Attachment B FRA Order 3339.1.PDF

January 8, 2025

SUBJECT: PROCESSING REQUESTS FOR REASONABLE ACCOMMODATION

1. PURPOSE. This Order establishes the Department of Transportation (DOT), Federal

Railroad Administration (FRA) policy, responsibilities, and procedures for processing reasonable accommodation requests by FRA employees and applicants.

2. EFFECTIVE DATE. This Order will be effective on approval.

3. SCOPE. This Order applies to all FRA employees and applicants for employment. FRA “employees” include all FRA employees, regardless of appointment type (competitive or excepted), career status (temporary, career-conditional, or career), occupation, or work schedule (full-time, part-time, or temporary). This Order covers reasonable accommodation in all aspects of employment, including recruitment, training, promotion, reassignment, rotational and developmental assignments, and other benefits and privileges of employment, such as access to FRA-sponsored events. Contractors needing reasonable accommodations should initially be referred to their contracting companies’ reasonable accommodation processes. However, FRA may be responsible for implementing some or all necessary accommodations for contractors. Therefore, applicable sections of this policy may also be relevant to contractors. See Section 17 below for additional guidance.

4. AUTHORITIES AND REFERENCES.

a. DOT Order 1011.1B, Procedures for Processing Reasonable Accommodations by DOT Job Applicants and Employees with Disabilities (2021).

b. DOT Disability Resource Center Disability Services Handbook (2017).

c. Title I of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12111-12117 (The ADA nondiscrimination standards apply to Federal sector employees through § 501 of the Rehabilitation Act of 1973, 29 U.S.C.§ 791(f)).

d. Rehabilitation Act of 1973

ORDER

FRA 3339.1

e. Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d (requires federal agencies to ensure accessible information and communication technology for employees and the public).

f. Title II of Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff (prohibits discrimination based on genetic information) and 29 C.F.R. §§ 1635.8 and 1635.9 (Equal Employment Opportunity Commission (EEOC) regulations implementing Title II of GINA).

g. Pregnant Workers Fairness Act, 42 U.S.C. § 2000gg (requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship).

h. Privacy Act of 1974, 5 U.S.C. § 552a, and 49 C.F.R. Part 10 (standards for maintenance of and access to private information).

i. 5 U.S.C. § 3102 (requirements concerning employment of personal assistants for federal employees).

j. 5 C.F.R. § 339.301 (Office of Personnel Management (OPM) ADA considerations for medical qualification determinations).

k. 29 C.F.R. Part 1614 (EEOC federal sector EEO complaint process).

l. 29 C.F.R. Part 1630 (EEOC disability discrimination regulations).

m. 29 C.F.R. Part 1636 (EEOC Pregnant Workers Fairness Act regulations).

n. 41 C.F.R. §§ 301-13 (General Services Administration (GSA) standards for accommodations for travel by employees with special needs).

o. Executive Order 13548, “Increasing Federal Employment of Individuals with Disabilities” (July 26, 2010).

p. Executive Order 13163, “Increasing Opportunity for Individuals with Disabilities to be Employed in the Federal Sector” (July 26, 2000).

q. Executive Order 13164, “Establishing Procedures to Facilitate the Provision of Reasonable Accommodation” (July 26, 2000).

r. EEOC Title I, Technical Assistance Manual and Addendum.

s. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (October 17, 2002).

t. EEOC Enforcement Guidance on the Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms (December 22, 2000).

5. DEFINITIONS.

a. Disability: In general, disability means:

(1) A physical or mental impairment that substantially limits one or more major life activities;

(2) A record of such an impairment; or

(3) Being regarded as having such an impairment. This means that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.”

b. Disability Discrimination: Occurs when:

(1) An employer, or other entity covered by the ADA or the Rehabilitation Act, treats an individual with a disability, who is an applicant or employee, unfavorably because they have a disability;

(2) A covered employer or other entity treats an applicant or employee less favorably because they have a history of a disability or because they are perceived to have a physical or mental impairment that is not transitory and minor (even if they do not have such an impairment); or

(3) An effective accommodation is available, no legally permissible reason for denying the accommodation applies, and a covered employer or other entity fails to make a reasonable accommodation and cannot demonstrate that the request is an undue hardship on the employer.

c. Essential Functions: Essential functions are the fundamental job duties of the position.

A job’s essential functions are generally found in the existing position description or the employee’s performance plan. However, a determination of the essential functions of a position is made on a case-by-case basis and reflects the job duties actually performed.

Factors to consider in determining whether a function is essential include:

(1) Whether the reason the position exists is to perform that function;

(2) The number of other employees available to perform the function or among whom the performance of the function can be distributed; and

(3) The degree of expertise or skill required to perform the function.

d. Interim Accommodation: An action designed to fill a gap during the reasonable accommodation process until sufficient documentation has been received, an effective accommodation can be identified, or the selected accommodation can be obtained and provided.

e. Major Life Activities: These activities include, but are not limited to:

(1) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and

(2) The operation of major bodily functions, including functions of the immune system, special sense organs, and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

f. Physical or Mental Impairment: Physical or mental impairments include:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

g. Pregnancy, childbirth, or related medical condition limitations: Although pregnancy itself is not a disability, the Pregnant Workers Fairness Act (PWFA) requires FRA to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” Under the PWFA, “limitations” are physical or mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. These “limitations” need not rise to the level of a disability to qualify for accommodations. The procedures in this Order will be used to process requests made under the PWFA. Please see the EEOC’s “What You Should Know About the Pregnant Workers Fairness Act” for additional guidance.

h. Qualified Individual: Someone who:

(1) Satisfies the requisite skill, experience, education, and other job-related requirements of the position; and

(2) Can perform the essential functions of the position, with or without reasonable accommodation.

i. Reasonable Accommodations: May include, but are not limited to, the options below:

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

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

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

Applicants and employees1 with disabilities are entitled to reasonable accommodations.

Accommodations may also be available to workers with limitations related to pregnancy, childbirth, or related medical conditions. Reasonable accommodations are not available to individuals who are “regarded as” having a disability, but do not have a physical or mental impairment that substantially limits one or more major life activities, or a record of such impairment.

1 Individuals who are working as FRA contractors may also be entitled to reasonable accommodations. However, these individuals would initiate accommodation requests with their contracting companies. Then, FRA could be responsible for implementing some or all the necessary accommodations. See Section 17 below.

j. Substantially Limits: Broadly means the impairment substantially limits a major life activity in comparison to most people in the general population. It does not require scientific, medical, or statistical analysis in most cases. The focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve.

“Substantially limits” has a lower threshold than “prevents” or “severely or significantly restricts.”

k. Targeted Disability: A disability that is designated as a “targeted disability or health condition” on the Office of Personnel Management’s Standard Form 256 or that falls under one of the first 12 categories of disability listed in Part A of question 5 of the EEOC’s Demographic Information on Applicants form.

l. Temporary Accommodation: An action provided when there is an anticipated end time for an accommodation, such as when a temporary change in the environment prevents an individual from using their currently provided accommodation or an individual has a condition that is known to be temporary, but currently has limitations that limit their ability to perform a task.

m. Undue Hardship: Occurs when a specific accommodation would require significant difficulty or expense for DOT. Determinations of undue hardship must always be made on a case-by-case basis, considering factors that include the nature and cost of the accommodation and the impact of the accommodation on the operations of the DOT.

Specifically, undue hardship means that the entirety of DOT cannot absorb the costs or impact on operations of the proposed accommodation. The Secretary of DOT or a designee must make the final determination that an undue hardship exists.

n. Vacant Position: A position is vacant for purposes of reassignment as an accommodation of last resort where a position is fully funded, with no current occupant, and the organization intends to fill, or will fill, it within 60 calendar days of the job search initiated by the decision to consider reassignment.

6. ROLES AND RESPONSIBILITIES.

a. Accommodations Program Manager (APM). The APM oversees and manages the reasonable accommodation program. The APM:

(1) Serves as a main point of contact for employees and supervisors or other designated management officials (DMO) on all reasonable accommodation requests and keeps the parties informed of the statuses of their requests.

(2) Receives accommodation requests directly from employees or applicants and must be forwarded requests that are received by supervisors (or any other party).

(3) If first receives a request, determines the appropriate management official to participate in the interactive process and engages with the official and the requester in the interactive process.

(4) Provides advice and assistance to employees, supervisors, managers, and others on reasonable accommodation matters.

(5) Serves as FRA’s designated disability advisor in accordance with DOT Order 1011.1B, and, as necessary, requests, receives, and stores medical documentation.

(6) Keeps medical documentation and information confidential, sharing only what is necessary with the decision-maker, so that they can understand the employee’s functional limitations and can work to identify an effective accommodation.

(7) Maintains records in secure locked cabinets and/or password-protected or otherwise secure electronic files.

(8) Leads the Reasonable Accommodation Advisory Panel (RAAP).

(9) Advises the supervisor or DMO when making decisions on reasonable accommodation requests.

(10) Together with the FRA Office of Civil Rights (OCR) and Disability Program Manager(s) (DPMs), facilitates management and employee training on the reasonable accommodation process.

(11) If a physical accommodation is needed (such as a screen reader or ergonomic chair), the APM collaborates with the decision maker and appropriate office(s) to ensure the procurement of the device and timely delivery to the employee.

(12) Processes requests and tracks them in DOT’s Reasonable Accommodation Request Tracking System (RAMS).

b. Disability Program Managers (DPMs). The Disability Program Managers (DPMs) provide expert advice, training and assistance to supervisors, managers, and others on disability employment matters; stay current on the newest developments in the field;

assess trends in connection with recruitment and employment of persons with disabilities;

maintain and submit completed reports in a timely manner; facilitate management training in consultation with the APM, OCR or DOCR, as appropriate; and ensure that reasonable accommodation request information is entered into RAMS.

c. DOT Disability Resource Center (DRC). The DRC is operated by the Departmental Office of Human Resources Management and is comprised of subject matter experts who assist all DOT job applicants, employees, supervisors, and managers on disability-related employment matters. The DRC does not make decisions about whether to provide a reasonable accommodation but can facilitate requests and offer advice and recommendations on the available types of reasonable accommodations. The DRC also provides sign language interpreting and personal care and travel assistant services to employees who qualify for those services. For more information on DRC and its services, see https://www.transportation.gov/drc/disability-resource-center.

d. Departmental Office of Civil Rights (DOCR). DOCR provides policy guidance and oversees compliance with DOT’s Reasonable Accommodation Order and relevant Federal laws and regulations. DOCR provides expert advice and consultant services on matters related to reasonable accommodations and conducts briefings and training sessions for the Operating Administrations (OAs).

e. Employees. Employees requesting reasonable accommodations must make their requests, either orally or in writing, to their first line supervisors, another supervisor in their chain of command, or the APM.2 Employees need not use the words “reasonable accommodation,” but should articulate that due to a physical or mental condition they need a change to complete their job. After making the request, employees must participate in the interactive process or designate someone to do so, and if required, provide medical or other documentation to support their requests.

f. FRA Office of Civil Rights. OCR provides FRA with policy guidance on disability matters and annually ensures that the FRA reasonable accommodation program is compliant with applicable law, regulation, and EEOC guidance. OCR will coordinate with the APM on training involving FRA’s reasonable accommodation process. OCR is also responsible for receiving and processing informal EEO complaints, including complaints on the basis of disability, from FRA employees, applicants, and contractors and keeping statistics on disability-related complaints. An OCR representative not involved in EEO counseling or processing of accommodation related complaints will be designated to serve as a member of the RAAP.

2 Contractors initiate requests through their contracting companies. See Section 17 below.

g. FRA Office of the Chief Counsel (RCC): RCC provides legal advice on more complex reasonable accommodation requests, contractor issues, and reviews all denials of reasonable accommodation requests. An RCC attorney serves as a RAAP member.

h. Reasonable Accommodation Advisory Panel. The RAAP is a review team for reasonable accommodation requests, especially novel or complex requests. The APM decides whether to request RAAP review on reasonable accommodation requests on a case-by-case basis. When a particular RAAP member is unavailable to assist in deciding or advising on a reasonable accommodation request within the applicable timeframes, an appropriate replacement may be designated by the APM, or designee. FRA OCR and RCC team members serve purely as advisors and do not make decisions on requests. The RAAP may include:

(1) APM.

(2) Supervisor or other DMO.

(3) OCR representative.

(4) FRA Human Resources (OHR) Specialist with necessary essential function expertise or who is responsible for filling the vacancy, if the requester is an applicant.

(5) RCC attorney.

i. Supervisor or designated management official. Supervisors or other DMOs are the official decision makers for all employee reasonable accommodation requests. For employee requests,3 the decision maker is normally the requester’s first-line supervisor.

However, if the first-line supervisor is unavailable or there are potential conflicting interests, the APM and applicable Associate Administrator or equivalent manager can designate another DMO in the requester’s supervisory chain or a supervisor outside of the chain. Supervisors and DMOs are responsible for:

(1) Completing reasonable-accommodation-process training at least every two years.

(2) Understanding reasonable accommodation requests and listening for or observing cues when accommodations may have been requested since employees are not required to use specific words to request accommodations.

3 The selecting official and/or the FRA OHR staffing specialist responsible for filling a vacancy may make decisions on accommodation requests submitted by applicants.

(3) Accepting oral or written reasonable accommodation requests from employees.

(4) As soon as possible, but normally within three business days of receipt, forwarding reasonable accommodation requests and any documentation to the APM.

(5) Understanding and participating in an interactive process in which the management official and the requester create a trusting discussion of what is needed as an accommodation and what can be granted.

(6) Attending RAAP meetings and utilizing the expertise of its members when making decisions.

(7) After consulting with other RAAP members, determining whether to grant or deny requests for reasonable accommodations from employees.

(8) After implementation of the accommodation, notifying the APM if issues arise.

(9) Maintaining the confidentiality of employees’ requests, accommodations, and any medical information provided to them.

7. POLICY.

a. FRA is committed to improving the employment, productivity, retention, and advancement of individuals with disabilities. It is FRA’s policy to make timely and effective reasonable accommodations to qualified employees and applicants with disabilities unless to do so would cause an undue hardship.

b. Supervisors or other DMOs are the official decision makers for all reasonable accommodation requests.

c. In every case, persons receiving a reasonable accommodation request must contact the APM to get assistance with processing the request and to facilitate agency tracking of all requests.

d. The reasonable accommodation process is interactive and requires both the decision maker and the individual requesting the accommodation to participate in good faith with the goal of having open communication.

e. Good and open communication is a priority throughout the entire process, but particularly where the specific limitation, problem, or barrier is unclear, where an effective accommodation is not obvious, or where the parties are comparing the effectiveness of different potential accommodations. The decision maker and APM should keep the requester informed on the status of the request and provide updates when available.

f. Where appropriate, the process may include requests for and submission of medical documentation.

g. The requester’s choice for an accommodation may not be the best or only choice for an effective accommodation. The requester, the APM, and the decision maker must work together to identify effective accommodations.

8. PROCESS.

a. Request Initiation: A reasonable accommodation request is initiated by a statement, oral or written, made by an individual who requests an adjustment or change at work, in the application process, or in any benefit or privilege of employment, because of an impairment. Employees and applicants can make requests for reasonable accommodation at any time during the application process or during employment. The (twenty-five business day) time limit for processing reasonable accommodations begins as soon as the initial request, whether oral or written, is made to the appropriate person identified in 8.c.

below.

b. Form of the Request: The request does not need to include special words or use the term “reasonable accommodation,” and no such requirement can be imposed by the FRA or the decision maker. The individual does not need to have a particular accommodation in mind when making a request. FRA does not require the completion of a specific form to initiate the reasonable accommodation request. However, to ensure accurate recordkeeping and understanding of what is being requested, requesters are encouraged to make written requests in writing, and to consider using the Confidential Accommodation Request Form, FRA F 260. Using the form will also assist in providing the necessary information and avoid the need for repeated follow-up questions. When an employee or applicant chooses not to make an accommodation request in writing, the supervisor or APM can follow up the oral request with an email describing their understanding of what was requested and ask for confirmation from the employee or applicant.

c. To Whom Should Requests Be Sent.

(1) FRA employees should make reasonable accommodation requests to their first-line supervisor or other appropriate management official in their chain of command with a copy provided to the APM via email at FRAReasonableAccommodation@dot.gov.

(2) Job applicants should make their requests to the designated official listed in the announcement, FRA Human Resources staffing specialist, selecting official, or Administrative Staff Assistant setting up interviews.

(3) Job announcements or other communications to applicants must include information on how and from whom to request accommodations.

(4) Any management official, even one not having responsibility to decide a request, should forward any received accommodation requests as soon as possible, but no later than within three (3) business days of receipt, to the APM at FRAReasonableAccommodation@dot.gov.

d. Third-Party Requests. An individual other than the employee or applicant with a disability may make a reasonable accommodation request on an employee or applicant’s behalf. This includes a family member, health professional, or any other representative acting on the employee or applicant’s behalf. When a request for accommodation is made by a third party on behalf of a job applicant or employee, the decision maker or APM should confirm the request with the job applicant or employee before proceeding. If the employee or job applicant cannot be reached to confirm, the decision maker or APM should begin processing the third-party request before obtaining confirmation (for example, if leave is requested to accommodate emergency treatment for an employee).

However, as soon as reasonably possible, the decision maker must obtain confirmation from the job applicant or employee.

e. Acknowledging Requests. Once received, the APM will contact the requesting party within a reasonable period, normally within three (3) business days after the reasonable accommodation request is received, to confirm and acknowledge the request and initiate the interactive process. The acknowledgement must identify the date the initial request was received.

f. Interactive Process Discussion. After a request for accommodation has been made, the decision maker and APM should explain the accommodation process, including the interactive process, to the requester. If the supervisor is on leave or unavailable, an alternate DMO should be identified to begin the process. If necessary, at some point after an initial discussion on the request, the APM may ask the requester to provide medical documentation on their medical provider’s letterhead or on the FRA’s Reasonable Accommodation Medical Inquiry Form FRA F 263. See Section 8.h. below for a discussion on medical documentation requests. The interactive process includes a discussion of:

(1) The precise nature of the work-related limitation that is generating the request.

(2) How a disability may be causing the work-related limitation and prompting a need for an accommodation.

(3) How the requested accommodation will mitigate the limitation.

(4) If necessary, determining alternative accommodations that may be effective in meeting an individual’s needs.

g. Expediting Requests. In certain circumstances, a request for reasonable accommodation can be provided through an expedited process. This includes when the disability is obvious or already known, if it is clear why a reasonable accommodation is needed, and/or the accommodation is simple and can be provided without delay. FRA also expedites requests when a reasonable accommodation is needed to enable:

(1) An applicant to apply for a job. Depending on the timetable for receiving applications, conducting interviews, taking tests, and making hiring decisions, there may be a need to expedite a request for reasonable accommodation to ensure that an applicant with a disability has an equal opportunity to apply for a job.

(2) An employee to attend a meeting scheduled to occur soon. For example, an employee may need a sign language interpreter for a meeting scheduled to take place in three (3) days.

h. Medical Information Requests. When the medical impairment(s) or disability necessitating a reasonable accommodation is not obvious, or when the decision maker needs more information to determine what would be an effective reasonable accommodation, it may be necessary for the APM to request medical information documenting the individual’s functional limitations.

(1) Only the APM or their designee may request medical information. Supervisors or other DMOs must not request or review medical information. If a requester directly transmits medical documentation to their supervisor or another official, the receiving official should not review (to the extent possible) or keep the medical documentation and must send it directly to the APM for appropriate storage and processing. If transmitted by email, medical documentation should be password protected before sending.

(2) In formulating the request for medical information, the APM should consult with the decision maker regarding the information needed to identify an effective reasonable accommodation. The medical documentation request will seek information such as:

(a) Nature, severity, and duration of the impairment relevant to the request;

(b) One or more of the major life activities that the impairment limits;

(c) Extent or degree to which the impairment limits a major life activity;

(d) Explanation of how the impairment impacts the requester’s ability to perform the essential functions of their job; in other words, how does the impairment show up at work and in the roles and responsibilities of that position: and

(e) Explanation as to how an accommodation will help an individual apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of the workplace.

(3) Requesters may provide medical documentation on their medical provider’s letterhead or use the Reasonable Accommodation Medical Inquiry Form, FRA F

263. Using the form is highly encouraged to ensure thoroughness and to avoid the need for further inquiries.

(4) Once the medical information is received, the APM should determine whether there is a disability and, if so, consult with the decision maker to review the individual’s functional limitations, only to the extent necessary, for purposes of determining an effective reasonable accommodation. The APM must not directly share the medical documentation with the decision maker but should discuss the documented functional limitations with them to determine if there is an effective accommodation. The APM and decision maker may consult with the RAAP as necessary to assist in making these determinations.

(5) If necessary due to the complexity or insufficiency of the medical information, the APM can have the medical information provided reviewed by a medical expert or request additional medical information from the requester. The APM should consult with the decision maker and the RCC attorney assigned to the RAAP before using a medical expert or requesting additional medical information. When requesting more information, the request must:

(a) Explain the insufficiency;

(b) Identify the information and documentation needed;

(c) Place the individual on notice that failure to provide the identified documentation can result in denial of the accommodation request; and

(d) Allow the individual the opportunity to provide the identified information and documentation.

(6) All medical information must be maintained by the APM in accordance with the “Confidentiality” requirements of this Order (see Section 12 below) and guidance in Section 15, on “Information and Reports.”

i. Providing Interim Accommodations. In situations where there is a delay in providing an approved reasonable accommodation, the decision maker must consider whether an interim accommodation can be provided while waiting for the approved accommodation to be implemented.

(1) Any accommodation offered on this basis must be presented to the employee with an explanation, in writing, of the provisional nature of the solution and the anticipated date of the more permanent accommodation. FRA should provide an interim accommodation that allows the individual to successfully perform some or all the essential job functions unless an undue hardship would result.

(2) If the request contains both a simple item and a complex item, FRA should provide the easier part of the request prior to fulfilling the more complicated part. For example, an employee with limited dexterity may need both a simple trackball and complex computer-related accommodations, such as speech-recognition software.

(3) Easily obtained items and services that are necessary (such as a trackball) to enhance productivity and effectiveness should be provided to the employee as soon as reasonably possible outside of the reasonable accommodation process and should not be delayed. Those requests should still be thoroughly documented, including documenting that:

(a) A request for an item was made,

(b) No medical documentation was requested,

(c) No disability determination was made, and

(d) The item requested was provided.

j. Granting Requests for Reasonable Accommodation: The decision maker should communicate a decision to grant a reasonable accommodation to the individual, in writing, as soon as practicable and within timeframes contained in Section 9, “Timeframes” below. The decision to grant a reasonable accommodation request must be provided in an accessible format when needed. The decision to grant a request is made after consultation with the APM (and RAAP, when applicable). If an accommodation is granted, but cannot be provided immediately, the decision maker or APM must provide a projected timeframe for providing the accommodation and may use the interactive process to determine what, if any, interim accommodations may be put in place.

(1) Ultimately, it is the judgment of the decision maker to grant or deny a requested accommodation. However, before granting or denying a request, the decision maker must consult with the APM and RAAP as necessary. All decisions to deny requests must be reviewed by RCC.

(2) Over time, the effectiveness of a granted accommodation may decrease due to circumstances such as software updates or the progressive nature of the individual’s disability. Employees may request that their accommodation(s) be reviewed and updated. A request for review and update must be treated as a new request for reasonable accommodation, adhering to the 25-business day timeframe, and reporting requirement.

k. Ongoing or Repeated Services as an Accommodation. FRA employees are strongly encouraged to use the DRC for accommodations that an employee may need on a repeated basis, such as sign language interpreting, captioning, readers, sighted guide services, Personal Assistance Services (PAS), and other services as appropriate.

(1) Individuals with disabilities should not be required to submit a new request each time they need an approved accommodation on a repeated basis. Rather, once the initial request is made and granted, the individual can continue to access that service until the accommodation is no longer effective, the accommodation ends (if it was temporarily granted), or it becomes an undue hardship.

(2) To continue to access ongoing or repeated services, the individual will need to submit their initial request to the APM. The APM will then collaborate with the DRC to ensure the sustained provision of necessary accommodations.

(3) It is important for the employee needing these services, their supervisor or DMO, or the APM, to contact the DRC with the request, and to refer to the DRC website and the DRC Disability Services Handbook for more details.

l. Denying Requests for Reasonable Accommodation. When a decision maker denies a request for a reasonable accommodation, the decision must be in writing and in an accessible format and specify the reason(s) for denying the request. The decision maker must request and receive written guidance from the APM and RCC before denying a reasonable accommodation.

(1) The written notice of denial must:

(a) Inform the requesting party that they have the right to request reconsideration of the decision, to file an EEO complaint, and may have rights under administrative or union grievance procedures.

(b) Provide instructions on how to request reconsideration and to whom the request should be submitted. See below Section 8.p. for more information on requesting reconsideration.

(c) Provide instructions on how to file an EEO complaint and explain, pursuant to 29 CFR § 1614.105, the right to file a complaint will be forfeited unless the requesting party initiates contact with an EEO Counselor within 45 days of the denial.

(d) Explain FRA’s procedures for alternative dispute resolution. The written notice should make clear, however, that a request for reconsideration or participation in an alternative dispute resolution process may not affect the time limits for initiating statutory and collective bargaining claims nor satisfy the requirements for bringing a claim under EEO, Merit Systems Protection Board (MSPB), or union grievance procedures.

(2) Reasons for denying a request can include, but are not limited to:

(a) Medical documentation provided by a job applicant or employee is inadequate and the individual failed to provide additional medical evidence to establish that the individual meets the definition of having a disability and needs a reasonable accommodation.

(b) The requester fails to participate in the interactive process, including refusing to answer questions pertaining to the need for an accommodation and/or failing to provide requested medical documentation to establish that the individual has a disability and needs a reasonable accommodation.

(c) Requested accommodation would require the removal of an essential job function.4

(d) Requested accommodation would require the lowering of a performance or production standard.

(e) Requested accommodation would be in violation of the terms and conditions of a collective bargaining agreement.

(f) Requested accommodation would pose an undue hardship. See special considerations for determining an undue hardship below in Subsection 8.l.(4).

(3) Absent extenuating circumstances, the decision maker must give the requesting party the written denial decision within 25 business days of the date the request was made.

(4) Before reaching an undue hardship determination, the decision maker must have explored whether other effective reasonable accommodations exist that would not impose an undue hardship. In order to deny an accommodation request on the basis of undue hardship, the decision maker must have: (1) written assurances from the APM that the applicable offices (i.e., OCR, HR, Chief Financial Officer, and RCC) have reviewed and concurred with the decision to deny a request based upon undue hardship and (2) approval from the Secretary of Transportation, or their designee. In the event FRA would want to assert an undue hardship defense, the APM and RCC attorney assigned must contact the Office of the General Counsel and Departmental Office of Civil Rights to discuss the merits of the decision before requesting the Secretary’s determination.

m. Granting an Alternative Accommodation. If an alternative accommodation is granted instead of the requested accommodation, the decision should be communicated in writing as soon as possible and within the timeframes discussed in Section 9 below. Before granting an alternative accommodation, the decision maker must have received written guidance from the APM and legal counsel from RCC. When an alternative accommodation is provided, the requester has the same reconsideration rights as if the request had been denied. The written notice of the decision to provide an alternative

4 Under the PWFA, if an employee with limitations related to pregnancy, childbirth, or related medical conditions cannot perform all essential job functions even with reasonable accommodation, the employee can be qualified for accommodations if: (a) the inability to perform an essential job function is for a temporary period; (b) the essential job function(s) could be performed in the near future; and (c) the inability to perform the essential function(s) can be reasonably accommodated. 29 C.F.R. § 1636(g).

accommodation should specify the reason(s) why the specifically requested accommodation was not provided, and why the decision maker believes that the alternative accommodation granted is an effective reasonable accommodation. The notice must also provide the same reconsideration and information detailed in Subsection 8.l.(1), "Denying Requests for Reasonable Accommodation" above.

n. Reassignment as a Reasonable Accommodation. When an employee with a disability is no longer able to perform the essential functions of the job and all other reasonable accommodation options have been exhausted, the employee must be considered for reassignment to a vacant, funded, equivalent position for which the employee is qualified.

Reassignment is, therefore, the accommodation of last resort. If considering reassignment as a reasonable accommodation, decision makers should always contact the APM for assistance. The APM should document all previously provided and/or considered accommodations along with a description of how or why they were not successful. Other reassignment considerations include:

(1) In accordance with DOT reassignment policy, the decision maker should work with the APM and HR staffing personnel to identify equivalent vacant funded positions for which the employee may be qualified, with or without reasonable accommodation. FRA will first search FRA positions, then all of DOT, if no FRA positions exist. Positions which HR has reason to believe will become vacant within 60 days from the date the search is initiated, and for which the employee may be qualified, also must be considered.

(2) The reassignment search should focus on positions that are equivalent to the current job in terms of pay, grade, promotion potential, status, benefits, geographical location, and other relevant factors. However, if the employee is willing to accept a lower-graded position, or a position outside of their current geographical location, for which they are qualified, these should be considered.

(3) The employee must provide a current resume and be given an opportunity to state the parameters for considering a reassignment, such as geographical locations and their willingness to accept a position outside of their current OA or at a lower grade level.

(4) If an equivalent position is found for which the employee is minimally qualified (per analysis by an HR Staffing Specialist) and the employee can perform the essential functions, with or without reasonable accommodation, the employee must be offered that position. The employee cannot be required to compete for that position. FRA does not pay relocation expenses.

(5) The FRA/AFGE Local 2814 bargaining agreement contains provisions that can affect how certain vacant positions are filled. Therefore, when considering a reassignment, the APM should consult with FRA’s Labor Relations Officer to ensure labor management obligations are met.

o. Personal Assistance Services (PAS) at Work and on Official Travel. In accordance with 29 C.F.R. § 1614.203(d)(5)(i) and 41 C.F.R. § 301.13.3, FRA must provide to an employee with a targeted disability PAS, i.e., services that assist employees with their activities of daily living, during work hours, and on job-related travel, if the provision of such services, coupled with any reasonable accommodation, would enable the employee to perform the essential functions of their position, and the PAS would not impose an undue hardship.

p. Requests for Reconsideration. Applicants and employees have the right to request reconsideration of a decision made on their request for accommodation. A request for reconsideration must be made in writing within 10 business days from receipt of the initial decision and typically will be made to the next person in the chain of command or other DMO (who should be chosen by the APM and the employee’s Associate Administrator). The second-line supervisor or DMO will seek assistance from the APM, OCR, HR, and RCC attorney before responding to a request for reconsideration. A decision on a request for reconsideration must be in writing and normally made within 15 calendar days of receipt of the request.

q. Alternative Dispute Resolution. While some disputes arising out of a denial of a request can escalate into formal administrative and legal forums, FRA decision makers and employees are encouraged to use Alternative Dispute Resolution (ADR) or other appropriate mechanisms to resolve the disputes at the lowest possible level. Decision makers and employees are encouraged to resolve disagreements and disputes informally whenever possible and regardless of whether the person has filed an EEO complaint. An FRA employee must be able to access the informal dispute resolution process without having to contact an EEO Counselor or file an EEO complaint. The informal dispute resolution process must be in addition to, and must not modify or replace, the EEO complaint process. Participation in an informal dispute resolution process does not extend the 45-day time limit for contacting the FRA OCR or EEO counselor to file an EEO complaint.

r. Other Appeal Options. Individuals may choose to pursue statutory or collective bargaining remedies for denial of reasonable accommodations.

(1) For an EEO complaint. Individuals must contact the FRA OCR or an OCR EEO counselor 45 calendar days from the date of the date of the initial decision on the accommodation request, or in the case of a personnel action, 45 calendar days of the effective date of the action.

(2) For a collective bargaining claim. Individuals must file a written grievance in accordance with the provisions of the Collective Bargaining Agreement between FRA and American Federation of Government Employees, Local 2814.

(3) For adverse actions over which the MSPB has jurisdiction. Individuals must initiate an appeal to the MSPB within 30 days of the appealable adverse action as defined in 5 C.F.R. § 1201.3. If the individual and the agency mutually agree in writing to submit the dispute to an ADR process, the 30-day filing time limit is automatically extended to 60 days.

9. TIMEFRAMES.

a. Absent extenuating circumstances, FRA must provide the requesting party a decision and accommodation within 25 business days.

b. The time limit begins to run when the accommodation is first requested. 29 C.F.R. § 1614.203(d)(3)(i)(M).

c. The amount of time it takes to respond to a request for reasonable accommodation will often depend on the nature of the accommodation. When a particular accommodation can be provided in less than the maximum amount of time, or 25 business days, the accommodation must be provided as soon as possible.

d. The 25-business day period may be extended where “extenuating circumstances” exist.

Extenuating circumstances related to allowable delays are situations that could not reasonably have been anticipated or avoided or are beyond FRA’s ability to control.

(1) The following are examples of extenuating circumstances:

(a) Outstanding initial or follow-up request(s) for medical information (e.g., if an individual’s health professional fails to provide needed documentation in a timely manner).

(b) Longer timeframe to purchase equipment because of Federal Acquisition Regulation requirements.

(c) Backordered equipment or other vendor-related delays that are not within the control of FRA.

(d) An employee with a disability needs to work with equipment on a trial basis to ensure that it is effective before it is purchased.

(e) Union negotiation is required.

e. When tolling or an extension is required, the APM or decision maker must notify the requesting individual in writing of the reason for the delay and the approximate date on which a decision or the provision of the reasonable accommodation is expected.

Additional developments should also be communicated promptly to the individual in writing. As appropriate, when there are extenuating circumstances, interim accommodations should be considered.

f. Failure to provide an accommodation within 25 business days may violate the Rehabilitation Act. 29 C.F.R. § 1614.203(d)(3)(i)(O).

g. Where an accommodation is needed sooner than the maximum allowable time frame, individuals may request expedited processing. This may be necessary where the accommodation is needed to enable an individual to apply for a job or for a specific agency activity scheduled to occur shortly.

10. ACCOMMODATIONS DURING FRA-CONDUCTED PROGRAMS AND

ACTIVITIES. When announcing an event or meeting, program offices must include an accessibility statement explaining how individuals with disabilities may request a reasonable accommodation or program modification. Please refer to the DRC Disability Services Handbook for appropriate statements that may be used in event announcements and for events or programs where invitees are required to register.

11. LABOR RELATION OBLIGATIONS. If an employee requesting an accommodation is a member of the bargaining unit, the APM and decision maker may also contact FRA’s Employee & Labor Relations staff to determine what, if any, labor relations obligations must be met prior to implementing or denying a reasonable accommodation for the requesting employee.

12. CONFIDENTIALITY. All aspects of the reasonable accommodation process must be kept confidential. This includes the initial request, the decision, disability, and any medical information that is obtained during the process. Supervisors and other DMOs should be particularly careful not to inadvertently disclose any information about the request or the requesting individual’s medical information. There are a few exceptions to the confidentiality of the reasonable accommodation process:

a. Information about necessary accommodations and work restrictions can be provided to decision makers, including supervisors, managers, disability or medical advisors, or adaptive equipment vendors who need to know.

b. Information about a person’s functional limitations can be disclosed to first aid and safety personnel if it is relevant during an emergency.

c. Investigatory information can be disclosed to government officials conducting compliance activities under the Rehabilitation Act, as amended.

d. Under limited circumstances, information can be disclosed to Workers Compensation Offices or insurance carriers. See 29 C.F.R. Part 1630, Appendix Section 1630.16(f).

e. HR, OCR, RCC, or other personnel dealing with EEO…