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ETA Advisory File Text

DRAFT 07 25 2000 Ch. 2 Pg. 129 CFR 37.4 Disability means with respect to an individual a physical or mental impairment that substantially limits one or more of the major life activities of such individual a record of such an impairment or being regarded as having such an impairment.CHAPTER TWO Protections and Reasonable Accommodation for Persons with Disabilities This chapter presents three questions and their answers as a way to focus on some of the major themes of disability protection and reasonable accommodation. It reviews important definitions and provides an orientation to some of the major provisions of Section 188 and 29CFR Part 37. The first question asks who is protected from discrimination as a person with a disability. The discussion leads to the second question what are forms of discrimination based on disability that are prohibited. The third question probes reasonable accommodation along with reasonable modification and auxiliary aids and services all of which are crucial elements in insuring that persons with disabilities receive full and equal access to all WIA Title I aids benefits services and training. A. WHO ARE INDIVIDUALS WITH DISABILITIES WHO ARE PROTECTED UNDER SECTION 188 WIA Section 188 protects persons with disabilities from discrimination applying the same standards and definitions as found in Section 504 of the Rehabilitation Act of 1973. Moreover these are the same standards and definitions found in the Americans with Disabilities Act of 1990 ADA . WIA Section 188 Section 504 and the ADA prohibit discrimination against any qualified individual with a disability. Determining whether a particular individual is protected by these laws begins with understanding what is considered a disability and what is not . Then the question is asked Who is a qualified individual with a disability DISABILITY -- THREE CONDITIONS For the purposes of coverage under WIA 188 an individual with a disability is defined as an individual who meets any one or more of the three conditions sometimes referred to as prongs of the definition outlined in the statute. Each component prong of the definition is explained in part 37. This definition is identical to the ADA definition of the term. DRAFT 07 25 2000 Ch. 2 Pg. 229 CFR 37.4 1 i The phrase physical or mental impairment means-- A 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 hemic and lymphatic skin and endocrine B Any mental or psychological disorder such as mental retardation organic brain syndrome emotional or mental illness and specific learning disabilities. ii The phrase physical or mental impairment includes but is not limited to such contagious diseases and conditions as orthopedic visual speech and hearing impairments cerebral palsy epilepsy muscular dystrophy multiple sclerosis cancer heart disease diabetes mental retardation emotional illness specific29 CFR 37.4 2 The phrase major life activities means functions such as caring for one s self performing manual tasks walking seeing hearing speaking breathing learning and working. 1. A Physical or Mental Impairment The first category of the definition covers any individual who currently has a physical or mental impairment that substantiallylimits one or more major life activities. The focus of this part is on the individual to determine if he or she has a substantially limiting impairment. What is an impairment The phrase physical or mental impairment has been defined by the provision of the regulation cited above to include physiological conditions that affect body systems as well as mental or psychological disorders. The definition at 37.4 provides only representative examples of physical or mental impairments. What is not an impairment Simple physical characteristics such as left-handedness disadvantages attributable to environmental cultural or economic factors common personality traits such as poor judgment or a quick temper. The definition also excludes homosexuality and bisexuality as impairments What is a substantial limitation of major life activities Another key requirement under the first category of the definition is that an impairment must substantially limit a major life activity to constitute a disability. The phrase major life activities refers to functions such as caring for oneself performing manual tasks walking seeing hearing speaking breathing working and learning. This list of major life activities is not meant to be exhaustive. They are understood to include those basic activities that the average person in the general population can perform with little or no difficulty. For example in a 1998 Supreme Court decision the court determined that reproduction is a major life activity. In contrast determining whether or not an impairment substantially limits a major life activity is more difficult and must be done on an individual basis taking into consideration the following factors the extent of the impairment its nature and severity the duration or expected duration of the impairment how long it will last or is expected to last and DRAFT 07 25 2000 Ch. 2 Pg. 329 CFR 37.4 4 The phrase is regarded as having an impairment means-- i Has a physical or mental impairment that does not substantially limit major life activities but that is treated by the recipient as being such a limitation ii Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment or iii has none of the impairments defined in paragraph 1 of this definition but is treated by the recipient as having such an impairment. the impact of the impairment its permanent or long-term impact or expected impact. While the definition of disability does not exclude temporary impairments temporary impairments must be assessed on a case-by-case basis to determine whether the impairment substantially limits a major life activity. 2. Persons With Records of Physical or Mental Impairments The second category of the definition of disability protects two groups of people those who have a history or record of an impairment that substantially limits a major life activity and those who have been erroneously diagnosed as having an impairment. Examples include persons who have been misdiagnosed as mentally retarded or mentally ill. 3. Persons Regarded as Having a Disability The third category of the definition of disability protects people who are not in fact substantially limited in any major life activity but are nevertheless perceived by others as having a disability sometimes because of myth fear or stereotype. The second and third categories of the definition are meant to cover situations where individuals never had or do not currently have disabilities but are treated by others as if they did. For instance a person with severe facial scarring might be denied a job because she or he is regarded as an individual with a disability. A person with a history of heart disease might be denied a promotion because of that record of a disability. These persons do not in fact have disabilities but have been treated by others as if they did. In these cases it is mistaken perception or a record of a disability that entitles a person to protection against discrimination under the law. Use of the Second and Third Categories The use of the second and third categories of the definition of individuals with disabilities arises often in the area of employment but can also apply in the areas of aid services benefits or training. For example someone with a history of mental illness but no current symptoms might be denied a DRAFT 07 25 2000 Ch. 2 Pg. 429 CFR 37.4 Qualified individual with a disability means 1 With respect to employment an individual with a disability who with or without reasonable accommodation is capable of performing the essential functions of the job in question 2 With respect to aid benefits services or training an individual with a disability who with or without reasonable accommodation and or reasonable modification meets the essential eligibility requirements for the receipt of such aid benefits services or training.teaching job based solely on that record of past disability. This action would not be permissible under WIA 188. Individuals with learning difficulties or attention deficit disorder ADD meet the first category of the definition of disability. That is they actually have a mental or physical impairment that substantially limits their ability to learn. WHAT DOES IT MEAN TO BE QUALIFIED Protection under WIA 188 is specifically afforded to qualified individuals with disabilities. Not every person with a disability someone who falls within the three-category definition is also qualified. The definition of a qualified individual with a disability takes two forms depending on the nature of the activity involved. These include aid services benefits or training and employment. Aid Services Benefits or Training For purposes of determining whether an individual is eligible to receive the aid services benefits or training offered by a recipient a person is considered to be qualified if the individual meets the essential eligibility requirements needed to receive the aid services benefits or training. It does not matter whether the person meets these requirements with or without reasonable accommodation or modifications to rules policies or practices or with or without the removal of architectural communication or transportation barriers. The determination is also made without regard to whether auxiliary aids and services must be provided 28 CFR 35.104 . It is also important to note that persons who wish to attend One- Stop Center events or activities who are qualified individuals with disabilities are covered by Section 188 as well as other nondiscrimination statutes and regulations. For example if a One-Stop Center were to host a job fair the Center would need to assure the availability of interpreter services and materials in alternative formats. Employment For the purposes of employment an individual is considered to DRAFT 07 25 2000 Ch. 2 Pg. 529 CFR 37.7 l A recipient must not exclude or otherwise deny equal aid benefits services training programs or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.29 CFR 37.70 Who may file a complaint concerning discrimination connected with WIA Title I Any person who believes that either he or she or any specific class of individuals has been or is being subjected to discrimination prohibited by WIA or this part may file a written complaint either by him herself or through a representative.28 CFR 37.11 a A recipient must not discharge intimidate retaliate threaten coerce or discriminate against an individual because the individual has 1 Filed a complaint alleging a violation of Section 188 of WIA or this part 2 Opposed a practice prohibited by the nondiscrimination and equal opportunity provisions of WIA or this part 3 Furnished information to or assisted or participated in any manner in an investigation review hearing or any other activity . . . 4 Otherwise exercised any rights and privileges under the nondiscrimination and equal opportunity provisions of WIA . . . b The sanctions and penalties contained in Section 188 b of WIA or this part may be imposed against any recipient that engages in any such retaliation or intimidation or fails to take appropriate steps to prevent such activity. be qualified if the person meets the job-related requirements for a job and is able to perform its essential functions with or without reasonable accommodations 29 CFR 37.4 . ASSOCIATIONAL DISCRIMINATION Section 188 also extends its protections to people who do not have disabilities themselves but are discriminated against on the basis of their association with a person with a disability. The association can be with family members friends or any other person or entity 29 CFR 37.7 l . A person who experiences associational discrimination has a right to relief under the Section 188 but is not like persons who themselves have disabilities entitled to request reasonable accommodations in employment. WHO IS ELIGIBLE TO FILE A SECTION 188 COMPLAINT The 29CFR Part 37 regulations provide a detailed process to allow individuals who believe they have been discriminated against to register complaint with the Department of Labor s Civil Rights Center. The complaint process is described in greater detail in chapter 8 of this guide. RETALIATION OR COERCION An entity may not retaliate against or coerce any individual because that individual took action to oppose any act or practice prohibited by WIA 188 or because that individual assisted or encouraged others in exercising their rights under WIA 188. Prohibited actions include threats intimidation harassment or interference. EXCLUSIONS FROM PROTECTION A Direct Threat to Health or Safety One factor to be considered in determining whether a person is a qualified individual with a disability is the health or safety of others. Under the WIA 188 and applicable disability laws if an individual with a disability poses a direct threat to the health or safety of others then that person is not a qualified individual with a disability. Such a person has not met an essential eligibility requirement for the receipt of services or participation in programs or activities of a recipient. DRAFT 07 25 2000 Ch. 2 Pg. 629 CFR 37.4 2 The term individual with a disability also does not include an individual who is currently engaged in the illegal use of drugs when a recipient acts on the basis of such use. This limitation does not exclude as an individual with a disability an individual who i Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully ii Is participating in a supervised rehabilitation program or iii Is erroneously regarded as engaging in such use.The determination that an individual with a disability poses a direct threat to the health or safety of the individual or of others may not be based on stereotypes. The decision must be based on an individualized assessment of the person s present condition not on speculation about any future risk. It must also be based on reasonable judgment founded on medical evidence or on the best available objective evidence. Factors to be considered in determining whether an individual poses a direct threat to health and safety include the duration nature and severity of the potential harm the likelihood the potential injury will occur the imminence of the potential harm and whether a reasonable accommodation in an employment context or reasonable modification in policies practices or procedures or the provision of auxiliary aids and services will mitigate or eliminate the risk. CONDITIONS NOT CONSIDERED DISABILITIES 29 CFR 37 explicitly excludes the following conditions from the term disability transvestism transsexualism pedophilia exhibitionism voyeurism gender identity disorders not resulting from physical impairments other sexual behavior disorders compulsive gambling kleptomania pyromania and psychoactive substance use disorders resulting from the current illegal use of drugs 29 CFR 37.4 . Moreover the phrase physical or mental impairment does not include homosexuality or bisexuality those orientations are not considered disabilities under WIA 188 section 504 or the ADA. However where these individuals also have physical or mental conditions that do constitute disabilities under WIA 188 section 504 or the ADA they may not be discriminated against on the basis of the covered disability. Current Illegal Use of Drugs Not Protected Although an individual addicted to drugs may be an individual with a disability persons who are currently engaging in the illegal use of drugs are not protected by WIA 188 section 504 or the ADA. Thus a recipient may withhold services or benefits from a person because of his or her current illegal use of drugs. By contrast a person with a history of drug use who has been successfully rehabilitated or someone who is DRAFT 07 25 2000 Ch. 2 Pg. 729 CFR 37.4 2 With regard to employment the term individual with a disability does not include any individual who i Is an alcoholic A Whose current use of alcohol prevents such individual from performing the duties of the job in question or B Whose employment by reason of such current alcohol abuse would constitute a direct threat to property or the safety of others . . .29 CFR 37.4 2 With regard to employment the term individual with a disability does not include any individual who ii Has a currently contagious disease or infection if A That disease or infection prevents him or her from performing the duties of the job in question or B His or her employment because of that disease or infection would constitute a direct threat to the health and safety of others.participating in a drug rehabilitation program and is not currently using drugs illegally is protected. Use of Alcohol Alcoholism can be a disability covered by the ADA. If a person s alcoholism substantially limits a major life activity that person has a disability under the ADA. Employers may prohibit the use of alcohol by all employees at the workplace and may hold an alcoholic employee to the same performance and conduct standards that apply to all employees 29 CFR 1630.16 b . Under Section 188 persons who are alcoholics whose current use of alcohol prevents their performing the duties of their job or constitutes a direct threat to the property or safety of others are not considered to be persons with a disability in the context of employment. In other words beneficiaries who are alcoholics are entitled to the same aid benefits services or training that are due any other person with a disability. However if seeking employment or currently employed by a recipient these persons are not entitled to the protections of other persons with disabilities. They may not claim their alcoholism as a disability in the employment context. Contagious Disease or Infection Not Considered Disabilities in Employment Context Likewise Section 188 does not consider as disabling conditions in the context of employment any currently contagious diseases or infections that prevent an individual from performing job duties or that constitute a direct threat to the health and safety of others. As in the previous case beneficiaries of aid benefits services or training who have currently contagious diseases or infections may qualify for the protections due to persons with disabilities under Section 188 but employees or employment applicants do not qualify for this protection unless they have some other basis for being considered persons with disabilities. U.S. Citizenship Not Required for Protection A person does not have to be a United States citizen to be covered by section 504 or WIA 188. In fact WIA 188 DRAFT 07 25 2000 Ch. 2 Pg. 829 CFR 37.5 What forms of discrimination are prohibited by this part No individual in the United States may on the ground of race color religion sex national origin age disability political affiliation or belief and for beneficiaries only citizenship or participation in any WIA Title I-- financially assisted program or activity be excluded from participation in denied the benefits of subjected to discrimination under or denied employment in the administration of or in connection with any WIA Title I-- funded program or activity.prohibits discrimination on the ground of citizenship see the definition of the term discrimination on the ground of citizenship in 29 CFR 37.4 . B. WHAT DISCRIMINATORY ACTIONS ARE PROHIBITED General Prohibitions Against Discrimination Discrimination against persons with disabilities is prohibited by WIA Section 188 as part of a broader prohibition against discrimination on numerous grounds 29CFR 37.5 . In addition it includes an entire section detailing specific prohibited discrimination based on disability 29CFR 37.7 . Applicability A WIA Title I recipient must ensure that no qualified individual with a disability is on the basis of disability excluded from participation in or denied any benefit of its aid benefits services or training or subjected to any other discrimination 29CFR 37.7 a 1-6 . The requirement to ensure that qualified individuals with disabilities are not discriminated against in the workforce investment system is applicable to the aids benefits services or training that are provided directly by the One-Stops as well as those operated or provided by another entity on behalf of the Local Workforce Investment Area LWIA under contractual or other arrangements. This means that it is necessary to evaluate the aids benefits services and training that are provided by all entities on behalf of the LWIA through contractual or other arrangements as well as those provided directly by the One- Stop Center. For example a One-Stop Center that operates its own GED- prep program may not exclude individuals with disabilities from participating in the program. If the same One-Stop Center contracted with a private provider to deliver this training program it continues to be responsible for the assurance of nondiscrimination on the part of the contractor. Accordingly if the contractor excluded a student from service on the basis of the student s disability the One-Stop Center would be liable for that discrimination. DRAFT 07 25 2000 Ch. 2 Pg. 929 CFR 37.7 a 1 In providing any aid benefits services or training under a WIA Title I-financially assisted program or activity a recipient must not directly or through contractual licensing or other arrangements on the ground of disability 1 deny a qualified individual with a disability the opportunity to participate in or benefit from the aid benefits services or training.29 CFR 37.7 a 2 In providing any aid benefits services or training under a WIA Title I-financially assisted program or activity a recipient must not directly or through contractual licensing or other arrangements on the ground of disability afford a qualified individual with a disability an opportunity to participate in or benefit from the aid benefits services or training that is not equal to that afforded others29 CFR 37.7 a 3 In providing any aid benefits services or training under a WIA Title I-financially assisted program or activity a recipient must not directly or through contractual licensing or other arrangements on the ground of disability afford a qualified individual with a disability an opportunity to participate in or benefit from the aid benefits services or training that is not as effective in affording equal opportunity to obtain the same result to gain the same benefit or reach the same level of achievement as that provided to others.BASIC EQUAL OPPORTUNITY REQUIREMENTS Denial of Opportunity to Participate or Benefit Prohibited. A recipient must ensure that no qualified individual with a disability is on the basis of disability excluded from participation in or denied any benefit of its aid benefit services or training or subjected to any other discrimination 29 CFR 37.7 a 1 . This means that in providing general benefits and services a One-Stop Center must take steps to ensure that a qualified individual with a disability is not denied the opportunity to participate in any of its programs or to benefit from any aid benefit service or training that it provides. Provision of Unequal Opportunity or Benefit Prohibited A recipient must also ensure that in providing general services and benefits a qualified individual with a disability is provided an opportunity to participate in its programs that is equal to the opportunity that is provided to nondisabled persons to participate. A One-Stop Center must also ensure that a qualified individual with a disability is provided with an opportunity to benefit from any aid benefit service or training that is provided under its programs that is equal to the opportunity that is provided to nondisabled individuals. For example an individual with a profound hearing disability is being evaluated for intensive services and it is determined that in order for them to benefit from these services that reasonable accommodations including a sign language interpreter or other appropriate accommodation must be provided. The One-Stop citing expense refuses to pay for the sign language interpreter. The One-Stop would be in violation of Section 188. Provision of Benefit or Service That Is Not Equally Effective Prohibited In providing general services and benefits a One-Stop Center must ensure that services provided to qualified individuals with disabilities are effective enough to afford equal opportunity to obtain the same result gain the same benefit or reach the same level of achievement as DRAFT 07 25 2000 Ch. 2 Pg. 1029 CFR 37.7 a 4 In providing any aid benefits services or training under a WIA Title I-financially assisted program or activity a recipient must not directly or through contractual licensing or other arrangements on the ground of disability provide different segregated or separate aid benefits services or training to individuals with disabilities or to any class or individuals with disabilities unless such action is necessary to provide qualified individuals with disabilities with aid benefits services or training that are as effective as those provided to others 29 CFR 37.7 c A recipient must not deny a qualified individual with a disability the opportunity to participate in WIA Title I-financially assisted programs or activities despite the existence of permissibly separate or different programs or activities.nondisabled individuals. For example a Welfare-to-Work participant with a learning disability is evaluated and it is determined that she can participate in a remedial education program with certain modifications such as being permitted additional time in which to take tests. Any action inconsistent with this determination such as an instructor s denial of additional time to take a test would result in provision of training to this individual that was not effective enough to afford her an equal opportunity to reach the same level of achievement as nondisabled participants. Programs Under Section 188 a recipient may not operate separate or different programs or provide separate or different aids benefits services or training within programs for individuals with disabilities unless such aids benefits services or training are necessary to provide assistance to persons with disabilities that are equally as effective as those provided to nondisabled persons 29 CFR 37.7 a 4 . Even when separate aids benefits services or training are permitted under Section 188 a recipient must provide them in the most integrated setting appropriate to the needs of qualified individuals with disabilities 29 CFR 37.7 d . Separate programs may not be established based on stereotypes or presumptions about what a class of individuals with disabilities can or cannot do. However even where the recipient operates a permissibly separate program or offers a permissibly separate service or benefit it may not deny participation in the regular program or provision of the regular service or benefit to any qualified individual with a disability 29 CFR 37.7 c . It is also important to note that persons with disabilities have the right to decline accommodations aids or services including those that might be offered to individuals with disabilities participating in regular programs 29 CFR 37.7 0 1 . For example a person with a hearing impairment may choose to decline special front-row seating at a One-Stop related activity. However if individuals decline accommodations necessary to enable them to participate in a program and are unable to meet the essential eligibility requirements of the program without the accommodations they would not be qualified individuals with DRAFT 07 25 2000 Ch. 2 Pg. 1129 CFR 37.7 a 5 In providing any aid benefits services or training under a WIA Title I-financially assisted program or activity a recipient must not directly or through contractual licensing or other arrangements on the ground of disability deny a qualified individual with a disability the opportunity to participate as a member of planning or organizing boards or 29 CFR 37.7 a 6 In providing any aid benefits services or training under a WIA Title I-financially assisted program or activity a recipient must not directly or through contractual licensing or other arrangements on the ground of disability otherwise limit a qualified individual with a disability in enjoyment of any right privilege advantage or opportunity enjoyed by others receiving any aid benefit service or training.29 CFR 37.7 i A recipient must not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any aid benefit service training program or activity unless such criteria can be shown to be necessary for the provision of the aid benefit service training program or activity being offered.disabilities. Of course individuals with disabilities have the right to provide their own accommodations aids and services which may enable them to be qualified to participate in a program. Denial of Board Membership Prohibited A local One-Stop system is overseen by the Local Workforce Investment Board LWIB . In addition One-Stop partners often have advisory boards and there may be planning or coordinating committees associated with the operation of a One-Stop or one of its entities. Participation on any of these boards is to be afforded to persons with disabilities. They must not be denied participation on a board on grounds of their disability. Limitations on Enjoying Advantages Opportunities or Benefits Prohibited In general persons with disabilities are to be afforded every opportunity advantage privilege and right that is available or enjoyed by persons without disabilities through the aids benefits services and training provided by recipients through the One-Stop system. Surcharges Prohibited Section 188 prohibits placing surcharges on individuals with disabilities to cover the cost of measures necessary to provide nondiscriminatory treatment 29 CFR 37.7 k . This means for example that a One-Stop Center that provides an auxiliary aid or service to an individual with a disability in order to enable that individual to effectively participate in the program may not charge the individual for the auxiliary aid or service. A Center may however charge individuals with disabilities the same fees for services programs and events that it charges individuals without disabilities. Eligibility Criteria The Workforce Investment System may not use eligibility criteria for participation in its programs or receipt of its benefits or services that directly or indirectly screen out individuals with disabilities or that directly or indirectly cause individuals with disabilities to be denied full and equal DRAFT 07 25 2000 Ch. 2 Pg. 1229 CFR 37.7 e A recipient must not directly or through contractual licensing or other arrangements use standards procedures criteria or administration methods 1 That have the purpose or effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability 2 That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the WIA Title I-financially assited program or activity with respect to individuals with disabilities or 3 That perpetuate the discrimination of another entity if both entities are subject to common administrative control or are agencies of the same state.participation services or benefits unless the eligibility criteria are necessary for the provision of the service program or activity being offered 29 CFR 37.7 i . A One-Stop Center may impose legitimate safety requirements necessary for the safe operation of its aids benefits services or training. However any safety requirement must be based on actual risks and not on speculation stereotypes or generalizations about individuals with disabilities. For example A One-Stop Center sponsors training in computer repair. The application states that individuals with disabilities must submit a doctor s certificate indicating that they are able to participate in the course. The One-Stop can make no showing that this blanket requirement is essential. This type of eligibility requirement is in violation of Section 188. Effect of Policies and Practices Standards Procedures Criteria Methods of Administration A recipient may not use standards procedures criteria or methods of administration that result in discrimination on the basis of disability 29 CFR 37.7 e . A recipient may not have written policies or actual operating practices that exclude qualified individuals with disabilities directly on the basis of their disability. The requirement prohibiting standards procedures criteria or methods of administration that have the effect of discriminating on the basis of disability means that a recipient may not use policies or practices-- even where they are not stated in terms of prohibiting participation on the basis of disability or where they are not intended to prohibit or limit participation on the basis of disability--that cause qualified individuals with disabilities to be denied an equal opportunity to participate in a program or to benefit on an equal basis under the program. Selecting Sites and Locations In determining the site or location of a facility a One-Stop Center may not select a site or location that 1 has the effect of excluding individuals with disabilities denying them benefits or otherwise subjecting them to discrimination or 2 has the purpose or effect of defeating or substantially impairing the accomplishment of the disability-related objectives of the service program or activity with respect to individuals with DRAFT 07 25 2000 Ch. 2 Pg. 1329 CFR 37.7 b b A recipient must not directly or through contractual licensing or other arrangements aid or perpetuate discrimination against qualified individuals with disabilities by providing significant assistance to an agency organization or person that discriminates on the basis of disability in providing any aid benefits services or training to registrants applicants or participants.disabilities 29 CFR 37.7 f . Thus the site selection procedures of a Workforce Investment Board should routinely include an assessment of whether the terrain or any other feature of a site or location under consideration would have any adverse effect on participation by qualified individuals with disabilities. The requirements concerning the selection of sites and locations do not apply to construction of additional buildings at an existing site. However any such facilities must be made accessible in accordance with the requirements for new construction discussed in Chapter Six. Significant Assistance to Entities That Discriminate Recipients must identify agencies organizations and persons to whom the they provide significant assistance and determine whether through that assistance they may be aiding or perpetuating discrimination against qualified individuals with disabilities 29 CFR 37.7 b . For example a One-Stop Center permits a national service organization to establish a tutoring and mentoring program for at-risk youth. The One-Stop learns that the organization plans to ask youth who apply to the program whether they are HIV-positive and to screen applicants out of the program on that basis. The One-Stop Center provides publications supplies and space. The Center must inform the organization that it cannot provide significant assistance to an organization that discriminates on the basis of disability. If the organization does not eliminate the discriminatory criterion for participation the One-Stop must terminate its relationship with the organization. Procurement Contracts A One-Stop Center may not discriminate on the basis of disability in the selection of contractors in any procurement 29 CFR 37.7 g . Licenses or Certification A recipient that operates a licensing or certification program may not discriminate against qualified individuals with disabilities on the basis of disability in its licensing and DRAFT 07 25 2000 Ch. 2 Pg. 1429 CFR 37.8 a With regard to aid benefits services training and employment a recipient must provide reasonable accommoda-tion to qualified individuals with disabilities who are applicants registrants eligible applicants registrants participants employees or applicants for employment unless providing the accommodation would cause undue hardship. 29 CFR 37.8 b A recipient must also make reasonable modifications in policies practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability unless making the modifications would fundamentally alter the nature of the service program or activity. 29 CFR 37.4 Reasonable accommodation. 1 The term reasonable accommodation means i Modifications or adjustments to an appli- cation registration process that enables a qualified applicant registrant with a disabil- ity to be considered for the aid benefits services training or employment that the qualified applicant registrant desires or ii Modifications or adjustments that enable a qualified individual with a disability to perform the essential functions of a job or to receive aid benefits services or training equal to that provided to qualified individ-uals without disabilities These modifications or adjustments may be made to A The environment where work is performed or aid benefits services or training are given or B The customary manner in which or circumstances under which a job is performed or aid benefits services or training are given or iii Modifications or adjustments that enable a qualified individual with a disability to enjoy the same benefits and privileges of the aids benefits services training or employment as are enjoyed by other similarly situated individuals without disabilities.certification activities 29 CFR 37.7 h . A recipient may not establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. Exceeding the Section 188 Requirements Section 188 permits a public entity to provide benefits services or advantages to individuals with disabilities or to a particular class of individuals with disabilities beyond those required by the regulation 29 CFR 37.7 j . This means that One-Stop Centers may provide programs services and benefits that are designed only to benefit individuals with disabilities without incurring additional obligations to nondisabled persons or to other classes of individuals with disabilities. C. WHAT ARE REASONABLE ACCOMMODATIONS Requirement to Provide Reasonable Accommodation and Reasonable Modification Reasonable Accommodation and Reasonable Modification are similar terms that are used when describing procedures and remedies for ensuring the participation of persons with disabilities. Reasonable Accommodations are those things which are provided to the qualified person with a disability-- ordinarily based upon their request--to enable their participation. Reasonable Modifications are those things which a recipient must make to its policies practices or procedures to avoid discrimination on the basis of disability. Section 188 requires recipients to make those modifications to policies practices or procedures that are necessary to avoid discrimination on the basis of disability 29CFR 37.8 b . In addition it requires meeting the requests of persons with disabilities for reasonable accommodations to enable their participation in the aids benefits services training or employment that the recipient provides 29CFR 37.8 a . Under the ADA reasonable accommodation is required in the area of employment. Under Section 188 the requirement to provide reasonable accommodations is extended to all of the aids benefits services or training that may be provided through the One-Stop system. DRAFT 07 25 2000 Ch. 2 Pg. 1529CFR 37 Supplementary Information Under the requirements of Section 188 of WIA and this part as well as under other Federal civil rights laws and their implementing regulations a recipient must provide both accessible facilities that is both program accessibility and architectural accessibility and reasonable accommoda-tion for individuals with disabilities. It is important to understand the difference between these two requirements. Providing accessible facilities requires a recipient to take advance actions in order to be ready when persons with disabilities seek aid benefits services training or employment from that recipient at some point in the future. See the discussion of program accessibility and architectural accessibility in the discussion in this preamble about Paragraph 37.3 b . By contrast providing reasonable accommodation for an individual with a disability requires the recipient to make efforts to meet the specific needs of the particular individual who is currently seeking aid benefits services training or employment from the recipient. Reasonable accommodation may require making specific structural or other modifications to meet the needs of a particular individual for access.Reasonable Accommodation Defined The definition of Reasonable Accommodation in 29CFR Part 37 includes a wide range of areas in which accommodation is frequently sought. Recipients are required to make reasonable accommodation for qualified applicants registrants and employees with disabilities who request such accommodation. Reasonable accommodation in the program environment means modification or adjustment to an application registration process or to the customary manner in which aid benefits services or training are given that enable a qualified individual with a disability to enjoy the same benefits and privileges as individuals without disabilities. Reasonable accommodation in the employment environment means modification of the job application process the way in which a job is customarily performed or employment policies that enable a qualified individual with a disability to be considered for the position perform the essential functions of the job or enjoy benefits and privileges of employment equal to those available to a similarly- situated employee without a disability 29 CFR 37.4 . Reasonable Accommodation and Accessibility In addition to the definitions and particular regulations regarding reasonable accommodation in 29CFR Part 37 the preamble includes a discussion of the relationship between reasonable accommodation and accessibility. The distinction between these two is that the requirement to provide accessible programs and accessible buildings requires a recipient to take advance action to ensure that they are ready when persons with disabilities seek aid benefits services training or employment from the recipient. The requirement to provide reasonable accommodation for a person with a disability is one that becomes activated when a person with a disability does come and present the recipient with specific needs in order to take advantage of the aid benefits services training or employment that the recipient is offering. Accessibility requires advance preparation and readying accommodation requires adjustment within the context of delivering specific aid benefits services training or employment to a particular individual with a disability. DRAFT 07 25 2000 Ch. 2 Pg. 1629 CFR 37.4 2 Reasonable accommodation includes but is not limited to i Making existing facilities used by applicants registrants eligible applicants registrants participants applicants for employment and employees readily accessible to and usable by individuals with disabilities and ii Restructuring of a job or a service or of the way in which aid benefits or training is are provided part-time or modified work or training schedules acquisition or modification of equipment or devices appropriate adjustment or modifications of examinations training materials or policies the provision of readers or interpreters and other similar accommodations for individuals with disabilities.Examples of Reasonable Accommodation Examples of reasonable accommodations in the program environment include along with making facilities accessible also restructuring a service or the way in which aid benefits or training are provided making appropriate adjustment or modifications to examinations training materials or policies providing readers or interpreters and other similar accommodations for individuals with disabilities. Examples of reasonable accommodation in the work environment include adjusting work schedules restructuring the job reassigning the employee acquiring or modifying equipment and devices providing qualified readers or interpreters or modifying the work site 29 CFR 1630.2 o 2 . 1. Modifying in the way in which training is provided. Modifications of training delivery may include more frequent breaks repetition of key points and utilization of a variety of media in training sessions. Luisa the clerical skills trainer has been informed that Anne a welfare-to-work participant who will be taking part in the training has informed her job counselor that she has a mild form of Attention Deficit Disorder ADD . Anne has trouble concentrating for long periods of time and has trouble digesting comprehending information that is spoken to her. After consulting with a local community based organization that focuses on learning disabilities Luisa modified the training to add an additional break in the morning and afternoon concluded each morning and afternoon session with a reiteration of the major points from the day s lesson made key points through visual and oral presentation and provided a number of hands-on in-class exercises. Anne is excelling in the clerical skills training program and the One-Stop Center is fulfilling its obligation to provide reasonable accommodation. 2 Adjusting work schedules. Recipients in their employment practices should consider modification of a regular work schedule as a reasonable accommodation unless this would cause an undue hardship. Modified work schedules may include flexibility in work hours or the work week or part-time work where this will not be an undue hardship. DRAFT 07 25 2000 Ch. 2 Pg. 17 For example Jean a job counselor with a mental disability requires two hours off twice weekly for sessions with a psychiatrist. She requests a reasonable accommodation. The One-Stop Center permits Jean to take longer lunch breaks and to make up the time by working later on those days. The One- Stop is fulfilling its obligation to provide reasonable accommodation. Although employers may be required to make adjustments in leave policy as a reasonable accommodation in some instances employers are not required to provide additional paid leave for employees with disabilities as an accommodation. 3 Restructuring the job. Job restructuring as a reasonable accommodation may involve reallocating or redistributing the marginal functions of a job. Although a recipient as an employer is not required to reallocate essential functions of a job as a reasonable accommodation it may be a reasonable accommodation to modify the essential functions of a job by changing when or how they are done. For example Rob who had his left arm amputated as a result of an accident has returned to work in the facilities maintenance department using a prosthesis. He is able to perform all of the essential job functions of his former position. However Rob is not able to perform the marginal function of operating one piece of equipment that cannot be modified and requires a two- handed fine motor grasping motion. Since Rob always works as part of a crew the duties among the crew are re-allocated so that other workers perform that task. The Center is fulfilling its obligation to provide reasonable accommodation. 4 Reassigning the employee to a vacant position. Under Title I of the ADA reassignment may be an appropriate accommodation if an individual is unable to perform the essential functions of his or her current position because of a disability. If there is no other accommodation that will enable the person to perform these functions or if the employer can prove that other accommodations would pose an undue hardship reassignment to a vacant position should be considered if the individual is qualified for the position. 5 Acquiring or modifying equipment and devices. Purchase of equipment or devices or modifications to existing equipment may be effective accommodations for people with DRAFT 07 25 2000 Ch. 2 Pg. 18 many types of disabilities. There are many devices that make it possible for people to overcome existing barriers to performing functions of a job. These devices range from very simple solutions such as an elastic band that can enable a person with cerebral palsy to hold a pencil and write to high-tech electronic equipment that can be operated with eye or head movements by people who cannot use their hands. There are also many ways to modify standard equipment enabling people with functional limitations to perform jobs effectively and safely. Creative analysis of job requirements often results in effective low-cost accommodations. The following are examples of effective uses of low-cost assistive devices that would be considered reasonable accommodations Wrist supports for use while typing available for under 30 and adjustment of the height of the desk chair may enable a clerk typist with carpal tunnel syndrome an inflammatory disease that affects the wrists typically as a result of repetitive motion to do his or her job with minimal stress on his or her wrist joints. A trackball may be used instead of a mouse to enable an individual with poor hand-eye coordination to control the movement of the cursor on a computer screen. It is important to note that many types of equipment and devices that are effective accommodations for employees with visual hearing or speech disabilities--such as large print displays on computer monitors screen readers TTY TDDs and telephone amplifiers--also constitute auxiliary aids and services that are designed to provide effective communication. Auxiliary aids and services that are used to provide effective communication are discussed in greater detail in Chapter Seven on communication. 6 Providing qualified readers and interpreters. It may be a reasonable accommodation to provide a qualified reader for a qualified individual with a visual disability or a qualified interpreter for a qualified individual with a hearing disability if such an accommodation does not impose an undue hardship. Identifying the needs of the individual in either program or employment situations will determine whether or when a reader or interpreter is needed. Few tasks require a full-time employee for reading or interpreting. A reader or an interpreter may be a part-time employee or a full-time employee who performs other DRAFT 07 25 2000 Ch. 2 Pg. 19 duties. Readers and interpreters must read and interpret well enough respectively to enable the employee with disabilities to perform his or her job effectively or to receive aid benefits services or training equal to that provided to qualified individuals without disabilities. A qualified interpreter must be able to interpret effectively accurately and impartially both receptively and expressively using any necessary specialized vocabulary. Qualified readers and interpreters are also examples of auxiliary aids and services that may be used to provide effective communication as discussed more fully in Chapter Seven. 7 Modifying the work site. Employers are obligated to provide access for individual job applicants with disabilities to enable them to participate in the job application process. When an employee with a disability is hired an employer may have to modify the work site to enable him or her to perform essential job functions. In addition employees with disabilities must be able to readily access all facilities used by employees whether essential to job functions or not--for example the employee lounge or cafeteria. For example Peter who uses a wheelchair is hired as an administrator. He is unable to enter the building where he is assigned which has two steps between the lobby entrance and the elevators. He is also unable to sit comfortably at his desk because it is too low to the floor. The One-Stop Center constructs a ramp in the lobby to provide an accessible route for Peter. His desk is raised on concrete blocks to accommodate the height of his wheelchair. These worksite modifications fulfill the center s duty to provide reasonable accommodation. Personal Devices and Services It is important to understand that a recipient is obligated to provide only program-related job-related accommodations. The requirement to provide reasonable accommodation does not include providing personal devices or services to assist an individual in daily activities such as wheelchairs prescription eyeglasses or hearing aids prostheses readers for personal use or study or assistance in toileting dressing or eating 29CFR 37.7 . DRAFT 07 25 2000 Ch. 2 Pg. 2029 CFR 37.4 3 To determine the appropriate reasonable accommodation it may be necessary for the recipient to initiate an informal interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.29 CFR 37.7 o 1 o 1 Nothing in this part requires an individual with a disability to accept an accommodation aid benefit service training or opportunity provided under WIA Title I or this part that such individual chooses not to accept.Choosing the Accommodation Title I of the ADA specifies that an employer is obligated to accommodate only known disabilities of qualified applicants or employees 29 C.F.R. 1630.9 a . The responsibility for providing an accommodation is triggered when an individual with a disability makes a request for an accommodation. The person making the request will often be able to suggest an appropriate accommodation. Not all employees with disabilities require accommodations. For other employees the need for accommodation may be obvious. If an employee with a known disability is having difficulty performing the job without an accommodation the employer may ask the employee whether he or she is in need of an accommodation. Under Section 188 a qualified individual with a disability is not required to accept the offer of an accommodation 29CFR 37.7 o 1 . However if such an offer is rejected and the person cannot then perform the essential functions of the job the person will no longer be considered a qualified individual with a disability 29 CFR 1630.9 d . Once the applicant or employee has requested an accommodation sufficient information must be gathered to determine the type of accommodation necessary to enable the individual to perform the job. In most instances the person with a disability is in the best position to identify what is needed. Ask them When necessary seek additional information from qualified experts. An employer need not provide the requested accommodation if an alternative means of accommodation that is less costly but equally effective is available. It is mandatory however to provide an accommodation that gives a qualified individual with a disability an opportunity to attain the same level of job performance as co-workers with similar skills and abilities. The Job Accommodation Network JAN provides free consulting services for employers employees or job-seekers to help them select accommodations to enable persons with disabilities to perform critical job functions. By contacting the JAN an employer job-seeker or a One-Stop recipient can access experienced persons familiar with a large number of accommodations that may be applicable to the barrier an DRAFT 07 25 2000 Ch. 2 Pg. 2129 CFR 37.4 Fundamental alteration means 1 A change in the essential nature of a program or activity as defined in this part including but not limited to an aid service benefit or training or 2 A cost that a recipient can demonstrate would result in an undue burden.29 CFR 37.4 Undue Hardship 1 Reasonable accommodation of individuals with disabilities i In general undue hardship means significant difficulty or expense incurred by a recipient when considered in light of the factors set forth in paragraph ii .29 CFR 37.8 a 1 In those circumstances where a recipient believes that the proposed accommodation would cause undue hardship the recipient has the burden of proving that the accommodation would result in such hardship. 2 The recipient must make the decision that the accommodation would cause such hardship only after considering all factors listed in the definition of undue hardship in Sec. 37.4. The decision must be accompanied by a written statement of the recipient s reasons for reaching that conclusion. The recipient must provide a copy of the statement of reasons to the individual or individuals who requested the accommodation. 3 If a requested accommodation would result in undue hardship the recipient must take any other action that would not result in such hardship but would nevertheless ensure that to the maximum extent possible individuals with disabilities receive the aid benefits services training or employment provided by the recipient.employee must overcome. By far the majority of accommodations suggested are relatively inexpensive 31 of those suggested by Network consultants have been free. JAN can be reached toll-free at 1-800-526-7234 or on the internet at http www.jan.wvu.edu english homeus.htm. The Counterbalance Fundamental Alteration or Undue Burden Hardship There is a limit to the accommodation that must be offered by a recipient in the One-Stop delivery system. It occurs when the recipient believes that making the proposed modification or providing the proposed accommodation would result in a fundamental alteration that is a change in the essential nature of a program or activity and or create such additional cost as to become an undue undue burden or undue hardship 29 CFR 37.8 a . In the event that a recipient either when acting as an employer or when offering aid benefits services or training believes that the requested accommodation would cause an undue burden the recipient must follow a three step process that is specified in the regulation. Recipients that believe a proposed accommodation would create a fundamental alteration and or cause an undue burden must prove that the requested accommodation would result in such hardship the burden of proof rests with the recipient make their determination only after considering all of the factors that are required by the definition of undue hardship and commit their determination along with the reasons for it to writing and provide a copy of the written explanation to the individual or individuals who requested the accommodation take any other action that would not result in the hardship but would ensure that individuals with disabilities receive the aid benefits services training or employment provided by the recipient to the maximum extent possible 29 CFR 37.8 . Fundamental alteration is defined as a change in the essential nature of a program or activity including but not limited to an aid service benefit or training . . . or a cost that would result in an undue burden 29 CFR 37.4 . Undue burden hardship is defined as significant difficulty or expense incurred by a recipient in the provision of an accommodation 29 CFR DRAFT 07 25 2000 Ch. 2 Pg. 22 37.4 . Factors that must be weighed in determining whether a requested accommodation poses an undue hardship include the nature and net cost of the accommodation taking into consideration the availability of tax credits and deductions and or outside funding for the accommodation the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation the number of persons aided benefitted served trained by or employed at such facility and the effect on expenses and resources the overall financial resources of the recipient the overall size of the recipient the number of persons aided benefitted served trained or employed and the number type and location of its facilities the type of operation or operations of the recipient including the composition structure and functions of the recipient s work force the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the recipient and the impact of the accommodation upon the operation of the facility including the impact on the ability of other participants to receive aid benefits services or training or of other employees to perform their duties and the impact on the facility s ability to conduct business 29 CFR 37.4 . Under Section 188 the resources that are available to the recipient s specific work site must be considered in addition to consideration of the resources of the recipient as a whole. The Section 188 regulation also stresses that net cost taking into consideration the availability of tax credits tax deductions and or outside funding is a relevant factor. The determination whether a requested accommodation is reasonable must be made on a case-by-case basis. If providing a particular accommodation would be an undue hardship the recipient must attempt to identify an alternative accommodation that would not. Title I of the ADA adds the additional option in cases in which the accommodation would pose an undue hardship for the recipient the individual with the disability should be given the option of paying for the portion of the cost that constitutes an undue hardship or of providing the accommodation Appendix to 29 CFR 1630 at 414 1994 . It must be clearly understood however that this option is to be offered as a last resort and only in cases in which providing the DRAFT 07 25 2000 Ch. 2 Pg. 2329 CFR 1630.10 Qualification standards tests and other selection criteria. It is unlawful for a covered entity to use qualification standards employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities on the basis of disability unless the standard test or other selection criteria as used by the covered entity is shown to be job- related for the position in question and is consistent with business necessity.requested accommodation would clearly constitute an undue hardship it is not to be considered a routine cost-saving strategy. For example a job counselor with a disability that affects blood circulation requests that the thermostat in her office suite be raised to a certain level to accommodate her disability. However the temperature she requires for her own comfort is uncomfortably hot for her office mates. The center does not have to provide this accommodation if it would constitute an undue hardship. However if there is an alternative accommodation that would not be an undue hardship--such as providing a space heater--the recipient must provide that accommodation. If employees are governed by a collective bargaining agreement the terms of that agreement may have an impact on whether or not a requested accommodation creates an undue hardship Appendix to 29 CFR 1630 at 414 1994 . EEOC Guidance to Reasonable Accommodation The EEOC has developed guidance on reasonable accommodation and undue hardship. The entire EEOC guidance is included as Appendix of this document it is also available through the EEOC website at www.eeoc.gov docs accommodation.html. Qualification Standards and Selection Criteria Permitted In the area of employment the ADA makes clear that employers are not prohibited from establishing physical and mental job-related qualification standards--including education skills and work experience--necessary for job performance health and safety 29 CFR 1630.10 . Recipients are entitled to hire the most qualified person able to perform a job. ADA requirements are designed to ensure that people with disabilities are not excluded from jobs that they can perform. However qualification standards or selection criteria that screen out or tend to screen out an individual with a disability on the basis of disability are not automatically disallowed if they are demonstrably job-related and consistent with business necessity 29 CFR 1630.10 . Job-related means DRAFT 07 25 2000 Ch. 2 Pg. 24 that a selection criterion must be a legitimate measure or qualification for the specific job for which it is being used. Business necessity means that a selection criterion may not exclude an individual with a disability because of the disability unless the criterion relates to the essential functions of the job. CHAPTER TWO Protections and Reasonable Accommodation for Persons with Disabilities A. WHO ARE INDIVIDUALS WITH DISABILITIES WHO ARE PROTECTED UNDER SECTION 188 ...Ch. 2 Pg. 1 Disability -- Three Conditions..........................................Ch. 2 Pg. 1 1. A Physical or Mental Impairment..................................Ch. 2 Pg. 2 What is an impairment What is not an impairment What is a substantial limitation of major life activities 2. Persons With Records of Physical or Mental Impairments...............Ch. 2 Pg. 3 3. Persons Regarded as Having a Disability...........................Ch. 2 Pg. 3 Use of the Second and Third Categories..............................Ch. 2 Pg. 3 What Does It Mean to be Qualified .....................................Ch. 2 Pg. 4 Aid Services Benefits or Training...................................Ch. 2 Pg. 4 Employment..................................................Ch. 2 Pg. 5 Associational Discrimination..........................................Ch. 2 Pg. 5 Who is Eligible to File a Section 188 Complaint ...........................Ch. 2 Pg. 5 Retaliation or Coercion..............................................Ch. 2 Pg. 5 Exclusions from Protection ........................................Ch. 2 Pg. 5 Conditions Not Considered Disabilities...................................Ch. 2 Pg. 6 Current Illegal Use of Drugs Not Protected.............................Ch. 2 Pg. 7 Use of Alcohol ..............................................Ch. 2 Pg. 7 Contagious Disease or Infection Not Considered Disabilities in Employment Context ..................................................... Ch. 2 Pg. 7 U.S. Citizenship Not Required for Protection...........................Ch. 2 Pg. 8 B. WHAT DISCRIMINATORY ACTIONS ARE PROHIBITED ..........................Ch. 2 Pg. 8 General Prohibitions Against Discrimination............................Ch. 2 Pg. 8 Applicability..................................................Ch. 2 Pg. 8 Basic Equal Opportunity Requirements ................................Ch. 2 Pg. 9 Denial of Opportunity to Participate or Benefit Prohibited. .................Ch. 2 Pg. 9 Provision of Unequal Opportunity or Benefit Prohibited....................Ch. 2 Pg. 9 Provision of Benefit or Service That Is Not Equally Effective Prohibited........Ch. 2 Pg. 10 Programs...................................................Ch. 2 Pg. 10 Denial of Board Membership Prohibited..............................Ch. 2 Pg. 11 Limitations on Enjoying Advantages Opportunities or Benefits Prohibited.....Ch. 2 Pg. 11 Surcharges Prohibited ........................................Ch. 2 Pg. 11 Eligibility Criteria ...........................................Ch. 2 Pg. 12 Effect of Policies and Practices Standards Procedures Criteria Methods of Administration ....................................................Ch. 2 Pg. 12 Selecting Sites and Locations ..................................Ch. 2 Pg. 13 Significant Assistance to Entities That Discriminate ..................Ch. 2 Pg. 13 Procurement Contracts .......................................Ch. 2 Pg. 14 Licenses or Certification ......................................Ch. 2 Pg. 14 Exceeding the Section 188 Requirements ..........................Ch. 2 Pg. 14 C. WHAT ARE REASONABLE ACCOMMODATIONS .............................Ch. 2 Pg. 14 Requirement to Provide Reasonable Accommodation and Modification........Ch. 2 Pg. 14 Reasonable Accommodation Defined...............................Ch. 2 Pg. 15 Reasonable Accommodation and Accessibility........................Ch. 2 Pg. 15 Examples of Reasonable Accommodation .........................Ch. 2 Pg. 16 Personal Devices and Services ...................................Ch. 2 Pg. 20 Choosing the Accommodation ..................................Ch. 2 Pg. 20 The Counterbalance Fundamental Alteration or Undue Burden Hardship......Ch. 2 Pg. 21 EEOC Guidance to Reasonable Accommodation.......................Ch. 2 Pg. 24 Qualification Standards and Selection Criteria Permitted..................Ch. 2 Pg. 24