The NIH official who has the responsibility of making a decision regarding the requested accommodation. This individual is empowered to respond to requests for accommodation with or without the input of the RAP. However, it is required that RAP be consulted in all instances where a Decision Maker wishes to deny a request (in part or whole).
The Decision Maker will vary depending on who is requesting accommodation:
- Applicant: The Decision Maker for applicants is the hiring manager. Applicants requiring accommodation should contact the RAP with their request and information on the position(s) they seek to apply to. An AC will collaborate with the Office of Human Resources, Client Services Division (CSD) to reach a decision with the hiring manager.
- Contractor: The Decision Maker for a contractor is the contractor’s employer. The contractor’s employer must determine if they require consultation with the NIH Contracting Officer (C), or their Representative (COR), in reaching a decision on the request for accommodation.
- Employee: The Decision Maker for an employee is the employee’s Manager/Supervisor, specifically their first-line rating official. A second-line rating official may be required to make a decision on a request if the requestor wishes to have the decision of the first-line rating official reconsidered.
- Visitor: The Decision Maker for a visitor is the program owner of the event or service being sought by the visitor. All NIH programs and events must list a point of contact for reasonable accommodation requests in the event that an accommodation is required to attend and/or participate.
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA), establishes a three-part definition of "disability." A disability, with respect to an individual, is defined as:
- a physical or mental impairment that substantially limits one or more major life activities;
- one who has a record of such an impairment; or
- one who is regarded as having such an impairment.
According tthe ADAAA, a physical or mental impairment refers to:
- Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin or endocrine; or
- Any psychological or mental disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Impairments that are episodic or in remission are considered disabilities if they would substantially limit a major life activity when active. The ADAAA also clarified that the determination of whether an impairment substantially limits a major life activity should be made without regard to the effects of mitigating measures, such as medication, medical supplies, low vision devices (excluding ordinary eyeglasses or contact lenses), prosthetics, mobility devices, hearing aids or implantable hearing devices, oxygen therapy equipment and supplies, assistive technology, reasonable accommodations, or learned behavioral or adaptive neurological modifications.
Entellitrak: The online portal used by NIH for tracking and processing requests for accommodation (https://nih-ra.entellitrak.com/). Access to this portal is limited to NIH employees and contractors (must have a valid .gov email address and be listed in the NIH directory system). Some of the process tools for requestors, decision makers, and Reasonable Accommodation Consultants in Entellitrak include:
- Submit requests for accommodation
- Request supporting documentation
- Upload supporting documentation
- Submit request for medical review
- Document Approval or Denial
- Track Provision
- Track Request Processing
The job duties that are so fundamental to a position that the job cannot be done without performing them. 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 can perform the function, or (3) the function is specialized and the individual is hired based on his or her ability to perform it (29 C.F.R. 1630.2(n)).
Determination of Essential Functions must be done on a case-by-case basis so that it reflects the job as it is actually performed and not simply the components of a generic position description (Id.). To determine the essential functions of a job, the following factors will be considered:
- Employee's position description (PD);
- Employee's Performance Management Appraisal Program (PMAP) evaluation;
- Amount of time performing a function; and
- Consequences of failing to perform the function.
With or without accommodation, employees are responsible for maintaining normal production standards that are applied uniformly to all employees.
NOTE: Although not precluded by law, it is NIH’s policy that essential job functions shall not be removed as an accommodation.
Institute or Center (IC):
The NIH is comprised of 27 Institutes and Centers, each with a specific research agenda.
An informal flexible dialogue between any and all parties involved (requestor/employee, decision maker, Reasonable Accommodation Consultant/RAC) in processing a request. This allows for clarifying the individual's needs, exploring potential accommodations, and ultimately identifying an effective reasonable accommodation(s).
Major Life Activity:
A basic activity that most people in the general population can perform with little or no difficulty.
Examples of major life activities include, but are not limited to the following:
- Caring for oneself, walking, seeing, hearing, speaking, breathing, learning, sitting, standing, lifting, and working; as well as mental and emotional processes such as thinking, concentrating, and interacting with others.
- The operation of major bodily functions, including functions of the immune system, special sensory organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.
Qualified Individual with a Disability:
An individual with a disability is qualified if he or she (1) satisfies the requisite skills, experience, education, and other job-related requirements of the position held or desired, and (2) can perform the essential functions of the position, with or without reasonable accommodation (29 C.F.R. 1630.2(m)).
An individual would be considered "unqualified" within the meaning of the ADAAA if he or she cannot perform the essential functions of their position, either with or without accommodation.
Any change in the work environment or in the way things are customarily done, including a change or exception to individual office rules and/or procedures, which would enable a qualified individual with a disability to perform the essential functions of a position and/or enjoy equal employment opportunities.
Reasonable accommodation is available to all qualified applicants and NIH employees, regardless of whether they work part-time or full-time, or are considered probationary.
Reasonable Accommodation Consultant (RAC):
Employees who staff the Reasonable Accommodation Program under the Office of Equity, Diversity, and Inclusion (EDI). Neutral consultants to the NIH and individuals seeking information regarding any aspect of the RA process.
Reassignment is a form of reasonable accommodation that is provided to employees who, because of a disability, can no longer perform the essential functions of their current position, even with reasonable accommodation. Reassignment is a “last resort” accommodation that must be considered if it has been determined that there are no effective accommodations that would enable the employee to perform the essential functions of their current job, or that all other possible accommodations would impose undue hardship. Reassignment is available only to an existing employee who is qualified for the new position; it is not available to applicants.
Additional information regarding the processing and provision of Reassignment as a reasonable accommodation can be found in Section V.3.C - Reassignment.
The individual making a request for accommodation. It is the responsibility of this individual, upon request, to submit appropriate and sufficient information on the relevant disabling condition and the accommodation(s) sought. While an accommodation may be requested by a third party, the requestor refers to the individual with a disability.
The degree to which a major life activity is limited, compared to most people in the general population, as a result of a physical or mental impairment. The ADAAA notes that the term “substantially limits” should be construed broadly, in favor of expansive coverage to the maximum extent permitted. “Substantially limits” is not meant to be a demanding standard. An impairment need not prevent, or significantly restrict the individual from performing a major life activity in order to be considered substantially limiting.
Undue hardship means significant difficulty or expense in implementing a reasonable accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, disruptive, or would fundamentally alter the nature or operation of the business. The determination of undue hardship is not at the department level but the overall resources and circumstances of the Department of Health and Human Services, particularly as it relates to the cost or difficulty of providing a specific accommodation.
If a specific type of reasonable accommodation causes significant difficulty or expense, meaning The Department of Health and Human Services as the employer, NIH is not required to provide that particular accommodation. Undue hardship determinations are required to be made on a case-by-case basis, considering factors such as the nature and cost of the reasonable accommodation needed and the impact of the reasonable accommodation on the organization's operations (29 C.F.R. 1630.2(15)(d)). Generalized conclusions will not suffice to support a claim of undue hardship.
A determination of undue hardship regarding expense here at the NIH must factor in the overall financial resources of the Department of Health and Human Services and all possible sources of outside funding to pay for all or part of the accommodation (such as the Department of Defense's Computer-Electronics Accommodation Program2 (CAP)), as opposed to the budget of an individual branch, division, Office, Institute, or Center. For this reason, it is unlikely that NIH can defend an undue hardship argument based on expense. The employee’s salary, position, or status (e.g. full-time vs. part-time or permanent vs. temporary) shall not be taken into consideration to establish undue hardship. Further, a determination of undue hardship cannot be based on the potential impact on the morale of other employees and whether or not the accommodation complies with existing office policy. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees’ ability to work.
With or Without Accommodation:
While the requirement to perform essential job functions with an accommodation is obvious, that requirement to perform remains in effect when the employee is “without” an accommodation. An employee may be without an accommodation in the following circumstances: (1) an individual with a disability who does not request/require an accommodation, or (2) who refuses to accept an [offered] effective reasonable accommodation.