By a final rule effective June 20, 2002, the EEOC applied the same regulations as in the Americans with Disabilities Act to federal employees covered under the Rehabilitation Act. This means that reassignment of federal employees with disabilities is a reasonable accommodation subject only to undue hardship. Previously, reassignment to a job in a different commuting area would not be possible. In addition, the definition of “direct threat” has been changed so that an employer may disqualify an individual from employment based on health or safely concerns only if the employer can demonstrate that the person poses a “a significant risk of substantial harm” to self or others, even with reasonable accommodation.
The new regulation codified in 29 CFR 1614.203 continues the requirement that “the federal government shall be a model employer of individuals with disabilities.” The regulation continues that “agencies shall give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.” The key phrase is “qualified individuals with disabilities,” as the physical or mental impairment must “substantially limit” one or more major life activities, including caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. However, working is now generally not sufficient, and an employee must prove that he or she is also limited in other daily activities, according to the U.S. Supreme Court. Furthermore, it is not sufficient for the disability to affect only a single, particular job or supervisor but must prevent the employee from performing a class or range of jobs.
For a handicapped employee to prevail who doesn’t meet the strict definition of a qualified individual with a disability, another approach would be to establish that he is “regarded as” having a physical or mental handicap that substantially limits one or more of his major life activities. The intent behind the “regarded as” provision is to remedy cases where myths, fears, and stereotypes affect an employee’s treatment. Even when relying upon the “regarded as” provision, the employee must still prove that he can perform the essential duties and responsibilities of his position with or without reasonable accommodation.
In conclusion, while the ADA standards are more generous and even extend reasonable accommodation to probationary employees, recent Supreme Court decisions have made it more difficult than ever for disabled employees to be entitled to reasonable accommodation. See, for example, the Federal Legal Corner of January 30, 2002 – Disability Standards Clarified.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **