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It is the policy of the State of Maine to provide reasonable accommodations in the event that an employee is disabled or becomes disabled and can no longer perform the duties of his or her position. If reasonable accommodations cannot be made within the employee's current position, the Americans With Disabilities Act (ADA) requires the employer to explore reassignment to a vacant position for which the employee is qualified with or without reasonable accommodation. Agencies must first explore transfer and then demotion options for disabled employees who can no longer successfully perform their current jobs with or without reasonable accommodation.
The transfer or demotion of a disabled employee that is necessary to provide a reasonable accommodation for continued employment must be given priority over other means to fill available vacant positions, unless the reassignment would cause an undue hardship on the agency.
A position is available if it is currently vacant, approved to be filled, and there are no employees with a contractual right to the position.
Demotion to a position in a lower pay grade is appropriate only if there are no accommodations that would enable the employee to remain in a position in the same pay grade, or if both the agency and the employee agree that demotion is the most appropriate accommodation.
There is no obligation to promote an employee as a reasonable accommodation under the ADA. The transfer/demotion provisions of this policy do not apply to applicants for employment but are applicable only to employees currently holding or having rights to positions in State government.
Employees who are Injured on the Job.
Whether an employee who is injured on the job is protected by the ADA will depend on whether the employee meets the statutory definition of "individual with a disability".
Not every employee injured on the job will meet the ADA definition. Work related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Also, many on-the-job injuries do not cause chronic impairments.
When, after maximum medical improvement has been reached, an impairment exists that substantially limits a major life activity, the employee meets the definition of an individual with a disability under the ADA and therefore the protections of the ADA must be provided to the employee.
Disability - A physical or mental impairment that substantially limits one or more of the major life activities of an individual, OR a record of such impairment, OR being regarded as having such impairment.
Physical or Mental Impairment - Any physiological, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems; neurological, musculoskeletal, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine, OR any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Major Life Activities - Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Qualified Individual with a Disability - Any disabled individual who can perform the essential functions of a position with or without reasonable accommodation.
Reasonable Accommodation - Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. It is unlawful not to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless it can demonstrated that the accommodation would impose an undue hardship on the operation of the organization. Reasonable accommodations may take such forms as:
Essential Job Functions - The fundamental job duties of the position. A job function may be considered an essential job function if employees in the position must perform the function and: 1) the position exists to perform that function, or 2) the function is essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or 3) the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the function.
Undue Hardship - Significant difficulty or expense in, or resulting from, the provision of an accommodation. The determination of "undue hardship" takes into consideration anything that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature of the operation of the business.
Qualification Standards - The personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements that an individual must meet in order to be eligible for the position held.
Each agency must first attempt to make reasonable accommodations to the employee's current position that will enable the employee t successfully perform the essential job functions of the position. If such reasonable accommodation is not possible, or if both the employee and the agency agree that reassignment to another position is a more appropriate accommodation than accommodation in the current job, then the following provisions apply:
1. The agency must attempt to place the employee in an equivalent vacant position that the employee can perform, with or without reasonable accommodations, provided one is available within the agency. An equivalent position is a position with similar pay, status, promotional opportunities, and other conditions of employment but not necessarily in the same job classification to which the employee is currently assigned.
The agency may nominate such employee without testing, provided that the employee meets the established minimum qualifications for the classification.
2. An agency may demote an employee to a lower graded available position: 1) if there are no accommodations that would enable the employee to remain in the current position and there are no equivalent positions available for which the individual is qualified with or without reasonable accommodation, or 2) if both the agency and the employee agree that demotion is the most appropriate accommodation. In the event that an employee demotes to another position, standard salary policies regarding demotions will apply.
The agency may nominate such employee without testing, provided that the employee meets the established minimum qualifications for the classification.
3. If demotion is being considered as a reasonable accommodation for a disability, or if no accommodation is available within the agency, the agency must inform the employee of his/her right to access existing vacancies in other agencies. If the employee selects this option, the agency must refer the employee to the Bureau of Human Resources where the employee will be assisted in identifying other transfer and demotion opportunities in State for which they qualify. Normal transfer and demotion testing procedures will be followed.
Agencies will be required to consider all such employees immediately after recalls from layoff and agency promotional candidates. No candidates other than recall or agency promotional may be hired by an agency until disabled employees seeking transfer from other agencies as a reasonable accommodation have been considered. A disabled employee is qualified and must be hired if the employee is qualified to perform the essential functions of the position with or without reasonable accommodation.
Employees with a Disability who are Affected by Layoff
Employees with a disability who are affected by layoff may have options to bump or be recalled into other positions, either under collective bargaining agreements or under Civil Service Rule. The requirements of the ADA to determine the essential functions of a position and to make reasonable accommodations for employees with a disability must be applied to bumping and recall situations.
If the employee is qualified to perform the work of a position but for his/her disability and reasonable accommodations cannot be made, the reassignment provisions of this policy apply.
Transitional Status
The ADA requires the search of positions that are available at the time that it becomes evident that transfer must be explored as a reasonable accommodation. Recognizing that this search may take some time to complete, employees will be allowed to use accrued sick, vacation, and/or compensatory time to cover any time period that may elapse between the determination that the employee cannot continue to perform the duties of his/her present position and the time that the employee is reassigned or terminated in the event that reassignment cannot be made.
Procedures
These procedures are specifically for the reassignment provision. Refer to your agency's Reasonable Accommodation Policy and Procedures for more detailed guidance on providing accommodations within a given position.
The potential for reassignment as a reasonable accommodation begins when a request for accommodation is made in accordance with established procedures, but may be considered only when no reasonable accommodation can be made in the current position.
1. Requests for accommodation can be initiated by the employee needing accommodation, the supervisor/manager, the Affirmative Action Officer, the Disability Employment Services Coordinator in the Bureau of Human Resources or agency or State Workers Compensation staff. Requests can be made at anytime. NOTE: If the employee has been placed through the Supported Employment/Special Appointment Program, the Disability Employment Services Coordinator must be notified. Under the State's Reasonable Accommodation Policy and Procedures, agency Affirmative Action Officers must be notified of all requests for accommodation for a disability. The State Affirmative Action Coordinator is also available for technical assistance in the reasonable accommodation search/documentation process.
2. All requests for accommodation and efforts to provide accommodation must be documented. It is recommended that medical documentation of the employee's limitations and need for accommodation be required. Accommodations must be explored in the following order: 1) Accommodation within the existing job; 2) Reassignment to a job of similar pay and status; 3) Demotion. Full documentation must provided concerning efforts to make reasonable accommodation in accordance with this policy, including reasons for bypassing reassignment to a position of similar pay and status.
3. If the employee is transferred or demoted, the agency must submit a statement that the action is taken in accordance with this policy to the Bureau of Human Resources when the transaction is entered on MFASIS. This statement will serve as authorization for the reassignment and will serve as notice to the Bureau that such an accommodation has been made.
4. Whenever a reasonable accommodation cannot be made within the employing agency, or whenever the only accommodation available within the agency is demotion, the employee must be informed of his/her right to access existing vacancies in other agencies and referred to the Bureau of Human Resources.
5. The Bureau will review all such referrals and the agency's accommodation documentation to ensure that more favorable accommodations cannot be made for the employee withn the agency.
A complete understanding of essential job function, reasonable accommodation, and undue hardship is necessary to properly administer the provisions of this policy.
Additionally, agencies may need technical assistance when it is necessary to explore the need for reasonable accommodation that may or may not include reassignment. Technical assistance is available from the following:
Laurel Shippee, State AA Coordinator - 287-4425
Valerie Savage, Disability Employment Services Coordinator - 287-4350
Workers' Compensation Division Staff - 287-4441