/third party neutral.

5. A setting conducive for ADR discussions.

6. The possibility of resolution and a settlement agreement.

7. The timely coordination and execution of settlement terms by the responsible parties.

8. Conclusion of the proceedings.

9. Monitoring compliance.

Q: What is an ADR facilitator/third party neutral?

A: An ADR facilitator/third party neutral is a neutral party, who neither advocates for a party nor renders any decisions. They facilitate communication between parties, help

each side gain a clearer perspective of the situation, and assist the parties in developing mutually satisfactory options for resolving the issues. In mediation, the facilitator/third party neutral would be the mediator.

Q: Who are ADR facilitators?

A: Civil Rights Service Providers serve as facilitators. Additionally, trained agency personnel outside of Civil Rights Directorate or individuals from external sources may also serve as facilitators.

Q: Is ADR confidential?

A: Yes. There are no written records or notes maintained except for a resolution agreement if a resolution is achieved.

Q: When is ADR available?

A: ADR can be requested at any stage of the complaint process.

Q: Is the Command/Unit required to participate in ADR?

A: Pre-complaint, the Command/Unit must participate in ADR if the Aggrieved Person elects it except in the limited circumstances in which ADR is inappropriate. In the formal complaint stage, decisions to allow the Command/Unit to reject ADR participation are made on a case by case basis.

Q: Am I entitled to representation in an ADR session?

A: Yes, you may have an attorney or other representative in the ADR session. The representative participates in the session as your advisor. You are responsible for any

expenses associated with the participation of your representative.

Q: Do I need to bring witnesses to the ADR session?

A: Witnesses do not participate in ADR sessions.

Q: Are the parties required to reach settlement in ADR?

A: Settlement is not a requirement for participation in ADR. Neither party can be coerced to accept a settlement.

Q: As the Aggrieved Person, how much time do I have to make a decision whether to accept a settlement?

A: In cases that do not allege age discrimination, the parties should come to the ADR session prepared to make a decision. In cases involving age discrimination, the

Aggrieved Person has up to 21 calendar days to consider the agreement before signing it and seven calendar days to revoke the agreement after signing.

Q: Who to contact to find out more about ADR?

A: Contact your servicing Civil Rights Service Provider (CRSP) for more information about ADR. For a list of CRSPs in your geographical location, please visit

www.uscg.mil/hq/cg00/cg00h or contact 1-888-992-7387 or TTY 202-372-4523.

Anti-Harassment Policy

The purpose of this policy is to prescribe procedures, in accordance with the Coast Guard and DHS’ Anti-Harassment Policy, for combating harassment in the Coast Guard and to promptly correct any harassment that occurs. This policy also prescribes additional notification procedures for conduct that constitutes as a hate incident. The Coast Guard continually strives to meet the highest standards of personal respect by valuing human dignity and diversity in accordance with our core values of honor, respect, and devotion to duty.

Q: What is harassment? 

A: USCG policy defines harassment as unwelcome conduct, whether verbal, nonverbal, or physical conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, offensive, or hostile environment on the basis of an individual’s protected status, which includes: race, color, religion, sex, national origin, age, disability, genetic information, sexual orientation, marital status, parental status, political affiliation, or any other basis protected by law.

Q: What are some examples of harassment as defined above?

A: Harassment that violates USCG policy can occur in a number of ways. Various examples include:

Making jokes, remarks or displaying images, pictures, or other materials that unreasonably interfere with work performance or creates an intimidating, hostile, or offensive work environment.

A supervisor coercing an employee into an unwelcome sexual relationship and then rewarding the employee with a promotion.

A supervisor taking disciplinary action or denying a promotion to an employee because he or she rejected sexual advances from the supervisor.

Retaliating against an employee for alleging harassment or participating in fact-finding interviews.

Being the target of offensive or demeaning remarks because the employee is a single mother with children.

Denying the opportunity of an employee to participate in an off-site training because he or she is over 40 years of age.

Verbal abuse/put-downs, name-calling or the use of racial epithets or slang that creates an intimidating, offensive, or hostile work environment.

Intimidating behavior such as asking for, or offering, sexual favors in return for positive performance appraisal or promotion.

Q: What is a hate incident, and how is it different from harassment?

A: USCG defines hate incidents as intentional acts of intolerance committed against a person, a group of individuals, or property which is motivated, in whole or in part, by bias against a protected group and which is intended to or is more likely than not to have the effect of intimidating others to similar conduct.

Q: What are some examples of hate incidents as described above?

A: Hate incidents usually, but not always, involve public displays. Examples include the display, presentation, creation or depiction of a noose, swastika, or any other symbol widely identified with oppression or hatred, photographs, images or other printed or electronic material that evidences oppression or hatred, irrespective of size, type, or how it is displayed or presented.

Q: Why does the USCG have an anti-harassment and hate incident procedures policy?

A: The anti-harassment procedures allows USCG management to address employee allegations of harassment or hate incidents and take immediate and appropriate corrective action, including the use of disciplinary actions, to eliminate harassing conduct regardless of whether the conduct violated the law. The goal is to address harassing conduct at the earliest possible stage, before it can become "severe or pervasive" harassment within the meaning of anti-discrimination laws.

Q: Where should I go to report harassment or hate incidents?

A: USCG civilian and military members who believe they have been the victims or witnesses of harassment or hate incidents should report the matter immediately to their chain of command. They may also report the matter to their servicing Civil Rights Service Provider (CRSP), or to headquarters, Civil Rights Directorate.

Q: What if I believe I have been harassed, but not based on the reasons above?

A: Harassment covered under USCG policy is limited to the definition and protected categories, e.g., race, gender, etc., provided above. If the alleged conduct you report does not meet the definition of harassment under this policy, there are other options you may wish to explore to address your concerns. Your chain of command, Personnel Officer, Human Resource Officer, or Command Staff Advisor (CSA), can provide additional information regarding these options.

Q: Is reporting harassment the same as filing an EEO/EO complaint?

A: No. The anti-harassment procedures do not affect the rights of an individual or group to initiate a complaint under the EEO complaints process. The anti-harassment process is entirely separate and apart from the EEO complaints process. This means that if an employee reports allegations of harassment in accordance with the anti-harassment procedures, he or she has not filed an EEO/EO complaint. An employee who wishes to file an EEO/EO discrimination complaint should contact his/her servicing CRSP within 45 days of the alleged harassing conduct.

Q: What is the role of managers and supervisors?

A: Managers and supervisors represent the USCG and are responsible for maintaining a work environment free of harassment. Managers or supervisors who observe or are made aware of allegations of harassment are required to act promptly, effectively, and in accordance with USCG anti-harassment policy and procedures to determine the scope of the alleged harassing conduct and take corrective or disciplinary action as appropriate and necessary.

Q: If I report harassment, will the information provided be kept confidential?

A: All information shall remain confidential to the greatest extent possible in accordance with the Privacy Act. Information is restricted to those who have a "need to know" and may include fact-finders, the servicing CRSP, witnesses, the alleged harasser, and supervisors who are required to take action on the matter raised.

Q: If I report harassment and then change my mind about going forward with the allegations, what happens?

A: The USCG is still obligated to look into the allegations raised.

For more information, please refer to the Civil Rights Manual, COMDTINST M5350.4C, Chapter 2, Section C, Part 1, or speak to your servicing civil rights service provider.

Reasonable Accommodation

Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, prohibits federal employers from engaging in employment discrimination against person with physical or mental impairments that substantially limit one or more major life activities. This law also requires employers to provide reasonable accommodations for applicants and employees with disabilities unless to do so would cause undue hardship.

Q: What is reasonable accommodation?

A: Reasonable accommodation is a change or adjustment to a work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy the benefits and privileges of employment equal to those enjoyed by employees without disabilities.

Reasonable accommodation may include acquiring or modifying equipment or devices; job restructuring; part-time or modified work schedules; reassignment to a vacant position; adjusting or modifying examinations, training materials, or policies; providing readers and interpreters; making the workplace readily accessible to and usable by people with disabilities.

 

Q: Who is an individual with a disability?

A: An individual with a disability 1) has a physical or mental impairment that limits one or more of the person’s major life activities, 2) has a record of such impairment, or 3) is regarded as having such impairment.

 

Q: Who is considered a qualified individual with a disability?

A: A qualified individual with a disability has the skills, experience, education, and other requirements of the job the individual holds or desires and can perform the essential functions of the position with or without reasonable accommodations.

 

Q: Who is responsible for granting Reasonable Accommodations?

A: The requestor’s supervisor or someone within the supervisory chain of command (Decision Maker).

 

Q: What steps Decision Makers or designees take after receiving a request for reasonable accommodation?

A: After the Decision Maker or appropriate Coast Guard official receives a request for accommodation, the next step is for the parties to begin an interactive process. This involves dialog between the individual requesting the accommodation and the Decision Maker to determine specifics about the requested accommodation, alternatives, the need for additional documentation, or information. The employee or applicant requesting the accommodation must cooperate throughout this process.

During this process, the name of the Decision Maker should be provided to the individual requesting the accommodation; and a plan of action the Decision Maker will take during the course of the accommodation deliberation.

 

Q: May the Decision Maker request documentation from the individual requesting the reasonable accommodation?

A: Yes. When the disability and/or the need for accommodation is not obvious, the Decision Maker may ask the individual for reasonable documentation about his/her disability and functional limitations. The Decision Maker is entitled to know whether the individual has a qualified disability for which s/he requests a reasonable accommodation. [Decisions Makers are urged to contact a servicing Civil Rights Service Provider for technical assistance. Medical information is privacy protected and must remain handled accordingly and confidential.]

 

Q: Are there situations when the Decision Maker cannot ask for documentation?

A: Yes. A Decision Maker cannot ask for documentation when: 1) both the disability and the need for reasonable accommodation are obvious, or 2) the individual has already provided the Decision Maker or the Coast Guard with sufficient information to substantiate that s/he has an qualified disability and is in need of the requested accommodation.

 

Q: How long do decisions for Reasonable Accommodations take?

A: Coast Guard procedures require a Decision Maker to make a written decision within fifteen (15) business days of receipt of the request for accommodations; and to knowledge receipt of a request within five (5) business days using form CG-6080 (Confirmation of Request for Reasonable Accommodation).

 

Q: When would a request for a Reasonable Accommodation get denied?

A: A reasonable accommodation request may be denied for a number of reasons, such as a failure to provide sufficient medical documentation; the requestor is not a disabled individual within the purview of Title VII; the accommodation requested would create an undue financial burden; the accommodation would create an undue administrative burden; and the change or exception would fundamentally alter the nature of the Coast Guard’s mission or business.

 

Q: Do requests for Reasonable Accommodations need to be in writing?

A: No. Employees may request accommodations both orally, and in writing from their first level supervisor or "Decision Maker," servicing Human Resources Specialist (HRS) or Command Staff Advisor (CSA). As stated above, Coast Guard management must confirm receipt in writing by completing the form entitled Acknowledgement of Request for Reasonable Accommodation, CG-6080.

 

Q: Who can request Reasonable Accommodations?

A: Any Coast Guard member, family member, healthcare professional, job applicant, or a representative of the member or applicant. When requests are made on behalf of the member or applicant, to the extent possible, the individual with a disability should be contacted to confirm that he/she in fact wishes the accommodation.

 

Q: What requests are not considered forms of Reasonable Accommodations?

A: The Coast Guard does not have to get rid of an essential function of a job or lower production standards that it has for all employees in the same job category. Also, the Coast Guard in general is not obligated to provide personal use items, such eyeglasses, wheelchair or hearing aids that a person uses both on and off the job.

 

Q: Does the Coast Guard have to change an individual's supervisor as a form of reasonable accommodation?

A: No. The Decision Maker does not have to change an employee’s supervisor as a reasonable accommodation. Although Coast Guard is not required to change an employee’s supervisor as a form of reasonable accommodation, a supervisory method may be altered as a form of reasonable accommodation.

 

Q: Should managers withhold discipline or termination of an employee who, because of a disability, violated a conduct rule that is job-related for the position in question and consistent with business necessity?

A: No. Management must not excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. Management must not tolerate or excuse violence, threats of violence, stealing, or destruction of property. Management may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

 

Q: What are some examples of reasonable accommodations?

A: Some examples of reasonable accommodation are:

· Making existing facilities readily accessible to and usable by persons with disabilities;

· Acquiring or modifying equipment or devices;

· Adjusting or modifying examinations or policies;

· Adapting computer software/equipment;

· Providing flexible time lines for program completion;

· Providing qualified readers, note takers, and/or sign language interpreters;

· Providing alternative print format

 

Q: Will my personal medical information be protected if I request a reasonable accommodation?

A: Yes. The Decision Maker or any other Coast Guard official who receives information in connection with a request for reasonable accommodation must protect such information to the extent possible and only share information on a need to know basis in order to make determinations about the reasonable accommodation request. (See Chapter 6, COMDTINST M5350.4D for specific rules governing the confidentiality of medical information.)

 

Q: Is the Coast Guard relieved of its obligation to provide a Reasonable Accommodation for an employee with a disability who fails to take medication, to obtain medical treatment, or to use an assistive device (such as a hearing aid)?

A: No. The Americans with Disabilities Act (ADA), as amended, requires an employer should act to provide reasonable accommodation to remove workplace barriers, regardless of what effect medication, other medical treatment, or assistive devices may have on an employee's ability to perform the job. However, if an employee with a disability, with or without reasonable accommodation, cannot perform the essential functions of the position or poses a direct threat in the absence of medication, treatment, or an assistive device, then s/he is unqualified.

 

Q: Are there other resources for Reasonable Accommodations?

A: Yes. There are several organizations that the Coast Guard has partnered with in order to provide quality reasonable accommodation services to Coast Guard employees. The Department of Transportation (DOT) Disability Resource Center (DRC), Department of Defense (DoD) Computer Accessibility Program (CAP), and Job Accommodation Network (JAN) are several resources that provides job accommodations and related services to Coast Guard employees. Please contact your local Civil Rights Service Provider at http://www.uscg.mil/hq/cg00/cg00h/ServiceProviders.asp for more information.

 

Q: Does the Coast Guard have central funding for requests like chairs or footstools?

A: Yes. Neither the Disability Resource Center (DRC) nor Computer Accessibility Program (CAP) will fund items such as chairs or footstools. However, these items may be paid for through Coast Guard’s central funding and or through local unit or component organizational funds, depending upon the circumstances.

 

Q: Who is responsible for maintaining reasonable accommodation records?

A: The Civil Rights Directorate is responsible for collecting, reviewing and analyzing reasonable accommodation activity on a quarterly basis. Annually, an aggregate report, without names, is submitted to the U.S. Equal Employment Opportunity Commission through DHS.

 

Q: Are the Reasonable Accommodation Procedures available in other formats?

A: Yes. As per 29 C.F.R. § 1614.203(d)(3)(i), copies of the reasonable accommodation procedures are available for job applicants and employees in written and accessible formats. Requests may be made with the individual's applicable Decision Maker. An employee wanting further information concerning these procedures, the final decision regarding their reasonable accommodation request, or the status of their reasonable accommodation request, they may contact the Persons with Disabilities Program Manager at CivilRightsRA@uscg.mil.

 

Q: What is an essential function?

A: Those job duties so fundamental to the position that the individual holds or desires that he or she cannot do the job without performing them are considered essential functions. A function can be essential if, among other things (1) the position exists specifically to perform that function, (2) there are a limited number of other employees who could perform the function, or (3) the function is specialized and the individual is hired based upon his or her ability to perform it. Determination of the essential functions of a position must be made on a case-by-case basis so that it reflects the job as actually performed and not simply the components of a generic position description.

 

Q: What is a major life activity?

A: Basic activities that the average person in the general population can perform with little or no difficulty include caring for oneself, performing manual tasks, walking, seeing, speaking, hearing, breathing, learning, and working, as well as major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain respiratory, circulatory, endocrine, and reproductive function. (Note that this is not an exhaustive list.)

 

Q: What is an undue hardship?

A: A specific type of accommodation that, if granted, will cause significant difficulty or expense. A determination of undue hardship is made on a case-by-case basis, considering factors that include the nature and cost of the accommodation and the impact of the accommodation on the operation of the agency. If an undue hardship determination is made on an accommodation request, it does not have to be granted.

 

Q: Can I request Leave (Annual/Sick/Leave without Pay) as reasonable accommodation?

A: Yes, leave may be granted as reasonable accommodation. More information can be found here .

 

Q: Can I request Leave (Annual/Sick/Leave without Pay) under the Family and Medical Leave Act as reasonable accommodation?

A: No. The Family and Medical Leave Act (FMLA) is a separate law which provides eligible employees with up to 12 weeks of leave during any 12 month period for specific reasons. If an individual meets the requirements as required by the law, FMLA must be granted. This is separate from the accommodation process and should not be considered as such. More information can be found here.

 

Q: Am I (Supervisor) obligated to provide accommodation, such as telework, special chair/desk, computer monitor, etc., to a newly hired employee who did not disclose existence of any disability during the recruitment process, upon reporting to duty?

A: Yes. The Agency is obligated to provide reasonable accommodation for all employees and applicants that are qualified individuals with a disability, absent undue hardship. More information can be found here.

 

Q:  Is a prospective employee hired (having received a firm job offer) under a Schedule A hiring appointment required to submit the SF-256, Self-Identification of Disability form?

A: Participation in the disability reporting system is entirely voluntary, with the exception of employees appointed under the Schedule A Excepted Appointing Authority for People with Intellectual Disability, Severe Physical Disability, or Psychiatric Disability (5 CFR 213.3102(u)). Agencies will request that these employees identify their disability status and, if they decline to do so, their correct disability code will be obtained from medical documentation used to support their appointment. More information can be found here.

 

Q:  Can supervisors request medical documentation from the requesting employee to substantiate a request (for a change in duty schedule, time off, etc.)?

A: Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation. More information can be found here.

 

Q:  Can an employee's new supervisor unilaterally terminate an employee's reasonable accommodation?

A: No. A reasonable accommodation may be terminated or modified if it is no longer effective or is an undue burden. Both situations require communication with the employee, consideration of alternatives, and interactive communication. The burden is on the Agency to establish that the accommodation is no longer effective or is an undue burden. More information can be found here .

 

Q:  Can a supervisor discuss with, or explain the reasons for an employee's accommodations to other employees within his/her chain of command (subordinates)?

A: No. An employer may not disclose that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the individual has a disability. The Americans with Disabilities Act specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers. More information can be found here.

 

Q:  Am I required to disclose my medical condition, including prognosis, to my supervisor in order to receive reasonable accommodation?

A: No. Documentation is sufficient if it: (1) describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed. More information can be found here.

 

Q:  I am a computer programmer, and spend 80% of worktime in front of a computer monitor.  My doctor has told me that the only way to improve my vision is to have cataract laser surgery.  This procedure costs only a few thousand dollars, and does not cause undue hardship to the Coast Guard.   Will the Coast Guard pay for cataract surgery as reasonable accommodation?

A: No. There are three categories of reasonable accommodations:

(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.

Cataract surgery does not fit into any of those categories.

More information can be found here.

 

Q: What forms are helpful?

A: Request for Reasonable Accommodation, CG-6079.

Confirmation of Request for Reasonable Accommodation, CG-6080.

Reasonable Accommodation Decision and Reporting Form, CG-6081.      

 

Q:  If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities, absent undue hardship, that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?

A: There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

Q: If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he/she now be entitled to a reasonable accommodation (absent undue hardship)?

A: Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

Q: What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation?

A: An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

Q: May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace?

A: Yes.  Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the "interactive process" – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

Q: Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?

A:  An employer does not have to provide a particular reasonable accommodation if it poses an "undue hardship," which means "significant difficulty or expense." As described in the two questions that follow, in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

Q: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

A:  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request?

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

Q:  What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic?

A: Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.

Q: Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?

A: An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

Q: An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker. What actions should the employer take?

A: The employer should take the same actions it would take if the employee was in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.

Q: What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19?

A: An employee—or a third party, such as an employee’s doctor—must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

Q: The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?

A: First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee—or take any other adverse action—solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r) (regulation addressing direct threat to health or safety of self or others). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties. A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. This can involve an interactive process with the employee. If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.

Q: What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?

A: Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

Q: As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?

A: Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact—if they wish—to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

Q: The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and over have protections under the federal employment discrimination laws?

A: The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.

Q: If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age?

A: No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.

Q: If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?

A: Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Q: Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy?

A: No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

Q: Is there a right to accommodation based on pregnancy during the pandemic?

A: There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Q: What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?

A: An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment. 

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

Q: How can employers encourage employees and their family members to be vaccinated without violating the EEO laws, especially the ADA and GINA?

A: Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.  

Q: Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?

A: Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Q: Under the ADA, may an employer require a COVID-19 vaccination for all employees entering the workplace, even though it knows that some employees may not get a vaccine because of a disability?

A: Yes, provided certain requirements are met.  Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination.  However, if a  particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  29 C.F.R. 1630.2(r).  This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job.  The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.  Such medical knowledge may include, for example, the level of community spread at the time of the assessment.   Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.   Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.  Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace. 

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.  (See also K.12 recommending the same best practice for religious accommodations.)

Q: Under the ADA, if an employer requires COVID-19 vaccinations for employees physically entering the workplace, how should an employee who does not get a COVID-19 vaccination because of a disability inform the employer, and what should the employer do?

A: An employee with a disability who does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, known as a reasonable accommodation.  To request an accommodation, an individual does not need to mention the ADA or use the phrase “reasonable accommodation.” 

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom to refer the request for full consideration. As a best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer.  This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations.  JAN’s materials about COVID-19 are available at https://askjan.org/topics/COVID-19.cfm.  Employers also may consult applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources.  Even if there is no reasonable accommodation that will allow the unvaccinated employee to be physically present to perform his or her current job without posing a direct threat, the employer must consider if telework is an option for that particular job as an accommodation and, as a last resort, whether reassignment to another position is possible. 

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p).  Employers are advised to consider all the options before denying an accommodation request.  The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.  Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.

Q: What should an employer do if an employee who is fully vaccinated for COVID-19 requests accommodation for an underlying disability because of a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated?

A: Employers who receive a reasonable accommodation request from an employee should process the request in accordance with applicable ADA standards. 

When an employee asks for a reasonable accommodation, whether the employee is fully vaccinated or not, the employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation.  This process typically includes seeking information from the employee's health care provider with the employee’s consent explaining why an accommodation is needed. 

For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals.  If there is a disability-related need for accommodation, an employer must explore potential reasonable accommodations that may be provided absent undue hardship.

Q: Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance?

A: Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.  Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee.  Such requests should be processed according to the same standards that apply to other accommodation requests.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.  However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605.

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodation for unvaccinated employees, see question and answer K.6., above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances.

Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.  This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.  Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.  Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee

Q: Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?

A: Under Title VII, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy. 

If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Title II of Genetic Information Non-discrimination Act (GINA) prohibits covered employers from using the genetic information of employees to make employment decisions.  It also restricts employers from requesting, requiring, purchasing, or disclosing genetic information of employees. Under Title II of GINA, genetic information includes information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member, among other things. 

Q: Is Title II of GINA implicated if an employer requires an employee to receive a COVID-19 vaccine administered by the employer or its agent?

A: No.  Requiring an employee to receive a COVID-19 vaccination administered by the employer or its agent would not implicate Title II of GINA unless the pre-vaccination medical screening questions include questions about the employee’s genetic information, such as asking about the employee’s family medical history.   As of May 27, 2021, the pre-vaccination medical screening questions for the first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do not seek family medical history or any other type of genetic information.  See CDC’s Pre-vaccination Checklist.  Therefore, an employer or its agent may ask these questions without violating Title II of GINA.

The act of administering a COVID-19 vaccine does not involve the use of the employee’s genetic information to make employment decisions or the acquisition or disclosure of genetic information and, therefore, does not implicate Title II of GINA.
 

Q: Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a doctor, pharmacy, health agency, or another health care provider in the community?

A: No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.  This is the case even if the medical screening questions that must be asked before vaccination include questions about genetic information, because documentation or other confirmation of vaccination would not reveal genetic information.  Title II of GINA does not prohibit an employee’s own health care provider from asking questions about genetic information. This GINA Title II prohibition only applies to the employer or its agent. 

 

Personal Assistance Services

Personal Assistance Services (PAS) means "assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom." Someone providing PAS might push a wheelchair or assist someone with getting into or out of a vehicle at the worksite.


Q: Who may request a PAS?

A: The Coast Guard is only required to provide PAS to an individual if-

1. The individual is an employee of the agency;
2. The individual has a targeted disability;
3. The individual requires the services because of his or her targeted disability;
4. The individual will be able to perform the essential functions of the job, without posing a direct threat to safety, once PAS and any required reasonable accommodations have been provided; and
5. Providing PAS will not impose undue hardship on the agency.


Q: What is a Targeted Disability?

A: Targeted disabilities are a subset of conditions that would be considered disabilities under the Rehabilitation Act. The federal government has recognized that qualified individuals with certain disabilities face significant barriers to employment, which for some people may include lack of access to PAS in the workplace, that are above and beyond the barriers faced by people with the broader range of disabilities. The federal government calls these "targeted disabilities."

Note, however, that not everyone with a targeted disability will be entitled to PAS under the new regulations, because only some individuals with targeted disabilities require assistance with basic activities like eating and using the restroom. Medical conditions that are more likely to result in the need for PAS include, for example, missing limbs or paralysis due to spinal cord injury. 

 

Q: Can I receive a PAS to commute to work?

A: No. The Coast Guard is only required to provide PAS when the individual is working, unless he or she is on work-related travel.

 

Q: Does a PAS include medical services?

A: No. PAS do not include, for example, performing medical procedures (e.g., administering shots) or medical monitoring (e.g., monitoring blood pressure).

 

Q: Does a PAS help an individual perform their job functions?

A: No. PAS allow individuals to perform activities of daily living that an individual would typically perform if he or she did not have a disability. PAS do not help individuals with disabilities perform their specific job functions, such as reviewing documents or answering questions that come through a call-in center. PAS differ from services that help an individual to perform job-related tasks, such as sign language interpreters who enable individuals who are deaf to communicate with coworkers, and readers who enable individuals who are blind or have learning disabilities to read printed text. Those services are required as reasonable accommodations, if the individual needs them because of a disability and providing them does not impose undue hardship on the agency. An agency's obligation to provide reasonable accommodations is unaffected by the new regulations.

 

Q: How do I request a PAS?

A: Individuals request a PAS exactly the same way one requests a reasonable accommodation and the PAS procedure is exactly the same as the procedure for reasonable accommodations. Requests do not need to mention Section 501 or the EEOC's regulations explicitly, or use terms such as "PAS" or "affirmative action" to trigger the agency's obligation to consider the request.

 

Q: Can my request for a PAS be denied?

A: Yes. The Coast Guard is only required to provide PAS if the requesting employee is entitled to them under the regulations. Therefore, the Coast Guard may deny a request for PAS if-

1. The requestor is not an employee of the agency;
2. The requestor does not have a targeted disability;
3. The targeted disability does not create a need for PAS;
4. The requester is not able to perform the essential functions of the job, even with PAS and any reasonable accommodations;
5. The requester would create a direct threat to safety on the job, even with PAS and any reasonable accommodations; or
6. Providing PAS would impose undue hardship on the agency.

 

Q: Is my information confidential?

A: Yes, as per the Coast Guard’s reasonable accommodation procedures.

 

Religious Accommodation

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. This includes refusing to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship (more than a de minimis burden). A religious practice may be sincerely held by an individual even if newly adopted, not consistently observed, or different from the commonly followed tenets of the individual's religion. A religious accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs. The duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee or applicant will be able to practice his or her religion. Accommodation requests often relate to work schedules, dress and grooming, or religious expression or practice while at work.

 

Q: Are employers required to accommodate the religious beliefs and practices of applicants and employees?

A: Yes.

 

Q: What does Title VII mean by "religion"?

A: Title VII defines "religion" very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.

Some practices are religious for one person, but not religious for another person, such as not working on Saturday or on Sunday. One person may not work on Saturday for religious reasons; another person may not work on Saturday for family reasons. Under Title VII, a practice is religious if the employee's reason for the practice is religious.

Social, political, or economic philosophies, or personal preferences, are not "religious" beliefs under Title VII.

 

Q: What are some common religious accommodations sought in the workplace?

A: Applicants and employees may obtain exceptions to rules or policies in order to follow their religious beliefs or practices. Remember that employers may grant these accommodations for religious reasons but still refuse to grant them for secular reasons. Examples of common religious accommodations include:

 

Q: How does an employer determine if a religious accommodation imposes more than a minimal burden on operation of the business (or an "undue hardship")?

A: Examples of burdens that are more than minimal (or an "undue hardship") include: violating a seniority system; causing a lack of necessary staffing; jeopardizing security or health; or costing the employer more than a minimal amount.

If a schedule change would impose an undue hardship, the employer must allow co-workers to voluntarily substitute or swap shifts to accommodate the employee's religious belief or practice. If an employee cannot be accommodated in his current position, transfer to a vacant position may be possible.

Infrequent payment of overtime to employees who substitute shifts is not considered an undue hardship. Customer preference or co-worker disgruntlement does not justify denying a religious accommodation.

It is advisable for employers to make a case-by-case determination of any requested religious accommodations, and to train managers accordingly.

 

Q: I would like to earn compensatory time to attend a religious function. How do I earn compensatory time as a form of religious accommodation?

A: Please contact your servicing Human Resources Specialist for questions regarding compensatory time and how it relates to religious accommodation.

 

Q: Is documentation required to substantiate a request for religious accommodation?

A: No. Documentation is generally not required to substantiate a request for most religious accommodations. An employee or applicant may need to articulate their sincerely held religious belief or practice, the accommodation requested, how the accommodation will resolve any conflict between their religious tenets and agency policy, whether there are alternatives, and the nature of their job responsibilities.

 

Q: How do I request religious accommodation?

A: Religious accommodation is requested by using the procedures outlined for obtaining reasonable accommodation. 

 

UPDATE:  The Coast Guard is awaiting further guidance from DHS/OPM before it can take action on any vaccination exemption requests. Additional guidance is forthcoming and the process for requesting a religious accommodation for an exemption. 

For additional information, visit:

https://www.saferfederalworkforce.gov/faq/vaccinations/

Service Animals

Many people with disabilities use a service animal in order to fully participate in every day life. Service animals can be trained to perform many important tasks to assist people with disabilities, such as providing stability for a person who has difficulty walking, picking up items for a person who uses a wheelchair, preventing a child with autism from wandering away, or alerting a person who has hearing loss when someone is approaching from behind.

 

Q: What is a service animal?

A: Under the Americans with Disabilities Act, a service animal is defined as a dog or miniature horse that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the service animal must be directly related to the person’s disability.

 

Q: What does “do work or perform tasks” mean?

A: The service animal must be trained to take a specific action when needed to assist the person with a dis­ability. For example, a person with diabetes may have a service animal that is trained to alert him when his blood sugar reaches high or low levels. A person with depression may have a service animal that is trained to remind her to take her medication. Or, a person who has epilepsy may have a service animal that is trained to detect the onset of a seizure and then help the person remain safe during the seizure.

 

Q: Are emotional support, therapy, comfort, or companion animals considered service animals under the Americans with Disabilities Act?

A: No. These terms are used to describe animals that provide comfort just by being with a person. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the Americans with Disabilities Act.

 

Q: If someone’s service animal calms them when having an anxiety attack, does this qualify it as a service animal?

A: It depends. The Americans with Disabilities Act makes a distinction between psychiatric service animals and emo­tional support animals. If the service animal has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the service animal’s mere presence provides comfort, that would not be considered a service animal under the Americans with Disabilities Act.

 

Q: Does the Americans with Disabilities Act require service animals to be professionally trained?

A: No. People with disabilities have the right to train the service animal themselves and are not re­quired to use a professional service animal training program.

 

Q: Are service-animals-in-training considered service animals under the Americans with Disabilities Act?

A: No. Under the Americans with Disabilities Act, the service animal must already be trained before it can be taken into public places. However, some State or local laws cover animals that are still in training.

 

Q: What questions can an employer ask to determine if a service animal is a service animal?

A: In situations where it is not obvious that the service animal is a service animal, an employer may ask only two specific questions: (1) is the service animal a service animal required because of a disability? and (2) what work or task has the service animal been trained to perform? Employers are not allowed to request any documentation for the service animal, require that the service animal demonstrate its task, or inquire about the nature of the person’s disability.

 

Q: Do service animals have to wear a vest or patch or special harness identifying them as service animals?

A: No. The Americans with Disabilities Act does not require service animals to wear a vest, ID tag, or specific harness.

 

Q: Who is responsible for the care and supervision of a service animal?

A: The handler is responsible for caring for and supervising the service animal, which in­cludes toileting, feeding, and grooming and veterinary care. Covered entities are not obli­gated to supervise or otherwise care for a service animal.

 

Q: Does the Americans with Disabilities Act require that service animals be certified as service animals?

A: No. Covered entities may not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal, as a condition for entry.

There are individuals and organizations that sell service animal certification or registra­tion documents online. These documents do not convey any rights under the Americans with Disabilities Act.

 

Q: Can service animals be any breed of service animal?

A: Yes. The Americans with Disabilities Act does not restrict the type of service animal breeds that can be service animals.

 

Q: When can service animals be excluded?

A: The Americans with Disabilities Act does not require covered entities to modify policies, practices, or procedures if it would create an “undue burden.” In addition, if a particular service animal is out of control and the handler does not take effective action to control it, or if it is not housebroken, that animal may be excluded.

 

Q: What does under control mean? Do service animals have to be on a leash? Do they have to be quiet and not bark?

A: The Americans with Disabilities Act requires that service animals be under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability. In The service animal must be harnessed, leashed, or tethered while in public places unless these devices interfere with the service animal’s work or the person’s disability prevents use of these devices. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. For example, a person who uses a wheelchair may use a long, retractable leash to allow her service animal to pick up or retrieve items. She may not allow the service animal to wander away from her and must maintain control of the service animal, even if it is retrieving an item at a distance from her. Or, a returning veteran who has PTSD and has great difficulty entering unfamiliar spac­es may have a service animal that is trained to enter a space, check to see that no threats are there, and come back and signal that it is safe to enter. The service animal must be off leash to do its job, but may be leashed at other times. Under control also means that a service animal should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, if a service animal barks just once, or barks because someone has provoked it, this would not mean that the service animal is out of control.

 

Section 504

USCG is committed to supporting the full inclusion and equal opportunity for persons with disabilities in its programs and activities, as stated by Section 504 of the Rehabilitation Act of 1973. This section states that “No otherwise qualified individual with a disability in the United States… shall, solely, by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency...”

Collapse All Expand All

Q: What Instruction mandates nondiscrimination for individuals with disabilities in DHS-conducted programs and activities?

A: Instruction 065-01-001.

Q: How does this apply to me?

A: If you are interacting with members of the public, you must ensure that persons with disabilities are not excluded from or denied the benefits of any program or activity provided.

Q: Is this the same as a reasonable accommodation or personal assistance services?

A: No, although they are similar. A reasonable accommodation is for an employee or applicant, and is provided to enable an individual perform the essential functions and duties of their position. Personal assistance services are for employees with a targeted disability to enable them perform an activity of daily living. Section 504 compliance is for members of the public and ensures equal access to all programs and activities. All are required by law.

Q: What would be an example of a program or activity?

A: If there is an office party in which significant others are invited, there must be an accessible entrance or location provided. If there is a tour that is provided to members of the public, steps must be taken to ensure that it is accessible to all individuals.

Q: What if I cannot make my program or activity accessible because of conditions outside of my control, such as age of a building?

A: You must recreate the program or activity as much as possible in an accessible manner. For example, if a lighthouse tour has a panoramic view that is not accessible to persons with disabilities, a photograph demonstrating the view should be provided.

Q: How do I take proactive steps to ensure I am following the requirements of Section 504?

A: While planning a program or activity that will involve members of the public, ensure that accessibility concerns are addressed. Provide contact information for individuals interested in your program or activity so they may directly request or inquire regarding accessibility.

Q: How are Section 504 requests processed?

A: Although the requestor is not an employee or applicant, the procedures outlined for the reasonable accommodation process should be followed as closely as possible. Namely, the request must be acknowledged, the interactive process must take place, and a final determination must be made. Please use the CG-6079, CG-6080, and CG-6081. The request and its results will be reported in the same fashion as a normal request for reasonable accommodation. When addressing Section 504 requests, keep in mind that the solution will most likely be global in nature as opposed to specifically tailored to the individual. For example, installation of a ramp would be for the benefit of the requestor as well as any other person with a disability that requires its use. The CG-6081 must notate that it was a Section 504 request. This will then be reported to your Civil Rights Service Provider, similar to how reasonable accommodation requests are reported.

Q: Is this going to significantly increase my workload?

A: The intention of Section 504 compliance is to be proactive and avoid the need for any requests. If a program or activity is planned with full consideration of persons with disabilities, there should be no need for a request.

Q: I barely interact with the public, do I need to follow this?

A: Section 504 applies to any interaction with the public. This includes such things as inviting significant others to the office, law enforcement, and tours.

Q: Where can I get help regarding Section 504?

Please contact your local Civil Rights Service Provider for assistance regarding Section 504. Requests for assistance can also be sent to CivilRightsRA@uscg.mil.

Q: Who enforces Section 504?

A: Section 504 is enforced by the Department of Justice. More information can be found at https://www.ada.gov.

Q: Where can I find more information?

A: You can visit the Department of Homeland Security’s Website for more information at https://www.dhs.gov/disability-access-department-homeland-security.

Civil Rights Command Checklist

By regulation, Commanding Officers/Officers in Charge (CO/OICs) are responsible for civil rights leadership and compliance.  The Civil Rights Directorate (CRD) assists CO/OICs with these responsibilities by providing guidance and tools, such as the “Command Checklist”.  This particular tool distills all CO/OICs civil rights responsibilities described by law, regulation, Executive Order, Management Directive, and Commandant Instruction into one simple checklist, which allows commands to easily indicate whether or not their commands are compliant. Commands with 50 or more personnel are required to complete the checklist by 31 October annually.  Civil Rights Service Providers (CRSPs) are available to assist commands with achieving compliance for any element(s).

FY13 Command Checklist Elements

FY13 Command Checklist Trends

What Pre-employment Questions Should Hiring Panels Avoid

Are you looking to fill the open positions in your unit or office, and prepping to conduct interviews of the applicants?  If so, when developing those interview questions, be sure to also review what not to ask when interviewing federal employees or applicants.  Some common inappropriate questions include:

1.Are you a U.S. citizen? (adversely impacts national origin)

2.Do you have a disability?

3.Are you planning to marry/have a family? When?

4.Have you ever filed a workers’ compensation claim?

5.How many days of work did you miss last year due to illness?

6.Have you had any major health problems in the past?

7.Are you taking any prescription drugs?

8.Do you have AIDS?

9.Have you ever been treated for alcoholism?

10.Have you ever been treated for depression?

11.What off-the-job activities do you participate in?

12.Would you have a problem working with a female partner?

13.Do you have children? How old are they?

14.How old are you?

15.When do you intend to retire?

16.What is your date of birth?

17.What year did you graduate from high school? (reveals age)

18.What is your race?

19.What is your religion?

20.Are you able to work on Saturdays or Sundays? (only inappropriate if the job does not

require weekend work)

21.What is your ethnic background?

22.That is an interesting name, where is it from?

23.Do you speak English well?

24.You have a fascinating accent. Where are you from?

25.What neighborhood do you live in?

26.Tell me about your family. Do you have any kids or parents living at home with you?

27.What year did you get out of high school?

28.What is your ethnic background? (Not, "You have a nice name. Where is it from?" either.)

29.Do you have any religious activities that might be viewed negatively by your coworkers?

30.What was your attendance like at your last job? Of the days you missed, how many were for

sick leave?

31.What’s your idea of a fun party?