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Alan Trachtenberg, Md  
     
     
Joining your union is the best kind of general insurance you can buy, against the usual day-to-day abuses that employees suffer at the hands of SAMHSA management. Sometimes, however, in matters of prohibited discrimination, it may be better to make a complaint under EEO than to file a union grievance. This is because once a grievance is filed, it becomes impossible to seek any other remedy under EEO, if the outcome from the grievance procedure is unsatisfactory. The regulations force you to choose one of these two paths from the outset. Generally, if you think upper management may be reasonable about an issue, once it is brought to their attention, and your desired remedy is something that won't cost SAMHSA very much, then a quicker resolution is likely through the Union with a grievance. If not, and the issue is one of prohibited discrimination (including disability discrimination under the ADA), then you may want to consider an EEO complaint rather than a grievance. Please see the bottom of this page for more information on ADA, EEO and etc. Your union Stewart or Officers will be happy to discuss the decision with you and provide as much guidance as we can. However, you should keep in mind that if you do choose to go the route of an EEO complaint, that this would be filed by you as an individual. To be taken seriously by SAMHSA, you probably need an attorney. There is little point in going to a general practitioner for this kind of thing and if you get a specialist, you have the advantage of getting someone on your side who knows the law in this area MUCH better than SAMHSA management. Many bargaining unit employees have benefitted from independent counsel in this area. From them and other sources, NTEU Chapter 286 has compiled the following list of attorneys you may want to consider:


CHAPTER 286 REFERRAL SUGGESTIONS FOR ATTORNEYS ON EEO/ADA CASES (*Good Personal experience by Chapter 286 members is signified by an asterisk preceding the attorney's name):

* Francine K. Weiss, Esq., of Council, Kalijarvi, Chuzi & Newman, P.C., 1730 K Street, N.W., #1011, Washington, D.C. 20006. Telephone (202) 331-9260 and
Facsimile (202) 872-9562


Kalijarvi, Chuzi & Newman, P.C. is a Washington, DC law firm concentrating in discrimination, federal employment, security clearance, sexual harassment, grievances, disability, retirement, drugs, alcohol, and wrongful discharge


*Joshua N. Rose
Rose and Rose
1320 19th Street, N.W., Suite 601
Washington, D.C. 20036
202 331-8555
Fax 202 331-0996
josh.rose@starpower.net


Passman & Kaplan, P.C-These folks publish a regular column in FEDWEEK on Employment law cases

Link to a list of a list if attorneys who have successfully represented Foreign Service employees or who have experience in the specified area, including employment law, from the American Foreign Service Association.


Can a Fed be Fired for Poor Performance? FEDSMITH.com Article

(Under Construction)

(Under Construction)

(Under Construction)



Skip to SAMHSA Implementation Guidance and Procedures for Reasonable Accommodation of Disabilities




IMPORTANT SUPREME COURT DECISION:
In the last term, the Supreme Court issued a number of
important decisions in the employment law area, especially
in the area of interpreting the Americans with Disabilities
Act which served to narrow the scope of the Act. However,
the Court issued a favorable decision for complainants in
National Railroad Passenger Corp. v. Morgan, 122 S.Ct.
2061 (6/10/02), that has positive implications for federal
employees who allege a hostile working environment
involving repeated conduct in their discrimination
complaints. While complainants who allege Title VII
violations (race, color, sex, national origin, and/or
religion) must file their complaints within the statutory
and regulatory deadlines, 45 days for federal employees,
those who charge a hostile working environment will not be
time barred if all acts constituting the claim are part of
the same unlawful practice and at least one act falls
within the 45-day filing period.

Where discrete acts are alleged, e.g., denial of competitive
promotion or discipline, each discriminatory act starts a
new clock for filing within the required 45-day time period
because, as the Court explained, ô[e]ach incident of
discrimination and each retaliatory adverse employment
action constitutes a separate actionable unlawful employment
practice.ö Consequently, discriminatory acts that fall
outside of the 45-day time period are not actionable even
if they are related to acts that were timely filed.

Nevertheless, hostile work environment claims are different
from discrete act claims as they involve repeated conduct
that occurs over a period of time. Thus ôa hostile work
environment claim is comprised of a series of separate acts
that collectively constitute one unlawful employment
practice.ö As long as one act contributing to the hostile
work environment occurs within the 45-day period, ôthe
entire time period of the hostile work environment may be
considered by a court [or the EEOC] for the purposes of
determining liability.ö

This decision is very important for federal employees who
file hostile working environment complaints based upon
harassment because such conduct often occurs over a long
period of time. In contrast to untimely discrete acts which
can only be used as background evidence, repeated acts of
harassment may all be actionable as long as the last act
occurs within the 45-day period.

Therefore, it is critical that federal employees who suffer
from a hostile working environment due to discrimination
contact their EEO office or an EEO counselor within 45 days
of the last instance of harassment.

MORE ON TIMELY FILING FOR EEO:
15. FEDERAL LEGAL CORNER: EEOC CLARIFIES WHAT IS NECESSARY
TO ESTABLISH TIMELY CONTACT WITH EEO COUNSELOR
The EEOC has clarified what type of contact with an EEO
counselor is necessary to satisfy the employee's
obligation of initiating EEO counseling within 45 days
of a discriminatory event or discovery of such an
event. In Daniel Gonzales v. Dept. of the Navy, 103
FEOR 326 (April 3, 2003), the complainant alleged that
his failure to be selected for a position was the product
of national origin discrimination. On the 45th day after
notice of nonselection, the complainant sent a letter
to the agency's EEO office wherein he expressed his
desire for a meeting with an EEO counselor. The EEOC
found that this letter was insufficient to establish
timely EEO contact for two reasons: First, the letter
was insufficient because the complainant did not express
his desire to file a complaint about the nonselection;
it merely expressed a request to meet with the EEO
counselor. Second, there was no evidence that the letter
was actually received by someone in the agency logically
connected with the EEO process.

There are three tips employees should learn from this case:
1) a request for EEO counseling should state the intent to pursue an EEO complaint and specifically identify the personnel action (e.g. denial of leave, denial of promotion, suspension, harassment) that was discriminatory; 2) there should be a record of receipt by the EEO office or counselor to prove the request was submitted; and 3) do NOT wait until the 45th day to request counseling, in cases there is a problem with the request that needs to be cured.


Article on REASONABLE ACCOMMODATION (from Passman & Kaplan, P.C):

The Rehabilitation Act requires federal agencies to provide reasonable accommodations for individuals with physical or mental illnesses or injuries that substantially affect a major life activity. Reasonable accommodations can take several forms and typically depend upon the duties of your job and your medical condition.

For example, reasonable accommodations includes, among other things, transferring to another office, restructuring job duties, providing a larger computer monitor, or providing a larger cubicle to make room for a wheelchair. The accommodation must be "reasonable," however. It isn't considered reasonable if it creates an "undue hardship" on the agency. How do you request reasonable accommodation" You'll usually need to request it from your supervisor, and it should always be done in writing. Generally, once you request reasonable accommodation, you will be required to provide medical documentation concerning your medical condition and the recommended accommodations.

The Rehabilitation Act and the regulations issued by the Equal Employment Opportunity Commission to carry out its provisions require that this process to be an "interactive" one. This means that the agency is supposed to engage in a discussion with you as to ways it can attempt to accommodate your medical condition.

If the agency does not respond to your request for accommodation within a reasonable period, you should consider its failure to respond as a denial of your request. At that point you can contact an EEO counselor at your agency to initiate a discrimination complaint. However, if the agency does actually respond to your request and denies it, you will then have 45 calendar days from the date the agency denied your request to initiate EEO counseling. Note: This is a very important deadline.

Finally, if the agency does engage in a dialogue with you as to accommodating your medical condition and in your opinion it still fails to provide reasonable accommodations, you should then contact an EEO counselor. Remember, in general, you have 45 calendar days from the date of the alleged discriminatory event to contact an EEO counselor.

___________________________________________
EEO Procedures and Deadlines:

As a federal government employee, you have greater protections against discrimination than private sector employees. Federal employees are also protected against discrimination due to race, sex, national origin, color, religion, age, physical handicap or mental disability, unequal pay, or retaliation. However, as a federal employee, you have special administrative processes for handling your complaint of discrimination, including a hearing before the Equal Employment Opportunity Commission. If you prevail in your case, you are entitled to "make-whole" relief, including back pay with interest, benefits, correction of personnel records, compensatory damages for pain and suffering up to $300,000, and reasonable attorney fees where represented by counsel, except for administrative cases alleging only age discrimination.

All complainants must contact an agency EEO counselor within 45 days after becoming aware of the discriminatory action with several exceptions. If you do not know of an available EEO counselor, be sure to contact the EEO office right away and request one. The EEO counselor has 30 days to complete counseling and may request additional time up to 90 days. Alternative dispute resolution (ADR) may be offered in lieu of EEO counseling. If your case is not settled during counseling or ADR, you have the right to file a formal EEO complaint with the agency within 15 calendar days of receipt of your notice of the right to file. The agency then has 180 days to accept and/or reject the issues raised and to investigate the accepted issues. Within 30 days after receipt of the EEO investigation or after 180 days, you have the right to request an EEOC hearing, or after 180 days to file a complaint in the appropriate U.S. District Court. However, if you elect the EEOC process, you still have the right to file in district court if you do not prevail. Following an initial decision by an EEOC administrative judge, you have the right to appeal to the EEOC's Office of Federal Operations, which will issue a final administrative decision, subject to a limited right to request reconsideration.


15. FEDERAL LEGAL CORNER: APPLICATION OF ADA STANDARDS
TO FEDERAL EMPLOYEES
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 ôdirect threatö 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 ôa
significant risk of substantial harmö to self or others,
even with reasonable accommodation.

The new regulation codified in 29 CFR 1614.203 continues
the requirement that ôthe federal government shall be a
model employer of individuals with disabilities.ö The
regulation continues that ôagencies shall give full
consideration to the hiring, placement, and advancement
of qualified individuals with disabilities.ö The key phrase
is ôqualified individuals with disabilities,ö as the
physical or mental impairment must ôsubstantially limitö
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 doesnÆt meet the
strict definition of a qualified individual with a
disability, another approach would be to establish that he
is ôregarded asö having a physical or mental handicap that
substantially limits one or more of his major life
activities. The intent behind the ôregarded asö provision
is to remedy cases where myths, fears, and stereotypes
affect an employeeÆs treatment. Even when relying upon the
ôregarded asö 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 û 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. **

______________________________________________

SAMHSA Implementation Guidance and Procedures

for Reasonable Accommodation of Disabilities


I. Purpose

II. References

III. Definitions

IV. Responsibilities

Procedures for Requesting Accomodation

V. Confidentiality

VI. Acting on Requests

VII. Funding

VIII. Performance/Conduct

IX. Appeals and Complaints

X. Workplace Intervention

XI. Employee Training

XII. Union Notification

XIII. Notifying PSC of Emergency Evacuation Needs

XIV Accomodations for Applicants

XV. Records Maintenance



Appendix A -- Selected Reasonable Accommodation Resources

Appendix B -- Sample Forms (pdf format)


I. PURPOSE:


This document sets forth for all SAMHSA employees and supervisors the conditions,
terms, and procedures that must be followed for providing employees and applicants
with reasonable accommodation of disabilities. This policy is in consonance
with the provisions of the SAMHSA-NTEU Collective Bargaining Agreement and supercedes
earlier SAMHSA issuances on Reasonable Accommodation..


II. REFERENCES:


A. Section 501 of the Rehabilitation Act, 1973

B. Title I, Americans with Disabilities Act (ADA), 1990, as amended

C. Title VII, Civil Rights Act of 1964

D. Civil Rights Act of 1991

E. 29 CFR 1614, Equal Employment Opportunity

F. 5 CFR 339, Medical Qualifications Determinations

G. Executive Order 13164, "Establishing Procedures to Facilitate The Provision
of Reasonable Accommodation," July 26, 2000

H. Section 902, Definition of Term Disability, EEOC Compliance Manual

I. SAMHSA-NTEU Collective Bargaining Agreement, dated April 3, 2000


III. DEFINITIONS:


A. Disability: A disability is a physical or mental impairment that substantially
limits one or more of the major life activities of the individual; having a
record of such impairment; or being regarded as having such an impairment. A
disability may be obvious, e.g., stuttering, or it may be hidden, e.g., a learning
disability, mental illness, gastrointestinal disorder, etc.


B. Essential Function: The essential functions of a job are those job duties
that are so fundamental to the position that the individual cannot fulfill essential
job requirements unless he or she is able to perform these particular duties
and responsibilities. Normally these essential functions are outlined in the
position description and in an employee's Performance Management Plan. A function
can be "essential," if, among other things, the position exists specifically
to perform that function, there are a limited number of other employees who
could perform the function if it were assigned to them, or the function is specialized
and the incumbent is hired based on his/her ability to perform it.


C. Impairment: A physical or mental impairment includes:

1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems: neurological, musculoskeletal,
special sense organs or speech organs,



respiratory, cardiovascular, reproductive, digestive, genito-urinary, hemic
and lymphatic, skin, and/or endocrine; or


2. Any mental or psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning disabilities.


Not everything that restricts a person's major life activity is an impairment,
per se. For example: financial problems or economic disadvantages that restrict
a person's activities in life; simple physical characteristics such as eye or
hair color; age; lack of education; prison record(s); predisposition to an illness
or disease; pregnancy, common personality traits such as difficulty getting
along with a particular individual, poor impulse control, temper, arrogance,
or impatience; normal deviations in height, weight, or strength; etc., would
not be deemed an impairment under ADA.


D. Major Life Activities: These activities include, but are not limited to,
functions such as caring for oneself, performing manual tasks, walking, seeing,
speaking, hearing, breathing, learning, and working.


E. Occupational Injury/Disease: Disabilities that are a result of an on-the-job
injury or occupational disease may be subject to special benefits under the
Worker's Compensation Program. Employees injured on the job and those who are
diagnosed with an occupational disease should contact the SAMHSA Workers Compensation
Program Coordinator and submit a completed claim form within 30 days of the
injury or diagnosis of occupational disease.


F. Qualified Individual with a Disability: A qualified individual with a disability
is defined under the Rehabilitation Act of 1973 as 1) one who satisfies the
requisite requirements in terms of skills, experience, education and other job-related
requirements of the position; and 2) demonstrates the knowledge, skill, and
ability to perform the essential functions of the position in a satisfactory
manner, with or without accommodation.


G. Request for Accommodation: Requests need not be in writing nor do requests
have to explicitly use the terms "accommodation" or "disability."
Although many times a request for accommodation will indicate the specific nature
of accommodation requested, it is not essential that the person making the request
specify exactly what is needed. They merely need to indicate the need to explore
some type of adaptation or change to accommodate a medical condition. Arriving
at a final decision on the nature of the accommodation should, when feasible,
be an interactive process that includes discussion with the employee who is
the subject of the request and in consultation with his/her physician.


H. Substantially Limiting: The term "substantially limits" means
unable to perform a major life activity that the average person in the general
population can perform; or the individual is restricted as to the condition,
manner or duration under which he/she can perform a major life activity as compared
to average persons in the general population. This factor considers the duration,
nature and severity of a condition affecting a major life activity.


I. Undue Hardship: Agencies do not have to provide reasonable accommodation
that would impose an undue hardship on the operation of the agency. An undue
hardship means that a specific accommodation would require significant difficulty
or expense. This determination is made on a case-by-case basis and considers
factors such as the nature and cost of the accommodation needed and the impact
of the accommodation on the operations of the agency.


IV RESPONSIBILITIES:


A. Employees: Employees are responsible for requesting accommodation of a disability,
and for providing adequate medical documentation and information, as requested.


Employees may speak with a supervisor, a representative of the Human Resources
staff or the staff of the Office of Equal Employment Opportunity (OEEO) to request
accommodation of a disability. An employee's family member or, if the employee
is a member of the bargaining unit, the employee's designated union representative,
may also initiate requests on behalf of an employee.



All employees must be fully knowledgeable of this policy and procedure and,
upon request, assist job applicants in obtaining needed accommodation by contacting
the Reasonable Accommodation Coordinator and otherwise assisting applicants
in receiving information about SAMHSA job opportunities.


B. Supervisors: An employee may go to his/her immediate supervisor or any
supervisor in his/her chain of command to request accommodation. The immediate
supervisor normally will make the decision regarding the request for accommodation
and should be informed whenever an employee under his/her supervision requests
accommodation. The immediate supervisor is accountable for ensuring that accommodation
requests are acted on promptly, all accommodation agreements are documented
and fulfilled, and for providing a written explanation to the person making
the request whenever an accommodation request is denied. The immediate supervisor
is held accountable for 1) notifying the Reasonable Accommodations Coordinator
of all employee requests for accommodation, 2) for working with both the person
making a request and the SAMHSA Coordinator in formulating an appropriate response,
and 3) making the decision regarding the accommodation requests. Failure to
promptly respond to requests for reasonable accommodation may result in violation
of the Rehabilitation Act. All requests for reasonable accommodation must be
discussed with the Reasonable Accommodation Coordinator prior to entering approval/denial
of the request.


C. Employee Representatives: The National Treasury Employees Union (NTEU)
is the exclusive representative for nonsupervisory employees included in the
SAMHSA Bargaining Unit. NTEU may represent an employee in requesting an accommodation
of a disability.


D. Applicants: A job applicant may notify any SAMHSA employee of his/her need
for accommodation of a disability.


E. Reasonable Accommodation Coordinator: The Division of Human Resources Management
(DHRM) will designate one or more staff persons or contractors as the Reasonable
Accommodation Coordinator for the purpose of coordinating and advising on requests
for reasonable accommodation of disabilities. This includes confirming in writing
that an employee has made a request for accommodation, and providing advice
to and holding discussions with the supervisor, liaison with the Medical Review
Officer and contact with other DHHS offices for the purposes of identifying
available supplies, services and/or equipment needed to fulfill a request for
reasonable accommodation. The Reasonable Accommodation Coordination will also
track the processing of requests, safeguard the confidentiality of records,
and maintain data for reporting purposes.



F. Office of Equal Employment Opportunity: This office issues policies and procedures
governing the SAMHSA Reasonable Accommodation Process, and adjudicates employee
appeals of denials of requests for reasonable accommodation. The OEEO will ensure
that information concerning this policy and procedures is posted for applicants
and SAMSHA employees. Additionally, it will ensure that employees and supervisors
receive an annual notice concerning their responsibilities for reasonable accommodation,
and will provide any additional training or publicity that may be needed to
ensure the success of the program. OEEO will oversee and coordinate major changes
in facilities to eliminate systemic barriers and ensure accessibility. OEEO
is responsible for preparing and issuing any reports on reasonable accommodation
that may be required by the Office of the Secretary and other outside agencies.



G. Medical Review Officer: A fully qualified physician will evaluate medical
documentation and information provided in support of a request for reasonable
accommodation and will advise DHRM of the appropriateness of the accommodation
requested and possible alternative means of accommodation. With the written
consent of the requestor, this physician may also contact the requestor's personal
physician to discuss concerns regarding the medical condition and/or the request
for accommodation. The Medical Review Officer is a physician under contract
to SAMHSA who is knowledgeable of the ADA and reasonable accommodation process,
and is responsible for maintaining the confidentiality of medical records in
his or her possession.


H. Division of Information Resources Management (DIRM): DHRM will advise DIRM
of the need to procure or provide adaptive IT equipment for the purpose of reasonable
accommodation. DIRM will ensure that frequently requested equipment may be provided
quickly and that special requests are handled expeditiously. DIRM will ensure
that IT equipment is properly installed and the recipient is briefed on its
use.


I. The Division of Administrative Services (DAS): The Reasonable Accommodation
Coordinator will advise DAS of the need to procure adaptive supplies or services
for the purpose of reasonable accommodation. DAS will ensure that frequently
requested services or supplies are provided quickly and special requests handled
expeditiously. This may include modification of the physical workspace.


J. Administrator: The Administrator and/or his/her designee will ensure that
adequate funds are appropriated and set aside for purchasing services, supplies
and equipment as needed for reasonable accommodation of disabilities.


XI. PROCEDURES FOR REQUESTING ACCOMMODATION:


A. Types of Accommodation: There are 3 broad categories of accommodations:


1.) modifications or adjustments to a job application process to permit an
individual to be considered for a job (e.g., alternative formats such as large
print or oral reading of job announcements or accepting alternative application
formats);


2.) modification or adjustments to enable a qualified individual with a disability
to perform the essential function of the job; and


3.) modification or adjustment that enable employees with disabilities to
enjoy equal benefits and privileges of employment (such as removing physical
barriers in the office.)



The specific nature of accommodation will be determined on a case-by-case basis
and determined by the Reasonable Accommodation Coordinator in consultation with
the immediate supervisor, the Medical Review Officer, and, if possible, with
the requestor and his/her representative.


In general, accommodations may include, but are not limited to, change in
work schedule; work at home agreements; hazardous weather agreements; modification
of an employee's workstation; adaptive equipment (e.g., low-vision lights, computer
magnification or other magnification devices, voice activated equipment, adaptive
keyboards, air filters/purifiers, IT equipment for the hearing-impaired, sign
language interpreters, readers, and similar equipment); reassignment; modified
procedures or work methods; temporary use of electric scooters; job coaching;
and similar adaptations.


B. Requesting accommodation:

1. Employees: An employee and/or the employee's family member or union representative,
may request accommodation by notifying a supervisor of the medical need for
a modification of work, work environment, conditions of work, or the need for
adaptive services. The request may be made orally or in writing. Only when informed
of a medical condition or when an impairment is obvious may the supervisor ask
employees and/or applicants if a job accommodation will need to be provided.


The medical condition and need for accommodation may be temporary, permanent,
and/or chronic on an intermittent basis. When the impairment or medical condition
or the need for the specific accommodation requested is not obvious, or the
type of accommodation needed is not known, the employee may need to provide
medical documentation in support of the request.


2. Applicants: Applicants may request accommodation or assistance from any
SAMHSA employee, orally or in writing. When interviewing employees, the interviewer
may ask about the need for accommodation only when the medical condition/impairment
is obvious or the applicant initiates a request for accommodation; otherwise
such questions may not be addressed until after the selection is made. The need
for accommodation is not a factor to be considered in making a selection.


VI EVALUATION OF REQUESTS: Depending on the nature of the disability and the
type of accommodation requested, some requests may require medical documentation
or specialized assessment:


A.) Medical Documentation: Acceptable medical documentation may be needed
for some types of requests for accommodation, and is a key component of applications
for disability retirement. The employee may choose to either: 1) arrange with
the SAMHSA Reasonable Accommodation Coordinator for medical documentation to
be submitted by the physician directly to the SAMHSA Medical Review Officer,
or 2) may provide the documentation to the supervisor or Reasonable Accommodation
Coordinator to forward to the Medical Review Officer. All medical information
is handled in a confidential manner to protect the privacy of employees and
retained by the Medical Review Officer who provides management with guidance
on the acceptability of such documentation, the appropriate type of accommodation,
and guidance concerning approval, modification or denial of the request.


It is the responsibility of the employee requesting accommodation to obtain
acceptable documentation, when needed, from a licensed physician or practitioner.
Failure to provide documentation, when needed, may result in denial of the request
for accommodation.


1.) Obvious Disabilities: Usually no medical documentation is required if
a disability is obvious, e.g., stuttering, use of a wheel chair, etc.


In rare cases, the Reasonable Accommodation Coordinator may request the employee
sign a release to facilitate a discussion between the Medical Review Officer
and the employee's personal physician to better determine the precise nature,
type, or duration of accommodation needed.


The supervisor will decide and notify the person making the request of this
decision as soon as possible, normally within 15 work days.


2. Hidden Disabilities: Hidden disabilities are those disabilities that are
not immediately obvious, e.g., migraine headaches, learning disabilities, mental
illness, gastro-intestinal disorders, etc.


A request for accommodation for a hidden disability may be granted immediately
by the supervisor if the accommodation is one that the supervisor has authority
to grant within existing policies and procedures, provided such an accommodation
does not pose an undue hardship to operations. For example, if an employee is
having difficulty getting to work on time for a 4/10 schedule due to medication,
the employee may discuss this directly with the supervisor and request a change
to part-time, 5/4/9 or a gliding schedule. The supervisor may grant this accommodation
directly within the framework of the SAMHSA Alternate Workschedule Policy. The
employee need not provide any medical documentation to support such a request.


However, if an employee is requesting a change in work schedule that is outside
the framework established by SAMHSA policy, for example, an extended period
for work-at-home, then medical documentation is required and the request for
accommodation must be coordinated with the SAMHSA Reasonable Accommodation Coordinator.



For many types of hidden disabilities, particularly those requiring adaptive
equipment, supplies, or services, the employee will need to obtain documentation
from his/her physician for review by SAMHSA's Medical Review Officer. To be
acceptable, the documentation must be from a licensed physician or other appropriate
practitioner (i.e., certified by a national organization and licensed by the
State to provide the service in question) which justifies the diagnosis or clinical
impression according to established diagnostic criteria and the conclusions
and recommendations must not be inconsistent with generally accepted professional
standards. Documentation must provide portions of the following information
which are relevant to the individual's disability or impairment and to the request
for accommodation. At a minimum, documentation include the nature, severity
and duration of the impairment; the activity or activities limited by the impairment;
the extent to which the impairment limits those activities; and why the individual
requires accommodation or the particular accommodation request. :


a. The history of the medical condition(s), including references from previous
examinations, treatment and responses to treatment;

b. Clinical findings from the most recent medical evaluation, including any
of the following which have been obtained: Findings from physical examination;
results of laboratory tests; x-rays; EKG's or other special evaluations or diagnostic
procedures; and, in the case of psychiatric evaluation of psychological assessment,
the findings of a mental status examination and the results of psychological
tests, if appropriate;


c. Diagnosis, including the current clinical status;


d. Prognosis, including plans for future treatment and an estimate of the
expected date of full or partial recovery;


e. A explanation of the impact of the medical condition on overall health
and activities, including the basis for any conclusion that restrictions or
accommodations are/are not warranted, and where warranted, an explanation of
their therapeutic or risk avoiding value;


f. An explanation of the medical basis for any conclusion which indicates
the likelihood that the individual is or is not expected to suffer sudden or
subtle incapacitation by carrying out, with or without accommodation, the tasks
or duties of the position;


g. Narrative explanation of the medical basis for any conclusion that the
medical condition has or has not become static or well stabilized and the likelihood
that the individual may experience sudden or subtle incapacitation as a result
of the medical condition. In this context, "static or well-stabilized medical
condition" means a medical condition which is not likely to change as a
consequence of the natural progression of the condition, specifically as a result
of the normal aging process, or in response to the work environment or the work
itself." "Subtle incapacitation" means gradual, initially imperceptible
impairment of physical or mental function whether reversible or not which is
likely to result in performance or conduct deficiencies. "Sudden incapacitation"
means abrupt onset of loss of control of physical or mental function.


The supervisor will decide and notify the individual of the decision as soon
as possible, normally within 15 work days of receiving a recommendation from
the SAMHSA Medical Review officers.



3. Chronic Condition: A chronic condition is an ongoing medical condition that
is characterized by periods of remission. For this type of condition, the employee
may be requested to provide acceptable medical documentation in accordance with
paragraphs 1 and 2 above). Additionally, an employee may be requested to update
the medical documentation should additional accommodation be needed, the condition
worsen or improve, and/or in cases where the condition is subject to re-evaluation
by the physician.


B. Use of Medical Release Form: In lieu of the medical documentation, outlined
above, an employee may provide a medical release form authorizing the SAMHSA
Medical Review Officer to contact his/her physician directly to discuss factors
related to the disability for which reasonable accommodation is requested. A
medical release form may also be used in lieu of updated medical documentation
or as a supplement to medical documentation that is incomplete or unacceptable.
The release does not require access to a person's complete medical records,
merely the medical records relevant to the request for accommodation.


C. Specialized Assessments: For some types of disabilities, particularly those
involving specialized work methods, muscle strain or low vision, it may be necessary
to have a consultant provide a specialized assessment of the employee's work
area in order to recommend special types or multiple adaptations. Such assessments
are available through PSC/FOH Ergonomic Studies, the local Low-Vision Center,
the National Vocational Rehabilitation Hospital, or other appropriate consultant
(Appendix A lists selected reasonable accommodation resources recommended by
the EEOC.)


D. Medical Examination: In situations where the medical documentation submitted
by an employee's physician or practicioner is deemed insufficient, and the employee
refuses to grant release to obtain information from his or her physician or
practicioner, or the employee's physician or practioner refuses to provide adequate
information, SAMHSA may request an examination by a physician of its choice
at its expense. Refusal to provide acceptable medical documentation, if required,
may be grounds for denial of a requested accommodation.


V CONFIDENTIALITY:


Supervisors, Medical Review Officers, and HR Officials will ensure that all
information concerning an employee's medical condition is kept confidential.
The union must be notified of changes in working conditions, however, the nature
of an employee's medical condition is not to be revealed, unless the employee
gives explicit permission to share information with others. All medical documentation
will be safeguarded from unwarranted disclosure by the SAMHSA Medical Review
Officer.



SAMHSA is obligated by regulation to maintain information on accommodations
requested and accommodation decisions (refer to Section XV below.) The SAMHSA
Reasonable Accommodation Coordinator will maintain confidential records for
assessment of the reasonable accommodation process. Additionally, the coordinator
will provide data to the OEEO as needed for reporting purposes. Records pertaining
to requests for accommodation will be maintained separately from the Official
Personnel File.


VI ACTING ON REQUESTS:


Normally the supervisor will decide upon the accommodation to be granted or
denied and notify the person making the request of this decision within 15 work
days or less, either following either the date of the request or, for those
situations requiring medical documentation, of receiving a recommendation from
the Medical Review Officer. Upon making a decision to grant an accommodation,
the supervisor will immediately initiate all actions to obtain or implement
the necessary changes.


A. Notification of Decision: All decisions on accommodation should be documented
in writing, including those that may be acted upon by the supervisor within
the framework of existing policies/procedures (e.g., change in work schedule.)




Some accommodations will require a formal written agreement, for example, those
involving an extended period for work-at-home and/or those involving special
arrangements for hazardous weather. Any decision denying requests for reasonable
accommodation must be provided to the requesting employee in writing and state
the reasons for denying the accommodation requested. All denials of accommodation
and all accommodation agreements must be provided to the SAMHSA Reasonable Accommodation
Coordinator at the time these are issued. Normally, the SAMHSA Reasonable Accommodation
Coordinator will assist the supervisor in drafting these memos or agreements.


1. Accommodation Agreements: Formal written agreements are required for extended
work-at-home arrangements and/or special provisions for hazardous weather. These
agreements must be renewed in writing on an annual basis. Agreements will be
provided to the SAMHSA Reasonable Accommodation Coordinator and retained on
file in accordance with the established records retention schedule.


2. Reassignment: If an employee is unable to perform the essential functions
of his or her position, if no other forms of accommodation are effective to
permit the employee to perform the essential functions of his or her job, or
if there is an undue hardship in providing another type of accommodation, SAMHSA
will consider opportunities to reassign the employee to a previously established,
vacant position for which the employee is qualified (i.e., meets the requisite
skill, education, experience and other job related requirements and is able
to perform the essential functions of the job, with or without reasonable accommodation.)
The search for a suitable established position will include positions that will
be vacated within 60 days of the request for accommodation. Reassignment is
a consideration of "last resort."


If there are no positions vacant at the employee's current grade level, reassignment
to a lower-graded position may be considered. Should this occur, an offer for
reassignment to a lower level position will be made to the employee in writing,
explaining the reason(s) for the reassignment to a lower level position and
summarizing the efforts that were made to accommodate the employee at his or
her current grade level. The employee will then be required to either accept
or decline the position in writing. If an employee declines the position and
the agency is able to show that it has exhausted all reasonable opportunities
to accommodate the employee through reassignment, then the agency has met its
obligation to accommodate the employee. If a position is not available within
the SAMHSA commuting area, the Reasonable Accommodation Coordinator will seek
assistance from the Department's Disability Program Manager to identify a known
vacant position outside the commuting area for which the employee qualifies.


3. Disability Retirement: If accommodation cannot be made or if accommodations
prove ineffective, the SAMHSA Reasonable Accommodation Coordinator will inform
the employee of the option of applying for disability retirement and, upon request,
will provide the employee with appropriate forms and procedural information.


4. Denial of Requests for Accommodation: Any denial of a request for reasonable
accommodation must inform the employee, in writing, of the specific reasons
for denying the request, the name and organization of the immediate supervisor
who made the decision; provide guidelines and procedures for alternate dispute
resolution; the right to appeal the decision to the SAMHSA Office of Equal Employment
Opportunity and the timeframes for filing an appeal; and the employee's right
to file an EEO complaint. The form included in Appendix B may be used as a format
for denial of requests. Employees and supervisors are encouraged to resolve
differences through mediation under SAMHSA's Alternate Dispute Resolution procedures.
A written decision, which includes the above information, is provided to the
employee when the employer elects to provide an accommodation other than one
specifically requested to inform the employee of the rationale for management's
decision.


VII FUNDING:


The Administrator will ensure that adequate funding is available for reasonable
accommodation. Normally expenditures for accommodation are funded by the employee's
Office/Center; however, if a request for accommodation is affected by funding
constraints in the Office or Center, the Office of the Administrator should
be contacted to determine if additional funds are available in support of the
request.


VIII PERFORMANCE/CONDUCT:


An employee must be qualified to perform the duties of his/her position with
or without an accommodation. This requires that all employees fully meet performance
standards and abide by the Standards of Conduct. Supervisors are held accountable
for ensuring that failure to meet performance standards and/or violations of
the Standards of Conduct are addressed through appropriate performance, disciplinary
or adverse action procedures. Continued failure to meet performance standards
and serious or continued violations of the Standards of Conduct may result in
termination of Federal employment.


IX APPEALS AND COMPLAINTS:


Title VII of the Civil Rights Act of 1964, as amended, makes it unlawful to
discriminate in employment-related matters. Discrimination includes the failure
to reasonably accommodate or provide access to persons with disabilities when
such accommodation does not pose an unreasonable or undue hardship to the Agency.
Persons with disabilities who believe they have been subject to unlawful discrimination
in access or employment may file a complaint with the SAMHSA Office of Equal
Employment Opportunity (OEEO) within 45 calendar days of the date when the employee
became aware of (or should have become aware of) an incident of discrimination.
This may be done either in writing or by directly contacting a SAMHSA EEO Counselor
or EEO Management Official within the 45 day timeframe.


Similarly, employees who have been denied a reasonable accommodation may appeal
the decision in writing to the SAMHSA OEEO, or by means of a meeting with a
SAMHSA EEO Counselor or EEO Management Official, within 45 calendar days of
the date of the decision notice.


Appeals will be reviewed in accordance with the guidance provided by the EEOC
and Departmental procedures to ensure all efforts to accommodate were made pursuant
to the guidelines cited above. The OEEO will notify the employee or applicant
of its appeal decision in writing. The decision will explain in detail the reason(s)
for the denial and may include a modification to the initial reasonable accommodation
request.


X WORKPLACE INTERVENTION:


At times, the employee may not be aware that a disability is impeding conduct
or performance, and the supervisor or HR staff person may need to intervene
to assist the employee.


The supervisor is responsible for ensuring that injuries on the job and occupational
illness are reported and the affected employees are advised of procedures for
filing claims for Worker's Compensation Benefits.


Whenever a supervisor notifies an employee of inappropriate conduct, the supervisor
should advise the employee of confidential services available through the HHS
Employee Assistance Program and document instances of misconduct. The supervisor
will immediately notify the Division of Human Resources Management of all instances
serious misconduct, including insubordination, abusive language, and outbursts,
and whenever there is a pattern of minor misconduct, such as vulgar language,
leave abuse, failure to follow leave/time and attendance procedures, etc.. All
supervisors must be fully aware of policies regarding violence in the workplace
and take appropriate steps to ensure the safety of employees.


In cases where performance fails to meet or exceeds expectations and the supervisor
has reason to believe a medical condition and/or learning disability may be
impeding performance, the supervisor will contact the Division of Human Resources
Management for guidance concerning appropriate intervention.


Supervisors must also notify the Division of Human Resources Management when
an employee is incapacitated to the extent that consideration of disability
retirement is reasonable.


XI EMPLOYEE TRAINING:


Training will be provided to SAMHSA employees on SAMHSA guidance and procedures
for requesting reasonable accommodation and on each employee's responsibility
for acting on applicant requests for accommodation. Simplified guidance such
as fact sheets will be made available to all employees and applicants. Additionally,
this guidance will be made available to all employees through an annual email
notice, through posting on the SAMHSA Intranet and, upon request, through alternative
formats (e.g., large print, audio tape, and/or braille).


XII UNION NOTIFICATION:


The supervisor will provide advance notification to the SAMHSA Labor Relations
specialist whenever an accommodations will result in a change in the working
conditions affecting bargaining unit employees. Bargaining unit employees are
entitled to representation by the union in the process of requesting reasonable
accommodation.


XIII NOTIFYING PSC OF EMERGENCY EVACUATION NEEDS:


If an employee has an obvious disability or confides to a supervisor a hidden
disability, and the disability is one that might impede the employee from evacuating
the building during an emergency, the supervisor must instruct the employee
to request from PSC a form for emergency evacuation assistance. The employee
should complete the form and return it to PSC to provide for his/her emergency
evacuation needs.


XIV ACCOMMODATIONS FOR APPLICANTS:


A. Appointment Authorities: SAMHSA may use special appointing authorities to
facilitate hiring of the severely disabled and those veterans who are receiving
compensation for a service-connected disability of 30 percent or more. There
is also a special program for hiring disabled students.


B. Accessibility: The ADA requires Federal agencies to be fully accessible
to persons with disabilities. This includes arranging for electronic telephone
communications or sign language interpreters for the deaf, providing readers
for the blind, and similar accommodations for those seeking employment with
SAMHSA. All employees must assist applicants requesting accommodation in the
hiring process. Normally, this involves contacting the Division of Human Resources
Management to arrange accommodation or providing direct service, such as escorting
the employee to an office for interviews or holding the door open for someone
in a wheelchair.


C. Job Information/Recruitment: SAMHSA will provide job announcements and
other recruitment literature, including material posted on the Internet, in
a format suitable for access by applicants with disabilities.



1. Interviews:

a. Obvious Disability: If an applicant has an obvious disability, e.g., stuttering,
wheel-chair user, etc., it is appropriate during an interview to ask the applicant
if he or she may need any accommodation should they be selected. The interviewer
should inform the applicant that this has no bearing on the selection process
and that he or she will receive full consideration for appointment.


b. Hidden Disabilities: Only when an applicant has an obvious disability or
the applicant requests accommodation, may an interviewer ask about the need
for accommodation at any time before a job offer has been accepted. If the applicant
has a hidden disability, questions concerning accommodation may be asked only
after the job offer has been accepted by the applicant. If an interviewer or
selecting official is uncertain about when it is appropriate to ask about the
need for accommodation, he or she should contact the servicing Human Resource
specialist for advice.


XV RECORDS MAINTENANCE:


The Reasonable Accommodation Coordinator will track the processing of requests
for accommodation and establish and maintain the data on accommodation requests
sufficient to identify:

? the number and types of accommodations requested and whether those requests
have been granted or denied.

? the positions (by series, grade and organizational component) for which
accommodations have been requested.

? The types of accommodations requested for those positions

? The number and types of accommodations for each job, by agency component,
that have been approved, and the number and types of accommodations for each
job, by agency component, that have been denied.

? The number and types of accommodation requests that relate to the benefits
or privileges of employment, and whether those requests have been granted or
denied.

? Reasons given for denial of requests.

? The amount of time taken to process each requests.

? The sources of technical assistance that have been consulted in trying
to identify possible accommodations.



Tracking information will be maintained on the employee making an accommodation
request for the duration of his/her employment. Cumulative data used to track
SAMHSA's performance in processing requests for accommodation will be maintained
for at least 3 years.


APPENDIX A - SELECTED REASONABLE ACCOMMODATION RESOURCES

(As recommended by EEOC)


IX. U.S. Equal Employment Opportunity Commission

1-800-669-3362 (Voice) 1-800-800-3302 (TT)

http://www.eeoc.gov


The EEOC's Publication Center has many free documents on the Title I employment
provisions of the ADA, including both the statute, 42 U.S.C. 12101 et seq. (1994),
and the regulations, 29 C.F.R. 1630 (1997). In addition, the EEOC has published
a great deal of basic information about reasonable accommodation and undue hardship.
The two main sources of interpretive information are: (1) the Interpretive Guidance
accompanying the Title I regulations (also known as the "Appendix"
to the regulations), 29 C.F.R. pt. 1630 app. 1630.2(o), (p), 1630.9 (1997) ,
and (2) A Technical Assistance Manual on the Employment Provisions (Title I)
of the Americans with Disabilities Act III, 8 FEP Manual (BNA) 405:6981, 6998-7018
(1992). The Manual includes a 200-page Resource Directory, including federal
and state agencies, and disability organizations that can provide assistance
in identifying and locating reasonable accommodations.


The EEOC also has discussed issues involving reasonable accommodation in the
following guidance and documents:

(a) Enforcement Guidance: Preemployment Disability-Related Questions and Medical
Examinations at 5, 6-8, 20, 21-22, 8 FEP Manual (BNA) 405:7191, 7192-94, 7201
(1995);


(b) Enforcement Guidance: Workers' Compensation and the ADA at 15-20, 8 FEP
Manual (BNA) 405:7391, 7398-7401 (1996);


(c) Enforcement Guidance: The Americans with Disabilities Act and Psychiatric
Disabilities at 19-28, 8 FEP Manual (BNA) 405:7461, 7470-76 (1997);


(d) Fact Sheet on the Family and Medical Leave Act, the Americans with Disabilities
Act, and Title VII of the Civil Rights Act of 1964 at 6-9, 8 FEP Manual (BNA)
405:7371, 7374-76 (1996); and


(e) Enforcement Guidance: Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act at 20, 22, 23, 24-5,
8 FEP Manual (BNA) 405:7701, 7711, 7712-14, 7715-16 (2000).


The EEOC has a poster that employers and labor unions may use to fulfill the
ADA's posting requirement.


All of the above-listed documents, with the exception of the ADA Technical
Assistance Manual and Resource Directory and the poster, are also available
through the Internet at http://www.eeoc.gov.


X. Job Accommodation Network (JAN)

1-800-232-9675 (Voice/TT)

http://janweb.icdi.wvu.edu/.


A service of the President's Committee on Employment of People with Disabilities.
JAN can provide information, free-of-charge, about many types of reasonable
accommodatio